Michael McDowell (Independent)

-----in the context of getting the legal meaning of the term "likely". It is stated that the term can mean "more probable than not" and that there is "a reasonable possibility". In answer to a question as to whether I could fall down the stairs, one could answer that it is a reasonable possibility. In answer to a question as to whether I will fall down the stairs, one could say that it means is I am going to fall down. The question that then needs to be asked is whether would someone take a bet on it happening at odds on or whatever.

The Minister said the courts operate on the balance of probabilities, but they do not when it comes to this. All the case law people will find if they google it states that it all depends on the context in which the term "likely" is used in a statute. All I want to say is that rather than prolong this discussion, the section should be amended to make it clear that it either means it is a reasonable possibility that a company will suffer serious financial loss or, alternatively, it is more likely than not that it would do so. On Report Stage, we should be willing to say what we intend it to be interpreted as meaning. Otherwise, we are throwing up a patent ambiguity for the courts to interpret without giving them guidance as to what we actually mean.

Senator Higgins referred to, say, a large retailer selling t-shirts at cheap prices and the allegation that the relevant firm is using child labour in Bangladesh, Vietnam or wherever to produce these. That would affect a company's reputation. Can it be stated that this can be said, effectively, with immunity unless the person publishing the statement or making the accusation can be shown to have caused or be likely to cause a serious dent in the retailer's profits? If that is to be the test, that is fine.

I take the Minister's point that he feels he is liberalising the law and making it more possible to make statements without being sued, but it seems that it is somewhat arbitrary to say that because a company is trading and there is no way, and no likely way, to use that term, that we will never be able to look at its profits at the end of the year and say that what was published in The Irish Times about it put a dent in its profits and that this should prevent it from suing somebody who is causing serious harm to its reputation. As a result, serious harm is not to be defined by reference to the effect on the balance sheet. That is possibly a form of serious harm. Obviously, if there was damage done to the profitability of a company, I have no problem with saying that this is a species of serious harm to that company's reputation. However, it is not the only criterion. If someone states that a company in Dublin selling t-shirts and clothing at economic prices - which is very important to a lot of people in Ireland who depend on highly competitive, low-price clothing - is using child labour in Bangladesh, Vietnam, Burma or wherever in circumstances where that is wholly untrue and if they keep repeating that, even though it is wholly untrue as far as the company involved, which may have sent inspectors to Bangladesh, Vietnam or wherever and which can answer the claim, is concerned, saying that it is not defamatory unless the company can also point to its balance sheet and highlight the consequence of the statement that was made is not a proper test of seriousness. I am in favour of a seriousness threshold, but I do not think that handcuffing commercial companies to serious financial loss is a fair way of dealing with what could be very serious defamation.

I will give the Minister an example. If somebody says without cause that the Boeing aircraft corporation is manufacturing dangerous planes, to say that Boeing cannot come to an Irish court to stop them from saying this, unless it can also show that what they said has really affected its worldwide sales in some way, is wrong. We are not even dealing here with something that Senator Higgins would probably have more sympathy with than me, which is, boycotting companies because of suspicions they are using child labour, because their products are not green or because they are using fracked gas or whatever. It seems that anchoring the right to respond to a defamatory statement on the basis of its effect on a balance sheet is wrong.

The other issue is that there are companies limited by guarantee, which obviously means they are not or may not be companies that trade for profit. That is another issue that is hanging there in the context of this definition. Let us even take something like a farmers' co-op. Is that a company that trades for profit or is it something else? I am suspicious that this amendment, although I accept the Minister's proposition that it is intended to relax the rules of defamation, carries with it ambiguities and unintended consequences that have not been adequately thought through.