Michael McDowell (Independent)
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I move amendment No. 10:

In page 12, between lines 7 and 8, to insert the following: “ ‘live broadcast’ includes a broadcast where a short time delay between the utterance of any spoken matter and its broadcast is created for editorial purposes or control;”.

One of the things that occurred to me about the Minister's amendment, which I support in principle but which needs to be debated, is that the concept of a live broadcast is that effectively as people speak in a studio or whatever or at a demonstration or wherever else what is said or seen is instantly available to the viewer or the listener. From about 20 years ago, some of the independent broadcasters have had a delayed-broadcast facility. I know that still applies because during the referendum debates, I was sometimes finished an interview with an interviewer on local radio and came into my PA's room in Leinster House and found myself still speaking on the radio. I understand that is done to give the producer of the programme the right to press a button and stop it if something terrible happens in the course of a live broadcast.

The purpose of this amendment is to include short-delay mechanisms within the protection that the Minister proposes for live broadcasts. A live broadcast does not cease to be live by virtue of there being a 30-second delay on the transmission of what appears to the listener or the viewer to be live. I was anxious for that aspect of the Minister's amendment to be clarified to make sure that nobody claims it was not live because there was an opportunity for an alert producer to press a button and that it ceases to have the protection of that whole section in its entirety. I would be interested to hear what the Minister has to say about that.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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In the first instance we are talking about the new section 13 I am including in the Bill. The purpose of section 13 is to provide another defence. This time it will be referred to as a live-broadcast defence. The purpose of this defence is that a broadcaster broadcasting a live situation will have some level of protection in response to a guest on the programme who utters something that is extremely defamatory.Obviously in this context, the person who utters the statement can still be held liable for the statement they utter. The purpose of the provision here is to provide some protection to the broadcaster in circumstances where that broadcaster may have had absolutely no knowledge of the publication that was about to be made. Again, it is a further protection and a further type of defence being provided to the media to enable them to conduct their work without fear of having defamation proceedings instituted against them when they have put in place measures to facilitate their own protection.

The amendment tabled by Senator McDowell and others,0. as he indicated, would allow for the defence to operate where there was a short time delay between the utterance of any spoken matter and its broadcast. I can understand the purpose behind the amendment. What I can say to him is that the intention of the amendment is clear and my officials are examining the matter. I may table an amendment on Report Stage to clarify that a short delay would not impact an application of the section 13 defence. However, I cannot accept the amendment tabled by Senator McDowell and others at present for a number of reasons. I will outline the reasons I cannot accept the amendment as drafted but, as I have said, I will give it some consideration because it is certainly the intention of the provision to ensure that if there is a slight delay in the broadcast it would still mean the broadcaster is able to avail of the new statutory protection.

The problem with the amendment tabled by the Senators is that the term "live broadcast" is not used in the provision. The term "live broadcast defence" is used as a description of the defence but thereafter section 13 refers to "live programming". The amendment also refers to utterances but the defence is broader and refers to publication of a statement. The amendment limits delay to being for editorial or control purposes, whereas delay could be for other reasons, for example, a technical issue. The fact that consideration is being given to the amendment, and the fact that officials in the Department are considering it, are, I hope, sufficient for the Senators who tabled the amendment. I appreciate the intention of it. It is certainly my objective to ensure that when this new section is introduced into the Defamation Act it will provide the live broadcast defence to broadcasts where there has been a slight delay. I hope this gives some satisfaction to the Senator and others.

Michael McDowell (Independent)
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I appreciate what the Minister is saying about the use of the term "live broadcast" but it is referred to in the first line of section 27A as the title of the defence. I do not think the offside rule, so to speak, applies to our drafting in that respect. The simple fact is that the broadcast of a live programme is not defined at all in the section. In defence of our drafting, line 2 on page 11 refers to a "live broadcast defence". We are saying that when used in this context it would include the short break provision and protection we propose.

I have a more radical objection to our own amendment, if I may say that, which is that it refers to utterances only. The Minister's purpose in providing this defence would apply to placards, photographs, banners and the like in broadcasts.It is not just studio broadcasts that would be covered by this. A live broadcast of a demonstration outside this House might pan across a demonstration and there might be a grossly defamatory placard on show. An image, in addition to utterances, might be included in the defence.

In relation to the last remark I made, I remember a case that was brought where the Secretary General of the then Department of Justice, the late Peter Berry, objected to a photograph appearing in a newspaper of Peter Berry as felon setter. He contended in his libel action that "felon setter" was a defamatory term in Ireland, which was probably the truth at the time, even though it was in the function of the Department of Justice and the police to apprehend felons and bring them to justice. One of the leading cases concerns the imputation of that placard being shown in a photograph.

There is a wider issue, but I will withdraw the amendment with the permission of the House, on the understanding that I may revisit it at a later stage.

Michael McDowell (Independent)
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That is not agreed because it needs to be more carefully considered. I can well imagine a panel discussion or interview where someone says something defamatory and the words are out before the interviewer can stop the defamation. I remember in particular a defamation by the late Nell McCafferty about my then colleague, former Deputy Mary Harney. Nell McCafferty, on live radio, made a grossly defamatory accusation which had no substance to it at all. I can well imagine circumstances like that and there should be some protection for an interviewer who simply did not see it coming and had no reason above the ordinary, if I may use that phrase, to suspect that inviting Nell McCafferty onto the airwaves would cause such a calamity to take place.

There is a wider issue that Members of the House should consider. There are what appear to be live programmes, such as with the kind of format of "The Frontline", with 50 people sitting in seats who are not just ordinary Joes and Josephines Soap but, rather, have been selected because they are strongly opinionated on the topic of the programme. If one of them makes an absolutely untrue allegation against anyone else, not just politicians, but anyone in public or private life, is the Minister saying that nothing can be done about it, in effect?The programme "The Frontline" that used to be broadcast on RTÉ television and, before that, "Questions and Answers" had such audiences where the people were selected by reference to their political opinions or their involvement in the topics that were likely to be discussed on the programme. First, should you encourage the media to broadcast those programmes absolutely live, in circumstances where you cannot actually stop somebody saying something? If you are going to involve and Joe and Josephine Soaps from different issues and backgrounds and invite them to come to your studio, should it be a matter of effective indifference to you as a broadcaster whether you broadcast that live, delay it by an hour, pre-record it or whatever, with a view to ensuring this kind of thing does not happen? This is a broader philosophical question. Is it a good idea to have one of these audience participation programmes on matters of public controversy where there are very strongly held opinions and untested participants - if I may use that phrase about them - who are activists, to use the terrible phrase we use today? Is it right that the broadcaster is effectively given immunity when it would be so easy just to tell them to come out to Montrose at 9.30 p.m. for the programme to be recorded and it will go out at 10.30 p.m. or whatever? That is a question that is not really addressed in this section. We are left with a situation where a broadcaster is now to be offered a defence, which the broadcaster would simply not have if the programme was pre-recorded. That is the problem I have with this.

The criteria that the Minister's proposed defence depends upon are that, in subsection (2):

(2) The court shall, in determining for the purposes of subsection (1) whether a broadcaster of a live programme took reasonable and prudent precautions... [having] regard to such matters as the court considers relevant, including the following: (a) the level of effective control over the relevant person that could reasonably be expected of the broadcaster in those circumstances, including—

(i) the nature of the location from which the live programme was broadcast,

(ii) the nature of the live programme, and

(iii) whether the relevant person was a contributor, or a person other than a contributor, to the live programme;

(b) the overall measures employed by the broadcaster to ensure the taking of reasonable and prudent precautions and risk management in the conception, design and planning of live programmes ...

The question I am asking is whether it has to be live at all. Is that fairly fundamental question considered here? There is a reference to "including editorial policies and risk assessment". What is the risk assessment, if you put 50 people onto an audience participation programme on an issue of topicality and high emotion? These are not all just political issues. They can be issues where terrible things have happened to individuals or where the State or hospitals have failed to keep patients alive, or have allowed them to die due to alleged negligence or something like that. If those kinds of topics are discussed, as they frequently are, and if members of the audience are free to say that they think all of this is the responsibility of a particular person, who should be ashamed of themselves, and if that then gets out there, the problem I have is whether, going on to paragraphs (b), (c) and (d), any duty is cast on the broadcaster by this to reject or contradict a grossly defamatory allegation about somebody?Is it good enough to say that is just an opinion, or must the compère of the programme say, “You have just said that, but it is grossly defamatory and RTÉ totally distances itself from what you have just said, and there is no proof of what you have just said." Is that kind of contradiction implicit in the Minister's so-called defence? If the defamatory statement is obvious to the people involved in the editorial control, that is one thing, but there can be grossly defamatory things said that are not immediately understood by the majority of people watching to be grossly defamatory. If you say a particular person did a particular thing, it may only be afterwards that it becomes apparent that it was untrue and that it is grossly defamatory of that person's reputation.

I would like to see this defence balanced up not merely by the matter as referred to in paragraphs (a) to (e), inclusive, but also by a duty cast on a broadcaster where it is reasonably aware that there is a risk that a serious defamation has taken place to alert the audience to that fact, rather than simply to let the matter go by and let the person's reputation be damaged without redress. The yahoo in the audience who blurts out something grossly defamatory is not going to be a mark for damages or to be in a position to make any restitution in damages to the person he or she has defamed. The broadcaster, by the same token, will have broadcast a very interesting, highly controversial programme that the viewers were on the edge of their seats listening to and found to be most revealing in relation to a defamatory remark that was made, assuming it to be true.

Is this too pro-broadcaster in the form it is in? I say that in the context of the amendment we tabled, which was to deal with the delayed broadcast of programmes. However, it seems to me that one of the criteria that should be adopted, if we are going to confer this on audience participation programmes, is the very simple question of whether it should have been a live programme to start with, rather than asking, in the context of a live programme, what the risk-avoidance policies actually were. If I was out in RTÉ, I would be delighted with this, I have to say. I ask myself who selected or vetted the audience. In case people are naive about the audience vetting process, many years ago, when John Bowman was the chair of "Questions and Answers", I was sitting beside him on the panel and he was going through his papers.I have great respect for John Bowman and I thought that programme was well run. However, I saw an interesting chart that had the seats with different colour codes, almost like the results of an electronic vote in the Seanad. The political interests of the different people were set out in front of him in yellow, green, blue, red and all the rest so that he knew that, if someone put up their hand to intervene, whether it was a supporter or opponent of the Government or the like. I always thought the notion that people at home had that this audience was just people interested in public affairs who were chosen out of a lottery was very naive indeed.

Gerard Craughwell (Independent)
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It is my experience that most radio stations now delay the broadcast so there is a lag between the time someone speaks and the time listeners hear it. I agree with Senator McDowell with respect to some of the live debate programmes on television. They are set up with people with specific views. The one that bothers me is that we have a growing tradition of protest in this country. Protests start up at the Rotunda and work their way down to Leinster House or Merrion Square. Where a broadcaster is covering that live, it has no idea what is going to be said at any stage. This opens up a whole can of worms because there is no lag. We are getting the protest as it is happening. It is seen as a public service, but where does the liability lie if someone stands up and says something? I am throwing that into the mix for what it is worth.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I will be brief. This is a provision that I am introducing, which I hope the Oireachtas will support it, for the purpose of facilitating the freedom of expression side of the balancing act. Section 27A will be a worthwhile amendment once it is put into the Defamation Act. It will facilitate live broadcasts. We have to be careful as politicians stating whether we think live broadcasts are a good idea. We should not be getting into that territory. That is a matter for broadcasters to determine. However, it can be the case that broadcasters can be and are held liable for utterances made by other persons, whether in the audience or on a panel, in circumstances where there was really nothing the broadcaster could do to stop it from happening. On fairly basic principles of justice, it is unfair that somebody is to be held liable in respect of an utterance over which they had no control.

As Senator McDowell is aware, there are a number of tests that have to be complied with by the broadcaster in order to avail of this defence. For instance, if the broadcaster knew there was a person who was regularly coming onto programmes or publishing utterances that were defamatory about an individual and knowingly put him into the audience or onto the panel, the broadcaster would then not get the protection of this defence.

In terms of audience participation, it is beneficial from the point of view of public participation. It helps our democracy where we can have a broadcast that involves audience members. Most people, in general, are compliant and do not exceed the boundaries of what is permissible in respect of what can be said. It is a good provision. It will encourage broadcasters to have live broadcasts. We do not want to lose live broadcasts. It will also ensure that if broadcasters do not do the basic work in terms of ensuring they have control over who is coming on or they were aware of an individual had a tendency to utter things that are false about a person, in that instance they would be held liable.

It is the case that the person who utters the defamatory statement will still be held liable. Senator McDowell said that most of these individuals may be straw people that you cannot get damages from. People can get other remedies under the Defamation Act. They could get a correction order, an order of declaration for the purpose of correcting what was said.Those are available and there are other measures that do not depend upon the financial status of the person in the audience who has made the utterance. It is a worthwhile new statutory defence. I will consider the issue that was raised in the amendment but I encourage colleagues to support the section.

Michael McDowell (Independent)
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Let us be clear about this. We live in the real world, and the Minister and I have both been involved in defamation cases. To say that somebody can get a correction order against a man of straw, a teenager who has blurted out something on a live broadcast, is illusory. The cost of doing so would be massive and there would be nobody to pay for it, not even the broadcaster. It is not the case that the person who blurts out the remark is always a mark for damages or for any other form of redress, including correction orders and the like.

Second, I wonder whether RTÉ has ever been sued for what somebody in the audience actually said. There was a recent case in respect of an Irish journalist on BBC Northern Ireland who made remarks about the murder of a woman in County Offaly. The broadcaster was found liable for the remarks that were made by the journalist about the motivation of a friend of the murder victim. I presume the remarks were made in a live broadcast but I do not know. However, I must ask whether we are dealing here with something RTÉ and the other broadcasters, such as Virgin Media, are afraid will happen. Alternatively, are we dealing with something that is actually happening, whereby broadcasters have been clobbered on a number of occasions, representing a problem for them in that they were the innocent victims of defamation claims they had to settle? There is a difference. The reason I ask the question is this: if what the Minister is doing is because there is a problem, let us hear about it. The great phrase used in this debate is “stakeholders”. Let us hear what the stakeholders have actually said that justifies this amendment. Perhaps they have had to pay out €50,000, €350,000 or €1 million over the years because of comments made in circumstances in which they could not control them, particularly where there were audience participation programmes.

Alternatively, is it the case that the absence of this defence worries editors and producers, making them conscious of the fact that they cannot have a certain person on because of their belief that he or she is a complete lunatic and nobody knows what he or she will say? Is having to sort out who they actually invite, and work out whether he or she is likely to land them in the soup in a defamation case, a worry that constrains their behaviour already? If they are saying they do not want to worry as much in the future about these kinds of issues before they broadcast live material, is it a good idea to throw them a defence to the effect that a broadcaster should be immune because it is important that a people be able to utter their opinions and express their points of view without anybody wondering whether they will do so lawfully or unlawfully? That is the first point I want to make.If we live in a world where this defence avails the broadcaster, bearing in mind what is happening on social media where there is a free-for-all based on anonymity, and if we extend the free-for-all to an anonymous person participating in a demonstration of the kind referred to by Senator Craughwell, are we not giving with one hand what we hope to be taking away with another, which is the very harmful and corrosive capacity for people to impugn other people's reputations without any serious redress? That is the case at the moment in respect of Internet service providers, who can say "None of my business" no matter what kind of defamation I put out for public consumption.

I fully appreciate that the drafters of this amendment have, in subsection (2), sought to introduce some level of balance in terms of criteria that the court should have regard to in deciding whether or not to afford the defence. However, we must remember that somebody who is badly defamed in a live broadcast is effectively defenceless if it should transpire that there was or was not adequate controls. You cannot really vindicate your reputation unless, before you start, you establish in your own mind that RTÉ, Virgin Media or some independent radio broadcaster probably did have some protocol document that was supposed to govern the manner in which these kinds of interviews take place.

If I were invited on "The Pat Kenny Show" to discuss something, I know that I would be a mark for a defamation so I would be well-behaved. If I were not, he knows that inviting me on the station is a mark for defamation if, within the totality of the content of the programme, he allows somebody to get away with defaming me. There is no obligation in the criteria the Minister has set out to intervene, where reasonable, say that an accusation is a gross slur on X or Y, invite the relevant person to retract it and disassociate the broadcasting company from what has been said. There does not seem to be an obligation to do that.

I do not think this defence, which in principle I see the fairness of, is adequately balanced to defend the good name of the citizen. I would say this to the Minister. When it suits, we hear attempts of the Office of the Attorney General to persuade the Department of justice that the introduction of a serious harm clause could have constitutional implications. We hear that when it suits. Where is the Office of the Attorney General's advice on this to the effect that there is no obligation on a live programme to correct an outrageous slur? Where is it? It may be that the Press Council of Ireland or the broadcasting complaints commission, or whatever it is that operates now, would require at some later date, having had a solicitor's letter and the like, some kind of correction to be broadcast by the broadcaster, as if that ever works to undo the damage that is done on the night when interested people have tuned in to see a particular topic covered and the behaviour of particular people subjected to public scrutiny.This needs to be revisited between now and Report Stage. It is too stakeholder-focused and gives the impression the law is being changed because they would love to have that law.

When it came to whether there should be a seriousness test to protect anyone, we have the Attorney General’s office raising its eyebrows and cautioning the Department of justice, apparently, that any seriousness test could raise constitutional issues, but a blanket defence against the broadcast of some yahoo shouting something in the course of a demonstration going down O’Connell Street is regarded as unremarkable. There has to be further balance.

Gerard Craughwell (Independent)
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The Minister adverted to the man of straw who has no means making defamatory statements and everyone having recourse to the courts. Let us be honest about it: people need a lot of money to be able to go to the courts to defend their good name. Not everyone not has access to the courts. The courts may be there and available, but access to the courts is a function of the income and assets people have. A person can be defamed, and we see it every day of the week on social media. We see quasi-defamation. We see it in the national media. We see issues raised under a sort of innuendo but not everyone can run down to the Four Courts. It is an extremely expensive thing to do.

Senator McDowell has made the point that before people would even consider going down to the Four Courts, they would have to sit and look at what has been said and have some knowledge of the protocols and procedures within the publishing organisation. They would have to be fairly certain in their own mind that the defamation impacts them before they even approach a member of the legal profession. Once they did that, they would have to be prepared to fund the legal challenge. At the end of the day, if the person against whom they are taking a legal challenge has nothing, and quite of lot of those who decide to spout out in public these days do not have means, while they may get an order retracting the statement, it is going to cost them an extreme amount of money. If the Minister is going down the route that everyone will have access to the courts where defamation is concerned, then free legal aid must be put in place for those who cannot afford it. We have a constitutional right to our good name. The Minister cannot say that I, anyone in this establishment or any citizen of the State has access to the courts because access to the courts is the function of the amount of money people have available.

Rónán Mullen (Independent)
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I am worried that, like the proposed amendment to section 11 which we discussed previously, this live broadcast defence is another very strong pro-media measure. It seems, notwithstanding the subclauses contained in the proposed amendment, that it takes us from one extreme to another and removes a necessary protection and issue that broadcasters, journalists and presenters should have in the back of their minds, that is, if someone is defamed by a third party, that can have serious consequences for them as a broadcaster and not just for the person making the defamatory statement.It seems that where the rubber hits the road on this one - where the risk is at its greatest - is where you are talking about a live broadcast with a live audience. There are undoubtedly destructive forces in our society. I refer to people who will watch their chance just to get in defamatory statements. If they are people without particular means, this amendment gives some comfort to them. It gives leeway to straw men, straw women or - for want of a better phrase - straw persons to make defamatory statements because a significant load is being taken off the minds of the broadcasters here.

It strikes me as strange that the Minister mentioned, for example, the possibility of the correction order. Would any consideration have been given to the idea that the costs of a correction order, where it might be necessary to be made, would perhaps be borne by the broadcaster? Even if you remove actual liability, as this amendment seeks to do, should all burdens be removed from their shoulders, save the checks and balances or save the issues for the court to consider here in determining whether the broadcaster took "reasonable and prudent precautions"? Why not ensure that there is some possibility of financial discomfort on a broadcaster where this should happen? Surely it has some responsibility in the situation. It is a great privilege to be running an organisation that broadcasts ideas to the public and it seems to me that with that great privilege must go great responsibilities. I urge that some consideration would be given to at least burdening them with costs in certain circumstances where somebody has been victimised by, for example, a defamatory statement made in the context of a live broadcast with a live audience.

I was thinking recently about the current fiasco going on in the BBC and the way that President Trump was treated by a "Panorama" documentary where, basically, two statements - I think an hour apart - were spliced so as to give a certain impression. It does not matter here what you think of Trump; what matters is whether public service broadcasters or, indeed, any broadcasters are interested in keeping their own standards regardless of who they are dealing with. You had what appeared to be a deliberate splicing of two sections of a broadcast to link the call to people to go to Capitol Hill with the language of "fight, fight" and, of course, a failure to include another statement that was made that called for people to act peacefully. I am no apologist for Donald Trump here, but it is useful for us to think about how bias can operate, even in a very reputable broadcaster. It is useful for us to think about why and when it might operate as well. You can have a greater risk of bias and you can have a greater risk of a lowering of journalistic standards when the person who is at the receiving end of the defamatory comment is already a hate figure. I would dare to say that we saw this in Ireland with RTÉ at the time of the Fr. Kevin Reynolds affair on "Prime Time". I was close to that story because it was my own parish priest who was involved. He was a lucky man because he had the means of disproving the false allegation and he survived in his ministry as a result. The point was raised at the time by myself and others that it seemed likely that part of the reason RTÉ dropped its standards in that particular case was that it was dealing with the church and the church was in a bad state in terms of public opinion around abuse issues for reasons we all understand and know about. I say all of this because, if you think about it, there are circumstances of high controversy in Irish life that come to be discussed in public debates sometimes, and on live audiences.I will give the example of victims of abuse, for whom everybody feels enormous sympathy and who deserve a great degree of respect and leeway in what they say. When there is a live public debate about a very contentious issue - let us take the terrible issue of abuse as an example - it is very easy for people who have already suffered enough themselves to go from making general comments about an institution that, in their recollection, mistreated them to actually naming particular individuals. This has happened. On occasion, it is later found out that the particular individual was not working in the institution in question at the time and so on and so forth. Even when something very injurious to a person's reputation could get uttered there - something very unfair and very defamatory - the fact would be that the person who made the statement in the context of a live audience would already be somebody who would be very much to be sympathised with. We would all have a degree of understanding that the language they might use might not be the language of a lawyer in a courtroom.

I would argue that this is exactly the type of circumstance where something could be said that is extremely defamatory, but you would not necessarily want to think of the person who made the utterance as the person you would charge legally. I suggest that the broadcaster would have an enormous responsibility in that situation. What is that responsibility? The responsibility I would expect from a broadcaster is this: if you are presenting a programme and if somebody on that programme, say in a live audience, says something defamatory about me, I would expect you to fight for my reputation as much as you would for your own reputation if they had made the defamatory statement directly to your face in the context of a live broadcast. That is what people are entitled to expect, and I think that is what Senator McDowell is talking about. I do not want to put words into his mouth. Where is the obligation in the Bill for the broadcaster, presenter or debate moderator to roll up their sleeves, to get in and nip it in the bud, to stop it, to push back against it, to tell the audience member that they cannot say that because, first, the person is not here to defend themselves, second, the statement may or may not be true, and third, the statement is potentially defamatory, and to call on listeners or viewers to disregard that statement in the same way a judge in a courtroom would direct information away from a jury's attention? That is the kind of heavy standard that I would expect to be laid on a broadcaster, regardless of whatever defence you create here.

Even on that point, is it not relevant to consider here, among the issues that the amendment proposes to be considered, whether in the context of a defamatory statement the person against whom it was made was present in the studio and in a position to defend themselves? That would not be the only issue. Just because you are in the studio does not mean there should not be any consequences if something defamatory is said about you, but it makes a difference. I would argue that this is the type of issue that should be in here among the issues for the court to consider. Was the person against whom the defamatory statement was made present to defend themselves to any degree? That, to me, is a very relevant factor in determining whether the broadcaster was taking "reasonable and prudent precautions".

I do not mind an adjustment of this issue for the sake of the free flow of debate in our society, but I am worried the Minister is going to an extreme here by removing all burdens, especially the possibility of financial burdens, from the shoulders of broadcast media in the context that something very wrong and damaging to a person's reputation could be done. I call on the Minister to look at adjusting the issues to be considered here to include the possibility of some kind of cost burden, where, for example, a correction order would be made, to include consideration of whether a person was present to defend themselves. That kind of issue needs to be looked at.

Maria Byrne (Fine Gael)
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Before I call an Seanadóir McDowell, I welcome a former Member of this House, Fidelma Healy Eames. She is very welcome, as are her guests. I hope they enjoy their visit today.

Michael McDowell (Independent)
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To follow on from what Senator Mullen said, I would be impressed by this section if among the criteria set out in subsection (2) for a court to have regard to was the response of the broadcaster during the programme and after the programme to the defamation which has taken place. When one thinks about it, if something dreadful is said on an audience participation programme at 10 o'clock on a Monday evening, why should RTÉ or Virgin Media, if they want to avail of this defence, not have to convey to a court that as soon as was reasonable they sought to correct the defamatory statement or sought, first, to disassociate themselves from it and, second, if it was something which they could safely correct, that they should do so. There is a subtle difference between those two. If, in the course of a programme, somebody says live on air, "X raped me when I was a child" - some member of the audience who is worried about sexual offences and there is a debate about sexual offences and they say they were raped by X when they were a child - it cannot be said that is defamatory or untrue. We would get into trouble with the victim, who would say, "Excuse me, are you accusing me of lying? In addition, I am a victim and now you are adding double victimhood to me by portraying me as a liar." That can be an issue.

On the other hand, disassociation or pointing out that the person defamed is not here in a position to defend themselves, that these remarks should not be blurted out and that it is wrong to avail of this particular broadcast opportunity to throw out an allegation of that kind, those kinds of responses are perfectly open to the producer and presenter of those kinds of programmes. I have seen it done on many occasions. I know that sometimes when I am speaking carefully on radio and television a highly over-cautious interviewer says, "Well, you are only saying that blah, blah, blah", and I realise the interviewer is cutting across me even to contradict me as I am speaking. That is sometimes the case with highly cautious people when they are confronted with what they consider to be a controversial statement. Sometimes it is annoying to be interrupted halfway through a sentence, if one is contributing to a programme, by that kind of interruption which is unjustified.

I ask the Minister to indicate whether he would be open, on Report Stage, to considering some provision among the criteria set out in section 2 about the response of the broadcaster, the reasonable response within a reasonable time to an apparently defamatory remark or a remark that might appear to be defamatory. There should be another clause or two, a subparagraph (f) or (g), attached to subsection (2) to balance it out, at the very least.

There is another thing Senator Mullen referred to.RTÉ sometimes likes to have a "Prime Time" programme where it exposes some scandal and then brings in an audience to react to its own programme. That is a tinder, if I may use that phrase about it, which is extremely dangerous. Here is an audience that has been shown something and is told to react to it. That is where the duty to be careful is maximised. Where somebody has not been careful and has made a statement about the documentary they have seen which even the producers of the documentary would never dream of making, this kind of blanket defence should be qualified. That would balance it up a bit and put some pressure on broadcasters when something happens to respond to it in a way which defends the good name of people who appear to be defamed by remarks made live.

I am interested to know whether the Minister will expand the number of conditions for the invocation of this defence. It should be more balanced than it is. There is a tendency here to be all one way. We had it with the amendment of section 26. It was all one way with no balance; all the balances put in in 2009 were swept away by the Minister's proposed amendment to the law. This is another one where there is no balance. It may be that the present Government thinks it will curry favour with the media by giving one concession after another, being simplistic in favour of the media and never saying "Hold it, there could be a problem with this". I am just saying - and I contribute to the media myself - that they are not grateful for anything you do for them. Any politician in this House, in the other House or in Government Buildings who considers he or she will get brownie points for all this is deluding him or herself very much.

I have said enough about this but I do not think it is balanced. It is too simplistic. The Minister has got rid of juries, in his own mind. He has not got the Bill passed yet but he presumes he will succeed in doing that. Any question that these criteria are too complicated to be followed by a High Court or Circuit Court judge should not be given much weight. If a judge looking at all of this has to answer whether the criteria set out in subsection(2) of the proposed new section 27A have been met, he or she is quite capable of saying whether the response at the time was reasonable, having regard to what had just transpired live.

This section needs a few changes, one of which is consideration of whether, having regard to the need for free discussion on matters of controversy, there was any necessity for a programme to be live. I do not see there is a necessity in many cases for programmes to be live. It is not as if the audiences for RTÉ programmes, whether "Questions and Answers", "The Frontline" or whatever else, like going out there at 10 p.m. They would be just as happy to be there at 7.30 p.m.Whose convenience are we serving? By the way, the contributors to the programme - myself included - would much prefer not to have to hang about until 10 o'clock in the evening to do something live.

Rónán Mullen (Independent)
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With regard to the ungrateful media, I often think of the story about Kelvin MacKenzie of The Sun after some journalists were wined and dined by some corporate interest seeing to curry favour. On the way back to Fleet Street and the office, MacKenzie said "Now, let us go stun them with our ingratitude". An ungrateful media is a cornerstone of our democracy but an accountable media is also essential in our democracy. There is a particular thing I rose to ask the Minister about that worries me. Perhaps I am wrong and perhaps my worries are misplaced but it might be something he will consider.

In looking at the question of whether a broadcaster of a live programme took reasonable and prudent precautions, how does this proposed section 27A link in, interact with, affect or be affected by the proposed new section 26, on "Publication on a matter of public interest"? How will the courts interpret the obligations about taking "reasonable and prudent precautions" in the new section 27A in light of what the new section 26 says? I am thinking about where you have a defamatory statement made in the context of a dispute. Let us take the example of somebody who makes an allegation of abuse against somebody. We know that the new section 26 proposes:

Where the statement in respect of which the defamation action was brought was an accurate and impartial account of a dispute to which the plaintiff in the defamation action was a party, the court shall, in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest, disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.

This proposed section relates to circumstances in which there is a dispute between parties in which one levels an accusation against the other and "an accurate and impartial account" is given of what one side claims against the other. An "accurate and impartial account" merely reports what A alleges against B. We know that in that situation, there is no obligation on the defendant to have taken "steps to verify the truth". Will that colour the way the courts will interpret the obligations around taking "reasonable and prudent precautions"? Can we infer, from the absence of an obligation to take "steps to verify the truth of the imputation" in one situation, that the courts will not worry about whether steps were taken to verify the truth of an accusation?

Let us say it is in the context of a court dispute. If someone says in the context of a live audience debate that in his action for abuse against Mr. So-and-so, Sr. So-and-so, Dr. So-and-so or Minister So-and-so he has made certain claims, and if that matter that is already before the courts, I assume that there would be some kind of sub judice obligations there and that the failure of the broadcaster with regard to the party making an allegation relating to a matter before the courts would certainly fail the test of taking "reasonable and prudent precautions". However, let us suppose it is not before the courts; let us suppose it is a dispute, an allegation or claim. Let us suppose that A is out there making the most serious of allegations against B and it has not been tested in the courts. We know that it is okay to give "an accurate and impartial account" of that allegation and that you do not have to "take steps to verify" it. Does that mean we cannot expect there should be any obligation to take steps to verify it when the court is considering whether the broadcaster of a live programme had taken "reasonable and prudent precautions"? Is that a fair question for me to ask the Minister?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I will try to be brief. At the outset, I will consider all the things that have been referred to here during the consideration of whether I need to bring forward Report Stage amendments. This is no effort by me or the Government to curry favour with the media.As I said previously, the purpose of defamation law and amendments to the Defamation Act is to try the balance the sometimes competing rights between the right to one's good name, on the one hand, and the right to freedom of expression on the other. It is a difficult balancing act. However, this is an area where we should try to balance it more in favour of the publisher. Let us think of an example. We are talking about circumstances where a licensed broadcaster as defined under the Broadcasting Act 2009 either invites a contributor or somebody in the audience to make a contribution in respect of something that has been said on a live broadcast. Many people in this House and the Lower House organise public meetings. We do it for the reason that we believe it is very much in the public interest, and probably in our own political interest as well, to have public meetings where issues of public concern can be discussed. It attracts people to come along to the public meetings. However, if it is the case that somebody stands up at a public meeting and says something that is defamatory of another person, it is not fair in that circumstance for the politician who organised the meeting to be held liable for that publication. It is too unfair on a politician to say they are liable for that, they organised the meeting, and somebody came along and defamed another person. Obviously, the individual who makes the utterance is going to be liable, but should the politician also be liable? In my view, he or she should not.

What is being done here is to try to recognise and respect that an important part of the broadcast media is live broadcasting. I disagree with Senator McDowell when he said we should not really be having live broadcasts. It is not for us to decide what Virgin, RTÉ or any broadcaster wants. That would involve us getting too censoriously involved in controlling the media. We should not be near that. I know that everyone in this House is a proponent of free speech. The last thing we want to do is dictate to broadcasters that they cannot have live broadcasts or they can only have them in very limited circumstances. It is their decision to decide whether they want live broadcasts. My assessment of live broadcasts is they are more exciting from the point of view of the people who are on the live broadcast and from the audience's point of view. If they were told something was broadcast a couple of hours ago, it would lose some of its excitement. It should not be a decision for us though. It is a matter for the broadcaster to determine. We should stay away from that.

One of the issues raised by Senators Mullen and McDowell is to put some responsibility on the broadcaster to try to correct a statement, if a defamatory statement has been made. In fairness to Senator McDowell, he probably did one of the most effective and well-known responses on a radio programme very many years ago during a presidential election campaign where defamatory comments were made about a presidential candidate. The Senator was on the panel and reprimanded the individual who uttered what were fairly nasty, if not defamatory, comments about one of the presidential candidates. Under this legislation, one of the factors the court will be required to take into account in determining whether the broadcaster took reasonable and prudent precautions, is contained within section 13(2)(e). It states that the court must take into account: "the overall management in practice of the live programme concerned, and of its participants, by the broadcaster and in particular by the presenter of the live programme." That is a clear reference to the fact that the court will take into account what the presenter of the programme said at the time these comments were made.

It was mentioned whether this legislation is just trying to deal with some abstract issue. As Members know, I do not like mentioning previous court cases, but a court case that was previously brought by a former Sinn Féin councillor against RTÉ in respect of an utterance made by a former Member of these Houses on the "Saturday with Claire Byrne Show" got a lot of public attention. Clearly, that was an issue from the point of view of RTÉ. It is also an issue to be taken into account when we are considering the review of the legislation. These are not some abstract problems; they do actually happen. If the broadcaster and the presenter seek to challenge the individual concerned, that will be taken into account.I am conscious there may be circumstances where they do not have the information available. I think broadcasters do it very effectively at present where they say a person is not there to defend themselves, has never been convicted of any criminal association, or, RTÉ or Virgin Media has no knowledge of it. There is only a limited number of things they can do. We either want to shut down live broadcasts completely, which is something I know this House does not want to do, or we are going to have to try to give broadcasters some form of greater protection. The way the law is at present means they do not have any real protection in respect of it. This is why this is a separate statutory defence in respect of live broadcasting.

Senator Mullen also asked how they are going to overlap these different defences, including the new defence set out in proposed section 27A and the new amended defence in section 26. As the Senator will know, it is possible to use and rely upon alternative defences when it comes to defending a defamation action. The fair and reasonable defence or the publication on a matter of public interest is, as I said, designed to deal with a type of broadcast or publication that loosely comes within the definition of public interest journalism and responsible journalism. Section 27A is dealing with something very different. It is dealing with circumstances where, outside of the broadcaster's control, a defamatory statement is published and, notwithstanding precautions taken by the broadcaster, there was nothing it could do to stop it. In those circumstances, the section is seeking to provide a separate statutory defence in respect of this situation.

I have to say that I think this is a reasonable amendment and a reasonable further protection for broadcasters. I do not see it as having the consequences that Senators have identified. I think it should be supported and that it would be beneficial not just to broadcasters but to public discussion in general. It will not mean individuals will know they can go on an RTÉ radio programme and publish a statement that is defamatory. They would be liable, and there would be a liability on RTÉ or another publisher or broadcaster if it did not take reasonable steps to prevent it.

Somebody mentioned the issue of a march going down the street. Let us use the example of where every evening on the "Nine O’Clock" news we see Paul Cunningham or Míchéal Lehane standing outside Dáil Éireann and broadcasting live. If it was the case that somebody just passed by and, uninvited, as is provided for here, made a publication defamatory of me or someone else, should the broadcaster be held liable for that? Should this be the case where someone is just passing by and utters some defamatory statement saying the Minister for justice is a whatever? Do we hold RTÉ liable for that when there is nothing it could have done to stop it? I think we need to be reasonable here. We should not be too censorious about live broadcasts. We want to encourage them. I will conclude by saying I will take into account what Senators have said when we come to looking at Report Stage amendments. I said I would previously in respect of the amendment put in by Senator McDowell.

Gerard Craughwell (Independent)
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We are largely talking about RTÉ and Virgin Media. One of the things that concerns me is that there has been a massive growth in podcasts. Some of them are really good and deliver excellent programmes regularly and with good timeslots, etc. On the other hand, some of them are run by what might best be regarded as fringe elements. Where do we stand here? Who is liable in a situation where you are defamed in one of these Internet-style programmes, which are set up in exactly the same way as an RTÉ or Virgin Media programme would be? It appears the Internet service provider is not liable and there seems to be no requirement for the platform on which the podcast takes place to be held to account for anything that happens there. We are now looking at the straw man or straw woman who has access to a social media platform and runs a radio-type programme online, with some of them having several thousand listeners. I am just wondering where that leaves us.

Rónán Mullen (Independent)
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I do accept the Minister’s good faith attempt here to create a space for the media to do its important work. When he says it is not for us to decide whether the media operate using live broadcasts and so on, that may be so, but we all have to live with the consequences of our own liberties. It is not a question of telling the media what they can do. It is a question of saying that in the world in which we live, what you do may have serious consequences for innocent people.You have to be responsible, particularly if you are a great and powerful organisation with resources at your disposal, in circumstances where you may platform somebody who does not have resources and is not going to be a mark in the first instance. I do not think it is a valid comparison that the Minister makes with a public meeting organised by a Minister. That has a very limited reach. What we are talking about here is a new and very challenging reality. Mass communication is relatively recent, historically. In light of all the developments in the digital sphere and the social media sphere, we are struggling to vindicate people's rights in this situation. It is precisely because broadcast media has such reach that there need to be consequences. I do not accept at all the comparison with a public meeting.

Michael McDowell (Independent)
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I think there is another minor problem with this section, now that I look at it and listen to the Minister's defence of it. Section 27A(1) has to be looked at very carefully. It states:

It shall be a defence (to be known as the ‘live broadcast defence’) to a defamation action that relates to a statement published by a relevant person during the broadcast of a live programme for the broadcaster of the programme to prove [this is the point] that, in advance of and during that broadcast, the broadcaster took reasonable and prudent precautions to prevent the publication by a relevant person of a defamatory statement during the live programme.

It is only about prevention. That is the point I am making to the Minister. Once the statement is made and is out there, there is no obligation, even under subparagraph (e) of section 27A(2), to say, “Hold it; you should not have said that; that is an outrageous statement”, or anything like that. There is no obligation to do that. It is purely about the failure to prevent the thing from happening in the first place. I think that could be looked at again. If we are going to give a defence to programme makers to say that once it is out there, once it has been said, the duty of care evaporates, that cannot be right. The duty of care kicks in immediately that the apparent wrong appears to have been done.

The Minister says that live programmes are more exciting. I do not know. The average punter watching “Questions and Answers” or whatever programme you want does not know whether it is live. They are not out there in the studio. They have not seen whether it was recorded an hour before. It may be more exciting. I will tell the Minister where it really is exciting: when you are sitting there as a panellist, saying, “Oh my God, what are they thinking at home?” as this is done to you, or as a contributor breaks down in tears and accuses you of being callous or something like that. How am I to look when this is happening straight in front of me? That is exciting but it may not be very fair.

In relation to the media, I was reminded by the whole question of editors that Andrew Neil, the former editor of The Sunday Times, apparently went to Moscow and was introduced there as the editor emeritus of the London Times. The Russian interviewer asked him what was meant by “emeritus”. He said it comes from the Latin - "e" means you are out and "meritus" means you deserved it.

Rónán Mullen (Independent)
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I have one last observation. Increasingly, we see on our programmes that, no matter what topic is being dealt with, up comes an announcement at the end of the current affairs programme, “If you have been affected by any of the issues in this programme, you can dial the following number or go to the following helpline.” Is this what we are facing into? Should we be expecting broadcasters to say, “If you have been defamed by anything that has just been said on this programme, for which the media does not have any financial responsibility, here is a helpline for you to ring”?

Michael McDowell (Independent)
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I know the name of a good solicitor.

Mark Daly (Fianna Fail)
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Amendments Nos. 10a to 10c, inclusive, are related and may be discussed together. Is that agreed? Agreed.

Linda Nelson Murray (Fine Gael)
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I move amendment No. 10a:

In page 13, between lines 12 and 13, to insert the following new section: “Amendment of section 31 of Principal Act

17. Section 31 of the Principal Act is amended by the insertion of the following new subsection after subsection (8):

“(9) The total amount of general damages awarded by a court in a defamation action shall not exceed seventy-five thousand euro.”.”.

I put this amendment forward in an attempt to see if there was something we could do to deter people putting in defamation claims. As I mentioned previously, there are more defamation cases in Ireland than in the UK, and that country has ten times the number of people. I was looking at statistics from 2023, when the UK had 250 cases and we had 360, which means there are 19 times more cases here by head of population. Many retailers now operate a no-challenge policy towards suspected shoplifters because it is far cheaper to let them steal than to defend a defamation case. This is just me again trying to protect businesses. The Minister has said he will take businesses into consideration when looking at this area. For that reason, I will be happy to withdraw my amendment in due course.

Sharon Keogan (Independent)
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I have tabled amendment No. 10b to introduce reasonable caps on damages awarded in defamation actions before the High Court. To say something very simple, justice should be fair, proportionate and predictable. This is not a radical idea but the foundation of any functioning legal system. When it comes to defamation laws in Ireland, we are falling short of that standard. At present, there is no statutory cap on general damages in High Court defamation cases. This means a jury or a judge can award any amount they see fit with very little guidance. We have seen the consequences of this. We have seen awards that are wildly inconsistent. They are sometimes eye-wateringly high and often completely disproportionate to the actual harm suffered.

Let me give a hypothetical example. Let us imagine a well-known figure who sues a local blogger for defamation. The blogger has a modest following, no legal team and limited resources. The case goes to court and the plaintiff is awarded €500,000 in damages, more than the blogger can earn in a decade. That is not justice but financial annihilation. Let us be honest. These kinds of awards do not just punish the defendant; they force most people to ask themselves whether they want to speak out and if it is really worth the risk. Even when a remote risk is potentially six-figures, the answer is invariably “No”. This is the chilling effect we keep talking about and it is what this amendment seeks to address.

Under amendment No. 10b, I propose that general damages, those for injury to reputation and so on, be capped at €250,000 and that the total award, including aggravating and exemplary damages, be capped at €400,000. These are still substantial figures. They still allow for meaningful redress, but also introduce clarity, consistency and restraint. Importantly, this amendment does not affect special damages, those that represent actual financial loss. If somebody can prove they have lost income, contracts or opportunities because of a defamatory statement, they can still be fully compensated. This is fair and just. To ensure flexibility, the amendment allows the Minister to adjust these caps over time with reference to inflation and broader legal trends. We are not locking ourselves into a fixed figure forever. We are simply setting a reasonable benchmark.I know some will argue that this interferes with judicial discretion, but is it really discretion when there are no boundaries? Is it really justice when cases can result in wildly different awards?

Other areas of law, personal injuries, for example, have caps and guidelines. Why should defamation be an exception? We must also consider the broader impact on our courts. Excessive awards encourage more litigation, incentivise speculative claims and undermine public confidence in the fairness of our laws. They also clog up our already overburdened system. In fact, we have to seriously consider the fact that Ireland has become a prime destination for defamation tourism. Wealthy international figures and corporations deliberately look for ways to ensure they can take their defamation cases in Ireland, further burdening and distorting our legal system and case law.

This amendment is not about protecting defendants at the expense of plaintiffs; it is about restoring balance, predictability and stability. It is about ensuring that defamation laws serve their true purpose, to vindicate reputations, not to destroy lives. I urge all my colleagues to support this amendment. Let us bring defamation laws into line with best practice. Let us ensure that damages are fair, proportionate and rooted in reality.

Nessa Cosgrove (Labour)
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My amendment is along similar lines to that of Senator Nelson Murray. It is an easy fix. This amendment would repeal the common law rule that, where it is proven that a defamatory statement has been published, then general damage is automatically presumed. The right to defend one's good name in front of a jury is of course fundamental, but we must accept that something has gone wrong when retailers are facing legal actions for what are manifestly non-defamatory statements. Whether it is asking for a receipt, refusing to accept counterfeit currency or asking for ID when selling alcohol, none of these situations should see businesses faced with defamation cases. We know it is happening because I have been contacted by small to medium enterprises all over the country about this. They are bearing the brunt of this flawed system.

Retail defamation was originally to be tackled under the general scheme of this Bill, but these provisions seem to have been dropped by the Government. This amendment proposes to pose the question as to why defamation is alone among several wrongs in having a presumption of general damage. Does this not then encourage litigation? Our current system presumes general damages when defamation has been shown to take place. General damage is to be contrasted with special damage, which means specific financial loss or actual harm, which would need to be proven on evidence. In contrast, general damage refers to non-economic reputational damage, for example the impact on mental health. The current law presumes that general damage flows from every defamatory statement, without the need for proof. This means that it is not necessary for people taking frivolous, exaggerated or unfounded cases as a stance that can prove any loss or harm.

By changing the presumptions, we can help to ensure that our small to medium enterprises are protected from the sort of retail defamation that has become all too common in recent years. Abolishing the presumption of general damage would not deter litigants in genuine cases, where it would be straightforward to produce witnesses as to the effect of the defamatory publication on their view of the plaintiff. Therefore, would this amendment, this simple fix, not tackle the serious challenge facing our small businesses, particularly in the retail sector, without in any way undermining the existing protections individuals enjoy under defamation law?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Senators Nelson Murray, Keogan and Cosgrove for their amendments. Senator Nelson Murray has withdrawn her amendment. It is very much in line with the general thrust of the amendments put forward by Senator Keogan, and Senator Cosgrove to a lesser extent.

Defamation actions vary in their seriousness, impact and nature. In many respects, they are similar to personal injury actions. You could have a very minor personal injury action where somebody trips over and sprains their knee. Similarly, you can have an extraordinarily serious personal injuries action, such as a child having been delivered through negligence at birth and having suffered life-changing injuries. There is a variety in terms of defamation actions, just as there is in terms of personal injury actions.Much of the motivation behind the amendments from Senators Nelson Murray, Keogan and Cosgrove relates to the position of retailers. It is the case that retailers have been subjected to inappropriate defamation actions. That is why I have put into this a specific statutory defence for retailers that never existed before and that will be of great benefit to them.

However, we need to recall that defamation goes beyond just retailers. We also need to reflect on what was reflected in the previous debate: the right to the good name of the individual. That is one of the rights that has to be balanced and the other is the right to freedom of expression. We have seen, in the past, very serious examples of people being defamed. Prominent people have been accused - and Senator McDowell will be aware of this from his previous tenure here - being involved in the most serious elements of child abuse. That was published broadly. There has to be a consequence to that and in this House, we need to consider that if we are dealing with the serious end of the range of defamation actions, what should be the remedy? If we are talking about the serious end, we have to give an example of the serious end. It is somebody being accused of very serious criminal wrongdoing when there was no liability on their part, in circumstances where the publication has been broadcast very widely - let us say it has been broadcast in a national newspaper or on a national broadcaster - and it has had a very significant detrimental impact on the individual concerned. For instance, earlier Senator Mullen gave the example of the case of Fr. Reynolds against RTÉ. I would have thought that was an example of a defamation action at the very serious end of the range.

We need to recognise that if that serious type of defamation occurs, there needs to be an appropriate remedy for the person whose good name has been severely damaged. That is why I am concerned about and opposing the two amendments that are still subsisting, those from Senators Keogan and Cosgrove. First, in respect of Senator Keogan's amendment, she wants to put a cap on damages for a defamation claim limiting general damages to €250,000. Subsection (2) indicates that there would be an overall cap of €400,000 that would apply to all forms of damages, with the exception of special damages. My concern about that is that it may not be permissible constitutionally because we could find ourselves having examples where somebody has been severely defamed and the court would turn around and say an award of that amount does not accurately reflect the damage done to the individual's good name.

The Senator also talked about guidelines. We have guidelines for defamation action at present. They are not in the same way as the personal injuries guidelines, amendments to which were suggested recently, but the decision in the Higgins case in the Supreme Court set out guidelines for appropriate awards of damages relating to general damages in a defamation case. They indicated that the presumptive upper limit would be €300,000. In setting out that figure, the Supreme Court noted that while such cases would be exceptional, there would be cases in which exceeding that threshold would be warranted. What the Supreme Court did in the Higgins case was set out about four categories of defamation cases referred to in the decision of Mr. Justice MacMenamin. He said that minor defamation cases should not exceed €50,000 and, in many instances, they would be much lower. Then he went to two higher levels and the highest level and set out grades. Generally, the presumptive upper limit of the Supreme Court's ruling in the Higgins case is €300,000.

The Higgins decision also went on to consider questions of aggravated damages. This indicates to me that there would be serious cases in which the mandatory cap proposed by Senator Keogan would be too low to sufficiently vindicate the right to a good name. Although those cases may be rare, we still need to consider them and the State has a constitutional obligation to ensure that in those cases, the individual impacted is sufficiently compensated and their reputation sufficiently vindicated.

The thresholds indicated by the Supreme Court in the Higgins decision, although not identical, are within a similar range to the figures outlined by Senator Keogan. As was the case in respect of Senator Nelson Murray's amendment, I believe that the Supreme Court's guidance, alongside the jury reform measures proposed by this Bill, will provide courts with a flexible, sustainable and legally robust method of providing appropriate awards of damages in defamation cases.That is preferable to a rigid statutory cap, which at best might indicate to individuals that awards of €250,000 to €400,000 are what to aim for in cases of defamation and could have adverse impacts on the settlement of claims and alternative dispute resolution. I, therefore, cannot accept Senator Keogan's amendment.

Senator Cosgrove seeks to amend section 31(3) of the 2009 Act so that it provides that general damages in a defamation action "shall not be presumed". 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". Accepting Senator Cosgrove's amendment would amount to a legislative instruction to the court that in circumstances where a finding had been made that a person had suffered injury to their reputation, no damage should be presumed to flow from that injury. This severing of the link between injury suffered and damages awarded would be out of step with civil law generally and could be seen as an undue intrusion on the discretion of the court. It is also unclear what it would achieve. The 2009 Act already provides legislative guidance to the courts which requires them to have regard to the nature and gravity of a defamatory statement, among other factors. There is nothing in section 31 that would prevent a court from finding that an injury to reputation had occurred but the nature and gravity of the injury was such that only a nominal amount of damages was appropriate. The reforms to the role of juries provided for in the Bill will also mean that the question of damages will be decided by judges, who will produce reasoned judgments setting out why the award of damages provided for is considered appropriate and proportionate, having regard to the guidance provided by the Supreme Court in the Higgins case. For that reason, I cannot accept Senator Cosgrove's amendment.

We have previously seen examples where juries have given very large awards or awards that are hard to explain to the parties before the court. One of the advantages of removing juries is that now a High Court judge who is awarding a significant defamation award will have to set out in the judgment the basis upon which he or she has determined that the award should be made at that level. It is also the case that in the Defamation Act at present there is a section that deals with damages, as I have just mentioned, and that sets out what the court is required to take into account in determining what damages should be awarded. It is the case that the primary, though not exclusive, remedy for those who have been defamed is an award of damages. As I mentioned earlier, other remedies, such as correction orders, are available. They are something that parties should be aware of. Unfortunately, I cannot accept either amendment.

Sharon Keogan (Independent)
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I move amendment No. 10b:

In page 13, between lines 12 and 13, to insert the following new section:

“Amendment of section 31 of Principal Act

17. The Principal Act is amended by the insertion of the following new section after section 31: “Caps on damages in defamation actions

31A. (1) Subject to subsections (3) and (4), in any defamation action before the High Court the amount of general damages (including damages for injury to reputation, hurt feelings or distress) shall not exceed €250,000.

(2) Subject to subsections (3) and (4), the total award of damages in any defamation action before the High Court, including general damages, aggravated damages and exemplary damages, shall not exceed €400,000.

(3) Subsections (1) and (2) shall not apply to an award of special damages, being damages proven to represent actual pecuniary loss suffered by the plaintiff.

(4) The limits provided for in subsections (1) and (2) shall not affect the jurisdictional monetary limit of the Circuit Court as set out in section 22 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013 or any enactment amending or replacing it.

(5) The Minister may, by order made with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform, amend the monetary amounts specified in subsections (1) and (2) having regard to—

(a) changes in the value of money (including reference to the Consumer Price Index), and

(b) the need to ensure that awards of damages remain proportionate and consistent with comparable awards in other areas of law.

(6) An order made under subsection (5) shall be laid before each House of the Oireachtas as soon as may be after it is made and shall, if a resolution annulling the order is passed by either such House within 21 sitting days of that House after the order is laid before it, be annulled accordingly but without prejudice to the validity of anything previously done thereunder.”.”.

Nessa Cosgrove (Labour)
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I move amendment No. 10c:

In page 13, between lines 12 and 13, to insert the following:

"Amendment of section 31 of Principal Act

17. Section 31 of the Principal Act is amended by the substitution of the following subsection for subsection (3): “(3) In an action for damages for defamation—

(a) general damage shall not be presumed, and

(b) when making an award (if any) of general damages, regard shall be had to all of the circumstances of the case.".".

Mark Daly (Fianna Fail)
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I welcome to the House Mr. David Cairnduff, a guest of Senator Andrews. He is appearing in the musical, My Fair Lady, which was originally based on a play by George Bernard Shaw. It is a production of the Rathmines and Rathgar Musical Society, which is one of the oldest musical societies in the country. The production is in the National Concert Hall. I am sure Senator Andrews is handing out tickets so everyone will be able to go.

The note I have hopes Mr. Cairnduff breaks a leg. That is not official Seanad policy. You should not break legs if at all possible, and certainly not in the Seanad.

Mark Daly (Fianna Fail)
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I welcome former Senator, TD and Minister of State, Joe Costello, who is originally from Sligo. He is most welcome back to Seanad Éireann. He is welcome to join us anytime he wants.

Anne Rabbitte (Fianna Fail)
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Amendments Nos. 11 to 19, inclusive, are related and may be discussed together. Is that agreed? Agreed.

Sharon Keogan (Independent)
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I move amendment No. 11:

In page 14, to delete lines 6 to 22 and substitute the following: " 'abusive court proceedings against public participation' means defamation proceedings or part thereof that pursue unfounded claims and that are not brought to genuinely assert or exercise a right, and have the effect of preventing, restricting or penalising public participation, frequently exploiting an imbalance of power between the parties, including but not limited to—

(a) where a claim is of a disproportionate, excessive or unreasonable nature,

(b) the existence of multiple proceedings initiated by the plaintiff or associated parties in relation to similar matters,

(c) intimidation, harassment or threats on the part of the plaintiff or his or her representatives, or

(d) the use in bad faith of procedural tactics;".

All the amendments in the group deal with the section of the Bill meant to tackle strategic lawsuits against public participation, SLAPPs. I want to be very clear from the outset that I welcome the fact that the Government has finally acknowledged the need to address SLAPPs, but what we have been given here is a half-hearted attempt. It is a framework that looks good on paper but lacks the teeth to protect people who speak out in the public interest. The amendments I have tabled are not just my idea. They are based on the recommendations of the Ireland Anti-SLAPPs Network, a coalition of organisations that include journalists, NGOs, legal experts and civil society groups that have been raising the alarm on these issues for years. They know what is happening on the ground and have seen the chilling effects of lawsuits on whistleblowers, campaigners and ordinary citizens.

Let me give a hypothetical example. Imagine a resident in County Meath, County Clare or County Donegal raises concerns about illegal dumping by a very powerful company and posts those concerns online, speaks out to the local newspapers and attends a local council meeting. Next thing, she or he could be hit with a defamation suit. The company is not interested in winning. It just wants to shut that person up, drain her bank account, wear her down and send a message to anyone else that they should stay quiet or they will be next. That is a SLAPP. Under the Government's current wording, such a person might be dragged through the courts for months or years before a judge even considers whether the case is abusive. That is just not good enough. Amendment No. 11 strengthens the definition of what counts as abusive court proceedings. Right now, the Bill focuses on the purpose of the lawsuit, namely, what the plaintiff intends, but that is not hard to prove. My amendment shifts the focus to the effect of the lawsuit. If it has the effect of silencing public participation, that should be enough. Intent can be hidden; impact cannot.

Amendment No. 14 ensures that when someone applies to have a SLAPP struck out, the court will deal with it quickly. Justice delayed is justice denied. If somebody is being silenced by a bogus lawsuit, he or she should not have to wait a year for a hearing. The court should act as expeditiously as possible. That is not merely common sense; it is basic protection. The amendment would remove the manifestly unfounded barrier for the defendant, which is near unanimously criticised as a threshold so high that it nullifies the whole point of the anti-SLAPP protection.

Amendment No. 15 removes a subsection that could allow unnecessary delays and procedural games. It is a clean-up amendment but an important one. We need clarification and more speed in these cases.

Amendment No. 16 introduces an automatic stay on the proceedings once a SLAPP application is made. This means the plaintiff cannot keep pushing the case forward while the court is still deciding whether it is abusive. It also stops the plaintiff from sneakily changing proceedings to get around a dismissal.Again, this is about stopping the abuse of process.

Amendment No. 17 puts part of the burden where it belongs - on claimants. If they want to continue with their case, they should have to prove two things, first, that they are likely to win at trial and, second, that the harm they have suffered is serious enough to outweigh the public interest in free expression. That is a fair test. It is balanced and is already used in other countries.

The Government's version of these provisions is weak and vague. It leaves too much discretion to the courts without giving them the tools they need. It is like giving someone a map with no compass. We need clear definitions, fair procedures and real consequences for those who abuse the courts to silence others. If we are serious about protecting democracy, we need to protect the people who speak up: journalists, activists, community leaders and even just regular citizens. They are the lifeblood of public discourse. They should not have to choose between telling the truth and keeping their home. I urge the Minister to take these amendments seriously. They are not radical. They are reasonable, are grounded in expert advice and would make this Bill stronger, fairer and more effective.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The amendments the Senator is putting forward are amendments she is proposing in respect of section 19, which will insert a new section 34A into the Defamation Act 2009. As we generally refer to it, this provision I am putting into the new defamation Act will have the effect of giving effect to the SLAPP provision contained within European Directive No. 1069 of 2024. This is the defamation Bill and further requirements are imposed by that directive on me, aside from defamation proceedings. In this defamation Bill, I am only transposing into Irish law that directive as it relates to defamation proceedings. However, I assure Senators that work is ongoing in my Department in respect of the other elements of that directive, which cover non-defamation type proceedings.

As I said, the amendments in this group relate to protections for those subject to SLAPPs, or strategic lawsuits against public participation, as they are referred to. I welcome the engagement from Senators on these provisions. I am happy they share my objectives to ensure that Part 4A of the new Act provides better protection for those who are targeted by SLAPPs but also ensures fair procedures for defamation plaintiffs who are genuinely seeking to protect their good name. We also need to recognise that, in many instances, what one person regards as a SLAPP, another individual or entity may regard as a legitimate defamation claim.

I know some concerns have been expressed in relation to the anti-SLAPP provisions. I hope to address those concerns about when it is transposed today, although it is more likely to be the next day as we are going to adjourn relatively soon. I will clarify that while this Bill transposes some of the requirements of the directive, it does not deal with the directive in its entirety, as I said, because there are other non-defamation proceedings that will be transposed in subsequent legislation.

Does the Acting Chair want me to stop?

Anne Rabbitte (Fianna Fail)
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I think you should, if you do not mind. I thank the Minister. He has about a minute left.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Amendment No. 11, put forward by Senator Keogan, and amendment No. 12, which has not been moved but was referred to by Senators Higgins and Ruane, seek to amend the definition of abuse of proceedings against public participation contained in section 19. These amendments would substitute the requirement in the current definition of abusive court proceedings against progressive participation that such proceedings would have as their main purpose the prevention, restriction or penalisation of public participation with the requirement that such proceedings have the effect of preventing, restricting or penalising public participation.

Senator Keogan's amendment also proposes a change to part (c) of the definition, which currently provides that SLAPPs may involve intimidation, harassment or threats on the part of the plaintiff, or his or her representatives, before or during the proceedings, as well as similar conduct by the plaintiff in similar concurrent cases. Senator Keogan's amendment would remove the reference to such actions taking place before, during or after the proceedings, as well as similar conduct by the plaintiff in similar or concurrent cases. My concern is that amendments Nos. 11 and 12 cast the net too widely and introduce an element of uncertainty and confusion to the definition. This is because the definition would provide, on the one hand, that a SLAPP case is one that is not brought to generally assert or access a right and, on the other, that it includes any case that has the effect of preventing, restricting or penalising public participation.This gives rise to potential difficulty with respect to claims which are genuinely brought in good faith to vindicate a party's right to a good name but may have the effect of restricting public participation.

Anne Rabbitte (Fianna Fail)
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I thank the Minister. Before we report progress, I welcome the Minister of State, Deputy Noel Grealish. He has a number of the Carnmore hurling team members with him this afternoon. As a Portumna person, we know exactly their strength, and they are very welcome to the House this afternoon.