Alice-Mary Higgins (Independent)

There is a whole question of whether the injury is done by the fact or by the fact being stated. That all has to be argued out in the courts. Truth is available as a defence but that is far down the line and some of these cases have been hanging around for years. The Minister talked about the vexatious piece and he might elaborate on how exactly he sees that playing out in way at an earlier point because I am very concerned it would not be found to be vexatious because, according to the legislation, it is an utterance which potentially has an impact on the reputation of a company. It meets the definition of defamation that is in the Bill and I worry that the court would say that has to play out and you have to use the defence of truth. I worry it would not throw those cases out at an early point and it would wait for the case to play out before reaching the defence of truth.

I am not talking about every case and I do not think rotten meat is a good example. It could be a company that had been shut down by the Health and Safety Authority on five occasions in the past ten years. That is just a fact if you say it. Should that company then be able to take a case claiming there is a potential financial impact on the company as a result of those facts being highlighted? That is what I am trying to get at. We will come to it later when we discuss the question of "manifestly unfounded" and some of that later in the SLAPP pieces. It is one I am concerned about.

I am concerned about how these will be used but, going back to the question of "is likely to", there is a burden of proof piece there. The case may pan out and no substantial financial harm can be demonstrated but there is no consequence for the company because it can say it thought it was likely but did not say it was definite. If a company takes multiple cases on the grounds it is likely to cause serious harm but it does not produce any actual instances of the serious harm, it still fulfils the language within the Bill. There is no pressure from the legislation against this kind of case being taken even if, time after time, the company fails to demonstrate the actual consequence in terms of financial harm. I am thinking of those who take multiple cases. We know there are corporations who will be willing to take a number of cases or exercise a chilling effect through an example or two of cases.

I am sorry to come at it and I know I am not coming at it from the point of view of playing out defamation cases in court, which maybe the Minister and others in the Chamber have done, but I come at it from the point of view of having worked in civil society for 15 years. I come at it from the experience of those who have tried to pursue information and highlight information in the public interest. I come at it on behalf of people who have worked on very serious issues of health and safety and have tried to highlight issues of serious public interest. I come at it having worked with persons who have engaged on issues of due diligence internationally - this is of personal importance to me - on issues such as child labour, environmental damage and so forth. I know that side of it. I know that in that side of it, there is a chilling effect from the threat of legal action and the fact that most NGOs do not have a massive legal sink fund ready to take cases. They are operating on €1,000, €2,000 and €4,000 grants that allow them to do small, specific projects and investigative work in those contexts. The threat of even one case like that can cripple the action they might be doing.

There is an inequality of arms here that needs to be addressed. I know the Minister goes some way towards addressing it in this legislation but I ask him to consider and review that language. I ask him to review the language of "is likely" and consider whether it could become "or is probable". Can we define that in some way in order that there is some pressure and a burden of proof in terms of them being able to show they genuinely thought there was a high probability of damage. That would at least do something rather than leaving this as a very wide phrase that can be used without evidence, potentially multiple times, by the same actors.