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

They were given to the Senator by others.

Regarding defamation being out of control, I will defer to Senator McDowell in respect of this, but my own assessment from some experience in the courts is that the number of defamation cases is declining. I will come to deal with the amendments about shops in due course. Where real defamation is taking place at present is online, where people are being defamed. Their good name is being degraded and there is a very limited remedy available to them because sometimes it is extremely difficult to identify who the actual publisher is and the social media companies do not accept liability for their publication. They say they are merely a hosting environment. Defamation is an issue in our society. All of us as politicians take it on the chin that there will be defamatory statements online about us, but that should not preclude us from trying to ensure that in our legal system there is some mechanism to ensure that people have a remedy.

Senator Keogan referred to the situation in the United States. Some people in the United States think the defamation laws there are out of control because they are so weak. In the United States, to succeed in a defamation action, malice has to be proved on the part of the publisher. A newspaper could publish a front page story claiming a prominent politician is involved in corruption, and unless that was published maliciously, the individual has no remedy in respect of it.

We need to formulate our own laws in respect of defamation. I fully respect the right to freedom of expression. It is a valuable tool and fundamental right. My job as Minister is to ensure that the laws facilitate freedom of expression. A vocal community urges me to do that and I am very supportive of it. I also have to take into account the right of an individual to his or her good name. There is not a vocal community advocating that but, constitutionally, I and indeed all Members of this House have an obligation to ensure that we seek to vindicate that name.

Senator Keogan also talked about trivial and vexatious cases. I agree that we do not want a situation where the courts are being used for frivolous and vexatious cases. Those cases should be challenged. The way for them to be challenged is that applications are brought to strike them out.

I move to amendment No. 9 in the names of Senators Fitzpatrick and Nelson Murray. In fairness to both Senators, I carefully listened to what they had to say and what Senator McDowell said to follow up on them, and their argument is that a defendant may have a defence in place but, notwithstanding that, people are bringing claims and small businesses are required to devote resources to defending those claims. Insurance companies take responsibility for them.There are settlements agreed. In the long term, these small businesses are paying out money, which they should not have to pay out because of the unmeritorious nature of the claim. I appreciate that valid and strong point. I have listened to it carefully.

However, we should not underestimate or understate the provision that is being put in place in this legislation that was introduced last year. I am putting in a new section into section 18 of the principal Act, which will provide a separate defence for retailers. Senator McDowell referred to it as a "defence of qualified privilege". It comes within the section on qualified privilege in the principal Act, but in truth, it is a statutory defence that stands on its own. It provides an express defence to, for example, a shopkeeper who can say in respect of the defamatory statement for which they are being sued that it was a statement being made in the context of enquiring, "Have you paid for that or not?" People are perfectly entitled in shops to ask people to produce receipts and to ask whether goods have been paid for.

While I was listening to Senator Fitzpatrick, and I hope she did not think I was rude, I was looking up a couple of legal websites to look at some cases. There are a whole series of cases that have been given under current law where courts have thrown them out on the basis that the shopkeeper was perfectly entitled to raise a query about whether or not the complainants paid for the goods. I am looking at an example of a case where somebody had put a bottle of wine into their bag. They had then put it back on the counter. They left the shop. They were pursued afterwards by the shopkeeper who said they had a bottle of wine in their bag, and they had not paid for it. They were able to show that they did not have a bottle of wine. They instituted proceedings, and the case was thrown out. We need be aware that judges are not some naive remote persons who are not aware of what is happening in the world. These cases are being thrown out. Recently in the High Court, there was an appeal brought by a large supermarket, which again successfully protected and recognised the right of retailers to enquire if someone has paid for the goods. Those cases are being thrown out on a frequent basis. That still does not answer the main issue raised by Senators Fitzpatrick and Nelson Murray about people wining the cases, but ultimately it costs them a lot of money to do that. Why do they have to go through that process when in fact at the end of it they win, but they still have lost a lot of money because they cannot get their costs back from the individual who brought the false claim?

I am giving consideration to the amendment. The way to deal with that is that there needs to be more unified and stronger response from retailers and the insurers of retailers that they do not pay out when these claims are made. There is a certain store in Dublin that I will not name. People do not sue it for things like this because they know it is not going to pay them out. If there was a bit more vigour in the defence and standing up to people who bring false claims, that would have an impact. Senator Nelson Murray mentioned a number of settlements. I am not criticising her. However, there is no corresponding example of court cases where judge X awarded a sum of because somebody was asked whether they had paid for the goods. What is happening - and it happens too much - is that settlements are being entered into because insurers predominantly are excessively cautious and wholly unnecessarily anxious about what is going to be outcome to the court case if it goes to a hearing. They need to fight the cases.

I have looked carefully at the amendment that has been tabled by the two Senators. They are proposing that the wording would be changed. I provide in section 8 that it will be a defence to a defamation action for the defendant to prove that the statement was simply an inquiry in respect of whether someone has paid for the goods or not. The Senators are asking me to insert "no cause of action shall lie where the defendant can” prove that the statement to which it relates was an inquiry. That would be a significant change in our law. As I mentioned yesterday in reply to Senator Fitzpatrick when we were discussing this amendment, I am not aware - and I would be interested to hear if other Members are aware - of any provision in our law that states that a group of people is immune from suit. That is, in effect, what the Senators are seeking to do here by stating "no cause of action shall lie where the defendant can" show that this was just an inquiry about goods. We do not even have it in respect of these Houses. The Constitution states that Members “shall not, in respect of any utterance in either House, be amenable to any court”. However, under the Defamation Act, there is a list of absolute privilege, but absolute privilege like qualified privilege is a defence. Somebody could sue me for a statement that I made in the Houses of the Oireachtas. I would have to put in a defence saying, "Sorry, I have a defence of absolute privilege. I said it in Seanad Éireann. It is expressly protected under the Defamation Act and the Constitution." However, there is no rule that states that the no cause of action lies that I cannot bring the case, and I have an absolute defence. If we got into the route of saying that no cause of action lies in respect of certain events, it would transform the law. We could say no cause of action lies in respect of personal injury accidents where the claim is less than €5,000 or where the claim is small. We do not go down that route.

Senator McDowell asked if I had got advice from the Attorney General's office. I probably should be doing this more obediently, but I will read from the script that my efficient Department officials have provided me with in respect of this issue. On serious harm, there is a specific constitutional obligation in Ireland to protect a person's good name and the right of access to the courts. Legal issues were raised by the Office of the Attorney General with the introduction of a general serious harm test. That is in response to the serious harm test, but similarly I have to take that advice into account when I am looking at the amendment being put forward by the two Senators on behalf of the retail sector. It is in effect excluding access to the courts for persons who in unusual circumstances may claim that they have a valid claim against a retailer. Under the laws that are drafted and if the proposal by the two Senators was enacted, it would mean that a shopkeeper could say virtually anything to anyone who comes in. If a person comes into a shop, at present the law provides that retailers have to be proportionate and cannot be malicious in their inquiry. If they are disproportionate or malicious, they will lose the defence. That is what stated at the end of it. It was not published excessively so it was not disproportionate.

At present, a shopkeeper can vigorously to say to someone: "You haven't paid for that; show me your receipt." Senator McDowell said it is statement. It is still part of an inquiry: "You haven't paid for that; show me your receipt." That is all protected at present. However, if I was shopkeeper who started excessively roaring someone or roaring around the shop and out the street stating, "You never paid for it. You are a thief" and walking up the street after the person, but it turns out to be untrue, then that person has no remedy. I have to balance their right to their good name as well. It may be an unlikely circumstance, but it has to be taken into account.

We need to recognise that all these defences like the defence, as Senator McDowell said, of qualified privilege, only kick in where the statement published has been established to be defamatory. The defence of truth still applies. If somebody has not paid for something and it is said that they never paid for it, the shopkeeper can rely upon the defence of truth and say, "It was true what I said. They were trying to steal from the shop." This is separate protection; this is an added protection. This is to protect the shopkeeper who gets it wrong. That is what qualified privilege is generally about. The law creates circumstances where the law of defamation does not operate as it normally does. It is like the communication between a person writing a reference and a prospective employer. He or she could get it wrong, but because the law has decided that such arrangements and communications should be protected, we are therefore going to permit wrongful statements to be made. Similarly, under what will be the new section 18, this is to protect shopkeepers who get it wrong.If they get it right and the person is a thief, they are perfectly entitled to do it - there is no issue there - but if they get it wrong and the person had, in fact, paid for it or they did not have something in their bag, this is also to protect them. I know a vigorous campaign is being waged against it but I would have thought this is heading in the right direction. I urge insurance companies to fight cases they believe are unmeritorious. The more you give in to a particular type of claim that is unmeritorious, the more likely it is to persist.

For that reason, I cannot accept the first two amendments. I have listened carefully to Senators McDowell and Keogan. I think a serious harm test would make the issue more complicated. There is a legitimate reason we distinguish companies from persons. I do not know how in a preliminary stage it would be assessed whether a statement was one of serious harm or lasting effect or not.

In respect of the amendment from Senators Fitzpatrick and Nelson Murray, I cannot accept it because it is a revolutionary amendment that would have the effect of conferring immunity on one group of people. Why would newspapers not come in and say they want to be immune from any defamation suits against them that relate to stories of public interest? Everyone would be queuing up to have immunity from suit and we generally do not do immunity from suit in Ireland. I will reflect, however, on what both Senators Fitzpatrick and Nelson Murray said to see if there is any other mechanism within the draft at present that could make it more efficient and effective for retailers. I do empathise with the issues they have highlighted.