Michael McDowell (Independent)

I am interested in the amendments proposed by Senator Higgins. Two things occur to me that we should consider at this Stage in this House. The phrase “is likely to cause” is itself ambiguous. The Minister has probably come across cases in his practice - I certainly have - where the term “likely” has to be interpreted. To a layperson, "likely" can mean "probable". Is this a probable consequence? According to the legal dictionaries, "likely" can also mean "possible". The difference between those two, for the purposes of Senator Higgins's argument, is massive. If this actually means “could reasonably cause financial harm”, that is one thing. If it means “will probably cause financial harm”, that is an entirely different thing. Therefore, when we use the term “likely” in a definition of such central importance to the law of defamation, the Judiciary has to be told what it means. It is not good enough to say it will interpret it one way or the other. We only find that out after a case has been decided, and perhaps after it has gone the whole way up to the Supreme Court or wherever. If we mean “likely” in the sense of “could possibly” or “could reasonably possibly”, such as “is it a likely consequence of driving drunk that one will knock somebody down”, that is one view, and it is likely if we interpret the term "likely" as meaning "could reasonably".Is it a likely consequence of driving drunk that you will knock somebody down? That is one view of it, and it is likely, if you interpret the term "likely" as meaning "could reasonably". However, if you actually mean "would probably" when you use that phrase, an entirely different result takes place if you legislate for it. This is not me imagining some kind of semantic difference between the two. If you look at any law dictionary, you will see entry after entry on what the term "likely" has been found to mean in one case and has been found not to mean in another case. It is important from the very least aim of certainty in what we are doing that, if we enact that phrase as in subsections (2) and (3), we are indicating to the courts that "likely" in this context means either "probably" or "could reasonably". We have to give the courts guidance as to what we mean by that phrase. Otherwise we are simply handing an ambiguity to the courts and finding out afterwards that they say the Oireachtas meant this rather than that. The funny thing is that, under the jurisprudence of the Irish courts, nothing the Minister can say here as to what he thinks it means or what Senator Higgins says she thinks it means or what I think it means is even cognisable in the courts. They say it does not matter what was said at the time this Bill was passed. It is what we think the ordinary and natural meaning of the words in their statutory context is to be interpreted as meaning. There is a strong case for more clarity on that issue.

On the wider point of Senator Higgins's proposed amendments, it is true that there have been cases. I think McDonald's started a lengthy case at one stage; I have forgotten precisely what was alleged against it. Let us imagine it was accused of using horse meat, condemned meat or something in its burgers. I do not know what it was actually accused of but it did go to law in the United Kingdom. The massive resources of McDonald's were used against some campaigning group that had, presumably out of some left-wing ideological conviction, thrown some insults at the company. What the Minister would say about that is that you cannot just sue, in the case of a body corporate which is trading for profit, unless you satisfy a court that the defamation has caused serious harm or is likely - that is subject to what I have just said - to cause a serious financial loss to the company.

It is not just McDonald's in the celebrated English case. There was litigation in the Irish courts between Ryanair and a British broadcaster and an Irish citizen who was, I think, a pilot and a representative of the pilots' association. Both of them were sued separately so as to focus particular financial pressure on the Irish citizen, that he now had Ryanair on his case, so to speak, for remarks which he had made in a broadcast querying the safety of Ryanair's operations and suggesting that a danger arose from lax safety policies on the part of the airline. Without going into the rights and wrongs of it, because I do not think that either was ever ventilated in the end in the Irish courts, the whole idea that Ryanair would actually have to in some way say that, if this programme were to go uncorrected, it would be likely to cause Ryanair serious financial loss, would involve the court and all the parties in a highly theoretical discussion. If it happened during the middle of a volcanic ash situation, Covid or something like that, proof that it was likely to cause financial loss, or if its very skilled management and clever advertising had in any event improved the company's financial position, can there be argument to say that an airline's safety policies are risky? Can there be argument about whether that is likely to cause serious harm in the form of serious financial loss? How can that happen and how can it be discussed in any particular case? I wonder about that.

I believe the term "serious", as we have just voted on, should apply to individuals and to bodies corporate. It should mean the same thing for all defamation purposes. It should not vary from one to another. That is my own view. I presume Senator Higgins would disagree with me. I definitely believe that if we are going to keep the phrase "or is likely to cause serious harm", meaning serious financial loss in the case of bodies corporate, we do owe the courts, the public, litigants, lawyers and everybody who is involved clarity as to what we mean by the term "likely".