Alice-Mary Higgins (Independent)

Exactly. I wanted to provide a few of the examples of how the abuse of defamation cases can happen - sometimes even before a case comes to court.The threat of legal action has a chilling effect that suppresses the publication of information that may be in the public interest. Examples published by the International Press Institute in a story in 2023, entitled “Ireland: How the wealthy and powerful abuse legal system to silence reporting”, described a reporter telling how they were sued by a property developer for reporting on safety defects in buildings. The journalist stated: "This is typical – you issue proceedings and you let the thing sit there, with the hope the newspaper will settle, and you can claim a victory one way or another."

The article continued:

In one case, a civil society organisation was threatened with a defamation suit for highlighting privatisation in medical care by a business with interests in the sector. It never went to court and the complaints were considered legally doubtful, but due to the threat of the costs involved ... the organisation ... [deleted all relevant] communications, shut down campaigning on this issue ...

[...]

A political party was said to have sent defamation threats to two different media organisations in response to their press office being contacted with a request for comment about a story.

[...]

One civil society organisation working on accountability was threatened with defamation proceedings by a commercial interest over a report they had published [and this case continued for years]

That organisation has now lost its professional indemnity insurance as a result of this case hanging over it on a long-term basis.

These are very real consequences from cases that never even reached the courtroom. The simple fact of these cases being taken often has very serious consequences for the choices made by individuals, civil society organisations or reporters, along with very real financial and viability consequences for such. That is why it is very important that we not have a situation whereby, without any evidence of any actual harm having been accrued, a case may be taken on the hypothetical possibility of harm, including financial harm, being done. One employee at an NGO reported being told that the case was taken "to mess with us" rather than to succeed in court and to take part of the organisation's very limited resources to deal with court proceedings rather than to set out delivery of its core functions. A small publisher shared images of solicitors' letters it had received "warning of defamation proceedings in response to their coverage of the housing crisis" being taken by organisations with commercial interests in the housing sector. These are real, very serious consequences.

I wish to highlight two points. One refers to an example given by the Minister when he spoke about the rotten meat. As he said himself, if there is no financial loss, there should not be a defamation case. However, the legislation allows there to be a defamation case. There is a second level to this that I wish to signal because I may come back to it further on Report Stage, which is, if there is rotten meat, there should be no defamation case either. Within the legislation, truth is a defence, but what I have outlined to the Minister are the consequences of the cases being taken. What is or should be a legitimate basis for taking a defamation case? Cost itself is not going to be a disincentive for some of the very large actors, including corporations and companies. It is not an object to them to take these cases. Instead, the criteria under which they can take a case has to be sufficiently clear and narrow. For example, the grounds on which a case may be taken are actual financial loss - this may be where we should move to a discussion on Report Stage - where the commentary is not based on an indisputable and known fact. It would not be a matter of opinion on whether the meat was rotten. Rather, HIQA had shut a business down over rotten meat, which would be there on the public record. The case should not be taken in the first place where there are clear and incontrovertible facts. I am not referring to disputed facts or opinion, but facts that are simply being stated. If a company is engaged in child labour, an international report on child labour states that it has been using child labour and somebody says it is using child labour and that is terrible, the truth may be a defence for that body, but the very fact that a case is taken may stop people feeling that they can make comments in relation to a corporate's use of child labour and the corporate being included on a child labour index and so forth. It should not be in a position where it can threaten a legal suit, because that information is both factually accurate and in the public interest.

We should not be wasting the court's time, or even hypothetical time, on a discussion. Where there are matters that are interpretable, fair enough, but where there are matters that are based on hard fact and the individual is simply sharing that hard, known and verifiable fact, then rather than saying that is a defence for the individual who may or may not even have the capacity to employ proper legal representation, it should be a bar to the case being taken in the first place. We need to stem the abuse of defamatory lawsuits at the earlier point. If a very large corporation takes multiple cases, it is nothing to it that they get knocked back or that only one in five of them even makes it through the courts. The point is that, based on the possibility of future financial harm, it can afford to intimidate those with legitimate, fact-based criticism.

I hope the Minister will accept these two amendments on "likely to cause" because they are in line with what he himself has stated should be the case. Separate to the amendments, perhaps we could have a discussion about the issue of truth and fact and where it sits within the piece. It should be wider than a defence; it should be a bar to cases being taken. Cases that are taken in the face of incontrovertible fact, claiming financial harm because of the sharing of facts, are effectively vexatious cases and should not be coming through in the first place.

I look forward to the Minister’s response and I hope he might be able to accept amendments Nos. 6 and 7.