Michael McDowell (Independent)

I would say there will be a salvo coming the Minister's way from Merrion Street for doing that. However, it answers the question in that I had suspected there was a notion that the serious harm threshold was regarded with suspicion by what I consider to be extremely conservative legal advice. I will give an example to Members of the House. If somebody called me a paedophile, that would be defamatory. If somebody says it to me in the presence of my wife and nobody else, there is practically no harm done to me of a lasting kind because my wife does not believe it, would not accept it and would reject it instantly. One is a case where a court can say, "Are you seriously suggesting that you were seriously harmed by a statement made to somebody who knew it was not true?" It happens very frequently that statements are made to somebody in the presence of another person who knows it is not true, but that is currently actionable. That is where the serious harm test comes in. If it was made to somebody who manifestly would not believe it, the serious and lasting harm threshold would not be met. That would be the end of the case. You cannot sue on the basis of, "You accused me of being a paedophile in front of my wife". You cannot succeed in that action and it is not a defamatory statement unless there was some basis for thinking the witness to whom the publication was made would attribute either lasting doubt on the issue or credibility to the statement that was made.

I do not accept the proposition that the serious harm test is constitutionally infirm or that there is a serious issue as to whether, under the Constitution, unserious statements - let us use that phrase about it - must be actionable because otherwise it would be unconstitutional to prohibit them. I do not accept that proposition. It is important that this has emerged in this debate. It has emerged in this debate that there is an extremely conservative view that the guarantee for the good name of every citizen in the Constitution also means that the law of defamation must apply to unserious defamatory statements. I do not accept that proposition for one minute. I am not asking the Minister to comment on the hearsay account that came from the Attorney General's office via his own officials, but I am saying I reject that. I reject outright the notion that we in Ireland cannot have a serious harm threshold for persons but that we can have one for companies.

The Minister made the point that companies are normally concerned with profit and that, therefore, it is legitimate to provide a serious harm test for them. It is true that most companies' commercial activities are reflected on their balance sheet. I have no doubt about that but how can it possibly be that if I, on tax advice, operate a butcher's business in Ranelagh through a company, I cannot sue somebody who says I sell rotten meat, but if I am a person who operates that business without incorporation, I can? I do not understand that. I cannot understand that as a reasonable distinction. I would say most businesses in the main street in Ranelagh are probably corporate but I am not sure of it. Maybe the smaller coffee shops are personally owned and there is no company there. Maybe there is, maybe there is not. Nobody doing business with them really knows. However, I do not believe for one minute that a statement like "McDowell's Butchers in Ranelagh sells rotten meat" becomes actionable per se if it is Mr. McDowell's name over the premises but that if you look up the register of business names and find out it is Michael McDowell Limited that runs the shop, there is no cause for action unless I establish serious loss.

Serious harm is not always going to be reflected in a balance sheet. It cannot be reflected in a balance sheet. Imagine having to produce an accountant to say that the growth pattern of profits in McDowell's Butchers Limited dipped as a result, whereas if I was unincorporated, I would not have to prove any such thing. I do not accept that proposition at all.

The Minister made a point that the serious harm threshold would give rise to preliminary applications and that that would lengthen the whole process. Either the application succeeds or it does not. In the United Kingdom, if the case collapses on the application and the judge says there is no serious harm, that is the end of the case and you do not go to trial, so I do not see how it can be stated that it lengthens the case.If the defendant fails on the serious harm test, that is a different matter. What I am saying – most Senators will agree with me – is that if there were a serious harm threshold, a lot of potential plaintiffs would be told by their solicitors that they have to get across this fence if the case starts. They would advise them to think long and hard because if they were to fail, they would end up paying the cost of the whole claim.

I do not accept the proposition that it gives rise to the possibility that someone can make a pre-emptive strike and say at the very beginning that the trial must stop because there is no serious harm and that this will have the effect of lengthening the procedure. It will have the contrary effect. It will stop spurious, irrelevant, trivial and unserious claims being made. A solicitor acting for a plaintiff who wants to bring a case that is vulnerable on the serious harm threshold will say to his or her client not to bring the case forward because he or she could end up paying the costs because they are unable to prove serious harm in the sense laid down in statute.

The Minister says that his amendment in section 8 will give rise to some kind of defence. That defence is very narrow, however. It is only confined to where an inquiry is made, not to a statement being made. To say, “That has not been paid for” or “You took two bottles of wine”, is not an inquiry. The points raised by the Senators who have tendered an amendment are not answered by the Minister’s amendment. It is not an inquiry to say to someone that they did not pay for an item or to ask them to give an item back. That is not an inquiry.

The Minister talks about online defamations, which we will come to later. Although the Minister has gone in the right direction in his proposed new sections, namely, sections 45 and 22 of the Bill, which were added to deal with online anonymous defamations, for the reasons we will come to when we get to that section, they are very weak. To point out one aspect of it, if someone applies for an order to be made against an Internet service provider to identify the author of an online defamation, under the Minister’s proposed legislation, he or she will face the risk of paying the costs of the Internet service provider, even if the person is successfully identified. That is in subsection 22(5). I was astonished to see that. For example, if something grossly defamatory about me is posted on X in the name of an online anonymous author, the Minister is making provision that if were to go to court to require X to identify who has defamed me, I would have to pay X for the costs of that application. That is wrong. In subsection 22(5), it states:

The court may, whether or not it has made an identification order and where it considers it appropriate to do so, order that an applicant pay any or all of the costs of the relevant intermediary service provider in relation to an application and the costs resulting from the making of any identification order.

If I had been defamed and went to court, and X informed me it was Senator Fitzpatrick who defamed me anonymously, I would then have to pay X for finding that information out. That cannot be right.