Michael McDowell (Independent)

No, I am glad the Leas-Chathaoirleach did that.

We will reach the amendment at a later stage, but I ask the Minister to think about this point. The Minister is proposing that the courts will be able to say to people that yes, they have been defamed and they have no other way of finding out who defamed them other than to bring an application to court, but they must now pay Elon Musk and his lawyers for the expense involved. If the Minister wants to have something that will really numb applicants, this is it. People will be asked to pay Elon Musk to find out who defamed them anonymously. That could not possibly be right. I am out of order because I should not be talking about that amendment at this stage. I am firing a warning shot that this cannot be enacted into law.

Getting myself back in order, what I wish to say very simply is that this serious harm test should be part of our defamation law. No one should be bringing anyone else to court for defamation if there is no serious harm in any circumstance. Freedom of speech, the protection of a citizen’s good name and the like do not require protection by the legal process where there is no serious harm to an individual. Serious harm cannot just mean financial loss, depending on whether the business defamed is corporate or personally owned by a trader. To give an example, suppose a big burger joint is accused of using condemned meat or horse meat in a newspaper advertisement or article. Is it seriously contended that it then has to come to court to show, through an accountant, that its sales sank as a result, but the local chipper whose burgers were described in the same terms does not have to do it because it is not owned by a limited company? I do not accept that.

I radically disagree with the proposition, if it is seriously held as a view in the Attorney General’s office, that to bring our law into alignment with other common law jurisdictions – not America but other common law jurisdictions - a serious harm threshold before defamation suits can succeed in general amounts to an unconstitutional invasion of the right to good name of the citizen. The State, through its laws under Article 40, as I recall, is obliged to defend and vindicate the rights, including the right to a good name, but only to the extent it is practicable to do so.It is not practicable to have courts considering trivial or unserious claims or claims that fall beneath a serious harm threshold.