Mark Daly (Fianna Fail)
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I welcome the Minister. We are on amendment No. 4, in the names of Senators McDowell, Boyhan, Clonan, Conway, Keogan and McCarthy. The Minister is in possession.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I had actually just finished my contribution.

Mark Daly (Fianna Fail)
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Does anyone else wish to comment on amendment No. 4? No.

Mark Daly (Fianna Fail)
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I welcome to the Gallery pupils from Castlegregory Secondary School. They are most welcome to Seanad Éireann today. I understand this is the transition year class. Normally when a school comes in, there is no homework for the rest of the week, but I do not know what to give a transition year class - whatever they want. No homework for the first week of the first term in the new year after they go back into fifth year. They will be grand.

Amendments Nos. 5, 8 and 9 are related and may be discussed together by agreement. Is that agreed? Agreed.

Michael McDowell (Independent)
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I move amendment No. 5:

In page 7, between lines 14 and 15, to insert the following:

“PART 4

DEFAMATORY STATEMENT

6. Section 2 of the principal Act is hereby amended by the substitution of the following for the definition of “defamatory statement” appearing in that section:

“ ‘defamatory statement’ means a statement that tends to cause harm both to a serious and to a lasting extent in the eyes of reasonable members of society, and ‘defamatory’ and ‘serious harm’ shall be construed accordingly.”.

This is an important amendment and I want to put it in context. The Minister is proposing to amend the law in relation to defamations of bodies corporate, in other words, companies and associations and bodies of that kind. If the House looks at page 7 of the Bill as passed by the Dáil, the House will see that section 6 of the Minister's Bill proposes to insert a section 12 in the principal Act. Section 12(2) of the proposed section provides that, "A statement concerning a body corporate that is made on or after ... the coming into operation of section 6 of the Defamation (Amendment) Act 2025 is not defamatory unless its publication has caused, or is likely to cause, serious harm to the reputation of the body corporate." In other words, a test is being laid down for companies that it has to be serious harm. That does not apply, as the law currently stands, to defamations of people who are not companies. To take an example, if somebody says "You are nothing but a thief" in a pub at night or whatever, that is defamatory, and it is actionable in the case of an individual, as things stand, regardless of whether it cause serious damage to the reputation of the person concerned. In Britain, certainly in England and Wales - I am not sure about Scotland and Northern Ireland - there is a serious harm test for all defamation.One cannot sue because a defamatory remark is made without regard to whether it is seriously defamatory in the case of an individual. The Minister has made the correct distinction, in my view, in regard to companies. There has to be serious defamation for a company.

If we are going to have a two-tier gravity test from now on, it means that accusations or statements which do not meet the serious threshold for a company but which are made in respect of an individual are to be actionable. I gave the example of a person who is in a pub when somebody says, "You are nothing but a thief" or something like that. There are also much more practical cases than that. One would imagine that somebody about whom a remark of that kind was made in a pub would be told, if they went to their solicitor the next day, to cop on, only three people heard the remark and none are likely to believe it anyway.

I will outline for the Minister an example of where this would have effect. If somebody is stopped in a shop by a member of staff or store detective and that person says, "Excuse me, can I look in the bag? You may not have paid for X or whatever," is that a serious defamation if it turns out that the bag is, in fact, empty, there is a receipt in it or whatever? Are we saying that is actionable, per se, as a defamation?

I do not have to give graphic examples. We have a bad enough set of circumstances for retailers in urban areas, not just in Dublin, who are under siege in their own premises defending their own stock. Asking somebody to stop so that someone can look at their bags or ask them to produce receipts, or cases where a store detective or a man or woman behind a till asks someone about something in their bag and whether they have paid for it, are necessary remarks in order to defend the integrity and commercial viability of shops. People who are in trade are entitled to have those things said on their behalf without being sued.

Sometimes ridiculous things happen. When security tags go off when one is leaving a shop and suddenly one is embarrassed by that event, it could be said to be defamatory. It is embarrassing, but it is not worth suing over. That is the point I am making. It is certainly not worth giving a basis to initiate an action to a person who can claim that an ostensibly defamatory statement was made regarding them which is not serious. However, from the point of view of the shopkeeper or the person conducting the business, if they receive a solicitor's letter and a Circuit Court civil bill, it is a disaster. The owner has to go to a solicitor, reply to the correspondence and probably come up with an offer to try to buy it off. They have to come up with a bill for their own costs and for the costs of the alleged injured parties.

An absolutely trivial incident can easily give rise to €20,000 or €30,000 worth of expenditure before you ever get to court and have the good luck to employ a barrister and be liable for the barrister on the other side. Even to fend off or settle an action costs serious money. In this amendment we are saying it has to be a serious defamation. If it has to be serious in the eyes of the Minister for a company to sue, why should it not be equally serious for an individual to sue?

I do not know where the Minister got the idea that in respect of bodies corporate, a seriousness test was to be brought in as applies in the United Kingdom. It is a reasonable thing to do. However, a lower test applies to a personal litigant who has been, arguably, defamed in a fairly minor manner in an incident which is bound to take place fairly frequently. I am sure the Minister is well aware of the dampening effect this has on the capacity of retailers to intervene. Unless a retailer is 100% certain that there is shoplifting going on, they are hamstrung as to what they can and cannot do.

On one occasion, I went to a petrol station in Rathmines and attempted to pay using the card system on the pump. I thought I had paid, but I received a phone call from Rathmines Garda station alleging that I had driven off without paying. It was a bit ridiculous. When I went back to the petrol station to pay, there was a large notice on the pump stating it was defective and the card system was not working. That was a small incident, but I had to suck it up. It was embarrassing that the gardaí had been notified. I will have to ask the Minister about this, but I assume I have been on the PULSE system ever since that incident took place. Those kinds of things actually happen. That happened to me. The idea that I could, in similar circumstances, start sending a solicitor's letter to the proprietor of the Circle K petrol station at Grosvenor Road and demand this, that and the other by way of apologies is nonsense.

Protecting one's good name, which is a constitutional right, does not involve threatening people who are trying to protect their business interests from what are minor matters. The real question is this: why it is right that the seriousness test that applies in all defamation in the United Kingdom will only to apply to corporate plaintiffs in Ireland? Why is it right that unserious or claims lesser than the serious threshold can be brought without any risk to the person making the claim, at very considerable risk to the person against whom the claim is made of legal costs, the cost of settling and buying off a claim and all of that? Why is this two-tier system for seriousness being put in place in the same statute?

I will be glad to hear from the Minister why it is considered the case that a company can only sue for what is called a serious defamation but a private citizen can sue for something which would not amount to a serious defamation. This is not a notional lawyer's argument that is happening here.This is to try to stand beside decent people trying to earn a decent living and trying to conduct a decent commercial activity who find themselves powerless and frightened to intervene in some cases, and told by their lawyers to give the man or woman €5,000 and his or her solicitor €2,500 for their costs just for receipt of a letter. That is the kind of thing we are up against here. I can see nothing wrong with saying that defamation has to be serious in every case, personal or corporate.

It may be said that the Constitution talks about the good name of the citizen, and it does not talk about the good name of the company. That is true, but the Constitution, if you look at the directive principles of social policy, does favour private enterprise. It does favour people who are trying to make a living. It certainly does not mean that nuisance actions, and nuisance and trivial claims are to be protected on this differential scale of seriousness. If you are running a retail premises in the centre of the city of Dublin or any other city, and you really do consider you want to intervene and challenge somebody who you think is in the business of taking your property without paying for it, you should not be operating on the basis that if that person proves to have a receipt and sends you a solicitor's letter, the incident will cost you €5,000, €10,000 or €15,000 for something comparatively minor like that. I ask the Minister to accept this amendment. The amendment proposes to amend the entire definition of defamatory statement in the principal Act and to say that a defamatory statement must be one "that tends to cause harm both to a serious and to a lasting extent in the eyes of reasonable members of society". An incident in a shop does not normally fall into that category. The lasting effect in the eyes of reasonable members of society simply is not there. It is a momentary embarrassment perhaps. It is something over in ten or 15 seconds, or maybe two or three minutes at the outside. It is not worthy of defamation, and it is a waste of the court's time to consider such claims. Try-on defamation actions, which are designed to extract settlements from retailers, would be deterred if this amendment were accepted. I would like to hear the Minister in response.

Mark Daly (Fianna Fail)
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I remind the Senator that we are taking amendments Nos. 8 and 9 as well.

Michael McDowell (Independent)
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I will come back to them at a later stage. We are not on Report Stage yet. I will be proposing them later.

Mark Daly (Fianna Fail)
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Before I call Senator Keogan, I welcome Duncannon ladies club. They are doers and dreamers from Wexford, guests of the Ceann Comhairle. They are most welcome to Seanad Éireann.

Sharon Keogan (Independent)
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I speak to my first sole amendment, which is amendment No. 8. This Bill comes to the Chamber with a number of stated purposes, but they are best summarised in plain English as making defamation law fairer and more efficient. This is driven by the fact that there is simply too much defamation litigation in Ireland. I do not believe anyone in government or opposition will contest this. This purpose carries the acknowledgement that defamation law, as it is in Ireland, is not really fair or efficient and this is to be rectified by this Bill. However, there is a big gap between the intent and purpose of the Bill and what it will achieve. It is my belief, and that of many in this Chamber and of far too many in civil society organisations, that it will achieve very little. There are a number of international best practices in defamation law, and the best of them at present in either current Irish law, or they are barely present in this Bill. To this end, I bring forward a number of amendments, which I hope will correct this.

The first is to introduce a serious harm test for individuals who seek to bring a defamation case to court. We are perhaps the only common law country on Earth that does not impose tests, either serious harm or malicious intent in the case of the United States on plaintiffs. This desperately needs to change. This is not a theoretical debate. Ireland does not exist in a legal vacuum, and the law does not exist in a vacuum from society. We can look at how laws differ in other nations and how those laws impact their societies. We can compare them with our own laws and our society. I, and many others, believe it is evident that defamation is out of control in this country. If the statistics and estimates are to be believed, we have twice as many defamation cases in our nation as in England and Wales. That is not per person. That is in total. Let that sink in. We have twice as many cases as a state that has more than ten times our population. We need to think of how that impacts the workload of our courts, which we all know are facing enormous backlogs in cases both criminal and civil. We need to reduce this backlog where we can, and here we have severely outdated defamation laws, whose antiquatedness is a cause of the caseload. Still, we are not putting in the necessary updates. A serious harm test is not curtailing of people's rights to their reputation. Would we say people lack this right in England, Canada or Australia? No, we would not, so why would we curtail it here in this Republic? This amendment and my others, which I will get to in time, are about rebalancing these rights in favour of the right to free expression and the right to speak and inquire in the public interest. By extension, it is about ensuring that within free public discourse we are able to achieve the end of holding one another to account without fear of grievous repercussions.

We had a heated discussion in this Chamber a few months ago, which I would like to address respectfully as it is relevant to my argument. I asked if there was any conflict of interest. I acknowledge that I used strong language in asking it, that it reflected fairly neither the Minister's character nor the nature of my concern and I would like to apologise, for the record, about the offence caused. I hold the Minister and his integrity in high esteem as a person, as a professional and as a politician. I have praised his appointment and welcomed his appointment in this Chamber many times. I hope I am not going to jinx him, but I look forward to seeing him as leader of Fianna Fáil in the near future.

However, I am still a member of the Opposition. While I would not question the Minister's integrity, and have seen nothing that would indicate improper conduct on his part, it is my duty as a public representative to act in the public interest and to put his judgment into question, which is the real essence of my concern, although I acknowledge I must do it in better and more precise language. As a Senator for the industrial and commercial panel, I have received serious outreach from people and their civil society representatives, as well as from society more broadly, especially the press. Almost all of them tell me that this Bill, as it stands, will effectively change nothing. When the system is broken, the status quo means things will only get worse. While I acknowledge the Minister did not draft the Bill, I am forced to ask why the Minister is standing over it. Why is he proceeding to push it through our Houses when it is clear we will be back here in a few years?

I initially intended to argue that his legal career left him with a tendency to overly concentrate on abstract legal principles, but last week I recall him putting forward the argument to my colleague Senator McDowell that we in the Oireachtas change laws because we can. I assume he acknowledges that laws and their principles are not perfect or inviable and require regular alteration for the common good.In fact, that is arguably the entire reason we are sitting here today in this elected Legislature.

On Second Stage, the Minister made good arguments in favour of the individual's right to a good name. He gave the important example of the Maurice McCabe case. Let me be clear in making the following point. As Members of the Opposition, we have potential whistleblowers coming to us on a regular basis. For every one who is protected by defamation laws, there are at least ten others who back out, keep their heads down and keep silent for fear of those same laws. This is what is meant when people say defamation law has a chilling effect on our nation's public discourse.

One can speak of the rights of the defamed but let me clear on another point. These rights do not exist de facto for the majority of our population. Defamation cases usually cost between €20,000 and €50,000 when taken to the Circuit Court and can fly high into six figures when taken to the High Court. The vast majority of our population do not have money in the five figures floating around in their back pocket. Free legal aid is granted for defamation cases only in extremely rare circumstances. For the vast majority of Irish people, their right to free expression is not balanced against their right to a good name because the former right is not effectively actionable. Indeed, many people have neither right. They can afford neither to accuse another person of defamation nor to be accused of it. I propose that we correct this by combating the suppressive and trivial defamation claims that are freezing free discourse in our society and acknowledging that the balance of rights is unbalanced and must be adjusted accordingly.

That brings me to the core of amendment No. 8 which I am proposing today. It seeks to introduce a serious harm threshold for individuals bringing defamation cases, mirroring the standard already proposed in the Bill for corporate bodies. It is a modest, proportionate and internationally recognised safeguard. It does not abolish the right to sue for defamation; it simply ensures the courts are not used to pursue trivial, vexatious or strategic claims that are not about restoring reputation but about silencing criticism. If we are serious about making defamation laws fairer and more efficient, as the Government claims it is, we must be willing to apply the same standard of seriousness to all plaintiffs, not just corporations. It is not credible to say that a small company must prove serious harm but a wealthy individual need not do so. That is not equality before the law. It is not fairness and it is not efficiency.

Amendment No. 8 is not radical, partisan or punitive. It is a practical reform that aligns with best practice in England, Wales, Australia and other common law jurisdictions. It is a reform that will help to reduce the burden on our courts, protect freedom of expression and ensure defamation law serves its true purpose to vindicate reputations that have been genuinely harmed, not to chill public discourse or intimidate critics. I urge the Minister and my colleagues in the House to consider the amendment in that spirit. Let us not miss this opportunity to make a meaningful change. Let us not pass a Bill that tinkers at the edges while leaving the core problem untouched. Let us pass a Bill we can be proud of, one that protects both the right to one's good name and the right to speak truth to power.

Mary Fitzpatrick (Fianna Fail)
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I thank the Minister for his engagement with us on the Bill. Before I speak to my amendment, I acknowledge the securing by him and his Department of more than €6 billion in the budget this week. That significant amount of public funds will go towards ensuring our State is safer and that justice is served for all our citizens. Well done. It is a big achievement and it should be acknowledged. The Minister has made a firm commitment to increase Garda numbers and this funding will provide for up to 1,500 extra gardaí. It will also allow for more Garda stations and vehicles, infrastructure to address cybersecurity and make provision for immigration services. There is an allocation of €18 million for services for those experiencing domestic violence. There will be money for additional staff for prisons, for the Probation Service and for extra prison spaces. All of this funding, which is accompanied by increased funding for the Legal Aid Board and Free Legal Advice Centres, is really welcome. It shows the commitment of the Minister and the Government to ensuring we have a fully functioning justice system that serves our citizens fairly and without prejudice.

In turning to the Bill before us, I go from that high-level consideration of billions of euro for State infrastructure and services to thinking about how State legislation affects some of our very important but very humble citizens. I refer to local retailers, particularly in my community. I think of Yasser in the local Spar, Omar in Centra and Mary in Phibsborough. These are people who have dedicated their lives to providing a service in my community. They invest in purchasing, leasing or renting properties, purchasing stock, hiring staff, attending to the welfare of those staff, creating quality employment and providing a really good service to their customers. They do their best every single day, often seven days a week. For them, it is a lifestyle choice. This is the purpose to which they choose to dedicate their lives. We are lucky to have them and we all appreciate them.

Increasingly, however, small retailers are challenged in delivering for their customers. Along with energy costs, employment costs and many others, one of the biggest costs is the threat to their livelihood and the service they provide from crime. Retail crime is real and it is pervasive, not just in urban areas, as Senator McDowell noted, but throughout the country. Under law, we are all entitled to defend ourselves, our property, our income and our right to trade. People have all those rights under law. My amendment No. 9 seeks to help retailers to achieve that defence without having to incur additional costs.

Shop owners often have to challenge individuals on their premises engaging with their staff and attempting to steal their products, actually stealing or pretending to steal. There are people who get up every morning with the sole purpose in life to do this. They are organised to do it; such activity is not a casual, opportunistic or once-off event. There are people out there - not a lot, thankfully, but there are some - who engage in this as more or less a full-time occupation. When challenged, they turn it on the shop owners, who are then accused of defaming those individuals. Taking the case to court costs retailers in time, energy and stress. They must engage with professionals and take time out of their workplace and away from their employees and customers. There is a financial cost to all of that, as the Minister knows, and it is having a real impact on retailers' ability to survive.It is undermining the viability of their businesses. I was nominated by RGDATA which represents over 3,000, largely independent, indigenous Irish retailers. These are not big, anonymous corporate organisations with big resources who can rely on those significant resources to defend their case. These are individuals, many of them second and third generation shop owners and operators, who were born into their communities and have traded in and served those communities for generations. They want to continue to do that but they are increasingly being squeezed out. This is not just because of crime and defamation. I appreciate that there are many other factors at play and the Minister alone cannot solve those but this is a real cost to them that is undermining their viability. The legal costs to them can be in the tens of thousands of euro. For many of them this is an additional burden that hinders them and creates barriers to them continuing to viably trade.

I urge the Minister to consider my amendment. It seeks to remove a cause of action for the actions that are outlined in section 8 so that there is no doubt but that a court will not entertain a case of such a nature provided it fits within the criteria set out in section 8(1)(b). It would send a really clear signal to prospective claimants against pursuing such cases and remove the real exposure to costs that retailers face in invoking a defence, as currently outlined. I appreciate that people do have recourse as it stands. Under the law as it stands they have recourse and can defend themselves. The law allows them to do that but the cost of exercising that right to a defence is increasingly beyond too many of them. We should send a strong signal that our justice system is there to act reasonably and to defend them in the operation of their business and the provision of their service in our communities. I ask the Minister to consider the amendment.

Linda Nelson Murray (Fine Gael)
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Like my colleague, Senator Fitzpatrick, I also want to speak on this amendment. Senator Fitzpatrick mentioned RGDATA. We have been inundated with correspondence on this. It seems to me that everyone wants to see something happen with regard to defamation to support businesses and shop owners. Retail Excellence Ireland has been in touch, as has ISME, RGDATA, and the Alliance for Insurance Reform. I have been inundated with emails about this and we have spent a lot of time discussing it because it is so important.

On this section, I urge the Minister to look again at the definition of defamation before Report Stage because I really feel that we have missed something there. I am worried that the absence of a harm test means a person who has not been defamed can initiate a defamation action against another person, inflicting legal costs. According to the Courts Service data portal, 292 defamation cases were filed in the Circuit Court and 68 in the High Court, giving a total of 360 cases, in 2023 in Ireland. Comparative case numbers show that there were 250 defamation cases issued in England and Wales in 2023. There were 250 such cases over there and 360 here, but ten times more people live in the UK than here. This does not make sense. The UK implemented reforms to its Defamation Act in 2013 which became effective in January 2014. The most notable impact has been a significant fall in defamation cases. I am proposing an amendment to section 8 but would urge the Minister to look again at the definition of a defamatory statement in the principal Act and to replace it on Report Stage.

The Minister has been good enough to speak to me about this Bill and to discuss my worries about it. He is a very approachable person. I am very much about small businesses. I hear in my own town of Navan and all around Meath that shopkeepers do not even stop people from taking a drink out of the fridge and walking out of the shop. People can just rock in and get it and there are two reasons for this. One is that gardaí are under a lot of pressure to come for all these cases and two, more importantly, shopkeepers cannot stop them for fear they will be sued for defamation. The Minister rightly said that businesses should fight these cases, and in an ideal world, it would be amazing to fight cases, but I have done my research on this. Defamation is the new minor injury claim, particularly exaggerated or fraudulent, because it is too easy. For example, with minor injury claims we now we have the Injuries Resolution Board and medical reports. Awareness has been raised in this area through the work done by the Government in recent years. We have a brand new action plan on all of this, and the Minister has very much helped in that space so that we can get to the stage of having fair and competitive insurance. However, when it comes to defamation I have been reliably informed by people in the Minister's profession that it is easy to fight on behalf of a claimant and that unless you have an absolutely watertight case, an insurer will not fight it.

When a shopkeeper signs up to an insurance policy, it is the insurer who decides whether to invest €30,000 in fighting a case, not the shopkeeper. Dubious claims can be brought with little or no risks to the claimant while the business, even if it successfully defends itself, is often unable to recover its legal costs. This forces insurers to settle many suspect claims and drives up premiums for small businesses already struggling with the costs of doing business. Some examples given to me by Retail Excellence Ireland include a €12,000 settlement for an eight-year-old claiming defamation after being barred from a shop for suspected theft, a €12,000 settlement for a teenager who produced a receipt from a different shop after being stopped for the suspected theft of a bottle of Coca-Cola, and a €6,000 settlement for a 14-year-old accused of shoplifting sweets. We see individual settlements of €7,500 to €12,000 for minors and legal defence costs of €15,000 to €50,000, even when retailers win. The operational impact is that staff are afraid to check receipts or to stop suspected theft. The projected impact of amendments to the Bill include the elimination of frivolous €7,000-plus settlements, the restoration of staff confidence if we do something in this defamation Bill on loss prevention, a significant reduction in retail crime which is currently costing millions, a stabilisation in insurance premiums, and Ireland being more aligned with European business norms.

If we cannot do something here on this Stage, I urge the Minister to consider introducing something on Report Stage that will help small businesses and retailers. I have been sitting here for many hours listening to people talking about this issue. It is very important to me in my role as a representative of businesses. I understand that the Minister is not going to accept any amendments today. I will probably have to withdraw my own amendment but I would urge the Minister to consider the issue further prior to Report Stage.

Michael McDowell (Independent)
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The Minister has proposed in section 8 that there should be a provision which deals slightly with the circumstances we are discussing here but it is inadequate. There is not much point in waiting until section 8 is reached to point out that it is no answer to the points that have been raised by Senators. It proposes to extend the defence of qualified privilege to situations where the defendant inquires as to whether:

the person whom the statement concerned had—

(I) paid for goods or services,

(II) obtained services, or

(III) [had] in his or her possession—

(A) goods,

(B) proof of payment for goods, or

(C) proof of payment for services,

or

(ii) a statement that the means of payment proffered by the person whom the statement concerned was unable to be, or not capable of being, accepted [in other words, a payment card did not work], and

(b) was not published excessively.

However, it does not deal with real situations in the shops that we are dealing with here. It does not really deal with the shopkeeper whose store detective is saying that something has not been paid for. That is not an inquiry; it is a statement. It does not deal with situations where the owner of a shop of the kind referred to by Senator Fitzpatrick gets into an argument or discussion with a customer as to whether he or she is loitering around to assist somebody else to shoplift.It does not deal with those kinds of situations at all. It purely states:

(i) an inquiry as to whether the person whom the statement concerned had— (I) paid for goods or services,

(II) obtained services, or

(III) in his or her possession—

(A) goods,

(B) proof of payment for goods, or

(C) proof of payment for services,

That attracts the defence of qualified privilege. It does not deal with the real cut and thrust of what is likely to happen in the shop where the person at the checkout says, "The goods in your bag haven't been paid for." That is not an inquiry; it is a statement. Qualified privilege is not enough. Qualified privilege is a defence that has to be raised.

The benefit of a seriousness test is that from the very beginning the case will fail if it is not serious. It does not require defence witnesses to come to court and say they believed this or that. The seriousness issue goes back to the remark in a pub, "You're always taking rounds from others and you never buy one yourself - you're a mean git" or words of that kind. Those can be seen as defamatory statements but they are not serious. That is the point I am making. Is the Minister being advised by the Attorney General that the seriousness test that exists in the United Kingdom, Canada, Australia and other countries would be unconstitutional here or are the Department and the Minister choosing to keep our law frozen in the way it is at the moment? Is there some legal reason that seriousness should not be incorporated into defamation or is it a policy decision? That is the point that worries me. If the Attorney General is saying we cannot introduce seriousness, that is one thing. I would like that to be confirmed. However, if it is a policy decision that unserious defamation is to remain actionable, is that a policy decision being made in this legislation?

Many people in this House have been lobbied on the point about defending one's property. I welcome such lobbying by RGDATA and other trader organisations to amend this legislation to protect retailers more. The amendments on the seriousness threshold have been grouped together for debate here. I have not objected to that because I did not want to be accused of filibustering. The seriousness test is a separate issue. I want to hear somebody say either that it is constitutionally infirm to introduce a seriousness test because of the constitutional guarantee for the good name of the citizen or alternatively that a policy decision has been made that, unlike in Northern Ireland, England, Wales and the other common law jurisdictions mentioned earlier in the debate, it should not be done here as a matter of choice. I would like to hear the rationale for saying that a seriousness test, either as a matter of policy or as a matter of law, is unacceptable and that Irish defamation law should not have it.

Let us forget about retailers for a second. In any context if someone gets a solicitor's letter saying that a statement that was made was defamatory, at the very least they are entitled to get their solicitor to say in response, "This is not serious. It is trivial. Forget it." Someone can go and sue if they like but the costs will be awarded against them because even though they can make the case that it is defamatory in principle, it is not defamatory to a sufficient extent to constitute a serious defamation. That is the point I am making.

The qualified privilege proposals in section 8 of the Bill do not deal with many of the situations that happen on the ground. They do not deal with the whole seriousness dimension at all.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank all Senators for their contributions. We are considering three amendments that have been tabled. I propose to deal with each amendment in the order in which they were raised. I will start with what I refer to as Senator McDowell's amendment No. 5. In this amendment, Senator McDowell and his colleagues propose that we would go back to section 2 of the Act and redefine "defamatory statement". Senator McDowell makes the correct point that the Bill we are discussing introduces a rule in respect of a corporate plaintiff that requires it to have suffered serious harm in order for it to succeed in a defamation action. The first question Senator McDowell asked me was why we have this distinction that on the one hand a corporate plaintiff has to have sustained serious harm, namely, financial loss, while a personal plaintiff does not. However, it is also important to point out that the amendment tabled by Senator McDowell and his colleagues requires that the harm be to a serious and lasting extent.

I will start by trying to answer the first issue that Senator McDowell raised as to the reason for a different test for a corporate entity. There is a very significant difference between a corporate entity and a human person. Corporate entities are created pursuant to the Companies Acts predominantly and most are designed to make a profit, while there are also some companies that are not for profit. Predominantly, however, companies that are established are in the business of making a profit; that is their sole purpose.

I am trying to deal with a situation where a company, let us call it McDowell Enterprises, claims that it has been defamed. A negative comment about a company is completely different from a negative defamatory comment about an individual. There really needs to be a consequence and an apparent result from the defamatory comment about the company. In the proposal here, we are trying to ensure the company can only succeed in a defamation case if it can show it has sustained serious harm. How do we assess whether a company has sustained serious harm? We look at its profits and look to see whether there has been financial loss.

How do we determine whether a human has sustained serious harm? If somebody referred to a person as a child abuser, it is not possible to look at the person's bank account and say that because they have not sustained any financial loss, the statement was not harmful. There is a reason for distinguishing between a company and a person. It is reasonable for the Oireachtas to decide that a company making a claim of defamation has to establish financial loss. I think Members of this House are predominantly supportive of that but the issue they have is as to why we do not extend that to persons as well. I do not think anyone here is trying to say we should remove the serious harm test for corporations. Instead they are suggesting we should have the serious harm test for personal litigants as well.That brings me on to dealing with that issue of why we do not just have in our law the amendments as tabled by Senator McDowell or indeed Senator Keogan, which both state that for a person or indeed anyone to take a defamation action, there must be serious harm or, in Senator McDowell's version, it must be serious and to a lasting extent. As was indicated by Senator Nelson Murray, England introduced this back in 2013, but we also have to look to see what happens there as a result of that. Predominantly what happens, as I mentioned on the last occasion, is that if someone issues a defamation action in the UK and there is a dispute, as generally there is, about whether the alleged defamation constitutes serious harm, that results in there being an application to the court and a hearing before the judge to determine if the statement is in fact one that constitutes serious harm.

We need to think on a procedural basis that if we change the law so that there now has to be a serious harm test, we will increase costs, increase in the number of hearings, increase the jurisprudence of the law of defamation, and there will be a series of interlocutory applications at an early stage to the courts trying to determine if this alleged defamation is serious harm or not. It will make the law of defamation procedurally more complex and more costly. They are factors that I have to take into account.

There is the other substantive factor, aside from the procedural factor, of what serious harm actually means. I will come back to Senator McDowell's lasting extent point. Let us assume that we are talking about a serious harm test. If somebody describes a person on a front page of a newspaper as being a paedophile, I assume everyone accepts that is of serious harm. It is being published to hundreds of thousands of people. Everyone can see it. I assume we agree teat is of serious harm to the individual concerned. If somebody says it in the confines of a quiet room to three people, as has happened previously, do we say that that is a test of serious harm or not? My view is that does constitute serious harm if a really serious defamatory statement is made, even to a small group of people.

I use that example for the purpose of showing that somebody is going to have to determine what constitutes serious harm. The way we do it at present is that the defamation action is issued, defences are put in and the matter is determined by the court. At the determination of it, the conclusion, the court assesses that it is not that serious and so nothing is due on foot of it.

I also have to remind Members that the courts are vigorous in ensuring that their processes are not abused. Anyone who brings a frivolous or vexatious case can have the case thrown out. Many applications are brought to dismiss frivolous or vexatious cases. Senators need to be aware that if we are introducing a serious harm test, we need to define what constitutes serious harm. We can do it quite readily for corporate plaintiffs because we can say that they have to prove financial loss but for a personal plaintiff, how do we determine or how does a court confirm that it constitutes serious harm? Are we going to say at the outset that it has to be broadcast or published to a wide range of people for it to constitute serious harm, or do we recognise that serious harm could arise through publication to a small number? These are all the issues that are ultimately dealt with by the courts. The judge hearing the case or indeed the jury hearing the case, which may no longer be the case, has to determine if this is serious and if it causes serious harm. There is a determination of whether or not it is serious. If it is serious, there would be very negative consequences for the claimant.

Senator McDowell's amendment also refers to there having to be a requirement that it is a statement that harms the reputation of a person to a lasting extent. Again, I have to ask how that would be determined by the court, using the example that I have, if it was a serious allegation of child abuse made to three people? Is that something that is there for a lasting extent or does the fact that it was just communicated orally to three people mean that it is not to a lasting extent? These are all factors that are taken into account in determining the seriousness and consequence of the defamation statement.

I know the objective of many Members is to try to ensure that we reduce the number of defamation actions, and the voice here seems to be predominantly on the part of the persons who are being sued, to ensure that they are not dragged into costly, unnecessary litigation. I support that too. I do not want to see defamation law used unnecessarily or vexatiously, but it is the only statutory remedy that is available to a person whose constitutional right to his or her good name has been impinged.

My fear about amendments Nos. 5 and 8 is that although they are seeking to make the system more efficient, they will result in it becoming more protracted and costlier. There will inevitably be disputes at an early stage about a defamation not being serious harm, since although it accused a person of being involved in child abuse, it was only published to three people and is not serious enough. Somebody has to determine at some stage what is serious. It is already being done but it is at the end of the process and the efforts to put it in as a preliminary step will not make the system more efficient.

I acknowledge and thank Senator Keogan for her apology. I accept it gracefully and thank her for what she said. I knew when she was reading out those statements that they were not her words and I am happy to accept her apology in that regard.

Sharon Keogan (Independent)
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Sorry; they were my words.

Maria Byrne (Fine Gael)
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The Minister, without interruption.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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They were given to the Senator by others.

Regarding defamation being out of control, I will defer to Senator McDowell in respect of this, but my own assessment from some experience in the courts is that the number of defamation cases is declining. I will come to deal with the amendments about shops in due course. Where real defamation is taking place at present is online, where people are being defamed. Their good name is being degraded and there is a very limited remedy available to them because sometimes it is extremely difficult to identify who the actual publisher is and the social media companies do not accept liability for their publication. They say they are merely a hosting environment. Defamation is an issue in our society. All of us as politicians take it on the chin that there will be defamatory statements online about us, but that should not preclude us from trying to ensure that in our legal system there is some mechanism to ensure that people have a remedy.

Senator Keogan referred to the situation in the United States. Some people in the United States think the defamation laws there are out of control because they are so weak. In the United States, to succeed in a defamation action, malice has to be proved on the part of the publisher. A newspaper could publish a front page story claiming a prominent politician is involved in corruption, and unless that was published maliciously, the individual has no remedy in respect of it.

We need to formulate our own laws in respect of defamation. I fully respect the right to freedom of expression. It is a valuable tool and fundamental right. My job as Minister is to ensure that the laws facilitate freedom of expression. A vocal community urges me to do that and I am very supportive of it. I also have to take into account the right of an individual to his or her good name. There is not a vocal community advocating that but, constitutionally, I and indeed all Members of this House have an obligation to ensure that we seek to vindicate that name.

Senator Keogan also talked about trivial and vexatious cases. I agree that we do not want a situation where the courts are being used for frivolous and vexatious cases. Those cases should be challenged. The way for them to be challenged is that applications are brought to strike them out.

I move to amendment No. 9 in the names of Senators Fitzpatrick and Nelson Murray. In fairness to both Senators, I carefully listened to what they had to say and what Senator McDowell said to follow up on them, and their argument is that a defendant may have a defence in place but, notwithstanding that, people are bringing claims and small businesses are required to devote resources to defending those claims. Insurance companies take responsibility for them.There are settlements agreed. In the long term, these small businesses are paying out money, which they should not have to pay out because of the unmeritorious nature of the claim. I appreciate that valid and strong point. I have listened to it carefully.

However, we should not underestimate or understate the provision that is being put in place in this legislation that was introduced last year. I am putting in a new section into section 18 of the principal Act, which will provide a separate defence for retailers. Senator McDowell referred to it as a "defence of qualified privilege". It comes within the section on qualified privilege in the principal Act, but in truth, it is a statutory defence that stands on its own. It provides an express defence to, for example, a shopkeeper who can say in respect of the defamatory statement for which they are being sued that it was a statement being made in the context of enquiring, "Have you paid for that or not?" People are perfectly entitled in shops to ask people to produce receipts and to ask whether goods have been paid for.

While I was listening to Senator Fitzpatrick, and I hope she did not think I was rude, I was looking up a couple of legal websites to look at some cases. There are a whole series of cases that have been given under current law where courts have thrown them out on the basis that the shopkeeper was perfectly entitled to raise a query about whether or not the complainants paid for the goods. I am looking at an example of a case where somebody had put a bottle of wine into their bag. They had then put it back on the counter. They left the shop. They were pursued afterwards by the shopkeeper who said they had a bottle of wine in their bag, and they had not paid for it. They were able to show that they did not have a bottle of wine. They instituted proceedings, and the case was thrown out. We need be aware that judges are not some naive remote persons who are not aware of what is happening in the world. These cases are being thrown out. Recently in the High Court, there was an appeal brought by a large supermarket, which again successfully protected and recognised the right of retailers to enquire if someone has paid for the goods. Those cases are being thrown out on a frequent basis. That still does not answer the main issue raised by Senators Fitzpatrick and Nelson Murray about people wining the cases, but ultimately it costs them a lot of money to do that. Why do they have to go through that process when in fact at the end of it they win, but they still have lost a lot of money because they cannot get their costs back from the individual who brought the false claim?

I am giving consideration to the amendment. The way to deal with that is that there needs to be more unified and stronger response from retailers and the insurers of retailers that they do not pay out when these claims are made. There is a certain store in Dublin that I will not name. People do not sue it for things like this because they know it is not going to pay them out. If there was a bit more vigour in the defence and standing up to people who bring false claims, that would have an impact. Senator Nelson Murray mentioned a number of settlements. I am not criticising her. However, there is no corresponding example of court cases where judge X awarded a sum of because somebody was asked whether they had paid for the goods. What is happening - and it happens too much - is that settlements are being entered into because insurers predominantly are excessively cautious and wholly unnecessarily anxious about what is going to be outcome to the court case if it goes to a hearing. They need to fight the cases.

I have looked carefully at the amendment that has been tabled by the two Senators. They are proposing that the wording would be changed. I provide in section 8 that it will be a defence to a defamation action for the defendant to prove that the statement was simply an inquiry in respect of whether someone has paid for the goods or not. The Senators are asking me to insert "no cause of action shall lie where the defendant can” prove that the statement to which it relates was an inquiry. That would be a significant change in our law. As I mentioned yesterday in reply to Senator Fitzpatrick when we were discussing this amendment, I am not aware - and I would be interested to hear if other Members are aware - of any provision in our law that states that a group of people is immune from suit. That is, in effect, what the Senators are seeking to do here by stating "no cause of action shall lie where the defendant can" show that this was just an inquiry about goods. We do not even have it in respect of these Houses. The Constitution states that Members “shall not, in respect of any utterance in either House, be amenable to any court”. However, under the Defamation Act, there is a list of absolute privilege, but absolute privilege like qualified privilege is a defence. Somebody could sue me for a statement that I made in the Houses of the Oireachtas. I would have to put in a defence saying, "Sorry, I have a defence of absolute privilege. I said it in Seanad Éireann. It is expressly protected under the Defamation Act and the Constitution." However, there is no rule that states that the no cause of action lies that I cannot bring the case, and I have an absolute defence. If we got into the route of saying that no cause of action lies in respect of certain events, it would transform the law. We could say no cause of action lies in respect of personal injury accidents where the claim is less than €5,000 or where the claim is small. We do not go down that route.

Senator McDowell asked if I had got advice from the Attorney General's office. I probably should be doing this more obediently, but I will read from the script that my efficient Department officials have provided me with in respect of this issue. On serious harm, there is a specific constitutional obligation in Ireland to protect a person's good name and the right of access to the courts. Legal issues were raised by the Office of the Attorney General with the introduction of a general serious harm test. That is in response to the serious harm test, but similarly I have to take that advice into account when I am looking at the amendment being put forward by the two Senators on behalf of the retail sector. It is in effect excluding access to the courts for persons who in unusual circumstances may claim that they have a valid claim against a retailer. Under the laws that are drafted and if the proposal by the two Senators was enacted, it would mean that a shopkeeper could say virtually anything to anyone who comes in. If a person comes into a shop, at present the law provides that retailers have to be proportionate and cannot be malicious in their inquiry. If they are disproportionate or malicious, they will lose the defence. That is what stated at the end of it. It was not published excessively so it was not disproportionate.

At present, a shopkeeper can vigorously to say to someone: "You haven't paid for that; show me your receipt." Senator McDowell said it is statement. It is still part of an inquiry: "You haven't paid for that; show me your receipt." That is all protected at present. However, if I was shopkeeper who started excessively roaring someone or roaring around the shop and out the street stating, "You never paid for it. You are a thief" and walking up the street after the person, but it turns out to be untrue, then that person has no remedy. I have to balance their right to their good name as well. It may be an unlikely circumstance, but it has to be taken into account.

We need to recognise that all these defences like the defence, as Senator McDowell said, of qualified privilege, only kick in where the statement published has been established to be defamatory. The defence of truth still applies. If somebody has not paid for something and it is said that they never paid for it, the shopkeeper can rely upon the defence of truth and say, "It was true what I said. They were trying to steal from the shop." This is separate protection; this is an added protection. This is to protect the shopkeeper who gets it wrong. That is what qualified privilege is generally about. The law creates circumstances where the law of defamation does not operate as it normally does. It is like the communication between a person writing a reference and a prospective employer. He or she could get it wrong, but because the law has decided that such arrangements and communications should be protected, we are therefore going to permit wrongful statements to be made. Similarly, under what will be the new section 18, this is to protect shopkeepers who get it wrong.If they get it right and the person is a thief, they are perfectly entitled to do it - there is no issue there - but if they get it wrong and the person had, in fact, paid for it or they did not have something in their bag, this is also to protect them. I know a vigorous campaign is being waged against it but I would have thought this is heading in the right direction. I urge insurance companies to fight cases they believe are unmeritorious. The more you give in to a particular type of claim that is unmeritorious, the more likely it is to persist.

For that reason, I cannot accept the first two amendments. I have listened carefully to Senators McDowell and Keogan. I think a serious harm test would make the issue more complicated. There is a legitimate reason we distinguish companies from persons. I do not know how in a preliminary stage it would be assessed whether a statement was one of serious harm or lasting effect or not.

In respect of the amendment from Senators Fitzpatrick and Nelson Murray, I cannot accept it because it is a revolutionary amendment that would have the effect of conferring immunity on one group of people. Why would newspapers not come in and say they want to be immune from any defamation suits against them that relate to stories of public interest? Everyone would be queuing up to have immunity from suit and we generally do not do immunity from suit in Ireland. I will reflect, however, on what both Senators Fitzpatrick and Nelson Murray said to see if there is any other mechanism within the draft at present that could make it more efficient and effective for retailers. I do empathise with the issues they have highlighted.

Michael McDowell (Independent)
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I am grateful to the Minister for his reply. I am also grateful to him for quoting from his own officials' view about what people in the Attorney General's office have said. That is a first, I have to say.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It could be a last for me as well.

Michael McDowell (Independent)
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I would say there will be a salvo coming the Minister's way from Merrion Street for doing that. However, it answers the question in that I had suspected there was a notion that the serious harm threshold was regarded with suspicion by what I consider to be extremely conservative legal advice. I will give an example to Members of the House. If somebody called me a paedophile, that would be defamatory. If somebody says it to me in the presence of my wife and nobody else, there is practically no harm done to me of a lasting kind because my wife does not believe it, would not accept it and would reject it instantly. One is a case where a court can say, "Are you seriously suggesting that you were seriously harmed by a statement made to somebody who knew it was not true?" It happens very frequently that statements are made to somebody in the presence of another person who knows it is not true, but that is currently actionable. That is where the serious harm test comes in. If it was made to somebody who manifestly would not believe it, the serious and lasting harm threshold would not be met. That would be the end of the case. You cannot sue on the basis of, "You accused me of being a paedophile in front of my wife". You cannot succeed in that action and it is not a defamatory statement unless there was some basis for thinking the witness to whom the publication was made would attribute either lasting doubt on the issue or credibility to the statement that was made.

I do not accept the proposition that the serious harm test is constitutionally infirm or that there is a serious issue as to whether, under the Constitution, unserious statements - let us use that phrase about it - must be actionable because otherwise it would be unconstitutional to prohibit them. I do not accept that proposition. It is important that this has emerged in this debate. It has emerged in this debate that there is an extremely conservative view that the guarantee for the good name of every citizen in the Constitution also means that the law of defamation must apply to unserious defamatory statements. I do not accept that proposition for one minute. I am not asking the Minister to comment on the hearsay account that came from the Attorney General's office via his own officials, but I am saying I reject that. I reject outright the notion that we in Ireland cannot have a serious harm threshold for persons but that we can have one for companies.

The Minister made the point that companies are normally concerned with profit and that, therefore, it is legitimate to provide a serious harm test for them. It is true that most companies' commercial activities are reflected on their balance sheet. I have no doubt about that but how can it possibly be that if I, on tax advice, operate a butcher's business in Ranelagh through a company, I cannot sue somebody who says I sell rotten meat, but if I am a person who operates that business without incorporation, I can? I do not understand that. I cannot understand that as a reasonable distinction. I would say most businesses in the main street in Ranelagh are probably corporate but I am not sure of it. Maybe the smaller coffee shops are personally owned and there is no company there. Maybe there is, maybe there is not. Nobody doing business with them really knows. However, I do not believe for one minute that a statement like "McDowell's Butchers in Ranelagh sells rotten meat" becomes actionable per se if it is Mr. McDowell's name over the premises but that if you look up the register of business names and find out it is Michael McDowell Limited that runs the shop, there is no cause for action unless I establish serious loss.

Serious harm is not always going to be reflected in a balance sheet. It cannot be reflected in a balance sheet. Imagine having to produce an accountant to say that the growth pattern of profits in McDowell's Butchers Limited dipped as a result, whereas if I was unincorporated, I would not have to prove any such thing. I do not accept that proposition at all.

The Minister made a point that the serious harm threshold would give rise to preliminary applications and that that would lengthen the whole process. Either the application succeeds or it does not. In the United Kingdom, if the case collapses on the application and the judge says there is no serious harm, that is the end of the case and you do not go to trial, so I do not see how it can be stated that it lengthens the case.If the defendant fails on the serious harm test, that is a different matter. What I am saying – most Senators will agree with me – is that if there were a serious harm threshold, a lot of potential plaintiffs would be told by their solicitors that they have to get across this fence if the case starts. They would advise them to think long and hard because if they were to fail, they would end up paying the cost of the whole claim.

I do not accept the proposition that it gives rise to the possibility that someone can make a pre-emptive strike and say at the very beginning that the trial must stop because there is no serious harm and that this will have the effect of lengthening the procedure. It will have the contrary effect. It will stop spurious, irrelevant, trivial and unserious claims being made. A solicitor acting for a plaintiff who wants to bring a case that is vulnerable on the serious harm threshold will say to his or her client not to bring the case forward because he or she could end up paying the costs because they are unable to prove serious harm in the sense laid down in statute.

The Minister says that his amendment in section 8 will give rise to some kind of defence. That defence is very narrow, however. It is only confined to where an inquiry is made, not to a statement being made. To say, “That has not been paid for” or “You took two bottles of wine”, is not an inquiry. The points raised by the Senators who have tendered an amendment are not answered by the Minister’s amendment. It is not an inquiry to say to someone that they did not pay for an item or to ask them to give an item back. That is not an inquiry.

The Minister talks about online defamations, which we will come to later. Although the Minister has gone in the right direction in his proposed new sections, namely, sections 45 and 22 of the Bill, which were added to deal with online anonymous defamations, for the reasons we will come to when we get to that section, they are very weak. To point out one aspect of it, if someone applies for an order to be made against an Internet service provider to identify the author of an online defamation, under the Minister’s proposed legislation, he or she will face the risk of paying the costs of the Internet service provider, even if the person is successfully identified. That is in subsection 22(5). I was astonished to see that. For example, if something grossly defamatory about me is posted on X in the name of an online anonymous author, the Minister is making provision that if were to go to court to require X to identify who has defamed me, I would have to pay X for the costs of that application. That is wrong. In subsection 22(5), it states:

The court may, whether or not it has made an identification order and where it considers it appropriate to do so, order that an applicant pay any or all of the costs of the relevant intermediary service provider in relation to an application and the costs resulting from the making of any identification order.

If I had been defamed and went to court, and X informed me it was Senator Fitzpatrick who defamed me anonymously, I would then have to pay X for finding that information out. That cannot be right.

Maria Byrne (Fine Gael)
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I will interrupt the Senator for one minute to acknowledge our visitors in the Gallery from the Ledley Hall Boys and Girls Club in east Belfast. They are visiting Leinster House today and meeting members of the Good Friday Agreement committee. I hope they enjoy their visit.

Michael McDowell (Independent)
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They are very welcome.

Maria Byrne (Fine Gael)
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I apologise to Senator McDowell for interrupting him.

Michael McDowell (Independent)
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No, I am glad the Leas-Chathaoirleach did that.

We will reach the amendment at a later stage, but I ask the Minister to think about this point. The Minister is proposing that the courts will be able to say to people that yes, they have been defamed and they have no other way of finding out who defamed them other than to bring an application to court, but they must now pay Elon Musk and his lawyers for the expense involved. If the Minister wants to have something that will really numb applicants, this is it. People will be asked to pay Elon Musk to find out who defamed them anonymously. That could not possibly be right. I am out of order because I should not be talking about that amendment at this stage. I am firing a warning shot that this cannot be enacted into law.

Getting myself back in order, what I wish to say very simply is that this serious harm test should be part of our defamation law. No one should be bringing anyone else to court for defamation if there is no serious harm in any circumstance. Freedom of speech, the protection of a citizen’s good name and the like do not require protection by the legal process where there is no serious harm to an individual. Serious harm cannot just mean financial loss, depending on whether the business defamed is corporate or personally owned by a trader. To give an example, suppose a big burger joint is accused of using condemned meat or horse meat in a newspaper advertisement or article. Is it seriously contended that it then has to come to court to show, through an accountant, that its sales sank as a result, but the local chipper whose burgers were described in the same terms does not have to do it because it is not owned by a limited company? I do not accept that.

I radically disagree with the proposition, if it is seriously held as a view in the Attorney General’s office, that to bring our law into alignment with other common law jurisdictions – not America but other common law jurisdictions - a serious harm threshold before defamation suits can succeed in general amounts to an unconstitutional invasion of the right to good name of the citizen. The State, through its laws under Article 40, as I recall, is obliged to defend and vindicate the rights, including the right to a good name, but only to the extent it is practicable to do so.It is not practicable to have courts considering trivial or unserious claims or claims that fall beneath a serious harm threshold.

Mary Fitzpatrick (Fianna Fail)
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I thank the Minister for his reply and his consideration of the amendments before him. I really appreciate the thought he is giving to the real-life experience of the potential application of these laws in the retail space. I hear him and I agree with him when he says that spurious allegations should be challenged. They should be robustly challenged and good name should be defended. Unfortunately, there is a dynamic in this retail space, particularly for small retailers. They are independent. They are by definition small and they are working on their own. Many of them are family-owned businesses, sole traders and perhaps second or third generation operators of a shop. It can be a small or medium enterprise but they are operating independently on their own. Those type of people do not have the benefit of a HR department, quite typically. They do not have the benefit of a legal department. They engage professional support and services when they need them. They engage security in their shops. They engage solicitors when needed. They obviously pay for insurance, but when a claim is made against them, it is the insurer that makes the decision. I do not see how it is in the insurance companies' interest most of the time to defend the claim. I am not an insurance expert. I do not have the insight into the forensic economics of the insurance industry. However, from my layman's knowledge, I cannot see how the insurance company is incentivised to incur costs to defend what are relatively small cases when they can settle the case without having to incur the costs of defending it and they can ultimately raise the premiums for their customers. Therefore, it is difficult to rely on the insurance company to take the hit or to take on the cost. I appreciate there are examples and I appreciate the Minister having shared them with me. That is one dynamic which I appreciate the Minister considering.

There is a second one. The Minister quite rightly points out to me that for us to seek to create a blanket immunity for any sector of our population would be unprecedented. He challenged me to find a precedent. I stand here unable to point to it but what I can point to is a nuance, and I ask the Minister to consider this. As politicians, we do not have immunity. If I go out and I do or say something outside of this House, I do not have immunity. However, if I say something in this House, I have a privilege. What I am suggesting and what our amendment is attempting to achieve is that in the instance - just in this instance and not in the generality - where a retailer has cause to enquire of an individual if they have paid for a purchase or goods, that would, in that unique and narrowly defined instance, not be cause for an action of defamation.

I have made my point. I thank the Minister for considering it. I will withdraw the amendment today if it goes to a vote when we reach it. I hope we can engage further over the coming time and find a resolution here. I believe the Minister's intention is to put forward the most robust and beneficial legislation in this space and I thank him for his consideration.

Linda Nelson Murray (Fine Gael)
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I also appreciate that the Minister is going to look at and take into good consideration what myself and Senator Fitzpatrick have said. We both really do have the interests of small shopkeepers and small businesses at heart. We both work a lot for them in this Chamber. I appreciate that. To go back on what the Minister mentioned about our cases falling, I had a quick look. In 2024, there were 289 cases in Ireland but there was only 209 in the UK where there is ten times the population. Something has worked over there. Something is not working here. I back up what Senator Fitzpatrick has said. I have done a lot of work when it comes from the insurance industry and the insurance companies will not fight cases. They will pay out because it is cheaper to pay €7,000, which is the average payout on a defamation claim, than to have to pay costs of €30,000 to fight it. I totally agree with the Minister that more of these should be fought. Insurance companies should put aside an amount to invest in fighting cases to prove to people that they are not going to win. Unfortunately, they do not do that. I also wish to withdraw my amendment but look forward to working with the Minister on making it better.

Maria Byrne (Fine Gael)
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Would the Minister like to respond?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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How are we doing on time?

Maria Byrne (Fine Gael)
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We have five minutes.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I will try to answer Senator McDowell's and the other Senators' points quickly. Senator McDowell spoke about the serious harm test. However, I still do not know from listening to him what constitutes a serious defamation. He gave an example of someone saying in the presence of a person's wife that that person was a paedophile. On the Senator's reading, that would not be a serious defamation. As things stand at present, however, that is dealt with and provided for in the legal system. In order for someone to succeed in a defamation action, they have to call a person who heard it to say they heard what was said about the person and they believed it. They have to say they heard somebody accuse a person of being a paedophile and, when they heard it, they believed it. Obviously, that could not happen in that situation because the wife would not believe it so the person could not prove their case.

The Senator also referred to McDowell Butchers Limited and if someone said McDowell Butchers Limited sells rotten meat. If that does not affect the business of McDowell Butchers Limited, why should it have a claim? If it went on to reference the principle behind the business and say they were involved in this activity, they would have a personal claim, but unless the business suffered a financial loss, I do not see why it should have a defamation claim.

Senator McDowell spoke about the procedural applications. He thinks it will shorten procedure. I disagree. I think we will have a whole series of defamation preliminary applications as to whether serious harm is involved or not. I note what he said about online defamation. We will talk about it in due course, not today. However, the provision says that the court may award costs. There is nothing mandatory about it, and obviously the court will exercise that with discretion.

I listened to what Senators Fitzpatrick and Nelson Murray had to say. I asked Senator Fitzpatrick yesterday if she could find an example of where any entity is immune from legal suit. In fairness, I knew there was none. Regarding what Senator Fitzpatrick said about absolute privilege, at present what would happen if someone sued her for what she said in this Chamber is that they could issue proceedings against her. She would have to put in a defence pleading absolute privilege. She could then bring an application to go to court to get it struck out but she would still be in the court system. No one else has this protection that says they cannot have a claim brought against them. I will consider the matter. I think I will sit down now so the Senator may be able to get a vote in.

Michael McDowell (Independent)
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I do not want to call a vote at 2.30 p.m. because we will be here until 2.45 p.m. In the two minutes remaining, I want to make the point to the Minister that if Senator Fitzpatrick received a letter from somebody saying she had defamed them in something she said in this House, her solicitor could write back and say that was an occasion of absolute privilege. If the person then commenced a High Court or a Circuit Court defamation action, she would go to a competent barrister and solicitor.They would apply immediately that on the pleadings this was an occasion of absolute privilege, and have the case flung out with costs on day one. It would be a preliminary application and not delay anything. She would not be keeping her powder dry until she has all her witnesses lined up. She would act immediately to stop it. That is the point I am making.

Maria Byrne (Fine Gael)
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When is it proposed to sit again?

Robbie Gallagher (Fianna Fail)
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At 2.30 p.m. next Tuesday.