Michael McDowell (Independent)

I move amendment No. 5:

In page 7, between lines 14 and 15, to insert the following:

“PART 4

DEFAMATORY STATEMENT

6. Section 2 of the principal Act is hereby amended by the substitution of the following for the definition of “defamatory statement” appearing in that section:

“ ‘defamatory statement’ means a statement that tends to cause harm both to a serious and to a lasting extent in the eyes of reasonable members of society, and ‘defamatory’ and ‘serious harm’ shall be construed accordingly.”.

This is an important amendment and I want to put it in context. The Minister is proposing to amend the law in relation to defamations of bodies corporate, in other words, companies and associations and bodies of that kind. If the House looks at page 7 of the Bill as passed by the Dáil, the House will see that section 6 of the Minister's Bill proposes to insert a section 12 in the principal Act. Section 12(2) of the proposed section provides that, "A statement concerning a body corporate that is made on or after ... the coming into operation of section 6 of the Defamation (Amendment) Act 2025 is not defamatory unless its publication has caused, or is likely to cause, serious harm to the reputation of the body corporate." In other words, a test is being laid down for companies that it has to be serious harm. That does not apply, as the law currently stands, to defamations of people who are not companies. To take an example, if somebody says "You are nothing but a thief" in a pub at night or whatever, that is defamatory, and it is actionable in the case of an individual, as things stand, regardless of whether it cause serious damage to the reputation of the person concerned. In Britain, certainly in England and Wales - I am not sure about Scotland and Northern Ireland - there is a serious harm test for all defamation.One cannot sue because a defamatory remark is made without regard to whether it is seriously defamatory in the case of an individual. The Minister has made the correct distinction, in my view, in regard to companies. There has to be serious defamation for a company.

If we are going to have a two-tier gravity test from now on, it means that accusations or statements which do not meet the serious threshold for a company but which are made in respect of an individual are to be actionable. I gave the example of a person who is in a pub when somebody says, "You are nothing but a thief" or something like that. There are also much more practical cases than that. One would imagine that somebody about whom a remark of that kind was made in a pub would be told, if they went to their solicitor the next day, to cop on, only three people heard the remark and none are likely to believe it anyway.

I will outline for the Minister an example of where this would have effect. If somebody is stopped in a shop by a member of staff or store detective and that person says, "Excuse me, can I look in the bag? You may not have paid for X or whatever," is that a serious defamation if it turns out that the bag is, in fact, empty, there is a receipt in it or whatever? Are we saying that is actionable, per se, as a defamation?

I do not have to give graphic examples. We have a bad enough set of circumstances for retailers in urban areas, not just in Dublin, who are under siege in their own premises defending their own stock. Asking somebody to stop so that someone can look at their bags or ask them to produce receipts, or cases where a store detective or a man or woman behind a till asks someone about something in their bag and whether they have paid for it, are necessary remarks in order to defend the integrity and commercial viability of shops. People who are in trade are entitled to have those things said on their behalf without being sued.

Sometimes ridiculous things happen. When security tags go off when one is leaving a shop and suddenly one is embarrassed by that event, it could be said to be defamatory. It is embarrassing, but it is not worth suing over. That is the point I am making. It is certainly not worth giving a basis to initiate an action to a person who can claim that an ostensibly defamatory statement was made regarding them which is not serious. However, from the point of view of the shopkeeper or the person conducting the business, if they receive a solicitor's letter and a Circuit Court civil bill, it is a disaster. The owner has to go to a solicitor, reply to the correspondence and probably come up with an offer to try to buy it off. They have to come up with a bill for their own costs and for the costs of the alleged injured parties.

An absolutely trivial incident can easily give rise to €20,000 or €30,000 worth of expenditure before you ever get to court and have the good luck to employ a barrister and be liable for the barrister on the other side. Even to fend off or settle an action costs serious money. In this amendment we are saying it has to be a serious defamation. If it has to be serious in the eyes of the Minister for a company to sue, why should it not be equally serious for an individual to sue?

I do not know where the Minister got the idea that in respect of bodies corporate, a seriousness test was to be brought in as applies in the United Kingdom. It is a reasonable thing to do. However, a lower test applies to a personal litigant who has been, arguably, defamed in a fairly minor manner in an incident which is bound to take place fairly frequently. I am sure the Minister is well aware of the dampening effect this has on the capacity of retailers to intervene. Unless a retailer is 100% certain that there is shoplifting going on, they are hamstrung as to what they can and cannot do.

On one occasion, I went to a petrol station in Rathmines and attempted to pay using the card system on the pump. I thought I had paid, but I received a phone call from Rathmines Garda station alleging that I had driven off without paying. It was a bit ridiculous. When I went back to the petrol station to pay, there was a large notice on the pump stating it was defective and the card system was not working. That was a small incident, but I had to suck it up. It was embarrassing that the gardaí had been notified. I will have to ask the Minister about this, but I assume I have been on the PULSE system ever since that incident took place. Those kinds of things actually happen. That happened to me. The idea that I could, in similar circumstances, start sending a solicitor's letter to the proprietor of the Circle K petrol station at Grosvenor Road and demand this, that and the other by way of apologies is nonsense.

Protecting one's good name, which is a constitutional right, does not involve threatening people who are trying to protect their business interests from what are minor matters. The real question is this: why it is right that the seriousness test that applies in all defamation in the United Kingdom will only to apply to corporate plaintiffs in Ireland? Why is it right that unserious or claims lesser than the serious threshold can be brought without any risk to the person making the claim, at very considerable risk to the person against whom the claim is made of legal costs, the cost of settling and buying off a claim and all of that? Why is this two-tier system for seriousness being put in place in the same statute?

I will be glad to hear from the Minister why it is considered the case that a company can only sue for what is called a serious defamation but a private citizen can sue for something which would not amount to a serious defamation. This is not a notional lawyer's argument that is happening here.This is to try to stand beside decent people trying to earn a decent living and trying to conduct a decent commercial activity who find themselves powerless and frightened to intervene in some cases, and told by their lawyers to give the man or woman €5,000 and his or her solicitor €2,500 for their costs just for receipt of a letter. That is the kind of thing we are up against here. I can see nothing wrong with saying that defamation has to be serious in every case, personal or corporate.

It may be said that the Constitution talks about the good name of the citizen, and it does not talk about the good name of the company. That is true, but the Constitution, if you look at the directive principles of social policy, does favour private enterprise. It does favour people who are trying to make a living. It certainly does not mean that nuisance actions, and nuisance and trivial claims are to be protected on this differential scale of seriousness. If you are running a retail premises in the centre of the city of Dublin or any other city, and you really do consider you want to intervene and challenge somebody who you think is in the business of taking your property without paying for it, you should not be operating on the basis that if that person proves to have a receipt and sends you a solicitor's letter, the incident will cost you €5,000, €10,000 or €15,000 for something comparatively minor like that. I ask the Minister to accept this amendment. The amendment proposes to amend the entire definition of defamatory statement in the principal Act and to say that a defamatory statement must be one "that tends to cause harm both to a serious and to a lasting extent in the eyes of reasonable members of society". An incident in a shop does not normally fall into that category. The lasting effect in the eyes of reasonable members of society simply is not there. It is a momentary embarrassment perhaps. It is something over in ten or 15 seconds, or maybe two or three minutes at the outside. It is not worthy of defamation, and it is a waste of the court's time to consider such claims. Try-on defamation actions, which are designed to extract settlements from retailers, would be deterred if this amendment were accepted. I would like to hear the Minister in response.