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

Senator Higgins gave the example of a statement to the effect that a company has been shut down on five occasions in the past ten years. If that statement is absolutely true, no one who I am aware of would contemplate issuing defamation proceedings in respect of it. They would not get a lawyer to stand over it. A solicitor has got to swear an affidavit of verification in respect of it. If it is the case that the company had been shut down on five occasions in the past ten years, I do not see any claim getting off the ground in respect of that.

Obviously, people are defamed all the time. However, people exercise discretion as to whether or not they are going to institute defamation proceedings. I am sure there are people in pubs talking about all of us in this House individually and will issue completely defamatory statements about us. If we get to hear about it, we do not go off to our lawyers and then go to court. It is only if it reaches a certain threshold of seriousness that people decide to get involved in a legal process. Senator McDowell used the example of Boeing manufacturing dangerous planes. If somebody said it in the pub here, I am sure Boeing would do nothing about it. It is actually a sensible test that is being introduced in this amendment that in order for a company to take a claim, it has got to be able to establish that it has sustained or is likely to sustain financial loss. That is the real difference. Boeing would have to be able to establish that in this instance.

There is a process in place for people to bring applications promptly to strike out vexatious claims. The Senator raised the issue of causation.Causation is an integral part of any person trying to establish his or her claim.

I will conclude on the McLibel case. The McLibel case resulted in the change of law in England and Wales. It resulted in the serious harm test in terms of corporate plaintiffs, in particular. That was sensible because there was no real loss sustained by McDonald's that it could identify commercially or in terms of its profit margin or financial loss. What I am trying to do here is replicate that. This is in defence of free speech.