Michael McDowell (Independent)

The Minister has proposed in section 8 that there should be a provision which deals slightly with the circumstances we are discussing here but it is inadequate. There is not much point in waiting until section 8 is reached to point out that it is no answer to the points that have been raised by Senators. It proposes to extend the defence of qualified privilege to situations where the defendant inquires as to whether:

the person whom the statement concerned had—

(I) paid for goods or services,

(II) obtained services, or

(III) [had] in his or her possession—

(A) goods,

(B) proof of payment for goods, or

(C) proof of payment for services,

or

(ii) a statement that the means of payment proffered by the person whom the statement concerned was unable to be, or not capable of being, accepted [in other words, a payment card did not work], and

(b) was not published excessively.

However, it does not deal with real situations in the shops that we are dealing with here. It does not really deal with the shopkeeper whose store detective is saying that something has not been paid for. That is not an inquiry; it is a statement. It does not deal with situations where the owner of a shop of the kind referred to by Senator Fitzpatrick gets into an argument or discussion with a customer as to whether he or she is loitering around to assist somebody else to shoplift.It does not deal with those kinds of situations at all. It purely states:

(i) an inquiry as to whether the person whom the statement concerned had— (I) paid for goods or services,

(II) obtained services, or

(III) in his or her possession—

(A) goods,

(B) proof of payment for goods, or

(C) proof of payment for services,

That attracts the defence of qualified privilege. It does not deal with the real cut and thrust of what is likely to happen in the shop where the person at the checkout says, "The goods in your bag haven't been paid for." That is not an inquiry; it is a statement. Qualified privilege is not enough. Qualified privilege is a defence that has to be raised.

The benefit of a seriousness test is that from the very beginning the case will fail if it is not serious. It does not require defence witnesses to come to court and say they believed this or that. The seriousness issue goes back to the remark in a pub, "You're always taking rounds from others and you never buy one yourself - you're a mean git" or words of that kind. Those can be seen as defamatory statements but they are not serious. That is the point I am making. Is the Minister being advised by the Attorney General that the seriousness test that exists in the United Kingdom, Canada, Australia and other countries would be unconstitutional here or are the Department and the Minister choosing to keep our law frozen in the way it is at the moment? Is there some legal reason that seriousness should not be incorporated into defamation or is it a policy decision? That is the point that worries me. If the Attorney General is saying we cannot introduce seriousness, that is one thing. I would like that to be confirmed. However, if it is a policy decision that unserious defamation is to remain actionable, is that a policy decision being made in this legislation?

Many people in this House have been lobbied on the point about defending one's property. I welcome such lobbying by RGDATA and other trader organisations to amend this legislation to protect retailers more. The amendments on the seriousness threshold have been grouped together for debate here. I have not objected to that because I did not want to be accused of filibustering. The seriousness test is a separate issue. I want to hear somebody say either that it is constitutionally infirm to introduce a seriousness test because of the constitutional guarantee for the good name of the citizen or alternatively that a policy decision has been made that, unlike in Northern Ireland, England, Wales and the other common law jurisdictions mentioned earlier in the debate, it should not be done here as a matter of choice. I would like to hear the rationale for saying that a seriousness test, either as a matter of policy or as a matter of law, is unacceptable and that Irish defamation law should not have it.

Let us forget about retailers for a second. In any context if someone gets a solicitor's letter saying that a statement that was made was defamatory, at the very least they are entitled to get their solicitor to say in response, "This is not serious. It is trivial. Forget it." Someone can go and sue if they like but the costs will be awarded against them because even though they can make the case that it is defamatory in principle, it is not defamatory to a sufficient extent to constitute a serious defamation. That is the point I am making.

The qualified privilege proposals in section 8 of the Bill do not deal with many of the situations that happen on the ground. They do not deal with the whole seriousness dimension at all.