Alice-Mary Higgins (Independent)

I thank the Minister. We have a series of amendments under this section. I look forward to the Minister's engagement with them. Effectively, the concern in this whole group of amendments relates to the anti-SLAPP provisions in the Bill, which are required, under EU Directive 2024/1069, to be implemented by March of next year. We have concerns that the provisions contained in the Bill put to the House are weak and overly complex and that, as a result, they are likely to be unused or underused by defendants. Without clear and reliable mechanisms for early dismissal and cost protection, which I will come to in some later amendments, defendants will not have certainty that invoking these provisions will result in their case being thrown out.

SLAPP targets could risk being drawn into further layers of costly and time-consuming litigation, rather than being offered protection. This is not only costly to the individual but to all of us who deserve to be made aware of public interest information. I refer to the chilling effect on those who may be wishing to share information. If a case were taken, it may indeed emerge that they have a potential defence or may well have a case, but in many cases they will not be able to take the risk and will be uncertain of the protections that are going to be available to them under the SLAPP application. I raise the chilling effect that happens if we have anti-SLAPP provisions that do not work. It is important to say that they do not just affect the individuals. They affect all of us who may have benefited from the public service of somebody who has relevant information to place in the public realm.

The Government could and should have drawn on established international best practices, including the Council of Europe's recommendations, to provide clear, practical guidance for safeguarding free expression and democratic accountability. It is important to note in this context that this Bill only applies to defamation proceedings, even though SLAPP frequently exploits other causes of action, including privacy, copyright and data protection to intimidate and silence matters of public interest.

I will go to my specific amendments in this grouping. Amendment No. 12 seeks to delete the line that has “but that have as their main purpose the prevention, restriction or penalisation of” and substitute “have the effect of preventing, restricting or penalising”. Amendment No. 12 changes the definition of abuse of court proceedings against public participation so that the prevention or restriction of public participation is not required to be shown to be the main purpose of the Defamation Act. The need to prove that the main purpose of the proceedings is to restrict public participation requires an understanding of the intention of the litigant. It is very vague and subjective and it is open to abuse.I know that is not always the case but in many cases - and this is the concern we are acting from - the vulnerable party who is facing a potential defamation action may not have the same level of resources and we are placing upon them the burden of proving a particular intent on the part of those taking the case. That is quite a difficult thing to prove. It is quite subjective and requires insight into and access to the internal decision-making processes. The Minister has been very clear that defamation cases are used by a wide range of actors in a wide range of circumstances but our concerns and the concerns the EU anti-SLAPP directive was trying to address in looking for anti-SLAPP laws relate to cases where very large, well-resourced and well-equipped actors misuse our legal system to intimidate and silence individuals. This is what the directive was pointing to and what the anti-SLAPP provisions are meant to address. We are not talking about every defamation case. We are talking about tackling the problem of SLAPP cases. These provisions require persons to prove intent rather than to prove something had the effect of preventing, silencing, restricting or penalising or that this was one of its purposes, which is something that might be looked at on Report Stage. Proving that this was the main purpose is a high bar. It is difficult to prove. It is about inferring and demonstrating intent, which is, in many cases, internal and subjective, on the part of the actor taking the potentially aggressive action in what may be a SLAPP case. It is something to be examined again.

The Minister indicated in previous responses to others that he is concerned about cases that simply have this effect but even meeting the burden of proof to show that it was a purpose is not enough. You must miraculously find an email or get evidence of someone saying they will take a case to shut you up. You have to show that is the main purpose and that, among the balance of all other reasons, this is the primary purpose. That is a high bar. I suggest that, even if the Minister is not accepting these amendments at this point, he think about the question of the main purpose. Perhaps it should be required that this be one of the purposes of the case being taken. If one of the purposes of the case being taken is to prevent, restrict or penalise public participation, that should be significant enough for us not to support or allow it to have its desired effect.

Amendment No. 12 simply requires that the legal action would have the effect of preventing public participation. It would ensure that abusive court proceedings against public participation are defined by consideration of the consequences of the legal action, something that can be seen, demonstrated and proven, rather than the intention of the litigant taking the action, which can be ambiguous and difficult to prove. The intent of that person should be given a particular weighting in terms of it being the main purpose.

Amendment No. 13 seeks to delete “manifestly unfounded” and substitute “an abusive lawsuit against public participation”. The term "manifestly unfounded" in the newly inserted section 34E, which sets out the details of an application to strike out a claim or appeal, would be replaced with “an abusive lawsuit against public participation”. The definition of "manifestly unfounded" in the Act does not give a clear indication to the court and is somewhat overcomplicated. This is a clear example of the unnecessary complexity of the anti-SLAPP provisions of this Bill. It could lead to layers of litigation, allowing powerful and wealthy figures further mechanisms by which they may abuse the legal system to silence critical thought and to create a fear and uncertainty for those faced with these lawsuits that, even in their attempts to have the case dismissed, they may face matters of interpretation. According to whom and to what standards is a claim manifestly unfounded? Again, we are doing this rather than looking to the effect. This means that all you need is one or two cases in which the grounds on which something is considered manifestly unfounded are questioned and where demonstrable ambiguity as to how it is interpreted arises to go back to a point where there is that chilling effect and somebody who is putting important information in the public domain for the purposes of the public interest will not be confident that a case taken against them, even though it may be an abusive case, will be dismissed as manifestly unfounded.

It should be borne in mind that the negative effect of having inadequate anti-SLAPP provisions is not contained in the courtroom. It does not happen in the courtroom. The negative impacts of inadequate anti-SLAPP provisions come in the chilling effect on those who, because they are not certain they will be protected from abusive lawsuits, withdraw from or fail to pursue the sharing in the public domain of information they believe is of public interest and important. Amendment No. 13 is an attempt to move away from that unnecessary complexity.

A number of amendments to this section have been proposed but I will only speak to my own. Amendment No. 18 seeks to insert a new section in page 16, between lines 20 and 21, that provides that, upon an application being made under section 34E by a defendant to a proceeding, no further step may be taken in the proceeding until the application, including any appeal against the application, has been finally disposed of. It provides that:

Unless a judge orders otherwise, the claimant is not permitted to amend his or her pleadings in the proceeding— (a) in order to prevent an order under this Act dismissing the proceeding, or

(b) if the proceeding is dismissed under the Act, in order to continue the proceeding.

We will come back to the question of intent or purpose. If, for example, in an initial pleading, it is made clear that one of the purposes, or, indeed, the main purpose according to the high standard and bar set by this Bill, of the case is to discourage public participation, it is important that the claimants are not able to change their pleadings or change the grounds on which they are making their claim in order to avoid a dismissal on the grounds of the claim being manifestly unfounded or, indeed, a rejection on the basis of the intent being the ending or chilling of public participation where that is demonstrated in those pleadings. It is really just to ensure loopholes do not develop whereby the intended provisions of this Bill can be dodged. Amendment No. 18 proposes a stay on court proceedings where the application has been made by a defendant in a defamation case to strike out a claim as an abusive lawsuit against public participation. The Council of Europe's recommendations included instituting an automatic stay on proceedings while an early dismissal motion is being heard. This is designed to protect against abusive litigation.Article 11 of Directive (EU) 2024/1069 indicates that member states shall ensure courts may grant dismissal of manifestly unfounded claims at the earliest possible stage. This is reflected in the proposed section 34E. It is still concerning, and abundantly possible, that such decisions may take time, however. During that period, the fees for court proceedings can build up for the defendant and, again, this effectively gives the claimant a different mechanism to weaponise the costs of retaining representation within the legal system against the defendant. The lack of safeguards is something that could continue to chill public participation. Far from being a solution, the process to strike out a claim could end up extending matters. It is an important mechanism but unless it includes a stay on proceedings, it could exacerbate the problem. Again, there are layers of procedural complexity added in the sections 34F, 34G and 34H that could mean exercising these sections under the process could become counterproductive in that it could become more complex and involve either more time or more legal representation. It could be a matter that not only will people feel, before they even get to a substantive court hearing where they can push back, that they are going to face a series of challenges in relation simply to a request to dismiss.

I come to the second part, which I really urge the Minister to consider, whereby a defamation case is taken and somebody states that it is an abusive case. It is very important that there is no capacity – perhaps the Minister can reassure me that this will not be the case – for a claimant to amend their pleadings when they know it is likely that they will be challenged on the question that it is, potentially, an abusive defamation case. That is important. Other jurisdictions which have implemented poorly designed anti-SLAPP laws have shown that those laws can end up doing more harm than good because they give an illusion of protection while failing to protect against abuse in practice. This results in a loss of trust in the system’s capacity to protect those who are acting in good faith and in the public interest.

Amendment No. 19 seeks to insert the following into the Bill:

Where an application for declaration has been made before or during a trial of action and costs, a judge must not strike out a claim and appeal under section 34E if the claimant satisfies the judge that— (a) the claim is likely to prevail at trail, and

(b) the harm suffered or likely to be suffered by the claimant as a result of the defendant’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in dismissing the case before trial.”.

This is complicated. Where there is a defamation action that is considered to be a claim against public participation and an application is made by the defendant to have the case dismissed, amendment No. 19 would place the burden of proof on the claimant to show that their claim is likely to prevail at trial. Rather than the person who is being subjected to the defamation case and who is claiming that it is an abusive case having the burden of proving that the party taking the case against them is acting in a manner that is abusive and that is designed to curtail their public participation, under the amendment, the burden of proof would be reversed. As a result, the party taking the defamation case would be required to show that they are acting in good faith and are not taking the case for the purposes of creating a chilling effect but, rather, because they believe they have reasonable grounds. Their argument may or may not be successful on the basis of those grounds. This is a different approach but it is an attempt to address the question of an excessive burden of proof being placed upon the party who has already potentially been subjected to pressure and a chilling effect. I am aware that this is not true of all defamation cases but it is when it comes to SLAPPs. It would, as stated, reverse the burden of proof. Those who are taking defamation cases in good faith should be able to demonstrate they the latter is, in fact, the position and that they have credible grounds for doing so, with a reasonable possibility of the court finding in their favour. Amendment No. 19 would lay the responsibility with the claimant rather than the defendant when it comes to the burden of proof and in terms of demonstrating that a defamation case is credible and is not unfounded or abusive in nature.

Article 12 of the EU directive, which required that this legislation be brought forward in the first place, states that where there is a claim against public participation "The burden of proving that the claim is well founded rests on the claimant who brings the action." This means that the directive envisages that he burden of proof should sit with the claimant rather than the defendant. Despite this clearly indicated by the directive, we do not see the same burden on the claimant in the Bill before us. We mainly see a set of difficult things for the defendant of the defamation action to prove. This is another example of how the legislation, as drafted, fails to address the potential abuse of the power imbalance in defamation proceedings.

There is a risk to be examined. Many who have contributed to the debate in this House have done so from a legal perspective. I am coming at this from the perspective of 15 years of involvement in civil society before I entered these Houses and on the basis of an awareness of the chilling effect on very poorly resourced organisations, including watchdog organisations and those who some of the most vulnerable groups in society, that face a situation where even the existence of a court case can means they cannot get insurance or continue with their operations. I have given these examples before. I have worked for organisations that have been €2,000, €3,000 or €4,000 away from a project falling. The moneys involved are very small and are very tightly administered. There is not usually a huge contingency fund available. In many instances, we are talking about project funding. Those who may want to blow the whistle or highlight something for the public or who see the effect an action on the part of, for example, large corporation may be having on the ground face a difficult decision about going public with that information and they are in a particularly vulnerable situation at times. There is a reason the EU directive tries to shift the burden of proof and tries to state that we have to have anti-SLAPP legislation.

Let us be really clear about this. The legislation is not just about defamation; it also refers to SLAPPs. Furthermore, it refers to the abuse of the legal process to limit public participation. The latter has been so clearly recognised as a genuine problem in society that the EU directive sets out an obligation to address it. We are not talking hypotheticals; we are talking about a real, noted and definite problem. The challenge we have is to say whether the provisions in the Bill are sufficiently fit for purpose to address that problem. This is not the position with every defamation case. Where there is a SLAPP and where there is an abuse of power – the Minister pointed out that defamation cases can be between all kinds of parties – and of the legal process in order to curtail, intimidate or prevent public participation, will the provisions currently contained in the Bill actually work?Will people be confident enough that a manifestly unfounded case against them will be dismissed quickly, that they will not be disadvantaged and that the process will not drag on, even the process of a dismissal? Will they be confident that they can go ahead with that public information they believe to be important and in the public interest and they are not going to have to prove something almost impossible in terms of proving the intent of a large actor, whose private minutes and correspondences they do not have access to, when they can see the effect? Is it not more appropriate, as the directive called for, to say that, if you are taking a defamation case and somebody says they believe you are taking this defamation case in an abusive manner in order to limit public participation, you would be able to demonstrate that you are not taking this case in an abusive manner in order to limit public participation and that the burden of proof would be on the claimant? That is what Article 12 of the directive wanted. They would have to demonstrate they are acting in good faith, taking this defamation case for demonstrable reasons that are not around the limiting of public participation and are doing so in good faith because they believe they have a credible case. That is a more reasonable place to place the burden of proof. That is not being put in every defamation case. It is put on every defamation case against which a claim of abusive practice has been made, which is not something people do lightly either. I urge the Minister to consider somewhat of a reversal in relation to that burden of proof so that we have anti-SLAPP legislation that actually works and has the desired effect, we move away from the intimidation, silencing and imbalance of power we have seen in SLAPP, and we address the fundamental problem identified in the EU directive. I hope the Minister will consider these amendments. I would like him to consider taking them on board. If he feels there is another way to approach them, I hope he will at least agree and recognise there are concerns that need to be addressed.