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

I thank Senator Higgins for her amendments. She has put forward two amendments, Nos. 6 and 7, which are identical and which seek the removal of the words "or is likely to cause" in the new section 12 governing defamation of a body corporate. I think it is always important when we are discussing and debating amending legislation that we recall what the underlying existing legislation provides. Colleagues will be aware that, at present, a defamatory statement is defined in the 2009 Act as "a statement that tends to injure a person’s reputation in the eyes of reasonable members of society". The test at present is that this constitutes a defamatory statement. Obviously, it must be published to other persons. There is a whole series of defences set out in the legislation as it exists at present.

I informed Senators on the previous occasion I was here that one of my functions, and it is a really important function, when it comes to introducing defamation legislation is to try to balance the two conflicting rights that are present in this area. On the one hand, there is the well-known right to freedom of expression, an absolutely essential right that must be protected. Similarly, there is the right to one's good name, which probably is not as organised or as represented a right as the right to freedom of expression but it is one that I also have to take into account. Any defamation legislation necessarily will try to balance those two rights. I think it is clear to all Members of this House that the purpose of the amending legislation is to slightly shift the balance in favour of the freedom of expression right. I think that is the clear objective of the legislation that is being introduced. The reason that is so is because there is a perception, which indeed in some cases perhaps transfers into reality, that the defenders of defamation actions probably need a bit more protection than those who are bringing the claim.We in these Houses have to be careful that we still recognise and seek to protect the former right, namely the right to one's good name. No one else is organising groups of people to represent individuals' good name, and we have an obligation to ensure that we do so and that we protect their good name.

Regarding the specific amendments tabled by Senator Higgins, the purpose of the new section 12 that I am seeking to insert into the existing Act is to make it more difficult for a corporate entity to bring a defamation claim. The way I am doing that is by saying that companies cannot bring defamation claims unless they have suffered financial loss or as a result of the statement are likely to suffer financial loss. That is a marked distinction from what is currently there. At present, a company can take a defamation action and does not need to prove financial loss. It may be a factor that the court takes into account that no financial loss has been sustained. At the moment, however, there is no requirement for a company to establish that it has sustained or is likely to sustain financial loss as a result of a defamatory statement.

Part of the reason the law in the UK was changed was because of the defamation proceedings brought by McDonald's against two Greenpeace activists, Helen Steel and David Morris, which became known as the "McLibel" case. It is important to note that, notwithstanding the fact that they lost in the UK courts, Ms Steel and Mr. Morris were subsequently vindicated because they won before the European Court of Human Rights. What I am introducing here is a mechanism, a statutory scheme, to make it more difficult for corporations to take cases. Deputy Higgins says that we should just limit it to corporations that can prove, as a matter of fact, that they have sustained financial loss and that if they are not able to do so, that should be the end of it. That would be too draconian in the context of corporate entities.

I return, and I hope Senator McDowell will forgive me for doing so, to the example of McDowell Butchers Limited. Let us look at a case where McDowell Butchers Limited has been defamed by a much larger entity. I will not give a name, but let us say that some enormous supermarket chain decided McDowell Butchers Limited was a real irritant and wanted to do damage to it. In that instance, the large corporate entity could decide to put out stories about the meat in McDowell Butchers Limited being rotten. In such circumstances, the enterprise of McDowell Butchers Limited would be entitled to bring a claim. Simply because it cannot prove at the time it takes a claim that it suffered financial loss should not preclude it from being able to say what was being said about the company was likely to cause financial loss. That is appropriate because in many instances defamation actions have to be taken quickly, and it might be difficult for the eponymous butchers to be in a situation where it could immediately establish that it had sustained financial loss. It will not have its financial accounts available for the relevant year.

It is also important to point out that the company may want an injunction. Not everything in the Defamation Act revolves around awards of damages. You can bring an interlocutory application for an injunction to stop the huge supermarket defaming McDowell Butchers Limited. In that instance, it would be unfair to say to the small company it could not take a claim or even look for an injunction because it has not been able to establish that it has actually sustained financial loss. For that reason, a company in that instance should be able to say it was likely it would sustain financial loss and, looking at the broad publication of the statement, that its customer base was down. It may not be the case that financial loss could be established, but it is likely that it would cause the company financial loss.

I hope Senators will permit me to say this, but a narrative has developed that the only people taking defamation actions are the strong and powerful and that the defendants of defamation actions are the weak, vulnerable and impecunious individuals. As Senator McDowell will tell us, that is not always the case. Many defamation actions are brought by those who are in weak financial positions. In a corporate context, they are brought by small companies against larger corporate entities. We should not assume or presume that people taking defamation actions are individuals who are engaged in some form of nefarious wrongdoing. If a company's good name has been unfairly damaged as a result of a false publication by a large, more powerful competitor, that company should be able to take a claim provided it can establish it has sustained financial loss or is likely to do so.

In terms of proceedings, Senator Higgins also stated that Ireland has become a place for libel tourism. I am not aware of that. If she can give me an example of a case before the courts, I would be happy to consider it. One of the points that was raised was that a defamation claim that achieved some prominence recently and that could have been brought in Belfast, was brought down here. Are we really going to say that we should not allow people who live in Northern Ireland to bring claims in Ireland, particularly if, for example, the defendant - a large broadcaster - publishes something in the South?

Unfortunately, I am not going to accept Senator Higgins' amendments. It is important to point out that the section which is being introduced is going to restrict the ability of corporate entities to take claims. They will only be able to take claims now if they can establish that they have sustained a financial loss or that it is likely that they will sustain a financial loss. Senator McDowell asks how the courts are going to interpret this. My answer to that is that every day the civil courts have to decide cases on the balance of probabilities and whether it is likely, on the balance of probabilities, that a claim being made by a plaintiff is correct. That is what will happen here. A judge will have to look at the example we have of McDowell Butchers Limited and agree that the huge supermarket chain defamed it by saying that the meat it was selling was rotten and that, of course, this would damage the McDowells in the particular area in Ranelagh in which it operates. A court in that instance could decide, although it would not have the financial reports yet, that it was, on the balance of probabilities, established that it would likely cause the company financial loss. For those reasons, I am not prepared to accept the amendments.

Senator Higgins went slightly further and spoke about other aspects of defamation claims. If McDowell Butchers Limited was selling rotten meat, everyone is entitled to say that it was doing so. The Senator's point is that people should be entitled to say that. They are entitled to say it. What the Senator is suggesting is that people should not be allowed to take defamation actions in respect of certain statements and that there should be immunity from suit. She is suggesting that McDowell Butchers Limited could not take a claim in such instances if it was the case that a claim was correct. We get into dangerous territory when we start giving individuals immunity from suit. No one has it. As I said on the previous occasion, even in this House, notwithstanding the constitutional provisions, we do not have immunity from suit. Somebody could sue me for what I am saying in Seanad Éireann now. I have to put in a defence stating I have a defence of absolute privilege. I can bring an application to have the claim struck out as being frivolous or vexatious. Senator Higgins is right in saying that there are frivolous and vexatious claims but there is a mechanism within the court rules to deal with them. Once they are issued, an application can be brought to strike out the claim on the grounds of it being frivolous or vexatious. If it is either, it will be struck out.

When it comes to defamation claims, however, the position is generally not as clear-cut as the Senator states. In many instances, a statement that somebody makes about - using the same example - the meat being rotten in a butchers can be open to interpretation. It is not always the case that it is accepted that the meat is clearly rotten. It is not as clear-cut as the Senator presents. This is an area in respect of which we have to try to get the balance right. I am limiting the right of corporate plaintiffs to bring claims to a sufficient extent now. If I was to limit it completely to people only being able to take claims and succeed only if they can prove financial loss, that would be excessive. We should give a little more leeway and allow a claim if the statement is likely to cause financial loss. As stated, not every remedy is about damages. The company may want to bring an injunction claim as well.