Seanad debates
Wednesday, 9 July 2025
Defamation (Amendment) Bill 2024: Second Stage
2:00 am
Joe Flaherty (Fianna Fail)
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I invite the Minister for justice, Deputy Jim O'Callaghan, to address the Bill.
Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the Leader of the Seanad for listing this business this afternoon.
As Senators will be aware, I am here to present the Defamation (Amendment) Bill to Seanad Éireann. Those aware of the statutory provisions in respect of defamation will know that when it comes to any legislation governing defamation, we are trying to balance two conflicting constitutional rights. On one hand, we are trying to take into account the right of the individual to his or her good name; and on the other, we are trying to take into account an individual's right to freedom of expression.
In many instances, defamation laws focus on press freedom in Ireland but, as Members of this House will be aware, they go much broader than that. At present, I would have thought the biggest issue in terms of defamation in Ireland is the extent to which people are defamed online by anonymous, unknown individuals. I am pleased to announce this legislation includes a provision which provides a statutory mechanism for somebody to go to the Circuit Court and get an order for the service provider to identify the person who has been defaming them.
Ireland has a very strong media. It is a very free media. I was pleased to see that Ireland is right at the top of the World Press Freedom Index 2025, at number 7 of the 180 nations listed. That shows the extent to which media freedom operates in Ireland. It is something we sometimes do not take account of and recognise. Long may that freedom continue.
The Bill provides for a range of reforms to address the concerns raised by many stakeholders during the review of the Defamation Act 2009. The 2009 Act was noteworthy and was generated by Senator McDowell when he was in the office I now occupy. The main purposes of the Bill before the Seanad today are to tackle disproportionate awards; to support more consistent and predictable redress in defamation cases; to reduce legal costs and delays; to support easier access to justice for those whose reputations are unjustly attacked and those who are subject to unfounded defamation proceedings; and to provide enhanced protection for responsible public interest journalism.
One of the aspects of the Bill that got considerable attention in the Lower House was the abolition of juries. This aspect of the Bill was in the legislation when it was introduced to the Dáil by my predecessor, the Minister, Deputy McEntee. It was an essential part of the programme for Government that there would be reform of defamation laws in accordance with what the previous Government has done. I think it is the case that if juries in the High Court are abolished, it will and should reduce the incidence of excessive or disproportionate awards. It should reduce costs and delays. It is inevitably the case that when it comes to the hearing of a case with a jury, it will take longer than a case heard by a judge alone. It will also have an impact on the length of hearings.
Once judgments by the High Court are made in respect of defamation awards, there will be an understanding as to the basis upon which the courts are awarding awards and the constituent make-up of them. It is noteworthy that a defamation action in the Circuit Court does not have a jury. In most areas of civil law, we assign responsibility to the Judiciary sitting on its own to determine the actions and outcomes of cases.
I will take Senators through some aspects of the legislation that may be of some interest to them. Section 6 will introduce a “serious harm” test for corporate bodies. It provides that a statement about a body corporate is not defamatory unless it has caused, or is likely to cause, serious harm to its reputation.
The Bill will introduce new statutory defences to defamation. These include a provision in section 8 for a new statutory provision in so-called retail defamation cases. This responds to serious concerns expressed by retailers and the hospitality sector, particularly small and medium businesses, about the increase in unfounded claims of defamation made against them. These claims can arise when individuals are asked to produce proof of payment or told that a particular form of payment cannot be accepted. The defence does not apply in circumstances where a retailer does not act in good faith or publishes the statement disproportionately. This might occur, for example, if the statement is shouted across a crowded venue when it could have been raised discreetly. This will provide a powerful new defence for retailers. I hope they will avail of it. Too many times, I have listened to retailers say they have decided to settle an unmeritorious claim by paying more than €5,000 or €10,000 just to make the claim go away. They have been advised by their lawyers or by individuals in insurance companies that they are better off not taking the risk of proceeding, which simply encourages unmeritorious actions. I hope, after the Oireachtas goes to the trouble of putting this really powerful statutory defence into the new defamation Act, that it will be used by retailers. I also point out that this provision was introduced by my predecessor, the Minister, Deputy McEntee, in August 2024. I have made no change to it whatsoever. It is exactly the same as when it was introduced. The suggestion that I have, in some respect, tried to change it is completely false.
Provision is also made, in section 13, for a new defence for broadcasters, where a defamatory statement is made during a live broadcast, whether by an invited participant, or unexpectedly by a bystander. That is appropriate.
Members of the House will also be aware that I am introducing a new provision that sets out what is referred to as the section 26 defence of fair and reasonable publication on a matter of public interest. The feedback in respect of the defence that has been there since 1 January 2010 is that it is a very complex defence that publishers and defendants find difficult to avail of. The new legislative and statutory provision this Bill will put in place is much simpler and will assist the use of that defence. I have simplified it. The new defence now requires a defendant to demonstrate that the statement made was in the public interest, that they reasonably believed publishing the statement was in the public interest and that the statement was published in good faith. That is a benefit and an advantage to the legislation.
The Bill also introduces a number of provisions to support early settlement of proceedings. For example, it provides that the court may encourage the parties to avail of alternative dispute resolution, ADR, in certain cases, amend deadlines and make orders to facilitate the effective use of ADR.
The Bill also makes it easier for those who have been subjected to online defamation to seek to identify a person who is defaming them anonymously online. One of the issues with online defamation is that material can be posted anonymously or under a false name, making it hard to identify the publisher of a defamatory statement. Section 22 of the Bill therefore introduces a new section 45 into the 2009 Act, which provides for a statutory jurisdiction for the Circuit Court to grant identification orders where a defamatory statement has been published online by an anonymous poster.At present, these orders can only be obtained in the High Court, where people have to go to get what is referred to as a Norwich Pharmacal order. The statutory provision that I am introducing will make it much easier for individuals who have been defamed online to go to the service provider and to find out the identity of the defamer.
The Bill delivers on the programme for Government commitment to introduce safeguards against strategic lawsuits against public participation, SLAPPs, to prevent the misuse of defamation laws to stifle public interest reporting. I know there has been some concern that not all the detail of the SLAPP directive has been transposed here. It was appropriate that we just transpose the defamation aspect of the SLAPP directive into the Defamation (Amendment) Bill. The other aspects of the SLAPP directive will be transposed in other legislation or through secondary legislation, if possible. We know the impact that SLAPPs can have. Fortunately, they do not exist that much in Ireland. I have not seen examples of SLAPPs. I would be interested to hear if other Members have. Of course, it is all very subjective. One person's SLAPP is another person's constitutional right to respect his or her good name. The protective measures against SLAPPs are contained in section 19 of the Bill. It inserts a new Part 4A into the Act. The sections to be included in the new Part 4A define SLAPP proceedings along with several key concepts associated with them. Senators will have an opportunity to view that.
This is significant and comprehensive legislation that seeks to strike a balance between protecting reputations and safeguarding freedom of speech and public participation. It represents a robust, fair and proportionate response to the challenges of a rapidly evolving and increasingly complex media landscape. I thank Senators for affording the time. I will listen carefully to their contributions. I apologise that I will not be here to make the closing remarks, because I have to attend another meeting that I think is commencing at 2.30 p.m. or maybe a bit later, so I will have to leave before the end of their contributions. I ask Senators to give careful consideration to the Bill.
Joe Flaherty (Fianna Fail)
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I thank the Minister for a comprehensive summary of the Bill.
Robbie Gallagher (Fianna Fail)
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Cuirim fáilte roimh an Aire ar ais go dtí an Teach seo tráthnóna. The Minister is very welcome back to the House this afternoon. I thank him for his comprehensive outline of the background of the Defamation (Amendment) Bill 2024. As he said, freedom of speech is important and is something that we must protect at all costs. I know journalists are powerful individuals but it is important that they be held to account at the same time. It is imperative that people have a right to respond. I think a balance has been struck well in this Bill.
Defamation and the cost of insurance comprise a big issue. I understand the Alliance for Insurance Reform has written to the Minister about a number of concerns it has taken on board. I know the Minister outlined some of them. There has been significant consultation about this legislation over a period. I am glad that many people have had their say.
This legislation's introduction is overdue. It covers a wide range of headings, all of which are in need of reform. Unfortunately, we have a reputation in this country for defamation that puts us in a league of our own with regard to legal cases. Unfortunately, that has knock-on effects on the insurance premiums that individuals pay. It is important that we strike the right balance. We seem to be out of kilter with our neighbours on this aspect of legislation. The Minister outlined the cost of insurance for small businesses and the claims, which seem to be endless. I hope that this legislation will go some way towards addressing their concerns.
There will be opportunities later for amendments to be introduced. I will not delay the House this afternoon. I welcome the legislation. This debate gives us a chance to get a good look at it. There will be an opportunity for people to bring forward amendments as they see fit. For now, I am happy, on behalf of the Fianna Fáil grouping, to give our full support to this. I thank the Minister for outlining the contents of the Bill in great detail.
Michael McDowell (Independent)
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I welcome the Minister and thank him for his attendance. There are many features of this Bill with which I am in complete agreement and there are others on which I am mainly in agreement, subject to some criticisms I might have to make.
One of the principal functions of this legislation, as introduced by the then Minister, Deputy McEntee, was the abolition of juries in the High Court. That is a matter that is strongly supported by the media on the basis that defamation trials in the High Court are apparently very complex and the allegation is made that juries are unpredictable and sometimes overly generous when they award compensation. Those are legitimate points to make but I have one thing to say in respect of juries. Those people in the media who want to get rid of all juries in all defamation actions may find that, in five or ten years' time, they will say that Judge McDowell - though I am over the age, so it is not going to happen - has for the third time held against RTÉ, The Irish Times or whatever, that he has for the fourth time disbelieved particular kinds of witnesses, and that it is the fifth time he has come to a controversial view and disbelieved a political figure. They will ask who appointed him in the first place. All of those questions will be asked. The funny thing about juries is that nobody, or very few people, really asks who those people are and why they came to that view.
The fact is that juries' verdicts are generally accepted but judges' verdicts are going to have to be reasoned. They will have to say when Mr. or Mrs. So-and-so gave evidence, they disbelieved them. Judges will have to say that in certain kinds of cases. They might have to say that they came to the conclusion that a particular person was lying to them. That happens quite frequently in ordinary litigation. When it comes to defamation, particularly serious defamation, we are not getting rid of the High Court's jurisdiction to deal with defamation, but the Circuit Court, as the Minister said, is entitled to deal with defamation where the claim for damages is limited. What we are dealing with here is serious defamation and the Minister is now putting into law the proposition that these matters will always be and can only be decided by a judge sitting alone. I do not think that is going to turn out to be a happy change in our law. I agree with the Irish Council for Civil Liberties, which suggested that a compromise was available on this, which is to say that cases would be determined in the High Court by a judge alone unless a party convinced the court that it would be more appropriate for a jury to deal with it.
We do not allow judges alone to determine serious cases of, for example, Garda assaults on individuals, or indeed assaults generally between individuals, because there is a view, which I subscribe to, that judges tend to become case-weary and in many cases judges tend to take the view that, for example, gardaí or State agencies are to be upheld against unlikely looking individual plaintiffs. I prefer a jury to decide whether gardaí used excessive force, assaulted somebody or are telling the truth about the circumstances.I believe strongly juries are the best way to determine those kinds of matters because again, unlike cases where juries give a verdict, if you get to a Garda assault case you are going to have to say the plaintiff was lying about what happened or gardaí were lying about what happened, and there will be consequences for individual gardaí. By contrast, if a jury hands down a verdict of X against the State it does not point the finger at an individual witness but simply says that person was assaulted, or whatever it may be. The consequences of having reasoned judicial determinations will have to be worked out very carefully. I support the ICCL position, which is that it be the norm that it goes to a judge alone, but let us always preserve the right, especially for the Judiciary, to say this case is so controversial it would be better if 12 people sworn made the decision rather than one individual who is going to have to disbelieve one person and believe another and give reasons they did so. That is an important point. I am not against the notion that there should be judge-only determination, as in the Circuit Court, but I am against the idea that there is no circumstance in which the Judiciary and the public interest would not be served by a jury trial and that is why I support the ICCL’s position on this matter.
On section 26, that particular provision was brought in by the Bill I brought before this House in December 2006, which is 19 years ago. Time flies. Its genesis was to deal with the Albert Reynolds decision of the High Court in London about fair and reasonable publication. I said in the course of the debate on that Bill that I did not claim to be infallible, though Senator David Norris queried whether I was or was not. The Minister is right to simplify that section. It is too much of a maze at this stage. It is too difficult to implement and not serving a useful purpose. The serious harm test should apply to all defamation in the Circuit Court and High Court. This business of the wrong photograph being used in a newspaper, the wrong name being given or whatever and therefore somebody feels they are entitled to a minor judicial aware of damages should not be the norm. Plaintiffs should be obligated to go to court and establish that this is a serious imputation on their character, regardless of whether they are corporate. Small things like a store detective asking you whether you paid for something are not serious, unless there are some extraordinary circumstances. The idea that a person can go to court and claim damages and a shopkeeper, business owner, hotelier or whoever has to defend it and incur the costs involved is wrong. The Minister should accept that the serious harm clause applies not simply to companies, as this Bill proposes, but to everybody. Nobody goes to court unless they establish serious consequences arising out of the alleged defamation.
As a technical point on the live broadcast defence, there is no actual definition of “live”, but in some cases broadcasters have a delay and I would want to be sure that delay mechanism does not deprive something of the status of a live broadcast.
I also strongly support the right of people to pursue anonymous posters on social media. It is cowardly. I believe fundamentally in free speech, but if you are going to speak freely and publish it you should be willing to stand over what you say. There has been a coarsening in society and a willingness to damage other people and defame them because of the difficulty of obtaining Norwich Pharmacal orders and of persuading social media service providers to identify the people whose views they are relaying.
With those few words, I welcome most of the Bill. I stand by the reasonable view taken by the ICCL that there should be, in certain circumstances, the right for the Judiciary to order a jury trial where it is in the interests of justice that this should be done and in the interests of the Judiciary that it should be done. You can have all the arguments you like about the amount of damages that should arise from a jury trial in such circumstances, but it is a mistake to abolish it in its entirety.
Garret Kelleher (Fine Gael)
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Cuirim fáilte roimh an Aire, an Teachta O'Callaghan, atá ar ais sa Seanad chun an leasú seo don Bhille um Chlúmhilleadh a mhíniú dúinn agus a phlé linn. In broad terms I welcome this amending Bill. As the Minister has outlined, it includes many necessary and progressive provisions that will improve the laws and legal proceedings in the area of defamation. I especially welcome the proposal to include provisions to counteract the possibilities of SLAPPs. These are effectively actions taken with the intent of silencing individuals by burdening them with the costs of legal defence.
However, while acknowledging the steps forward in some of the provisions of the amending Bill before us, I wish to raise concerns expressed to me by ISME about what it considers excessive provisions under current defamation law where the rights and civil liberties of individuals seem to be prioritised over the rights of small business owners, who are currently operating in fear of being accused of defamation in cases where they ask a person in their shop or retail premises whether they have paid for an item they possess. While acknowledging the rights and civil liberties of individuals, it is of crucial importance to acknowledge and protect the rights of our small, medium and large business owners who contribute so much to our local communities and economy throughout the country. The inclusion of a harm test, as is the case in the neighbouring jurisdiction, the United Kingdom, is a positive step forward. It means a statement cannot be judged to be defamatory unless its publication has caused or is likely to cause serious harm to the plaintiff. However, I understand the harm test does not relate to an individual claiming they have been defamed. This seems to be the interpretation of Senator McDowell as well and I would very much appreciate it if this could be clarified in the closing remarks by the Minister or whoever is attending the remainder of the debate.
My colleague, Senator Nelson Murray, has been a strong voice for small businesses in this Seanad term and I fully expect her to speak further on the issue in her contribution. I ask that the issues I raised be addressed in the concluding remarks. I thank the Minister for his acknowledgment of the difficulties faced by retailers in the area of unmeritorious claims, but we also have to acknowledge that business owners must weigh up the risk and consider the possible financial severity of an adverse finding against them. This is something we also need to consider in the whole area of protecting our businesses as well. Other than that I broadly welcome the provisions in the Bill and I thank the Minister for his attendance today.
Linda Nelson Murray (Fine Gael)
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I am speaking on behalf of small businesses. It is my thing. From speaking to retailers and in particular to Retail Excellence, which is the body that nominated me for election to the Seanad, defamation is of huge concern. The Minister was gracious to me a few weeks ago when he gave me a few minutes of his time to talk to him about that. I thank him for that. I appreciate it.
Retailers need to be able to ask questions if they suspect someone of stealing. I also appreciate that shoppers need to be protected, but as we have seen, in Ireland, with 5.3 million people living in the country, we have the exact same number of defamation cases as the entire UK. Someone is taking advantage of the situation and I hope this can help to sort that out. People are obviously taking an opportunity in this. In fact, if we were to work out the scale of defamation cases in Ireland by their cost, it adds up to €70 million in legal costs. Ireland continues to record the highest per capita rate of defamation litigation in the common law world, at 140% of the volume in England and Wales. Relative to our population, as I said, this means that defamation litigation is 19 times more common in Ireland than in England and Wales. Let us look at the Adams v. BBC case. The plaintiff received approximately €100,000 and the legal costs were €3 million. That is very concerning.
Retailers settling cases was mentioned and the Minister and I spoke about this in the past as well. From the point of view of small businesses, the first thing that happens when they know they are potentially being sued is that a letter comes in from a solicitor. The owner's heart skips ten beats and they go into a sweat while their brains try to think about what the situation was, when it happened, what date it was, who was on duty and where the time sheets and CCTV are. Their bodies go into what is almost a spasm of fear. The first thing that happens when that letter comes in is that the insurance excess kicks in. The excess in small businesses can be €2,500, €5,000 or €10,000. That is what happens. When businesses deal with their insurance companies, the small print says the insurance company will work on the case on behalf of the business and it will decide whether to bring the case to court, but often, as we know, cases, including defamation cases, get settled. People settle them because they fear the high cost of going to court. I wish there was a pot of money for businesses to make an example of bringing defamation cases further and taking a stand, but unfortunately it is not possible.
Much of what is included in the Bill is commendable - fair play to the Minister - but there are concerns from business organisations, as I mentioned. The harm test was mentioned by my colleague, Senator McDowell - I was about say Minister McDowell. In various legal and ethical contexts, it assesses whether a specific action could cause harm or injury. It is a crucial element in determining whether a record should be withheld, a referral to a safeguarding body is necessary or an action should be taken. However, the people who bring the cases can sue for defamation, but not the other way around. That needs to be included, as my two colleagues have said.
Defamation cases often involve the serious harm test to determine whether the defamatory statement caused substantial damage to the individual's reputation. The seriousness of the harm is a key factor in determining whether a defamation claim can proceed. Should we introduce a statutory harm test in the definition section, to mirror the one in the UK where a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant? Perhaps the transient retail defamation test promised in the draft general scheme could be reintroduced. There is a harm test for the SME, but not for the person alleging defamation.
There is no cap on general damages, which is a bit scary. Perhaps they could be capped at approximately €75,000, allowing special damages to exceed the cap where demonstrable harm exists, in line with European standards and existing Irish precedents. We need to end the abuse of the appeals process. Again, I spoke about the sweat business owners feel, but defendants who succeed in court also face appeals to higher courts, which causes more stress and forces them to settle on actual grounds, even when they are victorious. The recommendation is to restrict rights of appeal in defamation cases.
If we are to proceed with this Bill today - I might be wrong in saying this; I have not checked it with anyone - can we allow for a review in 12 months' time to see how it affects businesses? The objective from my side, which is the business side, is that businesses should feel they can tackle people and not worry about defamation. As I mentioned, there were 3,500 defamation cases in Ireland and 3,500 in the whole of the UK, so it is definitely something we need to sort out. I wonder whether we should be looking at running the SME test on this to see what impact that would have on businesses.
That is my bit. Otherwise, we have made great strides. There has been a lot of improvement and I welcome that we are doing this. I thank the Minister for his time.
Nicole Ryan (Sinn Fein)
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I thank the Minister for being here. It is good to see him back before the House. I am delighted to contribute to the debate on the Defamation (Amendment) Bill.
Defamation reform is long overdue. The current framework under the 2009 Act has proven to be expensive, slow and in many ways inaccessible, especially for ordinary people trying to defend their names. However, the Bill in its current form gets one major thing fundamentally wrong. That is the proposal to abolish juries from High Court defamation trials. We stand firmly opposed to this move, not because we are resistant to change but because we believe the right to have one's reputation judged by a jury of peers is not just a procedural preference, it is a cornerstone of justice. Removing juries does not fix the problem, it dodges it. We all recognise that defamation trials can result in inconsistent and sometimes excessive awards, but instead of addressing the causes by reforming how damages are assessed, for instance, the Government is proposing to take a sledgehammer to a core principle of our legal system. As others have said, this would leave Ireland a complete outlier among common law jurisdictions. The move is not backed by the legal community. The Law Society, the Bar of Ireland and the Judiciary have all expressed concerns about this shift. The Government's pre-legislative scrutiny report urged against this step, yet we are now being asked to accept a Bill that cuts the voice of the public from some of the most sensitive, high-stakes cases before the courts.
Defamation is not just a false statement. It is about a person's good name, standing, integrity and identity. Who better to adjudicate on whether a reputation has been harmed than a jury of one's peers? We are not blind to the challenges. Delays, costs and procedural complexities are real, but they are not unique to defamation and they are not caused by juries alone. If delays were reason enough to eliminate fundamental rights, we would be in very dangerous territory. There are solutions that do not require removing juries altogether. Hybrid models exist, for example, where juries determine liability and judges determine quantum. These are used in other jurisdictions and could prove to be a compromise in this.
We support all the other reforms in the Bill, including the stronger provisions to tackle strategic lawsuits against public participation and making mediation more accessible through safeguards to ensure victims of abuse, coercion or control are not retraumatised by mandatory processes. However, we cannot accept a Bill that strips out public participation in a justice process, especially when it comes to reputation. We tabled amendments, including one that would allow a judge to determine whether a jury is appropriate in a given case, rather than having a blanket ban. That is a sensible, middle-ground approach to this.
We do not want to undermine public confidence in our legal system in the name of procedural convenience. This is a chance to get the balance right between protecting reputations, safeguarding public interest journalism and ensuring access to justice for all. I hope the Minister will reflect on this and that we can all work in this House together to get it right.
Joe Flaherty (Fianna Fail)
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I understand Senator Stephenson is sharing time with Senator Noonan, if that is in order with the House.
Patricia Stephenson (Social Democrats)
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Yes. I welcome the opportunity to speak on the Defamation (Amendment) Bill. The Bill is both necessary and overdue and I welcome steps being taken to modernise our defamation laws and rebalance the rights of freedom of expression and the right to a good name and to respond to the rapidly evolving digital environment. However, while I welcome elements of the Bill, it is a missed opportunity in some key respects, particularly in how it protects or fails to protect democratic speech and public interest journalism.I will start with the positives. The provisions to deter strategic lawsuits against public participation, SLAPPs, are a step forward. We know these cases are not about reputation. Often they are about power. They are not brought with the intention of winning but to intimidate and silence. The mechanisms proposed, namely, the early dismissal of unfounded claims, cost protection and declarations of abuse, are welcome and they follow a growing recognition throughout Europe that legal systems must not be weaponised against journalists, activists, human rights defenders or whistleblowers.
The simplified public interest defence, that of fair and reasonable publication, is another positive measure which provides some clarity and protection to responsible reporting. The provisions for correcting online defamation are, in principle, appropriate responses to the new, modern information environment in which we find ourselves. However, there are three areas where I feel the Bill in its current form falls short, and where I believe we need to push for amendments. I will certainly table amendments on the next Stage of the Bill. While this Bill gestures towards the EU anti-SLAPP directive, it does not go far enough. The Minister said there will be other measures put in place later to address that. Perhaps we could put those in this Bill as well.
The Bill limits protection on defamation cases alone. SLAPPs occur under many different legal headings, not just in relation to defamation but also under privacy, data protection and misuse of process. SLAPPs are having a chilling effect on communities. They are preventing local communities and small organisations from expressing their concerns on matters where there is a clear public interest. This is happening. Perhaps the Minister and I can speak separately about specific cases where this is happening in Ireland. The Irish Council for Civil Liberties, ICCL, has been clear that this Bill must be amended so that it fully transposes the EU directive. If we fail to do so now, we risk failing to meet our obligations by the deadline and, more importantly, we are failing the people who need protection today, when it comes to SLAPPs.
Second, the abolition of juries in court defamation trials raises serious concerns. The arguments of delays and inconsistency have been dealt with in the Higgins case where the Supreme Court laid out clear guidance on how juries should operate in defamation trials. I do not believe the idea that this is a problem is true in actual fact. We have heard from the former High Court judge Bernard Barton. He has spoken about the dangers of removing juries from cases. We must ensure that we listen to someone with that experience and from that position. The Minister previously supported keeping jury trials, only last year, but now we have a different perspective. I apologise if he did so in his opening statement but maybe the Minister could provide clarity on where that change came from.
This Bill is something of a halfway house. It proposes some important changes. However, I do not believe it goes far enough. It does not provide the full defence that our democracy needs against legal intimidation. If we believe in protecting the right to a good name, we must also believe in protecting the right to freedom of speech to hold the powerful to account and be able to speak truth without the risk of financial ruin. We must protect the right to transparency and accountability and the freedom of the media. Journalists and activists must be protected from the chilling effects that we see with SLAPPs. That is occurring in Ireland but we know it is also occurring all around the world. In particular, we are seeing a huge increase in SLAPPs in the past decade in Europe. I support some aspects of the Bill but I believe amendments will be needed on Committee Stage. I will bring amendments forward and I look forward to discussing them with the Minister.
Malcolm Noonan (Green Party)
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My colleague has spoken more broadly on the provisions of the Bill. I will speak specifically to the EU anti-SLAPP directive. While provisions of the Bill give effect to aspects of the EU anti-SLAPP directive, and its application to domestic defamation cases is welcome, it falls short of transposing the directive's full set of minimum standards and protections, which Ireland is legally required to implement in full by May 2026. The anti-SLAPP provisions in the Bill apply only to defamation proceedings, even though SLAPPs frequently exploit other causes of action, including privacy, copyright and data protection to intimidate and silence public interest speech. The Government has provided no clear explanation of how it intends to extend protections beyond defamation in line with other EU obligations.
The legislation also omits key components of the directive that could have been readily included. These include provision for third-party interventions in support of SLAPP defendants - Article 9; security for damages - Article 10; and reversal of the burden of proof - Article 12. The legislation also fails to incorporate the protections against SLAPPs initiated in non-EU countries - Articles 16 and 17. By failing to incorporate these core safeguards the Irish Government exposes itself to potential infringement proceedings from the European Commission. The Government could and should have drawn on the established international best practices, including the Council of Europe's recommendation on countering the use of SLAPPs. This recommendation includes vital safeguards such as automatic stay of proceedings while an early dismissal motion is being heard, which are designed to protect against abuse of litigation.
As the Bill goes through today, the Cross-Party Group supports organisations calling for the Houses to make necessary amendments to ensure that Ireland seizes the opportunity to protect freedom of expression. Public participation should be the cornerstone of our democracy.
Sharon Keogan (Independent)
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I welcome the Minister into the Chamber again and thank him for coming in so many times to listen to Senators while we scrutinise this legislation. I express my deep concern about the direction the Government is taking with the Defamation (Amendment) Bill 2024. This is not a reform Bill; it is a retreat from fairness, transparency and the rights of ordinary people.
Let us begin with the business community. ISME, which represents small and medium enterprises throughout the country, has called this Bill bad law. It warns that it fails to cap damages, introduce a serious harm threshold and protect retailers from speculative claims. It is not alone. Retailers, hoteliers and shopkeepers are all saying the same thing. This Bill will not reduce litigation abuse; it will entrench it.
Let us talk about SLAPPs, strategic lawsuits against public participation. These are lawsuits designed not to win but to silence, to punish people for speaking out, and they are happening here in Ireland. We have seen journalists dragged through the courts for reporting on corruption. We have seen whistleblowers threatened for exposing wrongdoing and survivors of sexual abuse warned that if they speak publicly, they could be sued. This is not justice; it is intimidation.
This Bill introduces a weak test of "manifestly unfounded". It does not go far enough. It does not reverse the burden of proof or stay proceedings to prevent legal costs from piling up. It does not empower courts to penalise abusive plaintiffs. The Ireland anti-SLAPPs network and ISME have both called for stronger protections. Why are we ignoring them?
Let me give a hypothetical but all too real example. A woman is assaulted by a powerful man. She does not go to the Garda. She is afraid, ashamed and unsure she will be believed. Years later, she speaks out online. She does not name the man but he sues her anyhow. Under this Bill, unless she can prove the case is manifestly unfounded, she will be dragged through the courts. She will face legal bills, public scrutiny and the very real possibility of financial ruin. That is the reality this Bill fails to confront.
What of the jury? The Irish Council of Civil Liberties, ICCL, the Law Society and retired High Court judge Bernard Barton have all warned against removing juries from defamation trials. Juries are not a relic, they are safeguard. They are the people's voice in the courtroom. Removing them is not reform, it is regression.
I must raise a question that many are thinking but few are willing to say out loud. Is there a conflict of interest at the heart of this Bill? The Minister, Deputy O'Callaghan, and Attorney General, Rossa Fanning, have both earned substantial sums from defamation litigation. Deputy O'Callaghan, a senior counsel, has represented high-profile clients in major defamation cases.
Joe Flaherty (Fianna Fail)
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I do not think that is appropriate.
Joe Flaherty (Fianna Fail)
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That may be but I do not think it is appropriate to this debate.
Sharon Keogan (Independent)
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It is. This has to do with the defamation legislation. I am sorry but it is. Mr. Fanning, before becoming Attorney General, was one of the country's most sought-after barristers.
Joe Flaherty (Fianna Fail)
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I ask the Senator to be mindful of her language.
Sharon Keogan (Independent)
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I thank the Acting Chairperson for pointing that out. Before becoming Attorney General. Mr. Fanning was one of the country's most sought-after barristers in commercial and defamation law. While it is of course normal for legislators to follow careers in law before entering politics, we must question the systemic problems that raises. Do we really believe that this Bill, one that preserves high-value litigation by weakening public protections, was crafted with cool, disinterested objectivity by those who have profited most from the current system?
Finally, I want to speak on a broader concern.
Joe Flaherty (Fianna Fail)
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Senator, I ask you to withdraw that. You have absolutely no proof of what you are saying there. That is a scurrilous comment and I ask you to withdraw it, unless you have proof.
Sharon Keogan (Independent)
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What comment would you like to-----
Joe Flaherty (Fianna Fail)
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The Senator can withdraw it unless she has proof.
Sharon Keogan (Independent)
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Proof in relation to what comment?
Joe Flaherty (Fianna Fail)
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In relation to the architects of the Bill.
Tom Clonan (Independent)
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On a point of order, I think there is a clear inference there of a conflict of interest. I think it is unfair-----
Tom Clonan (Independent)
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-----and I do not think it behoves this House to introduce that type of argument or narrative here.
Sharon Keogan (Independent)
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There are many Members in this House who would come from a legal background, and, indeed, many in the Lower House too.
Joe Flaherty (Fianna Fail)
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It is not a crime to come from a legal background.
Sharon Keogan (Independent)
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Many would have vested interests in this legislation, so I-----
Joe Flaherty (Fianna Fail)
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I am going to ask you to withdraw that.
Sharon Keogan (Independent)
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Right, okay. Thank you. I will consider that withdrawal and-----
Sharon Keogan (Independent)
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Finally, I want to speak on a broader concern, the erosion of free speech in this country. We have seen the Government hesitate on hate speech laws, failing to provide clarity on what will or will not be criminalised. We have seen proposals to include a so-called Kneecap provision in anti-terror legislation, a clause mirroring the very same one being used to persecute Irish artists in the UK, with language so vague it could be used to target half the country for their views. We now see a defamation Bill that fails to protect satire, survivors and the public's right-----
Joe Flaherty (Fianna Fail)
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The Senator is over her time and she has gone on to different legislation.
Joe Flaherty (Fianna Fail)
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We are dealing with defamation, so I will let one of the Senator's colleagues come in now.
Sharon Keogan (Independent)
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Sorry, I might have gone over time, but this is-----
Joe Flaherty (Fianna Fail)
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You have gone on to the hate speech legislation.
Sharon Keogan (Independent)
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No, I am actually talking about this Bill - defamation.
Sharon Keogan (Independent)
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Sorry, you interrupted me, Chair. Surely that time should be allocated back to me. I am nearly finished.
Joe Flaherty (Fianna Fail)
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I did afford you additional time, and now it is your colleague, Senator Conway's turn.
Sharon Keogan (Independent)
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This is not the Ireland I want to live in. This is not the Ireland I-----
Joe Flaherty (Fianna Fail)
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Sorry, Senator. There are other Senators in the House.
Joe Flaherty (Fianna Fail)
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I call Senator Craughwell before Senator Conway.
Garret Kelleher (Fine Gael)
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Were the comments withdrawn? Can this be clarified?
Joe Flaherty (Fianna Fail)
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No, you cannot. You are out of time. I have indulged you long enough and given you plenty of time. I call Senator Craughwell.
Gerard Craughwell (Independent)
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I welcome the Minister to the House. This is the first time I have addressed him since his elevation. I congratulate him on his new post and I think he is doing a fine job where he is.
I rise today to speak on behalf of ISME. My lovely speech has been ruined because several people have already adverted to ISME's critique of the Bill. Nonetheless, I feel obliged to put the association's concerns on the record. The first thing raised with me is the no-harm test. This means individuals who have not actually suffered any damage to their reputation can still sue for damages. This opens the door to frivolous and costly litigation, undermining the very purpose of the defamation law. Second, ISME pointed out there is no cap on general damages. Without limits, the risk of exorbitant awards will only serve to chill free speech and encourage legal threats rather than genuine redress. Third, the promise of transient retail defamation tests has been removed and replaced with a qualified privilege. This change will increase legal fees for retailers without offering them any meaningful protection.
Furthermore, the Bill's anti-SLAPP protections are woefully inadequate and do not meet the standards set by the EU anti-SLAPP directive, which Ireland must implement by May 2026. As a result, victims of sexual assault and rape may still be threatened by perpetrators with defamation actions, silencing their voices. The Bill also removes the promised improvements to section 26, which would have protected fair and reasonable publication. There is no protection for comedic or satiric content and no moral hazard for plaintiffs, meaning there is little to deter vexatious claims. It is unfair for the Minister to suggest that businesses should fight retail defamation actions when insurers have subjugated rights and our courts permit appeals without any constraints on the payments of defendants' costs. Let us be clear that this Bill is a sop to the legal industry - this is ISME speaking, not me, I have to say-----
Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I think it is the Senator.
Gerard Craughwell (Independent)
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-----which benefits from maintaining Ireland's astronomical levels of defamation litigation. Even as claims fell to 289 cases in 2024, this remains higher than the 250 cases in England, as already pointed out. There is no judicial justification for this disparity. The Courts Service's annual report only scratches the surface. Defamation actions generate an estimated €30 million to €50 million in fees each year for a small group of lawyers. By the way, I do not object to people making a living. I am representing the views of ISME here.
There is no justice in this bad law. The Bill is opposed by a wide circle of civil society groups, journalists and media and legal academics. It fails to meet the threshold of reform required by the European Court of Human Rights, risking reputational damage to Ireland and possible enforcement proceedings by the European Commission. It is never too late to do the right thing. If the Bill cannot be amended, it should be opposed. This is the view of ISME. It is not just the view of that association. Several civil society groups have also emailed me in recent days concerning this legislation. I have represented their views to the Minister.
From a personal perspective, I fully support my colleague, Senator McDowell, with respect to jury cases. I would rather be judged by 12 of my peers than by a judge forced to make a decision as to whether he or she believes that I or a particular plaintiff or defendant in a case has lied. I think it is asking a lot of one individual.
I must also say that I am delighted the Minister is bringing forward provisions in this Bill in the area of social media. It is time we tackled the keyboard warriors and those who feel they can say anything they want about anybody they want to and get away with it. In some cases, they feel in some way safe by not naming an individual, but they say enough to identify the individual in question. I am, therefore, delighted the Minister has brought these elements forward and I hope to see the Bill pass on this basis. I will leave it at that. I thank the Minister for his time.
Joe Flaherty (Fianna Fail)
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I thank Senator Dee Ryan for taking the Chair to facilitate me contributing. Obviously, I welcome the Bill. As I was sitting in the Chair, I was thinking that if this was 70 or 80 years ago, we would just have been thinking about newspapers. It shows how we have evolved as a society when defamation covers so many aspects of our lives now. I am not quite sure whether this is a good or a bad thing.
I will address a few of the points made, one of which concerns the juries. As a former press man, I would obviously welcome the removal of juries. Many people have suggested the possibility of a hybrid model. We have an eminent Judiciary and exemplary judges, and I would be more than happy that judges can stand over their decisions and defend them. This is a positive step forward in what heretofore has been an extremely challenging scenario for us as a society.
In particular, I welcome the changes in the legislation on online defamation. Unfortunately, these are probably coming 20 years too late. As Senator McDowell said, we have seen a terrible deterioration in and coarsening of society generally. It is particularly prevalent, I fear, among younger people who have grown up in a silo of social media and feel it is okay to say what you like on social media, that everybody is an editor on social media and that social media do not have the same constraints as the printed press or broadcasting media. I welcome these changes, especially those that will allow us to now go to the Circuit Court to get the identification of anybody who posts anonymously online in a derogatory or defaming fashion.
We heard many contributions about the retail sector. As the proud son of a former shop owner, I still have a small retail hat on me, although I am glad I am not in the business of shops anymore. I would have an element of sympathy for what ISME is saying. From my engagement with the Minister, however, I do not feel the association fully comprehends the changes the legislation will make. This is an all-encompassing Bill. I think it has got a significant degree down the road in terms of where we need to go. We now have a provision in section 8 for a new statutory defence in so-called retail defamation cases. I think this is a significant step forward and a response to serious concerns expressed by retailers and the hospitality sector, in particular, as well as many small businesses in related fields as regards the increase in unfounded claims of defamation increasingly made against them.
We obviously appreciate how hard it is for the retail sector. It is very challenging, whether people are working in the retail sector or are employers. I recently saw online a case in County Longford where a security guard accosted someone shoplifting.Not only had he to deal with the trauma of that situation but he also had to deal with the trauma of someone recording what he was doing, posting it online and then all the vexatious comments berating him for doing his job. The problem with social media is that everyone is a citizen journalist. That is to be welcomed and everybody is entitled to have a place to speak but it is very much a Wild West scenario at this stage.
This is a significant Bill and it has an awful lot of positives. That is what I would say to retailers, based on the conversations I have had with the Minister who has given a very eloquent insight into the Bill. I know he said he has to leave but I hope he will have time to address the specific concerns raised with regard to retail. From my conversations, I am reassured the Bill will address many of those concerns.
Joe Conway (Independent)
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I will address one particular feature of the Bill, namely, the reservations I have about the delegation of defamation to judges only and the bypassing of the constitutional and long-held right of people to be tried by juries of their peers. I want to digress, maybe to add a little bit of levity to what has been a somewhat turgid session at times. When I was a much younger man I spent most of the first 12 years of my teaching life in the capital here and I lived just out the road in Ranelagh, in a place called Cherryfield Avenue.
Joe Conway (Independent)
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Yes indeed, and it gets better because just at the top of my road, there resided a lovely man called Mr. Justice Hubert Wine. He is long gone now. In a chat I had with him once he cracked a good joke, I thought. He said one of his defendants said that he had been sentenced by "just a swine". The sobriquet was anything but appropriate for Mr. Justice Wine because he was an entirely lovely man.
That leads me on to the point I am about to make. Judges are gifted with judiciousness but not with divinity and, as such, they are open to bias, bigotry, caprice and all of those things. If they do not like the colour of your hair, the shape of your face, the colour of your skin, the accent you use or the place you come from, or many other things that are open to bias and caprice, it will almost inevitably impact the way they look on a defendant in a case. The long-held treasured principle in common law areas that people are triable by juries is a magnificent defence and civil right that we should not toss to the wind.
I do not think it is a much of a coincidence but when I was listening to the "Today" programme this morning getting ready to come in here, I heard that in our sister island across the main, the Leveson report was published today. The UK is also talking about doing away with jury trials but, interestingly enough, it has taken a much more measurable thing, namely, bribery and fraud. I was just thinking, as an ordinary layman, that it would be easier to make a judgment on bribery and fraud and on the hard evidence that is likely than it would be on the much more mercurial items that are brought up with regard to defamation and character.
I have that reservation about that measure. I am not even out of time, which is unusual for me, but I want to say, mar fhocail scoir, that I really am delighted to see the Minister back in the Seanad again. He is a better attender than most of us, I would say, and I am delighted to see that he holds the House in such respect and that he gives an account of his work and labours, which are long and will hopefully continue to be fruitful.
Mary Fitzpatrick (Fianna Fail)
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I thank the Acting Chair for allowing me some time. I appreciate the Minister is under time pressures. Like the other Senators, I greatly appreciate his attendance in the House. He is affording us strong attention and I hope the contributions from the Senators merit that.
Many of the other Senators spoke in detail about the Bill. I will focus my comments on an issue that has been aired by others, that is, the effect of defamation crimes on retail. I could talk at length about the cause of defamation, other citizens and other walks of life but I was nominated by RGDATA to contest the Seanad election. I was very privileged to receive its nomination and I am delighted to represent it here. RGDATA represents the small, indigenous, independent Irish retailer - the SPAR or Centra where we go to buy a bottle of milk, sliced pan or newspaper. These retailers are there early in the morning and late at night. From getting to know them and understanding their business, I know they are people who get up in the morning and go to bed at night thinking about how they are going to sustain their business. They have made a very significant financial and personal investment and commitment, not just to the bricks and mortar of the premises they operate but to the creation of employment for people in our communities and the provision of a service to their communities, with all that entails. For many of them, their margins are so thin that if they did not own the premises, I do not think they would have the margins to continue trading because they have been very directly impacted by increased costs.
This Bill is really important to small retailers because they do not want to spend their time considering legal matters. They are not lawyers or solicitors. They do not want to have to take time out of providing a service to their customers and their community and looking after their employees by engaging in litigation of any manner. However, they are subject to and targets of crime on a regular basis. I know the Minister knows this and I commend him on his engagement with the sector, his establishment and convening of the retail crime forum, and his engagement with it on that. The Minister knows that retail crime is costing €1.6 billion in Ireland and that Ireland has the highest per capita cost of retail crime. It is more than €350 per person. This is an enormous cost.
Getting this Bill right is really important. The Minister has heard contributions from others. We will have Committee Stage. I look forward to engaging with the Minister and his officials over the coming weeks to bring the Bill forward because there are an awful lot of very positive innovations in it. I commend the Minister on his work.
Dee Ryan (Fianna Fail)
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Gabhaim buíochas leis an Seanadóir. Anois, Seanadóir Tom Clonan.
Dee Ryan (Fianna Fail)
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Apologies, Senator. If that is all, I ask the Minister-----
Gareth Scahill (Fine Gael)
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On a point of order, there was a contribution in which the integrity and impartiality of the Minister was questioned and a Senator was asked to withdraw the comments. I want to clarify whether those comments have been withdrawn.
Sharon Keogan (Independent)
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They are on the record of the House now so that is all.
Dee Ryan (Fianna Fail)
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They are not being withdrawn. I thank the Senator for clarifying.
Joe Flaherty (Fianna Fail)
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Before the Minister contributes, the Senator did withdraw them when I was in the Chair. That is for clarity. That is also on the record of the House.
Sharon Keogan (Independent)
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On a point of order, and for clarity, I did not withdraw the comments. I said I would think about it and rise again if I wanted to withdraw the comments. I had a lot more to say but unfortunately I was cut short and I did not get my five minutes.
Joe Flaherty (Fianna Fail)
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For clarity, the Senator can check the record. She did say she was withdrawing the comment.
Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Gabhaim buíochas le gach Seanadóir as a gcuid óráidí spéisiúla. I thank the Senators for their contributions. I thank Senator Gallagher for indicating his and Fianna Fáil's support for the legislation before the House. I then listened very carefully to Senator McDowell, who has great experience in this area, having been the Minister that steered through the Defamation Bill that became the 2009 Act. I assure Senator McDowell that I would never accuse him of having any conflict of interest in respect of how he steered the legislation through the Houses at that time, notwithstanding the fact that he was previously and subsequently a senior counsel.
I also note what Senator McDowell said about how the media may come to regret the change to a judge sitting alone. It is certainly the case that there will be changes as a result of the fact that defamation cases will now be heard by judges sitting alone. It will mean that we will now generate and develop a body of jurisprudence through written reported judgments that will refer to defamation cases and how they have been decided. At present, one will not find any reported judgments about first instance defamation cases because when they are heard in the High Court, they are determined by a jury, an award is given and there is no written outcome from the court. The only time there is a written judgment is if a case is appealed and the Court of Appeal or Supreme Court gives its judgment in respect of it. Therefore, there will be considerably more defamation law and jurisprudence in the area. The Senator is correct that it will make the issue more litigious.
I also note what Senator McDowell said about section 26. It was introduced to give statutory effect to the Reynolds decision. That has happened but it needs to be simplified.
Senator Kelleher mentioned the issue about the serious harm test, which is a legitimate point that was raised by Senators Kelleher and McDowell. My concern about having a serious harm test for every claimant who brings a defamation case is that there will inevitably be interlocutory hearings to determine whether the case is a serious harm case. It will lengthen proceedings. If somebody issues proceedings claiming they have been defamed, and if the defendant puts in a defence stating that it does not meet the serious harm test, there has to be a hearing about it. That will be a hearing in advance of the full hearing. They have this in England and it has made it a more complicated area. There are some advantages in defamation laws at present in this country in that there is a resolution by the hearing of it in front of a jury, or in front of a judge if it is in the Circuit Court, and there is a quick determination. I do not want to make it so complicated that we have the serious harm test hearing, then we have appeal of that, it goes back, and then we have the full hearing. I note what was said but I would be concerned about it.
Senator Nelson Murray referred to how defamation is a huge concern for retailers. I am aware of that. A number of colleagues have raised that issue as well. However, the new statutory provision has been put in to meet the concern of retailers. It is in response, in fairness to many Members in this House and the Lower House, to the campaign that is being waged to ensure we can change our law. It will mean that if a retailer in a shop questions somebody as to whether that person has paid for something, or asks somebody whether they can check something, that will be protected. If a case is taken against a retailer, I would urge retailers to defend the claim. What encourages unmeritorious claims, as I said before, is when people decide, “Ah sure, we will just pay out a small sum of money”. I note what the Senator stated about the excess but there is a mechanism whereby the client in an insurance-client relationship can put pressure on the insurer to fight the claim. Insurers should be fighting claims as well.
I think it was mentioned by the Senator as well that the general scheme changed, and the transient retail defamation case was addressed in the general scheme. That was before the Bill was introduced in August of last year. I had nothing to do with that. I was not in government at the time. I got a Bill that was introduced by my predecessor, the Minister, Deputy McEntee, and approved by the Government. I have made no changes in the scheme since it was introduced.
I note what Senator Ryan said in respect of juries. I listened carefully in the Lower House when Deputy Carthy was making a point about juries. I will deal with the juries point in due course when I respond to Senator Stephenson’s point where she mentioned statements I have made previously.
Senator Stephenson said this is a missed opportunity. She also criticised the fact that the Bill does not transpose other aspects of the SLAPP directive into Irish law. That will be done. Let us remember that this is a defamation Bill. It is appropriate that we just transpose into the defamation Bill those aspects of the SLAPP directive that relate to defamation.
I also heard her talk about the Higgins case. The Higgins case is about setting out what awards of damages in defamation cases should be, regardless of whether it is a judge or a jury making the determination. The important thing about the Higgins case is that it will stand when or if we see the abolition of juries. I have also listened very carefully to what retired judge Mr. Justice Bernard Barton has said in respect of this matter.
Senator Stephenson said that I had previously in the Dáil supported retaining juries in defamation cases. That is correct. I described it as short-sighted. She asked what has changed. What has changed is now I am a member of the Government and I have to abide by and comply with the agreed position of the two parties and Independents that went into government and agreed the programme for Government. When you are in government, or when you are in a political party, as Members of this House will know, you have to compromise. Compromise is an essential part of government.
Senator Noonan also referred to the issue of the SLAPP directive not being fully transposed. I will say the same thing to him: it is a defamation Bill, and I will be bringing forward further legislation to transpose the rest of the SLAPP directive.
Senator Keogan read out what ISME had stated. It is important that we are discussing in this House the issue of the defamation Bill. As I said at the outset, we have to take into account conflicting rights. On one hand, there is the right of the individual to their good name and, on the other, there is the right to freedom of expression. Notwithstanding the background to how any of us get elected into politics, we have to represent what is perceived as being the public good. It is certainly the case that many people believe they have been grievously defamed by people. We do not actually hear too much about those individuals who have been defamed and believe they have to rely on the defamation laws because they are not an organised entity. They are not like ISME or the NUJ. Senator McDowell will be well aware of this. I think of the position of former Sergeant Maurice McCabe, where outrageous allegations were made against him. The only remedy he had in law, outside of the contract of employment dispute he may have had with the Garda, was a defamation claim. People were asking what can be done about this. When people say heinous things that are inaccurate and very damaging about individuals, they certainly should have a remedy. Not always can everybody have a remedy because there are some defences there. I am conscious that Senator Keogan defamed me in her speech. I have no remedy against that, nor would I wish to take it, because I think politicians should have a thick skin. However, one of the great privileges that Senators and Deputies have is the defence of absolute privilege. We can say what we wish here. Of course, there are limits to that as well. It has consequences. The Senator’s allegation that I have a conflict of interest here is not only defamatory; it is incorrect and inaccurate. It has given me good insight into her as a Senator, and I will reflect on that in due course.
I will take on board what Senator Craughwell said. He referred to many parts of the ISME speech and I listened to it very carefully. In respect of the transient retail defamation case, that may have been removed but it has nothing to do with me. We all need to be conscious of the broader public interest, let alone just focusing on representative vested interest groups that come here and ask us to speak on their behalf. It is important that we speak on their behalf but we also must have the broader public interest at large.
I listened carefully to Senator Flatley; sorry, I mean Senator Flaherty. I apologise for confusing him with the famous Irish dancer. I listened carefully to Senator Flaherty. Having the experience of being in the newspaper industry is beneficial here. I can understand why newspapers feel the defamation laws need to be shifted more in order to protect the right to publication. Again, as I said, it is a balancing act. I agree that the new provision in respect of protecting retailers is a strong statutory defence, and I hope it is used.
Senator Joe Conway gave an account of living in Cherryfield Avenue - a very pleasant avenue. I was never aware of Mr. Justice Wine but it sounds like an interesting account of him. He talked about trial by juries. It is important to point out that there is no suggestion of any abolition of juries in the context of criminal prosecutions. In the Circuit Court for a defamation claim, people do not have a jury there. If you want to take a claim, you can take it in the Circuit Court. You can claim damages of up to €75,000. You do not get a jury, but you get a fair hearing from a judge. Senator Fitzpatrick spoke about small retailers and the retail crime form. I am very conscious of the issue and how it affects retailers, and that is why this statutory provision is contained within the Bill.
I thank the Cathaoirleach for listening to me and Members for their contributions, which I will take on board. I will be back on Committee Stage.
Tá
Garret Ahearn, Niall Blaney, Manus Boyle, Paraic Brady, Cathal Byrne, Maria Byrne, Alison Comyn, Teresa Costello, Ollie Crowe, Shane Curley, Paul Daly, Aidan Davitt, Mark Duffy, Mary Fitzpatrick, Joe Flaherty, Robbie Gallagher, Imelda Goldsboro, Garret Kelleher, Mike Kennelly, Seán Kyne, Eileen Lynch, PJ Murphy, Margaret Murphy O'Mahony, Linda Nelson Murray, Evanne Ní Chuilinn, Noel O'Donovan, Fiona O'Loughlin, Joe O'Reilly, Anne Rabbitte, Dee Ryan, Gareth Scahill, Diarmuid Wilson.
Níl
Victor Boyhan, Tom Clonan, Joanne Collins, Joe Conway, Nessa Cosgrove, Gerard Craughwell, Eileen Flynn, Laura Harmon, Sharon Keogan, Aubrey McCarthy, Maria McCormack, Michael McDowell, Rónán Mullen, Conor Murphy, Malcolm Noonan, Sarah O'Reilly, Nicole Ryan, Patricia Stephenson, Pauline Tully.
Mark Daly (Fianna Fail)
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When is it proposed to take Committee Stage?
Seán Kyne