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

I thank all Senators for their contributions. We are considering three amendments that have been tabled. I propose to deal with each amendment in the order in which they were raised. I will start with what I refer to as Senator McDowell's amendment No. 5. In this amendment, Senator McDowell and his colleagues propose that we would go back to section 2 of the Act and redefine "defamatory statement". Senator McDowell makes the correct point that the Bill we are discussing introduces a rule in respect of a corporate plaintiff that requires it to have suffered serious harm in order for it to succeed in a defamation action. The first question Senator McDowell asked me was why we have this distinction that on the one hand a corporate plaintiff has to have sustained serious harm, namely, financial loss, while a personal plaintiff does not. However, it is also important to point out that the amendment tabled by Senator McDowell and his colleagues requires that the harm be to a serious and lasting extent.

I will start by trying to answer the first issue that Senator McDowell raised as to the reason for a different test for a corporate entity. There is a very significant difference between a corporate entity and a human person. Corporate entities are created pursuant to the Companies Acts predominantly and most are designed to make a profit, while there are also some companies that are not for profit. Predominantly, however, companies that are established are in the business of making a profit; that is their sole purpose.

I am trying to deal with a situation where a company, let us call it McDowell Enterprises, claims that it has been defamed. A negative comment about a company is completely different from a negative defamatory comment about an individual. There really needs to be a consequence and an apparent result from the defamatory comment about the company. In the proposal here, we are trying to ensure the company can only succeed in a defamation case if it can show it has sustained serious harm. How do we assess whether a company has sustained serious harm? We look at its profits and look to see whether there has been financial loss.

How do we determine whether a human has sustained serious harm? If somebody referred to a person as a child abuser, it is not possible to look at the person's bank account and say that because they have not sustained any financial loss, the statement was not harmful. There is a reason for distinguishing between a company and a person. It is reasonable for the Oireachtas to decide that a company making a claim of defamation has to establish financial loss. I think Members of this House are predominantly supportive of that but the issue they have is as to why we do not extend that to persons as well. I do not think anyone here is trying to say we should remove the serious harm test for corporations. Instead they are suggesting we should have the serious harm test for personal litigants as well.That brings me on to dealing with that issue of why we do not just have in our law the amendments as tabled by Senator McDowell or indeed Senator Keogan, which both state that for a person or indeed anyone to take a defamation action, there must be serious harm or, in Senator McDowell's version, it must be serious and to a lasting extent. As was indicated by Senator Nelson Murray, England introduced this back in 2013, but we also have to look to see what happens there as a result of that. Predominantly what happens, as I mentioned on the last occasion, is that if someone issues a defamation action in the UK and there is a dispute, as generally there is, about whether the alleged defamation constitutes serious harm, that results in there being an application to the court and a hearing before the judge to determine if the statement is in fact one that constitutes serious harm.

We need to think on a procedural basis that if we change the law so that there now has to be a serious harm test, we will increase costs, increase in the number of hearings, increase the jurisprudence of the law of defamation, and there will be a series of interlocutory applications at an early stage to the courts trying to determine if this alleged defamation is serious harm or not. It will make the law of defamation procedurally more complex and more costly. They are factors that I have to take into account.

There is the other substantive factor, aside from the procedural factor, of what serious harm actually means. I will come back to Senator McDowell's lasting extent point. Let us assume that we are talking about a serious harm test. If somebody describes a person on a front page of a newspaper as being a paedophile, I assume everyone accepts that is of serious harm. It is being published to hundreds of thousands of people. Everyone can see it. I assume we agree teat is of serious harm to the individual concerned. If somebody says it in the confines of a quiet room to three people, as has happened previously, do we say that that is a test of serious harm or not? My view is that does constitute serious harm if a really serious defamatory statement is made, even to a small group of people.

I use that example for the purpose of showing that somebody is going to have to determine what constitutes serious harm. The way we do it at present is that the defamation action is issued, defences are put in and the matter is determined by the court. At the determination of it, the conclusion, the court assesses that it is not that serious and so nothing is due on foot of it.

I also have to remind Members that the courts are vigorous in ensuring that their processes are not abused. Anyone who brings a frivolous or vexatious case can have the case thrown out. Many applications are brought to dismiss frivolous or vexatious cases. Senators need to be aware that if we are introducing a serious harm test, we need to define what constitutes serious harm. We can do it quite readily for corporate plaintiffs because we can say that they have to prove financial loss but for a personal plaintiff, how do we determine or how does a court confirm that it constitutes serious harm? Are we going to say at the outset that it has to be broadcast or published to a wide range of people for it to constitute serious harm, or do we recognise that serious harm could arise through publication to a small number? These are all the issues that are ultimately dealt with by the courts. The judge hearing the case or indeed the jury hearing the case, which may no longer be the case, has to determine if this is serious and if it causes serious harm. There is a determination of whether or not it is serious. If it is serious, there would be very negative consequences for the claimant.

Senator McDowell's amendment also refers to there having to be a requirement that it is a statement that harms the reputation of a person to a lasting extent. Again, I have to ask how that would be determined by the court, using the example that I have, if it was a serious allegation of child abuse made to three people? Is that something that is there for a lasting extent or does the fact that it was just communicated orally to three people mean that it is not to a lasting extent? These are all factors that are taken into account in determining the seriousness and consequence of the defamation statement.

I know the objective of many Members is to try to ensure that we reduce the number of defamation actions, and the voice here seems to be predominantly on the part of the persons who are being sued, to ensure that they are not dragged into costly, unnecessary litigation. I support that too. I do not want to see defamation law used unnecessarily or vexatiously, but it is the only statutory remedy that is available to a person whose constitutional right to his or her good name has been impinged.

My fear about amendments Nos. 5 and 8 is that although they are seeking to make the system more efficient, they will result in it becoming more protracted and costlier. There will inevitably be disputes at an early stage about a defamation not being serious harm, since although it accused a person of being involved in child abuse, it was only published to three people and is not serious enough. Somebody has to determine at some stage what is serious. It is already being done but it is at the end of the process and the efforts to put it in as a preliminary step will not make the system more efficient.

I acknowledge and thank Senator Keogan for her apology. I accept it gracefully and thank her for what she said. I knew when she was reading out those statements that they were not her words and I am happy to accept her apology in that regard.