Sharon Keogan (Independent)

I speak to my first sole amendment, which is amendment No. 8. This Bill comes to the Chamber with a number of stated purposes, but they are best summarised in plain English as making defamation law fairer and more efficient. This is driven by the fact that there is simply too much defamation litigation in Ireland. I do not believe anyone in government or opposition will contest this. This purpose carries the acknowledgement that defamation law, as it is in Ireland, is not really fair or efficient and this is to be rectified by this Bill. However, there is a big gap between the intent and purpose of the Bill and what it will achieve. It is my belief, and that of many in this Chamber and of far too many in civil society organisations, that it will achieve very little. There are a number of international best practices in defamation law, and the best of them at present in either current Irish law, or they are barely present in this Bill. To this end, I bring forward a number of amendments, which I hope will correct this.

The first is to introduce a serious harm test for individuals who seek to bring a defamation case to court. We are perhaps the only common law country on Earth that does not impose tests, either serious harm or malicious intent in the case of the United States on plaintiffs. This desperately needs to change. This is not a theoretical debate. Ireland does not exist in a legal vacuum, and the law does not exist in a vacuum from society. We can look at how laws differ in other nations and how those laws impact their societies. We can compare them with our own laws and our society. I, and many others, believe it is evident that defamation is out of control in this country. If the statistics and estimates are to be believed, we have twice as many defamation cases in our nation as in England and Wales. That is not per person. That is in total. Let that sink in. We have twice as many cases as a state that has more than ten times our population. We need to think of how that impacts the workload of our courts, which we all know are facing enormous backlogs in cases both criminal and civil. We need to reduce this backlog where we can, and here we have severely outdated defamation laws, whose antiquatedness is a cause of the caseload. Still, we are not putting in the necessary updates. A serious harm test is not curtailing of people's rights to their reputation. Would we say people lack this right in England, Canada or Australia? No, we would not, so why would we curtail it here in this Republic? This amendment and my others, which I will get to in time, are about rebalancing these rights in favour of the right to free expression and the right to speak and inquire in the public interest. By extension, it is about ensuring that within free public discourse we are able to achieve the end of holding one another to account without fear of grievous repercussions.

We had a heated discussion in this Chamber a few months ago, which I would like to address respectfully as it is relevant to my argument. I asked if there was any conflict of interest. I acknowledge that I used strong language in asking it, that it reflected fairly neither the Minister's character nor the nature of my concern and I would like to apologise, for the record, about the offence caused. I hold the Minister and his integrity in high esteem as a person, as a professional and as a politician. I have praised his appointment and welcomed his appointment in this Chamber many times. I hope I am not going to jinx him, but I look forward to seeing him as leader of Fianna Fáil in the near future.

However, I am still a member of the Opposition. While I would not question the Minister's integrity, and have seen nothing that would indicate improper conduct on his part, it is my duty as a public representative to act in the public interest and to put his judgment into question, which is the real essence of my concern, although I acknowledge I must do it in better and more precise language. As a Senator for the industrial and commercial panel, I have received serious outreach from people and their civil society representatives, as well as from society more broadly, especially the press. Almost all of them tell me that this Bill, as it stands, will effectively change nothing. When the system is broken, the status quo means things will only get worse. While I acknowledge the Minister did not draft the Bill, I am forced to ask why the Minister is standing over it. Why is he proceeding to push it through our Houses when it is clear we will be back here in a few years?

I initially intended to argue that his legal career left him with a tendency to overly concentrate on abstract legal principles, but last week I recall him putting forward the argument to my colleague Senator McDowell that we in the Oireachtas change laws because we can. I assume he acknowledges that laws and their principles are not perfect or inviable and require regular alteration for the common good.In fact, that is arguably the entire reason we are sitting here today in this elected Legislature.

On Second Stage, the Minister made good arguments in favour of the individual's right to a good name. He gave the important example of the Maurice McCabe case. Let me be clear in making the following point. As Members of the Opposition, we have potential whistleblowers coming to us on a regular basis. For every one who is protected by defamation laws, there are at least ten others who back out, keep their heads down and keep silent for fear of those same laws. This is what is meant when people say defamation law has a chilling effect on our nation's public discourse.

One can speak of the rights of the defamed but let me clear on another point. These rights do not exist de facto for the majority of our population. Defamation cases usually cost between €20,000 and €50,000 when taken to the Circuit Court and can fly high into six figures when taken to the High Court. The vast majority of our population do not have money in the five figures floating around in their back pocket. Free legal aid is granted for defamation cases only in extremely rare circumstances. For the vast majority of Irish people, their right to free expression is not balanced against their right to a good name because the former right is not effectively actionable. Indeed, many people have neither right. They can afford neither to accuse another person of defamation nor to be accused of it. I propose that we correct this by combating the suppressive and trivial defamation claims that are freezing free discourse in our society and acknowledging that the balance of rights is unbalanced and must be adjusted accordingly.

That brings me to the core of amendment No. 8 which I am proposing today. It seeks to introduce a serious harm threshold for individuals bringing defamation cases, mirroring the standard already proposed in the Bill for corporate bodies. It is a modest, proportionate and internationally recognised safeguard. It does not abolish the right to sue for defamation; it simply ensures the courts are not used to pursue trivial, vexatious or strategic claims that are not about restoring reputation but about silencing criticism. If we are serious about making defamation laws fairer and more efficient, as the Government claims it is, we must be willing to apply the same standard of seriousness to all plaintiffs, not just corporations. It is not credible to say that a small company must prove serious harm but a wealthy individual need not do so. That is not equality before the law. It is not fairness and it is not efficiency.

Amendment No. 8 is not radical, partisan or punitive. It is a practical reform that aligns with best practice in England, Wales, Australia and other common law jurisdictions. It is a reform that will help to reduce the burden on our courts, protect freedom of expression and ensure defamation law serves its true purpose to vindicate reputations that have been genuinely harmed, not to chill public discourse or intimidate critics. I urge the Minister and my colleagues in the House to consider the amendment in that spirit. Let us not miss this opportunity to make a meaningful change. Let us not pass a Bill that tinkers at the edges while leaving the core problem untouched. Let us pass a Bill we can be proud of, one that protects both the right to one's good name and the right to speak truth to power.