Seanad debates
Wednesday, 15 October 2025
Defamation (Amendment) Bill 2024: Committee Stage (Resumed)
2:00 am
Maria Byrne (Fine Gael)
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I welcome the Minister, Deputy O'Callaghan, and thank him for coming for this all-important Bill. Previously, Senator McDowell was speaking on amendment No. 5. Would he like to continue?
Michael McDowell (Independent)
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No, I think I have said everything I have to say about amendment No. 5. I just want to make the point that the House was informed on the last occasion that there were concerns in the Office of the Attorney General about the seriousness requirement being introduced into Irish law on the basis that the good name of the citizen, which is an explicit right in the Constitution, might be in some sense compromised by introducing a threshold of seriousness in respect of defamation actions. I want to repeat that I do not agree with such concerns. I do not believe that something that is not serious can be litigated as a matter of constitutional right or that a seriousness threshold in some sense infringes the rights under Article 40 of the Constitution to the defence and vindication of a citizen's good name. If something is not serious, it should not be litigable, in my view. While the Office of the Attorney General is free to express concerns to the Minister's Department on issues like that, I would be very surprised if a fully worked-out opinion that it could endanger the citizen's rights under the Constitution was ever prepared, considered, brought to the Attorney General and received the Attorney General's approval as the legal advice to the Government. It is on that basis that the refusal of the Minister to accept an amendment to introduce a seriousness threshold for defamation on the one hand, while introducing it for corporate defamation cases on the other in a later section of the Bill, fails to make a just distinction between incorporated and unincorporated businesses, retailers and the like. I do not see how the threshold differs from, as I said, Michael McDowell, the butcher in Ranelagh, personally running his business and having his stock defamed or whatever and a company that I own 100% of the shares in, running precisely the same business, and a different test being introduced for those two different situations.
I am not saying that it is definitely the case but I refer to the concerns expressed by the Office of the Attorney General that seriousness could be suspect from the point of view of the Constitution and the citizen's fundamental rights in Article 40. If this has in any sense affected the drafting and proposal of the measure in this Bill and insofar as it is contributing to a reluctance on the part of the Minister to accept an amendment that would bring us in line with Northern Ireland, Scotland, Wales, England, Canada and Australia, I think it is misplaced. We are in danger of missing a real opportunity to do something substantial, that is, to rid many people of the huge burden of nuisance actions in litigation for defamation, which cost individuals and individual trading concerns and retailers so much management time, concern and, in the end, legal fees. The Minister said that if insurance companies took a different view and were - I cannot use the term "manly" - brave in the defence of these cases, maybe there would be a different attitude among plaintiffs. However, as the Minister well knows, insurance companies right across the spectrum from personal injuries to other matters only look at the bottom line. They consider if it is worth having a courtroom squabble for €10,000 when it is easier to give the person the money and the solicitor a few bob for costs. That is easier than being brave or taking a stance that this is a relatively trivial matter. On that basis, I maintain my view that the Bill should be amended to introduce a seriousness threshold to all defamation cases.
Maria Byrne (Fine Gael)
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Does anybody else want to speak on amendment No. 5?
Linda Nelson Murray (Fine Gael)
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I do not claim in any way to have the legal mind that Senator McDowell has. I am just trying to get my head around the legislation and understanding it. I am coming at it from a lay-person's point of view and from listening to business owners. Imagine a scenario in Senator McDowell's butcher shop where merchandise is scattered around the shop in lanes, aisles and areas that staff cannot see.Somebody might slip something into their pocket and maybe the staff see it, but then, by the time the person gets to the front of the shop, the item is no longer in their pocket. If the retailer asks if they have a receipt, the person might say, "Oh my God, I don't but you've said that in public, everyone has heard it and I'm now going to take a case against you." There is a big difference between somebody being a shareholder in a company and somebody taking a defamation case, which is a lot less.
I am spokesperson for my party on enterprise. My colleague Senator Mary Fitzpatrick and I hear all the time from businesses and retailers that this is a massive issue. There is a reason that Ireland has had more cases than the UK has had over the past 15 years. Last year, we had nine more cases than there were in the UK because defamation is a new thing that people can do in shops. I have no clue as to which section we are supposed to change to make this better. I am hoping that we can do something for retailers and for shoppers in shops so that they can ask people for a receipt or ask if the item has been paid for.
I totally agree with the Minister's point on insurance companies. They look at the bottom line and decide it is a lot cheaper to give somebody €7,000 than it is to bring somebody to court for €30,000. Unfortunately, they settle and will not fight those cases. I would love to be in a world where they do fight them.
One of the amendments I have tabled, in my slight innocence in all this, is to cap the damages. Is that the right thing to do or the wrong thing to do? It worked in insurance. Is it the right thing to do here? Should we just change the definition of defamation completely and have something like a harm test to protect those working in shops, so they are able to ask, "Did you pay for that item?" They are just run ragged with all this. It has featured on "Prime Time", the news and various radio programmes. They are coming to us. I really hope we can do something to help address that. As I said, that is coming from me as a layperson but also as a business person. I am standing up for businesses here.
Joe Conway (Independent)
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Like Senator Nelson Murray, I do not pretend to have any legal expertise given my background. Fundamentally, my concern relates to the possibility of increased costs for the layperson. I understand there is a commitment to alternative dispute resolution in the Bill and the change regarding juries in the High Court is mooted as having the effect of reducing costs and unpredictability in cases. Can the Minister give a guarantee that in those instances, the costs will decrease for the layperson?
I am a bit curious about defamation online and the likelihood that in defending possible defamatory statements online, the people who are using blogs would not be allowed to address these through alternative dispute resolution, meaning they would need legal representation to negotiate the intricacies of what looks to me like manifestly complex proposed legislation.
Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I am conscious that this is the first time Senator Conway has spoken on this grouping of amendments.
At the end of his contribution, Senator McDowell mentioned that insurance companies are dictated to by the bottom line, and he is absolutely right about that. However, as legislators, we cannot be dictated to by people whose only interest is the bottom line. We need to enact legislation that balances constitutional rights. Simply because insurance companies decide to pay out because it suits their commercial interest, that is not a factor on which we should be deciding proposed legislation.
Senator Nelson Murray gave the example of somebody walking up and down an aisle. At present, that is fully protected. If somebody walks up the aisle, puts something in their pocket, takes it out, puts it back again and a shopkeeper stops them, the shopkeeper is perfectly entitled to do that at present. At times in the debate, this may not be apparent but I am putting in a further provision to give retailers even further protection. Sometimes, listening to some of the objections from the lobby groups might make one think I am reducing the protections available to retailers. I am increasing the protections for retailers. If people do not want it, I will take out the section, but I think this section will provide even greater protection to retailers because it includes, for the first time, a specific statutory defence entitling them to ask questions about somebody. Even if the worker in the shop is wrong and the person does not have an object in their possession, the worker is still protected because of this statutory defence.
Senator Conway asked if I could give a guarantee that costs will decrease. My assessment of it is that the reduction of juries, the efficiencies introduced in the system and the strengthening of defences available to retailers will result in a reduction of costs.
The Senator also spoke about defamation online. As I said earlier, the elephant in the room here is defamation that is happening online. I know Senator Nelson Murray referred to them, but the number of defamation claims in Ireland is small. Where defamation really operates in Ireland is online, with the vast amounts of defamatory publications put out by individuals about Irish citizens. We really need to be focusing on the type of remedy we can provide for them.
That is all I want to say on these amendments. I am happy for them to be put to a vote.
Michael McDowell (Independent)
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It was the Minister who introduced the question of insurance companies. He said he wished they would take a different and more robust attitude to claims of this kind. It was not me or any of the other Senators who raised that. He now comes in and says we cannot have a law which is dictated by insurance companies. In defence of saying that seriousness does not apply, he said that perhaps the answer lay with the attitude taken by insurance companies in not defending unserious or minor cases.
I agree with the Minister that online defamation is a huge problem. I want to signal now that the provisions he proposes to introduce later in the Bill on that subject are wholly inadequate. I will be dealing with that at a later stage.
Tá
Frances Black, Victor Boyhan, Tom Clonan, Joe Conway, Nessa Cosgrove, Gerard Craughwell, Eileen Flynn, Laura Harmon, Alice-Mary Higgins, Sharon Keogan, Aubrey McCarthy, Michael McDowell, Sarah O'Reilly, Lynn Ruane, Patricia Stephenson.
Níl
Garret Ahearn, Niall Blaney, Manus Boyle, Paraic Brady, Maria Byrne, Pat Casey, Joanne Collins, Alison Comyn, Martin Conway, Ollie Crowe, Shane Curley, Paul Daly, Aidan Davitt, Mark Duffy, Mary Fitzpatrick, Joe Flaherty, Robbie Gallagher, Imelda Goldsboro, Garret Kelleher, Mike Kennelly, Seán Kyne, Maria McCormack, Conor Murphy, PJ Murphy, Margaret Murphy O'Mahony, Linda Nelson Murray, Evanne Ní Chuilinn, Noel O'Donovan, Fiona O'Loughlin, Anne Rabbitte, Dee Ryan, Nicole Ryan, Gareth Scahill, Pauline Tully, Diarmuid Wilson.
Maria Byrne (Fine Gael)
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Amendments Nos. 6 and 7 are related and may be discussed together by agreement. Is that agreed? Agreed.
Alice-Mary Higgins (Independent)
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I move amendment No. 6:
In page 7, line 27, to delete “, or is likely to cause,”.
Last week, when we discussed Senator McDowell's amendment on raising the threshold in the definition of "defamatory statement" to serious harm, the Minister responded to the effect that it is more difficult to ascertain that a person has sustained serious harm than it is to ascertain that a company has done so. He stated:
... 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.
The example the Minister gave involved somebody saying that McDowell Butchers Limited sold rotten meat. The Minister said that unless a business suffered financial loss, he did not see why it should have a defamation claim. I agree with the Minister on this. However, section 6 is not limited to situations in which there has been a proven or measurable financial loss. Currently, the legislation, which changes the definition of "body corporate" goes beyond that and includes situations involving statements that are likely to cause serious harm to a corporate entity and suggests that they would be considered defamatory. The Minister stated that unless a business has suffered a financial loss, he did not see why it should have a defamation claim. However, the legislation allows for a defamation claim where a business has not suffered a loss but where it is suggested that it is likely to do so. The term "likely to cause" is, again, weak language. It gives scope to what we will discuss in the context of some of the later amendments, namely the kinds of cases that are designed to intimidate those engaging in rightful and, in many cases, accurate criticism. It brings about a situation whereby the defamation is simply the possibility or likely possibility that it may cause financial loss.
This weak definition of what constitutes a defamatory statement, which others such as Senator McDowell are seeking to have amended, could allow companies to weaponise defamation proceedings against individuals or groups that might organise to outline these companies' harmful or destructive practices. Ireland already has a reputation for libel tourism. The aim behind my amendments Nos. 6 and 7 is to delete the phrases "or is likely to cause" and "or likely to cause" from the Bill. I tabled them to illustrate the power imbalance in defamation proceedings and how the system can be used to censor information published in good faith about powerful bodies or corporations and their actions and commercial interests.
I welcome the replacement of the previous section because it was entirely inadequate. It stated that a claim might be defamatory whether or not it has incurred or is likely to incur financial loss as a result of the publication. The previous phrasing was extraordinarily wide. It was whether or not it had any impact in terms of loss. That is still too wide. To be in line with what the Minister suggested, it should be limited to situations where there is demonstrated financial loss. In the context of another part of the, Senator McDowell referred to a demonstrated and sustained impact.
Alice-Mary Higgins (Independent)
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Exactly. I wanted to provide a few of the examples of how the abuse of defamation cases can happen - sometimes even before a case comes to court.The threat of legal action has a chilling effect that suppresses the publication of information that may be in the public interest. Examples published by the International Press Institute in a story in 2023, entitled “Ireland: How the wealthy and powerful abuse legal system to silence reporting”, described a reporter telling how they were sued by a property developer for reporting on safety defects in buildings. The journalist stated: "This is typical – you issue proceedings and you let the thing sit there, with the hope the newspaper will settle, and you can claim a victory one way or another."
The article continued:
In one case, a civil society organisation was threatened with a defamation suit for highlighting privatisation in medical care by a business with interests in the sector. It never went to court and the complaints were considered legally doubtful, but due to the threat of the costs involved ... the organisation ... [deleted all relevant] communications, shut down campaigning on this issue ...
[...]
A political party was said to have sent defamation threats to two different media organisations in response to their press office being contacted with a request for comment about a story.
[...]
One civil society organisation working on accountability was threatened with defamation proceedings by a commercial interest over a report they had published [and this case continued for years]
That organisation has now lost its professional indemnity insurance as a result of this case hanging over it on a long-term basis.
These are very real consequences from cases that never even reached the courtroom. The simple fact of these cases being taken often has very serious consequences for the choices made by individuals, civil society organisations or reporters, along with very real financial and viability consequences for such. That is why it is very important that we not have a situation whereby, without any evidence of any actual harm having been accrued, a case may be taken on the hypothetical possibility of harm, including financial harm, being done. One employee at an NGO reported being told that the case was taken "to mess with us" rather than to succeed in court and to take part of the organisation's very limited resources to deal with court proceedings rather than to set out delivery of its core functions. A small publisher shared images of solicitors' letters it had received "warning of defamation proceedings in response to their coverage of the housing crisis" being taken by organisations with commercial interests in the housing sector. These are real, very serious consequences.
I wish to highlight two points. One refers to an example given by the Minister when he spoke about the rotten meat. As he said himself, if there is no financial loss, there should not be a defamation case. However, the legislation allows there to be a defamation case. There is a second level to this that I wish to signal because I may come back to it further on Report Stage, which is, if there is rotten meat, there should be no defamation case either. Within the legislation, truth is a defence, but what I have outlined to the Minister are the consequences of the cases being taken. What is or should be a legitimate basis for taking a defamation case? Cost itself is not going to be a disincentive for some of the very large actors, including corporations and companies. It is not an object to them to take these cases. Instead, the criteria under which they can take a case has to be sufficiently clear and narrow. For example, the grounds on which a case may be taken are actual financial loss - this may be where we should move to a discussion on Report Stage - where the commentary is not based on an indisputable and known fact. It would not be a matter of opinion on whether the meat was rotten. Rather, HIQA had shut a business down over rotten meat, which would be there on the public record. The case should not be taken in the first place where there are clear and incontrovertible facts. I am not referring to disputed facts or opinion, but facts that are simply being stated. If a company is engaged in child labour, an international report on child labour states that it has been using child labour and somebody says it is using child labour and that is terrible, the truth may be a defence for that body, but the very fact that a case is taken may stop people feeling that they can make comments in relation to a corporate's use of child labour and the corporate being included on a child labour index and so forth. It should not be in a position where it can threaten a legal suit, because that information is both factually accurate and in the public interest.
We should not be wasting the court's time, or even hypothetical time, on a discussion. Where there are matters that are interpretable, fair enough, but where there are matters that are based on hard fact and the individual is simply sharing that hard, known and verifiable fact, then rather than saying that is a defence for the individual who may or may not even have the capacity to employ proper legal representation, it should be a bar to the case being taken in the first place. We need to stem the abuse of defamatory lawsuits at the earlier point. If a very large corporation takes multiple cases, it is nothing to it that they get knocked back or that only one in five of them even makes it through the courts. The point is that, based on the possibility of future financial harm, it can afford to intimidate those with legitimate, fact-based criticism.
I hope the Minister will accept these two amendments on "likely to cause" because they are in line with what he himself has stated should be the case. Separate to the amendments, perhaps we could have a discussion about the issue of truth and fact and where it sits within the piece. It should be wider than a defence; it should be a bar to cases being taken. Cases that are taken in the face of incontrovertible fact, claiming financial harm because of the sharing of facts, are effectively vexatious cases and should not be coming through in the first place.
I look forward to the Minister’s response and I hope he might be able to accept amendments Nos. 6 and 7.
Michael McDowell (Independent)
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I am interested in the amendments proposed by Senator Higgins. Two things occur to me that we should consider at this Stage in this House. The phrase “is likely to cause” is itself ambiguous. The Minister has probably come across cases in his practice - I certainly have - where the term “likely” has to be interpreted. To a layperson, "likely" can mean "probable". Is this a probable consequence? According to the legal dictionaries, "likely" can also mean "possible". The difference between those two, for the purposes of Senator Higgins's argument, is massive. If this actually means “could reasonably cause financial harm”, that is one thing. If it means “will probably cause financial harm”, that is an entirely different thing. Therefore, when we use the term “likely” in a definition of such central importance to the law of defamation, the Judiciary has to be told what it means. It is not good enough to say it will interpret it one way or the other. We only find that out after a case has been decided, and perhaps after it has gone the whole way up to the Supreme Court or wherever. If we mean “likely” in the sense of “could possibly” or “could reasonably possibly”, such as “is it a likely consequence of driving drunk that one will knock somebody down”, that is one view, and it is likely if we interpret the term "likely" as meaning "could reasonably".Is it a likely consequence of driving drunk that you will knock somebody down? That is one view of it, and it is likely, if you interpret the term "likely" as meaning "could reasonably". However, if you actually mean "would probably" when you use that phrase, an entirely different result takes place if you legislate for it. This is not me imagining some kind of semantic difference between the two. If you look at any law dictionary, you will see entry after entry on what the term "likely" has been found to mean in one case and has been found not to mean in another case. It is important from the very least aim of certainty in what we are doing that, if we enact that phrase as in subsections (2) and (3), we are indicating to the courts that "likely" in this context means either "probably" or "could reasonably". We have to give the courts guidance as to what we mean by that phrase. Otherwise we are simply handing an ambiguity to the courts and finding out afterwards that they say the Oireachtas meant this rather than that. The funny thing is that, under the jurisprudence of the Irish courts, nothing the Minister can say here as to what he thinks it means or what Senator Higgins says she thinks it means or what I think it means is even cognisable in the courts. They say it does not matter what was said at the time this Bill was passed. It is what we think the ordinary and natural meaning of the words in their statutory context is to be interpreted as meaning. There is a strong case for more clarity on that issue.
On the wider point of Senator Higgins's proposed amendments, it is true that there have been cases. I think McDonald's started a lengthy case at one stage; I have forgotten precisely what was alleged against it. Let us imagine it was accused of using horse meat, condemned meat or something in its burgers. I do not know what it was actually accused of but it did go to law in the United Kingdom. The massive resources of McDonald's were used against some campaigning group that had, presumably out of some left-wing ideological conviction, thrown some insults at the company. What the Minister would say about that is that you cannot just sue, in the case of a body corporate which is trading for profit, unless you satisfy a court that the defamation has caused serious harm or is likely - that is subject to what I have just said - to cause a serious financial loss to the company.
It is not just McDonald's in the celebrated English case. There was litigation in the Irish courts between Ryanair and a British broadcaster and an Irish citizen who was, I think, a pilot and a representative of the pilots' association. Both of them were sued separately so as to focus particular financial pressure on the Irish citizen, that he now had Ryanair on his case, so to speak, for remarks which he had made in a broadcast querying the safety of Ryanair's operations and suggesting that a danger arose from lax safety policies on the part of the airline. Without going into the rights and wrongs of it, because I do not think that either was ever ventilated in the end in the Irish courts, the whole idea that Ryanair would actually have to in some way say that, if this programme were to go uncorrected, it would be likely to cause Ryanair serious financial loss, would involve the court and all the parties in a highly theoretical discussion. If it happened during the middle of a volcanic ash situation, Covid or something like that, proof that it was likely to cause financial loss, or if its very skilled management and clever advertising had in any event improved the company's financial position, can there be argument to say that an airline's safety policies are risky? Can there be argument about whether that is likely to cause serious harm in the form of serious financial loss? How can that happen and how can it be discussed in any particular case? I wonder about that.
I believe the term "serious", as we have just voted on, should apply to individuals and to bodies corporate. It should mean the same thing for all defamation purposes. It should not vary from one to another. That is my own view. I presume Senator Higgins would disagree with me. I definitely believe that if we are going to keep the phrase "or is likely to cause serious harm", meaning serious financial loss in the case of bodies corporate, we do owe the courts, the public, litigants, lawyers and everybody who is involved clarity as to what we mean by the term "likely".
Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Senator Higgins for her amendments. She has put forward two amendments, Nos. 6 and 7, which are identical and which seek the removal of the words "or is likely to cause" in the new section 12 governing defamation of a body corporate. I think it is always important when we are discussing and debating amending legislation that we recall what the underlying existing legislation provides. Colleagues will be aware that, at present, a defamatory statement is defined in the 2009 Act as "a statement that tends to injure a person’s reputation in the eyes of reasonable members of society". The test at present is that this constitutes a defamatory statement. Obviously, it must be published to other persons. There is a whole series of defences set out in the legislation as it exists at present.
I informed Senators on the previous occasion I was here that one of my functions, and it is a really important function, when it comes to introducing defamation legislation is to try to balance the two conflicting rights that are present in this area. On the one hand, there is the well-known right to freedom of expression, an absolutely essential right that must be protected. Similarly, there is the right to one's good name, which probably is not as organised or as represented a right as the right to freedom of expression but it is one that I also have to take into account. Any defamation legislation necessarily will try to balance those two rights. I think it is clear to all Members of this House that the purpose of the amending legislation is to slightly shift the balance in favour of the freedom of expression right. I think that is the clear objective of the legislation that is being introduced. The reason that is so is because there is a perception, which indeed in some cases perhaps transfers into reality, that the defenders of defamation actions probably need a bit more protection than those who are bringing the claim.We in these Houses have to be careful that we still recognise and seek to protect the former right, namely the right to one's good name. No one else is organising groups of people to represent individuals' good name, and we have an obligation to ensure that we do so and that we protect their good name.
Regarding the specific amendments tabled by Senator Higgins, the purpose of the new section 12 that I am seeking to insert into the existing Act is to make it more difficult for a corporate entity to bring a defamation claim. The way I am doing that is by saying that companies cannot bring defamation claims unless they have suffered financial loss or as a result of the statement are likely to suffer financial loss. That is a marked distinction from what is currently there. At present, a company can take a defamation action and does not need to prove financial loss. It may be a factor that the court takes into account that no financial loss has been sustained. At the moment, however, there is no requirement for a company to establish that it has sustained or is likely to sustain financial loss as a result of a defamatory statement.
Part of the reason the law in the UK was changed was because of the defamation proceedings brought by McDonald's against two Greenpeace activists, Helen Steel and David Morris, which became known as the "McLibel" case. It is important to note that, notwithstanding the fact that they lost in the UK courts, Ms Steel and Mr. Morris were subsequently vindicated because they won before the European Court of Human Rights. What I am introducing here is a mechanism, a statutory scheme, to make it more difficult for corporations to take cases. Deputy Higgins says that we should just limit it to corporations that can prove, as a matter of fact, that they have sustained financial loss and that if they are not able to do so, that should be the end of it. That would be too draconian in the context of corporate entities.
I return, and I hope Senator McDowell will forgive me for doing so, to the example of McDowell Butchers Limited. Let us look at a case where McDowell Butchers Limited has been defamed by a much larger entity. I will not give a name, but let us say that some enormous supermarket chain decided McDowell Butchers Limited was a real irritant and wanted to do damage to it. In that instance, the large corporate entity could decide to put out stories about the meat in McDowell Butchers Limited being rotten. In such circumstances, the enterprise of McDowell Butchers Limited would be entitled to bring a claim. Simply because it cannot prove at the time it takes a claim that it suffered financial loss should not preclude it from being able to say what was being said about the company was likely to cause financial loss. That is appropriate because in many instances defamation actions have to be taken quickly, and it might be difficult for the eponymous butchers to be in a situation where it could immediately establish that it had sustained financial loss. It will not have its financial accounts available for the relevant year.
It is also important to point out that the company may want an injunction. Not everything in the Defamation Act revolves around awards of damages. You can bring an interlocutory application for an injunction to stop the huge supermarket defaming McDowell Butchers Limited. In that instance, it would be unfair to say to the small company it could not take a claim or even look for an injunction because it has not been able to establish that it has actually sustained financial loss. For that reason, a company in that instance should be able to say it was likely it would sustain financial loss and, looking at the broad publication of the statement, that its customer base was down. It may not be the case that financial loss could be established, but it is likely that it would cause the company financial loss.
I hope Senators will permit me to say this, but a narrative has developed that the only people taking defamation actions are the strong and powerful and that the defendants of defamation actions are the weak, vulnerable and impecunious individuals. As Senator McDowell will tell us, that is not always the case. Many defamation actions are brought by those who are in weak financial positions. In a corporate context, they are brought by small companies against larger corporate entities. We should not assume or presume that people taking defamation actions are individuals who are engaged in some form of nefarious wrongdoing. If a company's good name has been unfairly damaged as a result of a false publication by a large, more powerful competitor, that company should be able to take a claim provided it can establish it has sustained financial loss or is likely to do so.
In terms of proceedings, Senator Higgins also stated that Ireland has become a place for libel tourism. I am not aware of that. If she can give me an example of a case before the courts, I would be happy to consider it. One of the points that was raised was that a defamation claim that achieved some prominence recently and that could have been brought in Belfast, was brought down here. Are we really going to say that we should not allow people who live in Northern Ireland to bring claims in Ireland, particularly if, for example, the defendant - a large broadcaster - publishes something in the South?
Unfortunately, I am not going to accept Senator Higgins' amendments. It is important to point out that the section which is being introduced is going to restrict the ability of corporate entities to take claims. They will only be able to take claims now if they can establish that they have sustained a financial loss or that it is likely that they will sustain a financial loss. Senator McDowell asks how the courts are going to interpret this. My answer to that is that every day the civil courts have to decide cases on the balance of probabilities and whether it is likely, on the balance of probabilities, that a claim being made by a plaintiff is correct. That is what will happen here. A judge will have to look at the example we have of McDowell Butchers Limited and agree that the huge supermarket chain defamed it by saying that the meat it was selling was rotten and that, of course, this would damage the McDowells in the particular area in Ranelagh in which it operates. A court in that instance could decide, although it would not have the financial reports yet, that it was, on the balance of probabilities, established that it would likely cause the company financial loss. For those reasons, I am not prepared to accept the amendments.
Senator Higgins went slightly further and spoke about other aspects of defamation claims. If McDowell Butchers Limited was selling rotten meat, everyone is entitled to say that it was doing so. The Senator's point is that people should be entitled to say that. They are entitled to say it. What the Senator is suggesting is that people should not be allowed to take defamation actions in respect of certain statements and that there should be immunity from suit. She is suggesting that McDowell Butchers Limited could not take a claim in such instances if it was the case that a claim was correct. We get into dangerous territory when we start giving individuals immunity from suit. No one has it. As I said on the previous occasion, even in this House, notwithstanding the constitutional provisions, we do not have immunity from suit. Somebody could sue me for what I am saying in Seanad Éireann now. I have to put in a defence stating I have a defence of absolute privilege. I can bring an application to have the claim struck out as being frivolous or vexatious. Senator Higgins is right in saying that there are frivolous and vexatious claims but there is a mechanism within the court rules to deal with them. Once they are issued, an application can be brought to strike out the claim on the grounds of it being frivolous or vexatious. If it is either, it will be struck out.
When it comes to defamation claims, however, the position is generally not as clear-cut as the Senator states. In many instances, a statement that somebody makes about - using the same example - the meat being rotten in a butchers can be open to interpretation. It is not always the case that it is accepted that the meat is clearly rotten. It is not as clear-cut as the Senator presents. This is an area in respect of which we have to try to get the balance right. I am limiting the right of corporate plaintiffs to bring claims to a sufficient extent now. If I was to limit it completely to people only being able to take claims and succeed only if they can prove financial loss, that would be excessive. We should give a little more leeway and allow a claim if the statement is likely to cause financial loss. As stated, not every remedy is about damages. The company may want to bring an injunction claim as well.
Alice-Mary Higgins (Independent)
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One of the concerns I have relating to what we have heard from Senator McDowell is that the word "likely" is very amorphous. The language is still not clear. I suggest that even if the legislation used the word "probable" that would be the case. I know we are using these hypothetical examples of a large corporation suing a small corporation and that perhaps speaks to a different issue. These are questions about whether cases are being caught early enough. If cases are being brought by a competitor, that is a different issue that may need to be addressed. In that case, there may be mal intent in the defamation that is tied into intent about a competitor acting. In the multiple examples I gave, a lot of the cases taken by corporations were in fact taken against individuals, NGOs, whistleblowers, civil society organisations, health and safety experts and journalists who report matters. There is a balance with all of this.
Alice-Mary Higgins (Independent)
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I acknowledged in my opening remarks that it is an improvement on what was there. I have acknowledged that. It is clear that it narrows it into this area of financial harm. However, the language is still ambiguous and "likely to cause" can be parsed in different ways. Those who are in a large body corporate will be very willing to take multiple case examples until they get the precedent they want in that regard, whereas individuals will be daunted. I gave multiple examples of individuals who have been financially impacted, those who have stopped highlighting issues of considerable public interest because they were intimidated by a legal case, and circumstances where organisations have been unable to get insurance because of a pending lawsuit which effectively inhibits them from operating.
Those are significant consequences. I am worried the legislation as it stands does not do enough to narrow those consequences and address them. As I say, "likely to" is still wide enough. I am not talking about somebody having immunity. It is not about saying who is immune from prosecution. Nobody is creating a 007 designation whereby people can go without prosecution. Nobody should have immunity but my point is that cases have to be taken on relevant grounds. I can sue people on grounds but where it could get caught as being vexatious and inaccurate. At the moment, the legislation does not really capture it because it goes back to the definition the Minister read out. Defamation is defined as being likely to cause harm to a person's reputation, or likely to injure a person's reputation in the eyes of reasonable people and so forth.
Let us say I am giving a fact, such as that a particular company failed 20 safety tests last year or another company has been indicted in three other countries for breaches of child labour regulations or whatever it may be. If I am giving a piece with a factual basis, it can be said that is likely to have an effect on the reputation but the question is whether my making the utterance is what is having an impact on the reputation or is it the fact the company used child labour that has impacted on its reputation and customers' willingness to engage with the company that has been using and found to use child labour. Does the Minister know what I mean?
Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It is causation.
Alice-Mary Higgins (Independent)
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There is a whole question of whether the injury is done by the fact or by the fact being stated. That all has to be argued out in the courts. Truth is available as a defence but that is far down the line and some of these cases have been hanging around for years. The Minister talked about the vexatious piece and he might elaborate on how exactly he sees that playing out in way at an earlier point because I am very concerned it would not be found to be vexatious because, according to the legislation, it is an utterance which potentially has an impact on the reputation of a company. It meets the definition of defamation that is in the Bill and I worry that the court would say that has to play out and you have to use the defence of truth. I worry it would not throw those cases out at an early point and it would wait for the case to play out before reaching the defence of truth.
I am not talking about every case and I do not think rotten meat is a good example. It could be a company that had been shut down by the Health and Safety Authority on five occasions in the past ten years. That is just a fact if you say it. Should that company then be able to take a case claiming there is a potential financial impact on the company as a result of those facts being highlighted? That is what I am trying to get at. We will come to it later when we discuss the question of "manifestly unfounded" and some of that later in the SLAPP pieces. It is one I am concerned about.
I am concerned about how these will be used but, going back to the question of "is likely to", there is a burden of proof piece there. The case may pan out and no substantial financial harm can be demonstrated but there is no consequence for the company because it can say it thought it was likely but did not say it was definite. If a company takes multiple cases on the grounds it is likely to cause serious harm but it does not produce any actual instances of the serious harm, it still fulfils the language within the Bill. There is no pressure from the legislation against this kind of case being taken even if, time after time, the company fails to demonstrate the actual consequence in terms of financial harm. I am thinking of those who take multiple cases. We know there are corporations who will be willing to take a number of cases or exercise a chilling effect through an example or two of cases.
I am sorry to come at it and I know I am not coming at it from the point of view of playing out defamation cases in court, which maybe the Minister and others in the Chamber have done, but I come at it from the point of view of having worked in civil society for 15 years. I come at it from the experience of those who have tried to pursue information and highlight information in the public interest. I come at it on behalf of people who have worked on very serious issues of health and safety and have tried to highlight issues of serious public interest. I come at it having worked with persons who have engaged on issues of due diligence internationally - this is of personal importance to me - on issues such as child labour, environmental damage and so forth. I know that side of it. I know that in that side of it, there is a chilling effect from the threat of legal action and the fact that most NGOs do not have a massive legal sink fund ready to take cases. They are operating on €1,000, €2,000 and €4,000 grants that allow them to do small, specific projects and investigative work in those contexts. The threat of even one case like that can cripple the action they might be doing.
There is an inequality of arms here that needs to be addressed. I know the Minister goes some way towards addressing it in this legislation but I ask him to consider and review that language. I ask him to review the language of "is likely" and consider whether it could become "or is probable". Can we define that in some way in order that there is some pressure and a burden of proof in terms of them being able to show they genuinely thought there was a high probability of damage. That would at least do something rather than leaving this as a very wide phrase that can be used without evidence, potentially multiple times, by the same actors.
Michael McDowell (Independent)
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Perhaps this is a first, but I was looking at AI on my phone-----
Michael McDowell (Independent)
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-----in the context of getting the legal meaning of the term "likely". It is stated that the term can mean "more probable than not" and that there is "a reasonable possibility". In answer to a question as to whether I could fall down the stairs, one could answer that it is a reasonable possibility. In answer to a question as to whether I will fall down the stairs, one could say that it means is I am going to fall down. The question that then needs to be asked is whether would someone take a bet on it happening at odds on or whatever.
The Minister said the courts operate on the balance of probabilities, but they do not when it comes to this. All the case law people will find if they google it states that it all depends on the context in which the term "likely" is used in a statute. All I want to say is that rather than prolong this discussion, the section should be amended to make it clear that it either means it is a reasonable possibility that a company will suffer serious financial loss or, alternatively, it is more likely than not that it would do so. On Report Stage, we should be willing to say what we intend it to be interpreted as meaning. Otherwise, we are throwing up a patent ambiguity for the courts to interpret without giving them guidance as to what we actually mean.
Senator Higgins referred to, say, a large retailer selling t-shirts at cheap prices and the allegation that the relevant firm is using child labour in Bangladesh, Vietnam or wherever to produce these. That would affect a company's reputation. Can it be stated that this can be said, effectively, with immunity unless the person publishing the statement or making the accusation can be shown to have caused or be likely to cause a serious dent in the retailer's profits? If that is to be the test, that is fine.
I take the Minister's point that he feels he is liberalising the law and making it more possible to make statements without being sued, but it seems that it is somewhat arbitrary to say that because a company is trading and there is no way, and no likely way, to use that term, that we will never be able to look at its profits at the end of the year and say that what was published in The Irish Times about it put a dent in its profits and that this should prevent it from suing somebody who is causing serious harm to its reputation. As a result, serious harm is not to be defined by reference to the effect on the balance sheet. That is possibly a form of serious harm. Obviously, if there was damage done to the profitability of a company, I have no problem with saying that this is a species of serious harm to that company's reputation. However, it is not the only criterion. If someone states that a company in Dublin selling t-shirts and clothing at economic prices - which is very important to a lot of people in Ireland who depend on highly competitive, low-price clothing - is using child labour in Bangladesh, Vietnam, Burma or wherever in circumstances where that is wholly untrue and if they keep repeating that, even though it is wholly untrue as far as the company involved, which may have sent inspectors to Bangladesh, Vietnam or wherever and which can answer the claim, is concerned, saying that it is not defamatory unless the company can also point to its balance sheet and highlight the consequence of the statement that was made is not a proper test of seriousness. I am in favour of a seriousness threshold, but I do not think that handcuffing commercial companies to serious financial loss is a fair way of dealing with what could be very serious defamation.
I will give the Minister an example. If somebody says without cause that the Boeing aircraft corporation is manufacturing dangerous planes, to say that Boeing cannot come to an Irish court to stop them from saying this, unless it can also show that what they said has really affected its worldwide sales in some way, is wrong. We are not even dealing here with something that Senator Higgins would probably have more sympathy with than me, which is, boycotting companies because of suspicions they are using child labour, because their products are not green or because they are using fracked gas or whatever. It seems that anchoring the right to respond to a defamatory statement on the basis of its effect on a balance sheet is wrong.
The other issue is that there are companies limited by guarantee, which obviously means they are not or may not be companies that trade for profit. That is another issue that is hanging there in the context of this definition. Let us even take something like a farmers' co-op. Is that a company that trades for profit or is it something else? I am suspicious that this amendment, although I accept the Minister's proposition that it is intended to relax the rules of defamation, carries with it ambiguities and unintended consequences that have not been adequately thought through.
Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Senator Higgins gave the example of a statement to the effect that a company has been shut down on five occasions in the past ten years. If that statement is absolutely true, no one who I am aware of would contemplate issuing defamation proceedings in respect of it. They would not get a lawyer to stand over it. A solicitor has got to swear an affidavit of verification in respect of it. If it is the case that the company had been shut down on five occasions in the past ten years, I do not see any claim getting off the ground in respect of that.
Obviously, people are defamed all the time. However, people exercise discretion as to whether or not they are going to institute defamation proceedings. I am sure there are people in pubs talking about all of us in this House individually and will issue completely defamatory statements about us. If we get to hear about it, we do not go off to our lawyers and then go to court. It is only if it reaches a certain threshold of seriousness that people decide to get involved in a legal process. Senator McDowell used the example of Boeing manufacturing dangerous planes. If somebody said it in the pub here, I am sure Boeing would do nothing about it. It is actually a sensible test that is being introduced in this amendment that in order for a company to take a claim, it has got to be able to establish that it has sustained or is likely to sustain financial loss. That is the real difference. Boeing would have to be able to establish that in this instance.
There is a process in place for people to bring applications promptly to strike out vexatious claims. The Senator raised the issue of causation.Causation is an integral part of any person trying to establish his or her claim.
I will conclude on the McLibel case. The McLibel case resulted in the change of law in England and Wales. It resulted in the serious harm test in terms of corporate plaintiffs, in particular. That was sensible because there was no real loss sustained by McDonald's that it could identify commercially or in terms of its profit margin or financial loss. What I am trying to do here is replicate that. This is in defence of free speech.
Alice-Mary Higgins (Independent)
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I move amendment No. 7:
In page 7, line 31, to delete “, or is likely to cause,”.
Sharon Keogan (Independent)
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I move amendment No. 8:
8. In page 7, after line 32, to insert the following: “Serious harm threshold for natural persons7. (1) The Principal Act is amended by the insertion of the following section after section 12:(2) The amendment effected by subsection (1) shall apply only to causes of action accruing on or after the date of the coming into operation of this section.”“12A. A statement concerning a natural person shall not be considered defamatory unless its publication has caused, or is likely to cause, serious harm to the reputation of that person.”.
Linda Nelson Murray (Fine Gael)
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I move amendment No. 9:
In page 8, lines 22 and 23, to delete “it shall be a defence to a defamation action for the defendant to” and substitute “no cause of action shall lie where the defendant can”.
I will withdrawn this amendment because the Minister has indicated that he will look at something to do with retailers.
Mark Daly (Fianna Fail)
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The question is, "That section 11 stand part of the Bill." Is that agreed? Agreed. The question is, "That section 12 stand part of the Bill." Is that agreed? Agreed. Section 13-----
Gerard Craughwell (Independent)
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Section 11 is not agreed. I said "not agreed".
Mark Daly (Fianna Fail)
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The Senator has got to speak up. We had got to section 12.
Gerard Craughwell (Independent)
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I am sorry, but I said, "Not agreed".
Mark Daly (Fianna Fail)
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I had gone on to section 12. Please do speak up. I did not hear the Senator. My apologies.
Michael McDowell (Independent)
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If the Cathaoirleach wants votes all afternoon, Senator Craughwell said it was not agreed. Perhaps he was not heard.
Michael McDowell (Independent)
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I have to say to the Chair that it is a section of huge importance. Rattling off sections in the way the Chair has is most unfair, especially if a Senator says it is "not agreed" and he is bulldozed out of the way.
Michael McDowell (Independent)
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If the Cathaoirleach wants votes all afternoon on every comma in this Bill, he will get it now. If the House wants to go back to section 11, it is entitled to do so, as the Chair well knows.
Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I have no objection. We can go back to section 11.
Mark Daly (Fianna Fail)
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As the Minister has no objection, we will go back, but I ask Members to please speak up. They have plenty of voice. To be clear, we do rattle through sections because when we are getting to-----
Mark Daly (Fianna Fail)
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I thank the Senator, and no one is against efficiency, but if a Member has a section they want to talk on, please speak up. As the Minister and the House are agreeable-----
Michael McDowell (Independent)
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Just so everyone knows, Senator Craughwell and I spent an hour talking about this section this morning and came here with the express intention of opposing it.
Gerard Craughwell (Independent)
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I am sorry that I did not speak loudly enough for the Cathaoirleach.
Gerard Craughwell (Independent)
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As the Cathaoirleach knows, I do not hear him all the time either. I was trying to adjust my hearing to hear what was going on.
Section 11 amends section 26 of the principal Act. In looking at this amending section, it strikes me that all of the safeguards that were included in the 2009 Act, which was introduced by my colleague Senator McDowell, are gone. It strikes me that this amendment is highly favourable to the media. Anybody who wants to take the good name of a person can simply base it on an allegation between two people. A media observer hears it and can then go and write a story. They are perfectly cleared provided they can wreak what is called "the public interest".
Where does the public interest start and stop? If we look in one of today's newspapers, there is an article based on innuendo and based on "dúirt bean liom go ndúirt bean léi", no names mentioned, no pack drill. We are seeing this all the time and it is totally unacceptable. We are told in the article that the newspaper could not print the name because of defamation laws. As in all of these things, the newspaper probably left enough breadcrumbs in the article to lead to two or three people in this House or the Lower House.
It is simply unacceptable that we are taking away the safeguards that are included in section 26 of the 2009 Act. I will examine some of those safeguards, if I may. For the purposes of the Act, one must be able to show that the statement in respect of which an action was brought was published "in good faith". Publishing stories in good faith is something I do not see a lot of lately. The article published today does not strike me as being in good faith, in the first instance.
Section 26 also states: "... in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit". Stories like these are typically published about high-profile people, whether they are Members of the Oireachtas or entities outside the Oireachtas. We need an extremely high bar. We cannot have a situation where people's names can be used based on some accusation made by person A about person B, which allows a media entity to then publish a story naming person B and being exempt from defamation laws purely because it was only reporting in the public interest what was heard. I am deeply concerned by what I see here.
Section 26(3) states: "The failure or refusal of a plaintiff to respond to attempts by or on behalf of the defendant, to elicit the plaintiff’s version". If somebody contacts you looking for an answer to something and you refuse to provide it, you are protected in the 2009 Act. The individual is protected. To quote section 26 again:
... the plaintiff’s version of events, shall not- (a) constitute or imply consent to the publication of the statement, or
(b) entitle the court to draw any inference therefrom.
The last part of this section states:
"court" means, in relation to a defamation action brought in the High Court, the jury, if the High Court is sitting with a jury;
"defamation action" does not include an application for a declaration order.
The point I am trying to make here is that we cannot have a situation where we ease up. The Minister mentioned earlier that he was all for free speech. I am all for free speech, too. I heard someone refer to social media earlier. On the issue of free speech on social media, we have no recourse whatsoever. People can say anything want.In a recent statement on social media, somebody said that I was a person who supported child abuse. I have no reaction and no action against that person because I do not know who they are and I have no action against the organisation that allows it to be published on its website. Yet, it is widely read. We need to raise the bar, not to make it easier under any circumstances. We need to make it extremely difficult to write an article that will identify an individual. Going in this direction with the Bill means it will be much easier to name the individual. If someone was writing the article in the Irish Independenttoday, they would actually say the name of the individual because they would be covered under this legislation. I will leave it at that for a moment.
Michael McDowell (Independent)
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I strongly urge the Minister to reconsider this particular amendment. This amendment to the Act of 2009 was tendered in the course of the Dáil debate by the Minister. It is not referred to, as far as I can see, in the original explanatory memorandum and it actually promises a very radical effect of change in the defamation law of this country. The House should be made aware that back in 2006 and 2007, when the 2009 legislation was being prepared and was actually commenced in this House, I remember sitting where the Minister is now and somewhere behind where Senator Conway is. I remember an impassioned speech against section 26 of the original Bill being made by none other than Senator David Norris. He claimed that I was opening the floodgates to the defamation of public figures and he was passionate in his condemnation of the reform I proposed at that time. It is important to put on the record of the House what the existing law is. It is as follows:
26.— (1) It shall be a defence (to be known, and in this section referred to, as the “ defence of fair and reasonable publication ”) [Mark the words, "fair" and "reasonable"] to a defamation action for the defendant to prove that—
(a) the statement in respect of which the action was brought was published—
(i) in good faith, and
(ii) in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit,
On that, it is not just enough that it is public interest but that it is for public benefit as well and that it was done in good faith. Those are the ingredients of the law at the moment. The subsection continues:
(b) in all of the circumstances of the case, the manner and extent of publication of the statement did not exceed that which was reasonably sufficient,
There is a threshold in the existing law of the land, as we stand here now. It says that the defence of fair and reasonable publication was contingent on the establishment by the defendant that the manner in which the matter was reported, or the statement that was made, did not exceed that which was reasonably sufficient, and, "(c) in all of the circumstances of the case, it was fair and reasonable to publish the statement". The journalist or the newspaper has to say it was fair and reasonable to publish this statement. That is the law as we have it at the moment.
Recently, we had the case, to which the Minister tangentially referred, about whether it was fair to criticise Gerry Adams in the way the BBC did. The jury said it was not but that is being abolished now. The fairness test is being taken out of defamation law. Subsection 2 states:
(2) For the purposes of this section, the court shall, in determining whether it was fair and reasonable to publish the statement concerned, take into account such matters as the court considers relevant including any or all of the following:
(a) the extent to which the statement concerned refers to the performance by the person of his or her public functions;
That is an issue. Does this statement concern the performance by a person of his or her public functions? The subsection continues:
(b) the seriousness of any allegations made in the statement; [We will not bring seriousness into our law at all, except for companies]
(c) the context and content (including the language used) of the statement;
(d) the extent to which the statement drew a distinction between suspicions, allegations and facts;
Let us contemplate that. The court is required at present, whether it is a jury trial or a non-jury trial, to ask if a statement drew a distinction between suspicions, allegations and facts. The subsection goes on:
(e) the extent to which there were exceptional circumstances that necessitated the publication of the statement on the date of publication; [In other words, was there urgency, that this story be published on the day]
(f) in the case of a statement published in a periodical by a person who, at the time of publication, was a member of the Press Council, the extent to which the person adhered to the code of standards of the Press Council and abided by determinations of the Press Ombudsman and determinations of the Press Council;
This had the effect of asking newspapers if they followed the standards of the Press Council and complied with its recommendations or demands for retractions. The subsection continues:
(g) in the case of a statement published in a periodical by a person who, at the time of publication, was not a member of the Press Council, the extent to which the publisher of the periodical adhered to standards equivalent to the standards specified in paragraph (f);
In other words, if there was an English newspaper or magazine, did if follow the kinds of standards that the Irish Press Council put in place? Those standards are really important. They include checking the facts and putting the story to the person who is being written about. Those are all part of our law as it stands. The subsection continues:
(h) the extent to which the plaintiff’s version of events [That is the person about whom the story is written] was represented in the publication concerned and given the same or similar prominence as was given to the statement concerned;
We just have to go back to the Adams case and we can see that his denials were published but the allegations were given far greater prominence. The subsection concludes:
(i) if the plaintiff’s version of events was not so represented, the extent to which a reasonable attempt was made by the publisher to obtain and publish a response from that person; and
(j) the attempts made, and the means used, by the defendant to verify the assertions and allegations concerning the plaintiff in the statement.
In other words, there is a duty of verification. That is in the law as it currently stands. None of this will be the law if we pass this Bill in the form that the Minister is proposing. The fairness will go out, as does the question of whether an attempt was made to verify a story. All of that is swept aside.
Senator Craughwell earlier noted the following:
(3) The failure or refusal of a plaintiff to respond to attempts by or on behalf of the defendant, to elicit the plaintiff’s version of events, shall not— (a) constitute or imply consent to the publication of the statement, or
(b) entitle the court to draw any inference therefrom.
As has happened on many occasions to many people in public life, you are told a publication intends publishing tomorrow the following about you and it is giving you a chance to respond. If you then ring your solicitor and he says under no circumstances respond because the publication will publish a denial story stating Senator Joe Soap denies allegations of corruption, that is not permissible as an argument in court as the law presently stands. In other words, if you are told by your lawyer that something is false but if you start mud wrestling with the journalist in question and say it is untrue, you will end up facing a story stating that Senator Joe Soap has denied an allegation by X, Y or Z that he did or did not do X, Y or Z, was or was not corrupt or whatever it may be. That is the law as we have it.
It is not an accident that is the law. The generation of section 26 was done with the greatest of care and, without divulging Cabinet confidentiality, it engaged the minds of Ministers at great length at the time. They could see that if we do what the Minister is now proposing, huge consequences would follow for people in public life in particular. That is the law that we have established today. Some of it has been difficult to rely on by defendants in jury cases because the jury would say that, at the end of the day, it was not fair. That is the end of the matter.
What we are proposing now to put in instead of it, and I ask Members of this House to look at it very carefully, is that "it shall be a defence [to be known as defence of publication on a matter of public interest - What is different? The phrase "fair and reasonable" has been dropped. That is just the title of the defence] to a defamation action for a defendant to prove" in all the circumstances of the case three things: the statement in respect of which the action was brought was on a matter of public interest; the defendant reasonably believed that publishing this statement was in the public interest; and the statement was published in good faith. If somebody goes to a journalist and accuses a TD, Minister, Senator, or anybody else in public life for that matter, of very grave wrongdoing, from child abuse, as mentioned by Senator Craughwell, to public corruption of one kind or another, those three things can be established by the defendant. First is that the statement in respect of which the action was brought was on a matter of public interest. It would be of huge public interest by definition if one of us or a Member of the Dáil or a member of the Government had acted corruptly or was corrupt, so you are over that hurdle before you start. The second point is that the statement in respect of which the action was brought was on a matter of public interest and the defendant reasonably believed that the statement was in the public interest. If a Minister is accused of corruption, is a journalist or newspaper not very easily in a position to say that if this accusation has been made, it is in the public interest that it should be disclosed? For instance, if a well-placed member of An Garda Síochána goes to a newspaper or journalist and says Minister X is corrupt or Minister Y, although Minister for children, has a record like that which was alleged against Senator Craughwell, that is in the public interest and publishing it is undoubtedly in the public interest because the public is entitled to know that a member of An Garda Síochána believes that that particular person is a danger to children. The third point is that the statement was published in good faith. What does that mean? Does it mean that the journalist believed the garda who blackened the public figure? All three ingredients are then established by proof: I believed it was true, it came from a credible source and, in view of the nature of the charge, it is in the public interest that the public knows about it.
That is the test that this Minister is putting before us in this House in future to establish a defence of publication in the public interest. Any newspaper which satisfies those things, that it in good faith believes it, it has a good source for it, the nature of the charge is of very great public importance and it is important that the public should know that a senior garda suspects a person of that offence, then it can publish. There is no requirement in the Minister's provision that the story has to be bounced off the person who is going to be defamed - none whatsoever. You do not even have to lift the phone to him as long as you believe in good faith that the story you have been given by a member of An Garda Síochána is true, that it is in the public interest, if it is true, that the public should know about it, and the matter is one which should be published in the public interest. If I as a journalist received information that gardaí were investigating a Minister in the present Cabinet for corruption, first of all, I might ask the garda if they were sure of what their accusation is, and if they said "Yes", I would then ask if it was in the public interest. By definition, it is. I would then ask if I could publish it in good faith, and of course I can because I believe it is true. That is the test that this Bill is proposing.
The existing law was carefully calibrated to provide some balance. It means that if those three things are satisfied tomorrow, any journalist can publish a story on the front page of any newspaper and there is a good defence to establish those three points. If a Minister, Deputy, Senator bishop or whoever you want faces that headline, it is a good defence and the end of the matter if the journalist and editor say they believe it to be true, it is obviously in the public interest and publication of it is in the public interest. They can state they did not even bother to ring the individual in question because of the evidence they had.They saw the Garda file and that was enough for them. They do not think the gardaí would have invented this, so there it is. It goes on the front page, uncontradicted.
I will go back to what the law is at the moment. Section 26 refers to "fair and reasonable publication". It has to be fair. What is fairness in this context? The fact the gardaí suspect you of something should be drawn to the attention of the people at large - is that fair? Is it consistent with, for instance, the presumption of innocence that because gardaí suspect a person in public life of doing something wrong, that can be published without more?
Section 26(1)(a)(ii) states it must be "in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit". It is important under present law that the journalist states it has to be dealt with now because it is for the public benefit that it be dealt with now. It is not down the road when there will be a jury trial about it; we are entitled to know about it now because that is what the gardaí suspect.
Section 26(1)(b) stipulates that "in all of the circumstances of the case, the manner and extent of publication of the statement did not exceed that which was reasonably sufficient". Front-page story or front-page headlines - that is gone as a requirement.
Section 26(1)(c)is the crucial one. It states that "in all of the circumstances of the case, it was fair and reasonable to publish the statement". Is it fair and reasonable to publish a statement that a public figure is suspected by somebody else of corruption or subject to allegations by somebody else, whether a garda, Opposition TD or whoever, relating to corruption? Is it fair to put that into the public domain without some form of legal adjudication as to whether it is true and without the matter going through the court process, at the very least?
Let us then look at the additional protections in the existing section 26(2). It states:
For the purposes of this section, the court shall, [must - this is not an option for the court] in determining whether it was fair and reasonable to publish the statement concerned, take into account such matters as the court considers relevant including any or all of the following: (a)the extent to which the statement concerned refers to the performance by the person of his or her public functions;
(b) the seriousness of any allegations made in the statement;
(c)the context and content (including the language used) of the statement;
(d) the extent to which the statement drew a distinction between suspicions, allegations and facts;
The story must not be written as "Senator X corruption allegation"; the story and statement must draw "a distinction between suspicions, allegations and facts". Section 26(2) then refers to:
(e) the extent to which there were exceptional circumstances that necessitated the publication of the statement on the date of publication;
If, for instance, an allegation of corruption or child abuse was made, why publish it now? Why not leave it to a jury? Here is a very good point: when somebody is accused of sexual assault and brought before the courts, they are given anonymity for rape charges, pending the outcome of the case. Under the Minister's version, if so-and-so is suspected of rape or there is an allegation of rape against X or Y, a public person, that person's anonymity does not have to be respected because there is no court proceeding in existence.
Then there is the business about the Press Council. The Press Council has laid down a code of conduct for journalists. It requires them not to publish things which could seriously damage other people unless they conduct an investigation of the matter themselves and unless they afford the person about whom they will write the right to rebut what was said or to convince them it was false. That is all guaranteed under the existing law.
Section 26(2) goes on to refer to:
(h)the extent to which the plaintiff’s version of events was represented in the publication concerned and given the same or similar prominence as was given to the statement concerned;
It is very easy to write a story. The gardaí say X, Y or Z. They are relying on a whole series of things. Set that out in the story and then say at the end of it, "Senator So-and-So denied it". Under existing law, someone is presumed to read the whole thing and the fact the person denied it is thrown in at the end, but the story is all over the front page of the newspaper. The subsection continues:
(i)if the plaintiff’s version of events was not so represented, the extent to which a reasonable attempt was made by the publisher to obtain and publish a response from that person;
That is gone too. That is no longer part of this defence. What used to be fair and reasonable, is now public interest only.
The next paragraph is:
(j) the attempts made, and the means used, by the defendant to verify the assertions and allegations concerning the plaintiff in the statement.
A duty is cast by our law at the moment on the person publishing the statement to investigate it, rather than simply say: "The gardaí say such and such" or "This woman says that she was raped" or "This man says he was raped" and then say:
As far as we're concerned that's enough to go on. We believe him. We had an interview with him in the newspaper office. We believe him in good faith and we believe that the public should know about this.
This is the brave new world the Minister is trying to persuade this House and Parliament to bring about.
Section 26(3) states:
The failure or refusal of a plaintiff to respond to attempts by or on behalf of the defendant, to elicit the plaintiff’s version of events, shall not— (a)constitute or imply consent to the publication of the statement [That is obvious. If you say you are not answering that, it does not mean you are consenting to its being published], or
(b) [and this is crucial] entitle the court to draw any [adverse] inference...
You may say you are not answering or have no comment, or you simply do not respond to a message left on your phone, saying "We intend publishing the following about you tomorrow". This happens, by the way. This is not me imagining situations. It happens weekly in our Republic that people get messages of that kind from investigative journalists, saying "We're publishing this and we're giving you an opportunity to deny it." At the moment, they know that if the person does not reply, they cannot rely on that in the court for any purpose whatsoever. That is the law. There is a difference in making no comment under the proposed legislation because they will be able to publish "Senator accused of rape", with the details of the allegation they believe to be true, add that the Senator in question said "No comment" and stick it on the front page as their lead story. That is where we are going and nobody should be under any illusion about that.Why we are changing the law to permit this, I do not know. As I said to the Minister before, the present formulation was considered clumsy, but there are guarantees in it which are hugely valuable to people about whom public interest defamation may or may not be published. There are very serious safeguards which curtail media behaviour and impose good manners, such as Press Council standards, on them. All of that is to be swept away. It will not be any good saying in court, "Why didn't you apply Press Council standards and procedures and advice to the way in which you handled this story?" It will not be any good to say that because the fairness requirement is gone. It has gone out of the window. Instead, we will have a brave new world where somebody will be able to say, "I have it on good authority from a member of An Garda Síochána, who perhaps should never have revealed this to me, but I have seen the file, and there are reasons to believe that Minister so-and-so or whoever is guilty of corruption."
Do gardaí leak files? Yes, they do, on occasion. I was amazed way back to the time when I was Attorney General that a file was leaked to a particular newspaper and journalist that there was somebody carrying out abortions in Ireland. That file, by the way, that file was handed over in a city centre pub, as we later found out. The next thing that happened was that women who were alleged to have had the abortions carried out - this was prior to the repeal of the eighth amendment - had a journalist knocking on their doors asking them to confirm that they had abortions by this doctor. Do gardaí leak files? Yes, they do. Thank God, the great majority of gardaí do not leak files and comply with their duty of secrecy and confidentiality under the Official Secrets Act, the Garda code and the Garda Síochána Act. There are often cases, however, where people who are frustrated that prosecutions are not be authorised and that the DPP said "No" and the evidence is not sufficient. They think, "I will just throw it at a journalist and see if the journalist would make something of it, and damned if that person is going to get away with this misbehaviour." That is the kind of thing that happens. It is not just a matter of police activity; it is right across the board. It is people who are suspected of professional misconduct. Anybody in that situation is vulnerable to a file landing of the desk of a journalist alleging gross misbehaviour or gross criminal misconduct. Of course, the Minister's amendment will facilitate a newspaper to publish that because it is in the public interest that there is serious suspicion about a particular person in public life. It is in the public interest that they should know that. The publisher has looked at file and feels convinced by what he has seen, without the other party’s denials being there, that it is probably true. If it is true as the publisher believes, the public should know about it. Publication in the public interest is satisfied. Good faith is satisfied because the person believes it to be true and that it is wrong that this person should remain a Minister, TD, Senator or whatever else if all this information which they have been given in confidence is true.
Senator Craughwell made a hugely important point. This very day in one newspaper a senior politician is stated to have fronted up a charitable event where the money was misappropriated and where it was only devoted to the charitable object after enquiries were made. That is a very serious allegation to make about somebody. I am sure in the corridors of this House there are people wondering who that is. It is a perfectly natural inquiry to make. What would stop somebody from publishing that politician's name this morning if the Minister's amendment becomes law? It is clearly in the public interest that, where a politician fronts up a charitable event, raises substantial money and the money is not applied for the purpose for which it is raised, that should be stated and publicly known. It is clearly in the public interest that, if that politician is so senior as to have authority or have had authority and those were the person's standards, that should be known as well. I have no doubt that the journalist who published that story today believes that every fact that he or she put in their story which we are reading about is true. All the three ingredients in the Minister's formulation of publication on a matter of public interest are satisfied. It does not matter whether it is fair or reasonable to publish it. The concept of fairness is taken out of the equation. It is just belief that the public interest requires it and good faith on the part of the person publishing it - in other words, an absence of bad faith. It would be totally different under the Minister's formulation if the person knew it was false. However, where the person believes it is true, good faith in its publication is satisfied if the matter is of such public import that the public should be told about it.
We are given a choice in this House, a choice that was not adequately debated in the House below, as to whether this should or should not be the new law in Ireland, that it should be possible to publish allegations which are of sufficient gravity to cross the public interest threshold in relation to publication, that are believed by a journalist or a newspaper to be true, and that the newspaper reasonably believed that publishing the statement was in the public interest. Let us look at a fairly simple situation. One public figure alleges that another public figure has behaved corruptly. For example, in a coalition government, one Minister accuses another of behaving corruptly in relation to the second Minister's functions as a Minister. He goes to a journalist and says, "I am fairly satisfied that Minister X received money or made that decision because his son or daughter has stood to gain from it, and here is why I believe that." The first Minister is therefore under suspicion, and it could be credible suspicion, of corruption.All of the ingredients in subsection (1) of the Minister's new section 26, as proposed, are satisfied. There is no obligation to bounce it off the victim of that statement, if it is a defamatory statement and is untrue. The journalist can say with abandonment, "I put this to Minister B and he failed to respond for the last three days." That carries with it, in many people's eyes, the suggestion that there must be fire because there is smoke there. So, the journalist is publishing Minister B's name and the name of the accuser, although they might give the name of the accuser some confidentiality because he was their source, which is fair too. There is no breach of that at all. Is this the standard we want to give to our journalists in future?
The Defamation Bill introduced in 2006 was extremely carefully calibrated. It looked around the corners and asked itself what would be the outcome in Irish law of changing the law at that time to accommodate what was roughly the Reynolds defence in Britain. The balance struck was the balance I have outlined to the House. Now, we say that was the wrong balance. It is too clumsy, too difficult and too constraining on free expression on the part of the media. Why force the media to investigate the matter themselves? Why immunise a Minister who says he is not responding to an inquiry on advice from his lawyers and who does not even return the pressman's call? Why give the media the right to say, "Minister so-and-so was contacted and given three days to respond and we have not heard a word"? Why do that? Is that the standard we actually want to have?
As Senator Craughwell has said, we have this very day an example of a newspaper publishing a story about a senior politician which looks extremely unfavourable to that politician and has all the characteristics of a major defamation, if any of it is untrue. However, the newspaper then says to the public that for legal reasons, it is not naming that politician. What are the legal reasons? The legal reasons are that the existing section 26 does not accommodate it in naming the politician. That is where the protection lies. Today, if we pass this particular section, we are saying those safeguards no longer exist.
I assure the Minister that all of this was discussed and debated in great detail at the time. For instance, the provision that failure to deny a story could never be relied upon was put into our law for very good reason. "Let us see him deny it" is the oldest journalistic trick in the book because the journalist can then say the Minister denies corruption, rape or whatever it is and shove that on the front of a newspaper, or even that the Minister says "No comment" on the record when confronted with allegations of a very serious kind. We put that into law because it was necessary to put it into law. It was a necessary protection, particularly for people in the public eye, so they would not be ambushed by telephone messages saying "We intend to publish the following about you and want to hear from you by Saturday as our Sunday edition will be carrying this story."
I cannot understand how anybody would think that the terms of the existing section 26 are unfair or unreasonable. Who is demanding that the politician written about in today's Irish Independentshould be identifiable today? Who is demanding that? Is it the media? Is it the public? Is it curiosity? If that is true, we had better know who it is immediately because An Garda Síochána is investigating it, believe it or not. It is not that the Garda has found it is true, but that it is investigating whether a senior politician fronted up for a charitable event and the money did not end up going to its charitable purpose. Why not name the politician? What protection is the Minister offering them? Absolutely zero.
Why was this amendment to section 11 not much more widely discussed before it was made, and the terms of it and its implications more widely understood? I have put this in terms which are designed to appeal to Members of this House because they can see very clearly that they could be in the firing line, as could Members of the Dáil and members of the Cabinet. I put it in those terms without apology. It was clear from section 26(2)(a), which says that one of the matters the court must take into account is "the extent to which the statement concerned refers to the performance by the person of his or her public functions". However, this does not just apply to politicians. It applies to senior clergymen. It applies to child protection officers. It even applies, dare I say it, to members of An Garda Síochána. It applies to teachers, professors and university heads. It applies to people down the authority pecking order in the public service, for example, passport officers alleged to have taken a bribe. This protection applies right across the board. What the Minister is proposing to do is radically change this section.
Because I was involved in the political compromise and authorship of the existing section 26, I do not claim it is perfect. I can see that, to some extent, it requires some reform. I am happy to debate with anybody changing any of the existing protections or qualifying them in any way. However, when I am confronted with a proposal to sweep away virtually all the defences the ordinary citizen, or a person in public life at whatever level, has in the face of a public interest test of the kind proposed by the Minister, I have to say this goes far too far.It is not balanced at all. If the Minister says it is too restrictive, I could go along with him in making the case to this House that it is too restrictive for any of the following reasons: this kind of publication is being wrongly inhibited; juries are confused by some of the language in the existing section 26; it is too long; it is too clumsy; or the reference to the Press Council is otiose and redundant. I will listen to any argument, but I cannot accept an argument that none of this should remain our law and should be entirely swept aside.
I do not think its implications were adequately debated in Dáil Éireann. If this afternoon the Members of Dáil Éireann looked at today's Irish Independentand realised that, had the Minister, Deputy O'Callaghan, managed to get this through the Seanad, that person would have been named this morning, they might wonder whether we were wise to permit such a change in our defamation law.
I have made my points. I am not saying that section 26 is perfect. I am quite happy to acknowledge that somebody could in good faith believe it required amendment. However, the radical chopping down of most of the tree to leave it as simply a matter of public interest, publication in good faith and the requirement that its publication was believed to be in the public interest is a ridiculously low standard to apply if every other constraint in the current law is taken away at the same time.
I can well imagine juries taking a bit of a run at the present law and saying it was all very well but it was not really fair and that is the end of it. Even if the word "fair" was recast to make it clear to juries what was involved, I would happily debate that and see if there was a formulation that was better. However, I cannot accept the proposition that the amendment proposed by the Minister would have anything except really harmful effects on public affairs in Ireland.
I make one last point. In the context of the presidential election and the recent nomination process, very vicious things were written, not just the one online that Senator Craughwell described. Very vicious things were said. It struck me: who would put their head in the firing line to receive such vicious, often defamatory obloquy anonymously online about them? Who would go into public life if journalists are given a free potshot at them as long as they can invoke the three grounds of the Minister's proposed section 26? Would it not be wiser to halt and reconsider whether the whole process of liberalisation, about which I wrote in today's edition of The Irish Times, can go too far? It can get to the point where democratic values are under threat and where participation in public life is unsustainable psychologically and from a family point of view to people who are tempted to play their part as citizens in the democratic life of the State. It cannot be allowed to have that effect. As someone who is on the wrong side of public opinion on occasion, I get to understand how intense the blizzard can be. In addition to that, people may now write whatever they like provided it is a matter of public interest, that the defendant reasonably believed the publication was in the public interest and that the defendant published it in good faith. In future, those will be the only criteria for assaulting people in public life and destroying their reputations.
What it is the media want to publish now that they are being inhibited from publishing? Today's Irish Independentstory is a very good guide to that. If the Minister's amendment had been made, the name of that woman or man would have been a front-page story in the Irish Independentand tomorrow in all the newspapers and in broadcast media. If that story was given national prominence identifying him, the attitude would be one of let us see him deny it, let us see him defend it, let us see him pick up the pieces of what is left, and it is in the public interest American style.
I really ask the Minister to drop this amendment and let Dáil Éireann have a second look at what he is proposing. I am not impressed by the fact that there was little or no opposition to it in Dáil Éireann. In that Chamber, there is a certain cowardice and deference to the media, and fear that if the media say X or Y, their party, their personal reputation or whatever will suffer, and if the media demand this, it should be done. If the Minister is willing to go along with it, so be it. However, both Houses and the justice committee in particular should revisit this before it becomes law. Once it is law, the dam is burst and trying to put it back will be virtually impossible because the media will say this is great, they now have free-fire conditions against people whom they disapprove of in public life, let us see them sue the media in future.
Those in the Sinn Féin Party are fond of suing people and they did not oppose this in Dáil Éireann - big surprise. I will leave it at that.
Joe Conway (Independent)
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At my age, it is not all that easy to be shocked by things but I have to say the bar is being crossed here today by the section under discussion. As a democrat and as somebody who treasures free speech and fairness in public life, I am truly shocked by the proposals in the measure under discussion.Most of us here would remember an August day in 2014 when South Yorkshire police raided the house of a very prominent entertainer, Sir Cliff Richard, in Sunningdale in the UK. The raid on Cliff Richard, his reputation and his standing, from which he has never recovered, was accompanied by what you could call a squadron of helicopters filming the raid from the air. The squadron of helicopters was chartered by and had newshounds from the BBC, who were there watching the ignominious disgracing of a national treasure, as they would call him. This was news media, the BBC news.
People very quickly began to question how in God's name the BBC was so attuned to what was going on in the legal world that it was able to charter, prepare and do all of the infrastructural preparation with these aircraft to film the bringing down of Cliff Richard. Of course, it was manifestly clear it could only have been done with the involvement of the South Yorkshire constabulary, the people who were manipulating the investigation of Cliff Richard on child abuse allegations, which, of course, he has never even been charged with, let alone tried for. Effectively, the man was shattered, his reputation was shot to shreds and he never graced a stage again as far as I know. The BBC had to fess up and it was painfully obvious what had happened: the police were attuned, shall we say, to the newsroom in the BBC and the BBC was given the privilege of passing over £250,000 of the licence fee-payers' money to absolve itself of a completely scurrilous and unfounded allegation.
I am using that as an example. Senator McDowell mentioned gardaí leaking files. Are there corrupt people in police forces around the world? If you are as old as I am and you are reading books, periodicals and newspapers, you will know the saying about how, in every barrel of apples, there is a rotten one or two. It only takes one or two of those to shaft somebody like me or any Member of this House or the Lower House. Let us recall back in the day when it was becoming much more commonplace to talk about child abuse and child sexual exploitation. When I started teaching back in the 1970s, such things were never on the agenda or the horizon, but within 15 years of teaching, it was beginning to creep in and there were more cases and allegations. When we had INTO meetings and would go for a few pints afterwards, the common wisdom then was that we were very vulnerable because you did not have to be guilty any more. All it has to be is somebody making an allegation and you may as well be guilty. In a local town, village, county or wherever, if somebody says a teacher or headmaster is fondling children at after-school sporting activities, it may never come to court and may never come to serious investigation by the Garda, but the reputation of that man - it is nearly always a man - in that locality is gone to the dickens.
Many of my friends asked me what I do up here in Dublin in the Seanad all day. I find this quite amazing because I am only half a year in the job and I find myself standing here speaking to an approximately 10% occupied Chamber, with practically nobody from the Government or so-called Opposition here except for a few diehards, and at the same time we are trying to nail down one of the basic tenets of the democracy we try to live by, that is, the tenet of fairness. Are we going to toss it away on a non-considered section 26 in the Lower House? It would have been a poorly considered section were it not for the intervention of Senator McDowell here on my left, who gave a very trenchant exposition of the dangers of the chasm we are blindly walking across, down into the depths where anything will be possible with the media.
I was making some notes there and I will put on the old spectacles to have a look. I have a speaking note for myself, "Nixon." We will all remember the paragon of the defence of legal rectitude, the man who was the President of the United States, Richard Nixon, whose favourite catchphrase when he was dealing with his henchmen and he had an opponent was to tell them, "Give him something to deny." That is all it took. Is that fair? Is it reaching the bar of fairness?
Look at the other things we have here. There is a questioning about the ability of people and the rectitude of the way they do their public functions. Do the allegations have seriousness? What about the language used? Do we have suspicions, allegations or fact? Was there the urgency in the report that would be at one with the strictures of the Press Council and its equivalent standards?
I also have a note here for myself on Mandy Rice-Davies. I am sure an awful lot of people will not remember Mandy Rice-Davies. She was involved in the Profumo affair back in the Harold Macmillan Government in the UK. She and Christine Keeler were up to hijinks with John Profumo, who was a Minister for defence procurement in Macmillan's Government. This is going back a good way now.
Rónán Mullen (Independent)
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Can we have a definition of "jinks", please?
Joe Conway (Independent)
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The famous phrase Mandy Rice-Davies was connected with was how, when someone rebutted an allegation, she said, "Well he would, wouldn't he?" This is the sort of thing that attaches to people who are ringing up public figures and telling them about how they have "credible evidence", "well-appointed sources" and "sources close to Garda." These sorts of phrase mean nothing really - they are just conjectured by journalists - but are put out in the public domain after there is a consideration of the so-called allegations. Often, the people who are at the butt of these, who are having their world kicked out from underneath them, are phoned up by the journalists who say they have credible allegations from well-placed sources close to the Garda and people have seen the files, and they ask what he people are going to say. Usually in panic, the people phone up their solicitors and ask what in the name of God they are going to say. The solicitors tell them to say nothing because they do not have to say anything. Usually, that puts a halt to the gallop at that stage for a while.If, however, we are precipitant enough to throw away today the protections in the legislation currently today, we are doing a big disservice to democracy and to fairness. I speak as a layman, a former teacher and somebody who values the whole business of democracy and fairness. I commend the Minister. Of all the Ministers I have seen in the past six months, he is the person who is most assiduous in his attendance at the Seanad. He is fantastic.
Joe Conway (Independent)
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I have high admiration for him. He is an extraordinary Minister and an extraordinary public representative, but I fundamentally think, "Guys, gals, the man may be great, but on this occasion he is damned wrong." I am not encouraged by the tendency of the divisions on this Bill that they are going through on the nod. The Government side and the Minister have an onerous responsibility to step back from this and not to press it ahead because we are doing ourselves a desperate disfavour.
Gerard Craughwell (Independent)
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The Minister's ears are probably being burnt off him at this stage. We have a serious problem, and this amendment will actually make it worse. We have talked about the article in the Irish Independent today. It quotes sources from An Garda Síochána. Why is there not a criminal investigation today into the source that leaked that story to the Irish Independent? Journalists, without ever naming a politician, can destroy a career in the way they write stories. Claims to have seen files or evidence can be printed without any evidence that it is true. Members of An Garda Síochána who serve this State with honour, and they have done so for over 100 years, advertise frequently, asking people to come forward to confidential lines in order to provide evidence where a crime has been committed. Who in their right mind would come forward with evidence knowing there is a fear that their name would be released and a fear that the evidence they would provide would be released? That is one problem we have.
People often say to those who feel they have been defamed, "Well, you can go to the courts." It is not that easy to go to the courts, and there is risk in every court case you will ever take. As my colleague Michael McDowell has said, there are now only three things you have to satisfy: one, that what you published was in the public interest; two, that you believed it was in the public interest; and, finally, that you published it in good faith. How do I prove, how does the Minister prove or how does any Minister or Senator or county councillor or priest or teacher prove that a journalist did not act in good faith? I had experience some years ago of a teacher who had been alleged to have carried out a sexual assault on a student. After a period of investigation, the student came forward and said that, actually nothing had happened. They just did not like him. When the teacher sought a timetable to go back into his classroom, he was told they were not really happy about that because there is no smoke without fire. The man had been exonerated but there was no smoke without fire.
We have seen a plethora of publications in this country based on innuendo. Imagine what that will change to if this legislation passes. The Minister himself made the comment about the two people in a pub talking. It was in an earlier part of the debate. Senator McDowell was referring to the Boeing aircraft and two people saying they are dangerous aircraft. Boeing is not going to go after them. A journalist sitting there now may well say, "Joe Bloggs said", and Joe Bloggs may happen to be a very wealthy man so Boeing might just go after him for the hell of it. Why not? Many times I have sat in company, as I am sure the Minister has, when somebody has stated a fact that is totally untrue and that everybody sitting around the table knows is untrue but the person making the statement is doing so with such conviction that they know it is an absolute fact, but of course it is not a fact. We see it on social media every day of the week. I am delighted I have been Twitter-free for three weeks now. I will never go back to it because it is a horrible cesspit full of people who will say things with impunity, destroy people's lives and cause people to sit up at night worrying over things that are said. It is a horrible place.
I plead with the Minister not to proceed with this amendment and to come back with another amendment on Report Stage and let us all work together to get this through and get to where he wants to go with it. As Senator McDowell has said, if this goes through, it will take God knows what to reverse it.
I say to the Minister, and he is Minister for justice and we now have a new Garda Commissioner, whom I met recently, a fine policeman with great service to the State, we have to plug the holes and stop journalists attributing to Garda sources stories they publish. I believe our gardaí are above that. If there are one or two bad apples in the Garda, as my colleague Senator Conway said, let us weed them the hell out of the place and stop the constant attack on people in public life. If we go ahead with this, I am afraid we will see during every election campaign innuendo with names attached to it. It will be no longer "sources close to" or "Minister such-and-such" or "Deputy such-and-such"; it will be "source told me that John Murphy was A, B, C and D", and that is John Murphy then having to explain, and we all know in this House and in the Lower House that when you are explaining, you are losing. We have to be extremely careful about that. I ask the Minister to do as I ask. I will not delay him any longer myself; he has had a good airing.
Rónán Mullen (Independent)
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I am afraid I will be one more voice contributing to the rumour of the Minister's fallibility on this. Senator McDowell offered an answer to a question I had in my mind when I read this section, this dramatic proposed change to the law, which was, "How did this section survive? How did it escape the scrutiny of the Dáil?" I felt the same about this section as I did about the ill-fated so-called hate speech legislation last year in that here, it seems to me, is legislation that fails to understand and respect the necessary balance that must be there in order to protect freedom of speech, the expression of ideas and the expression of opinion and, on the other hand and at the same time, to protect people's right to their reputation.
Another thing that strikes me is that what is in this section is so out of kilter with what the Ceann Comhairle had to say recently at the beginning of the Dáil term, when she basically called out the abuse of politicians in particular and asked for all sides to work together to combat it. When I heard her comments at the time I wondered what she meant? Were this to be acted on or interpreted in a particular way-----
Maria Byrne (Fine Gael)
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Senator Mullen, I have to ask you to report progress.
Maria Byrne (Fine Gael)
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As it is 4 p.m., the debate is adjourned by order of the House today, with Senator Mullen to be called on the next occasion.