Alice-Mary Higgins (Independent)

I move amendment No. 6:

In page 7, line 27, to delete “, or is likely to cause,”.

Last week, when we discussed Senator McDowell's amendment on raising the threshold in the definition of "defamatory statement" to serious harm, the Minister responded to the effect that it is more difficult to ascertain that a person has sustained serious harm than it is to ascertain that a company has done so. He stated:

... we are trying to ensure the company can only succeed in a defamation case if it can show it has sustained serious harm. How do we assess whether a company has sustained serious harm? We look at its profits and look to see whether there has been financial loss.

The example the Minister gave involved somebody saying that McDowell Butchers Limited sold rotten meat. The Minister said that unless a business suffered financial loss, he did not see why it should have a defamation claim. I agree with the Minister on this. However, section 6 is not limited to situations in which there has been a proven or measurable financial loss. Currently, the legislation, which changes the definition of "body corporate" goes beyond that and includes situations involving statements that are likely to cause serious harm to a corporate entity and suggests that they would be considered defamatory. The Minister stated that unless a business has suffered a financial loss, he did not see why it should have a defamation claim. However, the legislation allows for a defamation claim where a business has not suffered a loss but where it is suggested that it is likely to do so. The term "likely to cause" is, again, weak language. It gives scope to what we will discuss in the context of some of the later amendments, namely the kinds of cases that are designed to intimidate those engaging in rightful and, in many cases, accurate criticism. It brings about a situation whereby the defamation is simply the possibility or likely possibility that it may cause financial loss.

This weak definition of what constitutes a defamatory statement, which others such as Senator McDowell are seeking to have amended, could allow companies to weaponise defamation proceedings against individuals or groups that might organise to outline these companies' harmful or destructive practices. Ireland already has a reputation for libel tourism. The aim behind my amendments Nos. 6 and 7 is to delete the phrases "or is likely to cause" and "or likely to cause" from the Bill. I tabled them to illustrate the power imbalance in defamation proceedings and how the system can be used to censor information published in good faith about powerful bodies or corporations and their actions and commercial interests.

I welcome the replacement of the previous section because it was entirely inadequate. It stated that a claim might be defamatory whether or not it has incurred or is likely to incur financial loss as a result of the publication. The previous phrasing was extraordinarily wide. It was whether or not it had any impact in terms of loss. That is still too wide. To be in line with what the Minister suggested, it should be limited to situations where there is demonstrated financial loss. In the context of another part of the, Senator McDowell referred to a demonstrated and sustained impact.