Jim O'Callaghan (Dublin Bay South, Fianna Fail)

I will try to answer Senator McDowell's and the other Senators' points quickly. Senator McDowell spoke about the serious harm test. However, I still do not know from listening to him what constitutes a serious defamation. He gave an example of someone saying in the presence of a person's wife that that person was a paedophile. On the Senator's reading, that would not be a serious defamation. As things stand at present, however, that is dealt with and provided for in the legal system. In order for someone to succeed in a defamation action, they have to call a person who heard it to say they heard what was said about the person and they believed it. They have to say they heard somebody accuse a person of being a paedophile and, when they heard it, they believed it. Obviously, that could not happen in that situation because the wife would not believe it so the person could not prove their case.

The Senator also referred to McDowell Butchers Limited and if someone said McDowell Butchers Limited sells rotten meat. If that does not affect the business of McDowell Butchers Limited, why should it have a claim? If it went on to reference the principle behind the business and say they were involved in this activity, they would have a personal claim, but unless the business suffered a financial loss, I do not see why it should have a defamation claim.

Senator McDowell spoke about the procedural applications. He thinks it will shorten procedure. I disagree. I think we will have a whole series of defamation preliminary applications as to whether serious harm is involved or not. I note what he said about online defamation. We will talk about it in due course, not today. However, the provision says that the court may award costs. There is nothing mandatory about it, and obviously the court will exercise that with discretion.

I listened to what Senators Fitzpatrick and Nelson Murray had to say. I asked Senator Fitzpatrick yesterday if she could find an example of where any entity is immune from legal suit. In fairness, I knew there was none. Regarding what Senator Fitzpatrick said about absolute privilege, at present what would happen if someone sued her for what she said in this Chamber is that they could issue proceedings against her. She would have to put in a defence pleading absolute privilege. She could then bring an application to go to court to get it struck out but she would still be in the court system. No one else has this protection that says they cannot have a claim brought against them. I will consider the matter. I think I will sit down now so the Senator may be able to get a vote in.