Anne Rabbitte (Fianna Fail)
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I welcome the Minister to the House again this afternoon for the continuation of Committee Stage of the Defamation (Amendment) Bill 2024.

Anne Rabbitte (Fianna Fail)
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Amendments Nos. 16 and 17 are in the name of Senator Keogan, but as she is not here, they cannot be moved.

Lynn Ruane (Independent)
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I move amendment No. 18:

In page 16, between lines 20 and 21, to insert the following: “34EA. (1) Where a defendant in defamation proceedings relating to his or her engagement in public participation makes an application referred to in section 34E(1), he or she may also make an application, on notice to the plaintiff in those proceedings, for a declaration by the court that the proceedings or part thereof amount to abusive court proceedings against public participation.

(2) Unless a judge orders otherwise, the claimant is not permitted to amend his or her pleadings in the proceeding—

(a) in order to prevent an order under this Act dismissing the proceeding, or

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

My colleague, Senator Higgins, and I have already spoken to the amendment. I will press it.

Maria Byrne (Fine Gael)
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I welcome Deputy Aisling Dempsey and her guests, Councillor Padraig Coffey, Councillor Caroline O’Reilly and Councillor Wayne Harding. We also have Mr. Kashif Ali, who is an area representative with Fianna Fáil. He is very welcome as well. I hope they all enjoy their visit to Leinster House.

Lynn Ruane (Independent)
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I move amendment No. 19:

In page 17, between lines 13 and 14, to insert the following: “(3) Where an application for declaration has been made before or during a trial of action and costs, a judge must not strike out a claim and appeal under section 34E if the claimant satisfies the judge that—

(a) the claim is likely to prevail at trail, and

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

Vótáil.

Anne Rabbitte (Fianna Fail)
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This will be a two and one.

Lynn Ruane (Independent)
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According to the Standing Orders it is two and one.

Eileen Flynn (Independent)
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Yes.

Lynn Ruane (Independent)
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We have now passed two and one.

Eileen Flynn (Independent)
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That is so unfair.

Joe Conway (Independent)
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We have actually passed five minutes.

Anne Rabbitte (Fianna Fail)
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Senator Ruane, we will certainly adhere to that now. We are just getting the Standing Orders. It was a two and one. Just give us a moment, please. Thank you.

Lynn Ruane (Independent)
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We called two and one. We have been locked out of these rooms before when we do not come in on time. We called two and one.

Maria Byrne (Fine Gael)
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Defamation (Amendment) Bill 2024, amendment-----

Lynn Ruane (Independent)
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We would like a commentary on what just happened. I am not going to a vote until we have a decision that is made that clearly says that Standing Orders - two and one does not matter anymore, so four and four. Are we saying we can knock on the door after eight minutes and demand that we are let in?

Sarah O'Reilly (Aontú)
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What about the rules of the House?

Maria Byrne (Fine Gael)
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Under Standing Orders we move to the vote. Defamation (Amendment) Act 2024, amendment No. 19 in the name of Senator Lynn Ruane.

Lynn Ruane (Independent)
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No.

Maria Byrne (Fine Gael)
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The question is that the amendment be made.

Lynn Ruane (Independent)
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No. I am sorry, this is absolutely outrageous.

Alice-Mary Higgins (Independent)
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Yes. I have actually never seen this ever.

Lynn Ruane (Independent)
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I have never experienced this to happen and it is not okay.

Eileen Flynn (Independent)
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No.

Lynn Ruane (Independent)
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What are you saying?

Robbie Gallagher (Fianna Fail)
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Standing Orders.

Lynn Ruane (Independent)
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Yes, two and one.

Maria Byrne (Fine Gael)
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There has to be a vote.

Lynn Ruane (Independent)
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Yes, the vote is two and one.

Lynn Ruane (Independent)
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They called it from the Chair - two and one. The doors should be locked after two and one.

Lynn Ruane (Independent)
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No, sorry. Hang on a minute. That was after the point.

Alice-Mary Higgins (Independent)
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For the record, the Acting Chair said we will now take account of the fact that the Senator has raised this issue, and subsequent to that eight Members are allowed to enter the room. I think the record should state that.

Maria Byrne (Fine Gael)
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Could the Senators resume their seats so we can proceed with the vote, please? Thank you.

Lynn Ruane (Independent)
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No. No, it is not okay because if that was Opposition we would be locked out of the room-----

Eileen Flynn (Independent)
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Yes.

Lynn Ruane (Independent)
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-----and not get into the vote. It often happens. It is not okay.

Eileen Flynn (Independent)
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No.

Lynn Ruane (Independent)
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It is not happening.

Eileen Flynn (Independent)
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The door was just left purposely - it is not fair. No way.

Lynn Ruane (Independent)
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No. No, it is not happening.

Alice-Mary Higgins (Independent)
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With respect, it raises a danger that the Leas-Chathaoirleach or Cathaoirleach could be asked to stay outside of the door to extend the time indefinitely to allow Government Members to be gathered.

Lynn Ruane (Independent)
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Yes.

Alice-Mary Higgins (Independent)
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That is the implication.

Maria Byrne (Fine Gael)
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Senator, if you have an issue, you can write to the CPPO.

Lynn Ruane (Independent)
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No.

Maria Byrne (Fine Gael)
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There are representatives of your group in that and it can be brought to the attention of-----

Lynn Ruane (Independent)
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No.

Alice-Mary Higgins (Independent)
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We would like it to state on the record certainly that this vote is not in line with best practice, it is not in line with good practice in the House, and it is-----

Maria Byrne (Fine Gael)
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There is a CPPO meeting tomorrow morning and we can discuss it at that.

Lynn Ruane (Independent)
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No, because that would defeat the purpose. The vote was called two and one. It was called from the Chair.

Eileen Flynn (Independent)
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Yes.

Lynn Ruane (Independent)
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So what you are telling us now is that what is called from the Chair when a vote happens does not stand. If you are not in the room on time, or if people decide that they want to linger outside and then come in at the last second - I am here ten years and we have always abided by the time. So there is precedent right now. What is being set from the Chair is a dangerous precedent-----

Lynn Ruane (Independent)
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-----in terms of how much time we can come in to vote in this room. It has always been four and four and two and one, and it was called from the Chair. You may suspend the House because I am not allowing the vote.

Alice-Mary Higgins (Independent)
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I would note that we are being told that the Cathaoirleach or the Leas-Chathaoirleach is required to take the vote but the vote was called from the Chair, not by the Cathaoirleach or the Leas-Chathaoirleach. So is it the case that anybody can call the vote and then does the Leas-Chathaoirleach or the Cathaoirleach have to magically be in place for the vote to take place?

Senators:

Yes.

Alice-Mary Higgins (Independent)
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Yes, but there is an issue if the Government is in a position whereby it can effectively, and this raises a question, and we have had the debate on the voting for the Chair and the Leas-Chathaoirleach, that they are serving the House impartially according to the same rules for all. There is a question mark if a Government Member, who is the Leas-Chathaoirleach, delays in entering the chamber is facilitative of the Government being able to bring many more Members in.

Alice-Mary Higgins (Independent)
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It is the case that the way the Standing Orders-----

Maria Byrne (Fine Gael)
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Excuse me.

Alice-Mary Higgins (Independent)
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-----are being interpreted has that effect.

Maria Byrne (Fine Gael)
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I am going to read out the Standing Orders.

Alice-Mary Higgins (Independent)
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I do not attribute intention to any person but I speak to the effect of what is being done right now.

Diarmuid Wilson (Fianna Fail)
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On that, a Leas-Chathaoirligh-----

Maria Byrne (Fine Gael)
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Sorry, on a point of order.

Diarmuid Wilson (Fianna Fail)
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Senator Alice-Mary Higgins should withdraw the accusation that you deliberately stayed outside-----

Alice-Mary Higgins (Independent)
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I did not make that accusation.

Diarmuid Wilson (Fianna Fail)
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You did say it. That is exactly what you said.

Alice-Mary Higgins (Independent)
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What I said explicitly was that the delay in the entry by a Member could be facilitative of this. I said explicitly that I do not state that that is the intention of the actor but it is the effect of the interpretation of the Standing Orders in this way.

Maria Byrne (Fine Gael)
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Senators, please resume their seats. I am going to read out the Standing Order for the benefit of all here. It says "the period for which the division bell is rung and the interval between the ringing of the bell and the locking of the doors shall be not less than two minutes and not less than one minute respectively". It says "not less". It does not say that it has to be.

Lynn Ruane (Independent)
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No.

Maria Byrne (Fine Gael)
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We are moving to the vote.

Lynn Ruane (Independent)
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No. Hang on a minute.

Lynn Ruane (Independent)
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So why lock the doors?

Eileen Flynn (Independent)
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Yes, she is right.

Lynn Ruane (Independent)
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Why?

Maria Byrne (Fine Gael)
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Sorry, I did not ask for any doors to be locked.

Lynn Ruane (Independent)
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Why lock the doors? We have all been locked out there and not been able to come in and vote.

Alice-Mary Higgins (Independent)
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Yes.

Lynn Ruane (Independent)
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So are you telling me that for the last ten years the Standing Orders did not support me being locked out of this Chamber?

Maria Byrne (Fine Gael)
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We are moving to-----

Lynn Ruane (Independent)
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Are you telling me that the Standing Orders say that historically we have been locked out of this Chamber and that is not supported by the Standing Orders?

Alice-Mary Higgins (Independent)
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Yes.

Maria Byrne (Fine Gael)
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That is not what I said.

Alice-Mary Higgins (Independent)
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So in all those cases the Cathaoirleach and Leas-Chathaoirleach had the discretion to extend the period of time but chose not to, on all those instances when we have been locked out in the past. Is that the case?

Maria Byrne (Fine Gael)
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We are moving to the Defamation (Amendment) Bill 2024.

Lynn Ruane (Independent)
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No.

Maria Byrne (Fine Gael)
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Amendment No. 19.

Lynn Ruane (Independent)
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No, no, no.

Alice-Mary Higgins (Independent)
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It is either standard or discretionary. It cannot be both or it cannot be one in one case and not in the other case.

Maria Byrne (Fine Gael)
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We are going to suspend the House for ten minutes.

Lynn Ruane (Independent)
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Good.

Alice-Mary Higgins (Independent)
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Good.

Maria Byrne (Fine Gael)
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We are on amendment No. 19 in the name of Senator Ruane. The question is that the amendment be made.

Lynn Ruane (Independent)
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No, we have not had any communication on anything.

Maria Byrne (Fine Gael)
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The amendment was moved and the Senator said she was pressing it.

Lynn Ruane (Independent)
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The sitting was suspended for ten minutes and now the Leas-Chathaoirleach has come back and taken the Chair without there having been any conversation on the substantive issue at hand. Is that what I am hearing?

Maria Byrne (Fine Gael)
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This matter is not to be resolved on the floor of the House. I told the Senator earlier that the Committee on Parliamentary Privileges and Oversight, CPPO, is the route for that. We will discuss the matter at the next CPPO meeting.

Alice-Mary Higgins (Independent)
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Rather than even calling a new vote, for example, the Leas-Chathaoirleach is proceeding with the vote whereby the time of two and one, which has always been applied previously, is now not being applied because she is telling us it is a discretionary matter. In other words, that there is a minimum of two and one and there is no maximum. In effect, on such a vote, it can be any period of time before people-----

Lynn Ruane (Independent)
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If I go outside to take a phone call, will the Leas-Chathaoirleach wait for me?

Maria Byrne (Fine Gael)
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Amendment No. 19 has been moved and pressed, so the question is-----

Lynn Ruane (Independent)
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Sorry, if I go outside now, will you wait for me to get back in? No, you will not.

Paul Daly (Fianna Fail)
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By way of clarification, if a vote is called now, is it a recall bell or a vote bell? Not everybody is here.

Maria Byrne (Fine Gael)
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It is a recall.

Paul Daly (Fianna Fail)
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Now it is a recall bell. Will there be another two and one the vote you are now calling?

Maria Byrne (Fine Gael)
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No, it will be four and four.

Paul Daly (Fianna Fail)
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That is even better.

Lynn Ruane (Independent)
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Now it will be four and four. Is the Leas-Chathaoirleach saying she has recalled the vote?

Maria Byrne (Fine Gael)
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That was a recall bell because we were suspended. We are now back in session. The amendment was already moved and spoken on and it is being pressed. I am now putting the vote to the House.

Lynn Ruane (Independent)
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People were let in when the doors were closed.

Alice-Mary Higgins (Independent)
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Eight Members entered.

Mary Fitzpatrick (Fianna Fail)
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There was no vote taken.

Lynn Ruane (Independent)
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Sorry, but the Senator knows quite well from the years she is here that people get locked out when they are not here on time. We get locked out all the time.

Mary Fitzpatrick (Fianna Fail)
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It has happened to me too.

Lynn Ruane (Independent)
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Exactly. When it does, I do not start knocking on the door saying, "Sorry, I am just 30 seconds late. Let me in". I respect the process.

Maria Byrne (Fine Gael)
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Will you please resume your seat, Senator Ruane?

Lynn Ruane (Independent)
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I will not resume my seat. I am sorry but you are an impartial, non-voting Member. Even if you were not in your seat to take the vote at the time, those doors should be locked to voting Members after the period that is called. The Acting Chairperson at the time actually instructed that the doors be closed, but, still, more people opened the doors and walked in.

Lynn Ruane (Independent)
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I know the Standing Orders.

Lynn Ruane (Independent)
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I know the Standing Orders.

Alice-Mary Higgins (Independent)
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We are familiar with the Standing Orders.

Maria Byrne (Fine Gael)
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Will the Senators please resume their seats?

Alice-Mary Higgins (Independent)
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It is important to note that in the context of the Standing Order that was read into the record, we have been told there is a minimum of two minutes and a minimum of one minute-----

Alice-Mary Higgins (Independent)
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Yes. It has never been the case that this was treated as a discretionary three minutes.

Alice-Mary Higgins (Independent)
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Now it is being treated as discretionary. It should be at least three minutes, but it could effectively be any number of minutes. Will people be able to leisurely stroll up from the Members' restaurant?

Alice-Mary Higgins (Independent)
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What is the result if we disallow a precedent in how that Standing Order has been interpreted and allow it to be interpreted in a way in which it has not been interpreted before, certainly in the nine years I have been in the House?

Maria Byrne (Fine Gael)
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Senators, resume your seats and have respect for the House.

Lynn Ruane (Independent)
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I have respect for the House. That is why I am in my chair on time when the bells ring. Okay? I do that because I have respect for the House. If I get locked outside, I do not get to vote because I have respect for the House and the rules this House has abided by for exactly the ten years I have been here. So I do have respect for the House.

Maria Byrne (Fine Gael)
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If you and Senator Higgins do not resume your seats, we are going to have to suspend the House again.

Lynn Ruane (Independent)
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That is fine. Work away.

Maria Byrne (Fine Gael)
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Is that what you want?

Lynn Ruane (Independent)
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Yes.

Maria Byrne (Fine Gael)
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Again, is that what the Senators want?

Lynn Ruane (Independent)
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Yes, it is what we want.

Alice-Mary Higgins (Independent)
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It is what has been made necessary. During the previous suspension, there was no engagement of any kind and no attempt to clarify matters. In fact, it seemed that the vote was being called directly. Then we were told it might be a recall bell and then we were told it might be a case of four and four. There is an extreme lack of clarity as to how the rules are being applied right now.

Maria Byrne (Fine Gael)
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That is very inaccurate. The House was suspended for ten minutes. That was a recall bell. Every Member was entitled-----

Lynn Ruane (Independent)
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You did not attempt to engage with us during those ten minutes to bring about any sort of resolution before you sat back in that chair.

Maria Byrne (Fine Gael)
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I call the Leader. He has the floor.

Seán Kyne (Fine Gael)
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I confess I was not here when the vote was called. When I arrived here, I did not bang on any doors. I went to open the door and it opened. The Leas-Chathaoirleach was not present in the Chamber. How can a vote proceed if neither the Cathaoirleach nor the Leas-Chathaoirleach is present?

Maria Byrne (Fine Gael)
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That is the whole question.

Seán Kyne (Fine Gael)
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I have never seen a vote proceed without the Cathaoirleach or Leas-Chathaoirleach.

Lynn Ruane (Independent)
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We were locked out.

Seán Kyne (Fine Gael)
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The Leas-Chathaoirleach was locked out.

Maria Byrne (Fine Gael)
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Correct.

Seán Kyne (Fine Gael)
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The doors had to remain open until she came in. That is the correct procedure.

Lynn Ruane (Independent)
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With all due respect, she can enter through the middle door as a non-voting Member. The two doors for voting Members should be locked.

Seán Kyne (Fine Gael)
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Either the Cathaoirleach or Leas-Chathaoirleach has to be here for a vote to proceed.

Lynn Ruane (Independent)
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Yes, but the doors still get locked after a period.

Seán Kyne (Fine Gael)
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The vote could not proceed until the Leas-Chathaoirleach was here. When she came in, the doors were to be locked. Those are the rules. The Cathaoirleach or the Leas-Chathaoirleach has to be here for a vote to proceed.

Alice-Mary Higgins (Independent)
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With respect to the Chair, the argument being made by the Leader right now relates to the issue of the Cathaoirleach or Leas-Chathaoirleach being in the Chair. The argument in relation to seats does stand up because there is an additional door through which only the Cathaoirleach or Leas-Chathaoirleach can pass and which an be kept open even if the doors for voting Members were to be closed. Crucially, however, that is not the argument that was read into the record. What was read into the record was that the two and one is only a minimum. That was read by the Leas-Chathaoirleach into the record as a rationale. That, for me, is a crucial point. We have been told that, in effect, the two and one is discretionary.

Maria Byrne (Fine Gael)
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Will you please resume your seats, Senators? You know that when the Cathaoirleach or Leas-Chathaoirleach requests it, you are, under Standing Orders, required to resume your seats.

Lynn Ruane (Independent)
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I am not participating in something that actually is against everything we have done in this Chamber for years. We are now optional on the two-and-one. That means if I come to those doors, I should be treated the same as anybody else and allowed in to vote. Some of us have missed voting on our own amendments because we did not get through the doors at the last second. Before the Chair has even opened his or her mouth, we have been refused at those doors. It is not fair, it is not transparent, it is too loose and it is not okay. I will not sit down and participate in the vote on my amendment being called under such conditions.

Maria Byrne (Fine Gael)
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I have already suggested that there is an avenue that can be used to resolve these issues. We all have representatives on the CPPO. That is the avenue for resolving this issue, not here on the floor of the Chamber. We are here to pass legislation-----

Lynn Ruane (Independent)
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Exactly, which is what some of us were in our seats doing.

Maria Byrne (Fine Gael)
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The Senator moved and pressed the amendment.

Paul Daly (Fianna Fail)
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May I take it from the last comment that the amendment is not being pressed?

Lynn Ruane (Independent)
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I will just keep talking through everyone else's amendments. I do not mind.

Alice-Mary Higgins (Independent)
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The amendment has been pressed. The key question is whether there was an appropriate application of the rules relating to time.Very many minutes ago, the vote should have been taken and it was not taken at that time.

Lynn Ruane (Independent)
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When you took your chair, seven more people came in. Seven more people when you sat in your chair. The doors were still allowing people in.

Maria Byrne (Fine Gael)
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Sorry, I am the only one who has sat in this chair.

Lynn Ruane (Independent)
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That is what I said. When you sat in the chair. That is exactly what I said.

Lynn Ruane (Independent)
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Sorry. Two and one. She sat in the Chair. The bell was rung.

Lynn Ruane (Independent)
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Exactly.

Lynn Ruane (Independent)
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Niall, you know quite well-----

Lynn Ruane (Independent)
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Niall, you know quite well that this is an unfair application.

Lynn Ruane (Independent)
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You know quite well.

Lynn Ruane (Independent)
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You know quite well. And do you know what?

Lynn Ruane (Independent)
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I would stand up for this rule just as much for Government as I would for us, because it is fair procedure, end of story.

Maria Byrne (Fine Gael)
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I ask the Senators to resume their seats. Senator Mullen.

Rónán Mullen (Independent)
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I have some sympathy with the complaint being made by fellow Members to the extent that there appears to be an inconsistency in terms of what normally happens, but I think from what the Leas-Chathaoirleach has said and quoted from Standing Orders, while there might be a certain inconsistency, which Senators have very validly brought to our attention today, what has happened is not out of order. On that basis, since we are trying to discuss a very important matter, people have put time into the preparation of amendments and the Minister is waiting outside, I think it is fair to say that our colleagues have made their point very strongly, but that it is in everybody's interests, since nothing that is out of order has taken in place, that we now proceed with the business and that we take the Leas-Chathaoirleach up on her point that this matter can be addressed properly for the future. If there is a lack of consistency or some discrepancy which arose today, which has not rendered the proceedings out of order, then steps can be taken at the CPPO to make sure that things happen in a better way in future. I think we should move on at this point.

Senators:

Hear, hear.

Lynn Ruane (Independent)
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What is actually being pointed out there is that something is not in order today, which means that every time I have been turned away from that door, that is not in order.

Maria Byrne (Fine Gael)
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There was nothing out of order.

Rónán Mullen (Independent)
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I have to disagree.

Lynn Ruane (Independent)
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I am not looking at Senator Mullen, I am-----

Rónán Mullen (Independent)
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That is not what I said. I am saying that nothing out of order-----

Lynn Ruane (Independent)
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That is what I said, so every time I have been turned away from that door, the Leas-Chathaoirleach is telling me that Standing Orders did not support that.

Maria Byrne (Fine Gael)
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Senator Ruane, I am suggesting-----

Lynn Ruane (Independent)
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Time is just abstract.

Maria Byrne (Fine Gael)
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The CPPO is-----

Lynn Ruane (Independent)
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Time is just abstract.

Maria Byrne (Fine Gael)
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If the Senator does not agree with me, this can go to the committee, but I intend to put this vote to the floor.

Alice-Mary Higgins (Independent)
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With respect, it is not a matter of how we proceed better in the future. The point is that we are proceeding today in a different way from how we have always proceeded in the past-----

Alice-Mary Higgins (Independent)
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-----so either we are standing over a new form of interpretation of Standing Orders-----

Maria Byrne (Fine Gael)
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We are proceeding no differently from any other day and I ask the Senator to-----

Alice-Mary Higgins (Independent)
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I have never had an instance in which the times were not applied that I have seen in my time, so the clear point is-----

Maria Byrne (Fine Gael)
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I will suspend the House for half an hour so-----

Alice-Mary Higgins (Independent)
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We can engage with the CPPO for the future, but either there is a question or-----

Maria Byrne (Fine Gael)
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The sitting is suspended.

Maria Byrne (Fine Gael)
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Some Senators have raised points about the division process that will be addressed thoroughly by the Committee on Parliamentary Privileges and Oversight, CPPO, including the standing orders that provide for the timing of the taking of divisions. We will now resume on amendment No. 19, which has been moved and pressed.

Lynn Ruane (Independent)
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I also acknowledge that we agreed that the standing order that was read into the record has to be considered in the round with the other standing orders, as they are related.

Alice-Mary Higgins (Independent)
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And with custom and practice.

Maria Byrne (Fine Gael)
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Absolutely. That will be addressed at the next CPPO.

Before we deal with the amendment, I welcome Councillor Patricia Walsh and her husband, who are guests of Senator Diarmuid Wilson. Senator Sarah O'Reilly's family are also in the Gallery, and Councillor Adrian Rogers from Cavan. They are all very welcome here today.

Michael McDowell (Independent)
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I fully support the idea of alternative dispute resolution, ADR, procedures. Can the Minister indicate whether he is happy that media which are not part of the Press Council are adequately dealt with in the definition of specified ADR procedures, because there will be journals and foreign newspapers and the like which may not be part of the Press Council? I am just worried as to whether the proposed new section 34M will cover such cases, but I would like to hear that from the Minister.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the Senator for his question on what is contained within section 21. As he is aware, alternative dispute resolutions are mechanisms whereby people are encouraged to try to resolve their differences without having to go to a final determination by the courts. The Senator inquired as to whether defendants in defamation proceedings who were not members of the Press Council would be able to be subject to the statutory provisions set out in section 21. I believe they will be and, in fact, the Senator has answered the question in the way I am going to answer it. Section 34M, as proposed to be inserted by section 21, provides that the court, on the application of any party to the proceedings or, indeed, of its own motion, may invite the parties to consider engaging in a specified ADR or provide the parties with information in respect of it. Consequently, a litigant who is not a member of the Press Council but is a publisher in the broader sense of the word would be able to be encouraged by the court to consider alternative dispute resolutions.

Obviously, no litigants, regardless of whether they are a member of the Press Council, can be forced to resolve their dispute outside of court. However, it certainly is the case that the objective shared by the Government and both Houses of the Oireachtas can be achieved through availing of an alternative dispute resolution mechanism. It is a cheaper mechanism, it can be a faster mechanism and it allows both parties to achieve something by way of resolution. As observed on many occasions, with court proceedings that are adversarial, there generally is a winner and a loser. That certainly is the case when it comes to defamation proceedings. The plaintiff either wins his or her case or the defendant succeeds in his, her or its defence. There is always benefit in there being compromise and in individuals seeking to resolve proceedings through settlement or alternative dispute resolutions.

Michael McDowell (Independent)
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I am glad the Minister is saying that. However, my point was simply relating to the provision in section 34N that in "awarding costs in respect of proceedings in respect of which the court issued an invitation under section 34M(1)(a)", which is for specified ADR procedures, the court may, "where it considers it just", have regard to the factors set out thereunder. The Minister might give this further consideration between now and Report Stage. I fully understand why the provision is drafted as it is but it seems to me it perhaps should be widened to cover periodical publications that are not part of the Press Council regime. It seems to me it does not do that. It is too specific in that the definition of specified ADR procedures in relation to print publications is restricted to the conduct of members to which the second Schedule to the 2009 Act applies. The Minister should consider widening it a tiny bit. I am not going to make a federal case of it but I think it is too narrow. The 2009 Act foresaw that some newspapers and periodicals, for whatever reason, would not subscribe to the Press Council's jurisdiction. It seems to me they should be capable of being the subject of ADR to the same extent as are journalists who are part of the Press Council.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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There is another avenue available to parties before defamation proceedings in the courts, in that the terms of the Mediation Act will apply to them. I do not have that Act in front of me but its provisions could be something a court could rely on for the purpose of trying to encourage parties to engage in mediation. I note the Senator's point about the specified ADR procedures and how the provisions may be limited to members of the Press Council. Notwithstanding that, the court has the power, under the Mediation Act, to adjourn proceedings and recommend parties go to mediation, which is the primary form of ADR. I will give consideration to the Senator's point but I think the laws that exist at present, on enactment, will be broad enough to cover parties who are not members of the Press Council.

Michael McDowell (Independent)
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It seems to me the obligation that is cast on solicitors to inform their clients and execute a statutory declaration would not have application if it were a case, say, against an English or Northern Irish newspaper, The Economist magazine or something like that. I just think the Minister could profitably widen the scope of the provision.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I will look at this and take the Senator's points on board.

Maria Byrne (Fine Gael)
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Amendments Nos. 20 to 27, inclusive, are related and may be discussed together. Is that agreed? Agreed.

Michael McDowell (Independent)
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I move amendment No. 20:

In page 21, line 30, after "Court" to insert "and the High Court".

This series of amendments in my name are intended to improve the identification order provisions proposed in section 22. I support the provision in the Bill for a workable, simple and inexpensive means whereby people who are defamed anonymously on social media can identify the defamer insofar as that is possible. It is important that anonymous defamation should be discouraged, obviously, and that anonymous defamers should be accountable and should be rendered liable to being sued personally. The present law is judge-made law known as the Norwich Pharmacal procedure whereby somebody who is not liable for a defamation, for whatever reason - and perhaps, too, where he or she is liable - can be ordered to identify a person who appears to have defamed a would-be plaintiff.

I will speed things up by going through the amendments I have proposed. The first provides that the High Court have concurrent jurisdiction under this section. The reason I consider this sensible is that we may have situations where High Court proceedings are already in being and either a defamation is repeated in that context or a party to the High Court proceedings resorts to an anonymous publication to repeat the defamation already made.I do not see what is wrong with saying that the High Court should be excluded from the statutory procedure envisaged by the Minister's new section 45. That is the first point.

It is not that I want to increase costs. It is quite the reverse. It is that if a court has seisin of a defamation, it may, in an ancillary way, want to make an order of the kind envisaged by this section to include a party that has not yet been properly identified. The idea that you would have to go to a different court to get your identification order and then come back to the High Court seems unnecessary. The first of my amendments is to suggest that the High Court should have concurrent jurisdiction to do so. Insofar as it is suggested that this could increase costs, it could not because the Circuit Court will, in any event, have jurisdiction to make the order one way or the other.

The second amendment is to insert the word "seriously". We have already debated serious defamation in this House. The Minister has intimated, though I do not accept it, that the threshold of seriousness is problematic in the view of the Attorney General's office, in that it might be seen to be an impermissible derogation from the general right to defend one's good name. I do not accept that. However, that is why amendment No. 21 is there in my name.

Amendment No. 22 is to be read in conjunction with amendment No. 23, which proposes to remove lines 18 and 19 of subsection (3) as it appears on page 22 of the Minister's Bill. The reason I am proposing this is that proof that you have "no other practicable means of obtaining the relevant information" is, in my view, an unnecessary proof, bearing in mind that paragraph (a) already provides the court has to be satisfied that:

a statement was published, or caused to be published, on an information society service by means of an intermediary service provider by a person or entity (in this section referred to as an ‘anonymous publisher’) whose identity is unknown to the applicant and whose identity is not readily ascertainable on the face of the statement or from other information available to the applicant on the information society service

I think that should be enough to make it easy to apply for this identification order. I do not think one should then be forced to say there is no other practicable means of obtaining the relevant information. It seems vague as to what would be entailed in demonstrating to a court there is no other practicable way that I can identify the person who has defamed me. Does it involve employing somebody to analyse other postings on the Internet service provider? Does it envisage employing online detectives to arrive at the same information? I do not see that paragraph (e) adds much to the Minister's proposed requirements for the making of an order.

The next proposed amendment I have is to substitute the word "shall" for "may" in line 20. That is to make it obligatory for the court exercising this jurisdiction to make an identification order on the terms set out in the remainder of the subsection. We have to consider what the subsection says. Subsection (4) states:

A court may— (a) make an identification order only where it considers that—

(i) it is in the interests of justice to do so, and

(ii) the interests favouring disclosure of relevant information outweigh those against, having regard to the rights and obligations of the applicant and those of the anonymous publisher and any third parties who are reasonably likely to be affected by the order

If the court is satisfied that it is in the interests of justice to make it, that the interests favouring disclosure outweigh those against forcing disclosure, and that all of this is done having regard to the rights and obligations of the applicant and those of the anonymous publisher and any third parties who are reasonably likely to be affected by the order, on what basis should the court have a residual discretion to say those things may have been approved and it is satisfied of that, but is still of an ultimate discretion not to make an order at all? If somebody can establish, to the satisfaction of a court, and the court considers it in the interests of justice to make an identification order and the interests favouring disclosure of relevant information outweigh those against, and that this consideration of the court has regard to the rights and obligations of the applicant and those of the anonymous publisher and any third parties who are reasonably likely to be affected by the order, in those circumstances there should be an obligation to make the order.

Paragraph (b) does not affect whether it is obligatory or not because it purely deals with matters that the court considers appropriate - "restricting the use of relevant information so disclosed" and "an undertaking ... not to use the relevant information so disclosed other than to bring defamation proceedings against the anonymous publisher." In relation to paragraph (b)(i) and (ii), I ask whether that is again written too tightly. With regard to the terms, "restricting the use of relevant information so disclosed" to the bringing of the "defamation proceedings against the anonymous publisher", can the relevant information be used against somebody else? If you have a choice of two people or it turns out that if it was not A it must be B who is the defamer, to say you cannot use the information against B because you have undertaken that it is only A that it can be used against in defamation proceedings is, in my view, mistaken. Second, it is too tight in that it could apply to a malicious falsehood situation. I make those points in relation to that.

The suggestion in my next amendment that in lines 32 to 37 the specific terms are overly and unnecessarily restrictive is a strong view on my part, which I ask the Minister to take into account.

The next amendment in the series of amendments I have proposed relates to subsection (5). This is an important point. Subsection (5) states:

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

This may reflect the existing arrangements in relation to Norwich Pharmacal orders but it is not fair to potential plaintiffs that, even if they succeed in persuading the court that the identity of the defamer should be disclosed to them, they should then be exposed to the very real risk that they owe an Internet service provider the legal costs involved in debating the issue. If they succeed, whereby a court finds it is in the interests of justice that the identification order be made, the applicant has satisfied the court under subsection (3)(b) that there has been an anonymous publication, that the statement is defamatory and that the claim it is defamatory is likely to succeed at trial, then I cannot see any good reason the Minister should put into statute form the suggestion that some Internet service provider should be able to say this is fine and all of these things have been established but now pay me the cost of contesting the application. This cannot be right.

Are we on the side of people who can show they have been defamed and that they need this information? Is there some group of Internet service providers who, having been the vehicle of defamation, are so impoverished that it would be unfair to say that if they lose a contest on disclosure, they may not, nonetheless, ask the court to have their own costs paid? I do not see how that is fair at all. I know the current Norwich Pharmacal procedure operates on this basis but this seems to be cowardly, in the sense that if all of the other criteria in the section are satisfied, it is a matter of right and vindication of right that the citizen who has been defamed should be able to get that information without the risk that X or some other Internet service provider could say that is fine, it lost the case and the plaintiff did get an order against it but, in all the circumstances, the Act says the court can order that the plaintiff pay for the dispute in the High Court which the provider lost. I cannot believe this is remotely fair.

I do not know the thinking that lies behind preserving the right of an Internet service provider which contests and loses an application for identification, where all the proofs of the person defamed have been complied with, whereby they are likely to win when the case comes on, the relevant information is necessary to enable them to bring the proceedings, the information is in the possession of the relevant intermediary service provider, it is in the interests of justice that the disclosure order should be made and the interests of justice favouring disclosure of relevant information outweigh those against. Why in God's name should a court be given jurisdiction to tell someone they have succeeded in satisfying all of these criteria but the Internet service provider has come to court and contested the whole thing and now wants the person to pay its costs of complying with the High Court order? That is grotesque. It really is grotesque.

I hope it is not that the Irish State is so afraid of the large IT companies and tech companies that it wants to discourage these identification orders from being made. Having to comply with all of the other necessary proofs and having to satisfy the court on the matters which are set out in this section mean that only a person who has a good case in defamation and who can satisfy the court that nobody else has interests which outweigh the potential plaintiff's interest in finding out who is defaming them online can get such an order. We are now saying that, notwithstanding all of this, an Internet service provider should have the statutory right to apply for its costs having lost the dispute and having been the vehicle whereby somebody's character was very seriously affected by something it carried for reward. I cannot understand why it should be said of such an Internet service provider that it should be entitled to be compensated for any legal application being made against it in these circumstances.

This is also related to amendment No. 26. Instead of subsection 5, it should read as follows:

The court may order that the relevant internet service provider pay any or all of the applicant’s costs where it appears that the service provider failed or refused unreasonably to provide the applicant with relevant information when requested so to do or where the applicant succeeds in obtaining an identification order.

If the person who would be an applicant writes a letter beforehand to the Internet service provider stating they have been very seriously defamed and that they will go to court to get an order against it, if the provider unreasonably forces the person to go to court, this is one circumstance in which the provider would be liable for costs. The second circumstance is, with this having happened and the applicant having succeeded in obtaining an identification order, the court has jurisdiction to award the would-be plaintiff costs of winning the case against the resistance of the Internet service provider in circumstances where the court may order that it has jurisdiction so to do.

Subsection (5) as proposed by me is designed to switch the emphasis in the Minister's subsection (5) to say costs should usually follow the event. This is the normal provision. There is no need to hold out to Internet service providers that they can get their costs even when they ignore a reasonable request and even where the court finally finds in favour of the applicant. Since we are dealing with alternative dispute resolution, it provides a mechanism whereby somebody can write to X and say this particular person has defamed them and that it is anonymous, and if the company has any good bona fide reason to consider that it should not identify the person to them, that is fine, but if it does not have such reason, it should be on its guard that if it insists that the matter goes to court, it will have the costs of the application lodged at its doorstep rather than otherwise.

Amendment No. 27 is something which really needs to be considered by the Minister as well.If an order is made directing X to say that the anonymous defamer was Joe Soap, how does the person who has been defamed prove that in subsequent proceedings? Is the person to bring witnesses from X to establish how X decided that the anonymous defamer was Joe Soap? How does someone prove it? It is within the almost exclusive knowledge of the Internet service provider as to who actually caused some defamation to be posted.

If we do not change the laws of evidence to allow the fruits of an identification order to be admissible without further proof, we will have to tell people who obtain such orders that they will have to use their own resources to prove that it was Joe Soap. Are they to subpoena ISPs? All that subsection (7) proposes in my amendment is that if X says it is Joe Soap, that is admissible against Joe Soap. It does not mean it is proof beyond contradiction. It means that if X says that it appears that Michael McDowell posted this defamation and it is his account, whomever I defamed anonymously should be able to bring that before the court in the subsequent defamation case without bringing X along to court to prove how it arrived at that state of knowledge and that it should not be hearsay. There is a big problem with hearsay here if simply all a person has is a piece of paper identifying the alleged defamer.

Those are the arguments I have put forward for amendment Nos. 20 to 27. I completely support the Minister's determination, which I hope it is, that anonymous defamation and defamers be easily identified, subject to whatever rights protect against abuse or that somebody would not be identified in circumstances where, for instance, if a person is from another state or a dissident in a tyrannical regime, their personal rights in relation to privacy or protection against coercion or punishment were compromised. People like that should have protections - I have no problem with that - but I strongly believe that the Minister's amendments are too conservative as set out in his section 22 and leave a whole series of problems there. Not least of these is that a solicitor to whom somebody comes saying that he or she wants to find out who has defamed them anonymously on the Internet would, if the Minister's section stands, be obliged to say that the person may well be right, that the person may well be able to establish to a court's satisfaction that her or she will succeed in all probability in a defamation case against whoever posted that material, it may well be the case that, on the face of it, the damage done to the person outweighs any possible risk to the rights of the poster, and it may well be the case that it is established to the satisfaction of the court that the person does not know who the person is, but the solicitor would have to warn the client that, due to the way the Minister has drafted his section 22, it is possible that the Internet service provider, having disputed the matter, will say that it wants its costs of complying. To me, that seems grossly unfair. Those are the points I want to make at this stage.

Mark Daly (Fianna Fail)
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Senator Tully is in the Distinguished Visitors Gallery along with Oisin Bogue from Cavan. He is experiencing the political process first hand. I thank Oisin for being here all the way from Cavan.

Rónán Mullen (Independent)
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Cuirim fáilte roimh an Aire. I welcome the initiative the Minister has taken in bringing forward this proposed section. You would have to be some strange kind of free speech absolutist to say that what has been going on in these days, times and years on social and online media is acceptable for the sake of maintaining an absolute free flow of ideas. Senator McDowell, others in this House and I have acted strongly and purposefully to defend the free exchange of ideas, particularly the free exchange of political ideas. Going back to the legislation on hate speech and so forth last year, it has always been the view of reasonable people that stuff is said online that should never be said. Serious harm is being done, not just to people's reputations, which we are concerned with here in the context of defamation legislation, but to people's welfare, full stop, in all sorts of different ways.

Everyone here has been subjected to abuse of one kind of another online. Sometimes, we have been subjected to fair criticism, but sometimes it goes far beyond that. I have often thought that one of the problems with the online space is that it gives people, who in the past only had toilet walls in public places to write on, an opportunity to seriously attack people and to bring their ugly invective and accusations to the attention of a wide audience.

I remember thinking some years ago that everybody in public life and anybody concerned with their own mental health needs to think very carefully about how they engage with social media and, if they communicate ideas into social media, how much attention they pay to what is said. A lot of politicians seem to be on social media very often and are arguing back and forth with people. It seems to me that, in many cases, they are giving very unreasonable and ugly people a big stick to beat them with.

If you read someone saying nasty things about your appearance or making false or defamatory claims about you, you may try to convince yourself that it reflects on those people and not yourself. You may try to convince yourself that such people are so unreasonable that no notice should be taken of them, much less no recourse sought to the courts to seek to vindicate your reputation. However, it is very rare that people are not in some way affected in their happiness and well-being by being exposed to such ugliness and nastiness. My advice to people has always been to treat social media sparingly and to use it to communicate their messages outwards. If you are in public life, it really does not make much sense to be reading about what people are saying about you at all. Presumably, if a person is fortunate enough to be elected, that means you must have some number of supporters who can maybe keep an eye on these things for you, winnow them out, draw your attention to the things you absolutely have to know about and, hopefully, fight a bit of a battle of your behalf as regards those things you do not need to know about. Like Senator McDowell, while I applaud what the Government is doing, I am concerned that it is making it too hard for people to get the redress it proposes to make available or to access the levers it proposes to make available in order to obtain important information that could be relevant to defamation proceedings.

Senator McDowell very helpfully went through the rationale for each of his amendments. I will comment briefly on what I thought of them. I have some questions too, which I maybe should have posed to him earlier, that may be answered in the course of this debate.

The amendment the Senator tabled on the possibility of a concurrent jurisdiction of the High Court makes great sense. He pointed out that this should not give rise to further legal costs; quite the contrary. If one imagines a High Court with seisin of a defamation matter, it surely means that the court, in dealing with the case, has a much clearer idea of what is at stake, and why it is relevant to the proceedings that information be obtained about the identity of somebody who made an allegedly defamatory statement online. Surely the court sees matters more clearly than a different court being asked to adjudicate on that matter alone. It is relevant that the High Court would have the knowledge of the seriousness of the situation that would enable it to determine properly whether to make such an order.

If you imagine circumstances where, in the context of defamation proceedings, something else is said online by a defendant that is itself alleged to be defamatory, that is the kind of thing that would surely involve exemplary damages, for example. Again, that seems to be another reason the High Court, having seisin of the principal defamation action, should also consider and be enabled to consider it appropriate that it would make a determination about the order sought regarding the identification order.

I have some questions - and perhaps I was not listening closely enough - as to why Senator McDowell is proposing the insertion of the word "seriously". On the face of it, I am quite happy that "a claim by the applicant in any defamation proceedings against the anonymous publisher that the statement is defamatory [and could] ... succeed at trial" would be sufficient. I would prefer to leave it at that low bar, but, again, Senator McDowell may have good reasons for the proposal. I look forward to hearing more about it.

I support the other amendments, in particular the reference to page 22, line 20, where Senator McDowell proposes the substitution of the word "shall" for "may". I have a question in relation to that. If the Minister were minded to accept the amendment, the section would read, "A court [shall] ... make an identification order only where it considers", etc. Were the word "only" to remain, would that in some way weaken the obligation of the court to make an order? Is it arguable that if the word "shall" is substituted for "may", then the word "only" should be removed? That occurred to me as I listened to Senator McDowell explaining the amendment. It is a question rather than a statement.

Amendment No. 26 proposes the substitution of a new section 22(45)(5) that would read, "The court may order that the relevant internet service provider pay any or all of the applicant’s costs". I could not agree more with the proposal that the existing lines 38 to 42 be deleted in favour of Senator McDowell's proposed wording. In fact, I am astonished that the Minister, in his proposed section, would open up the possibility that a court, having possibly made an identification order, would then punish the applicant and potentially leave them with the costs. That would result in a very pyrrhic victory for an applicant. As Senator McDowell said, the normal principle is that costs follow the event. I presume that is his proposed wording states, "The court may order ... the relevant internet service provider", as opposed the phrase "the court shall" being used. I presume that allowing the courts to do their work normally means that the costs follow the event, and that the amendment does not seek to displace the courts' normal jurisdiction and approach in those matters by not proposing the use of the word "shall".

It is vital that the Minister's proposed section 22(45)(5) goes. One hopes that the courts would not follow it, quite frankly. It is almost impossible to imagine circumstances where it would be right or seem right to make an identification order because it is relevant to defamation proceedings and then leave the successful applicant with the costs. We have had a number of moments during the debate on this legislation where it really would be good to hear a practical example of the mischief the Minister is seeking to prevent or address. I cannot think of a situation where that could be just. To put it in there almost reminds the courts of what they might want to do in situations like that, whereas the balance should surely be very much in the direction of it being the norm that costs follow the event in relation to such an application. In fact, it might even be the case that it is easier to imagine cases where a person's request for an identification order might fail but that person's request might not be so egregious that the court would not consider making the parties go back to back on the costs, at the very least, when, again, one considers the probably disproportionate power and resources involved.

I also very much support what Senator McDowell said about guaranteeing avoiding any of the problems around hearsay, so that if an identification order is made, the successful applicant in such a case should not have to jump through further, perhaps costly, legal hoops to bring that relevant point before the court in any defamation action.

Michael McDowell (Independent)
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I will address the points raised by Senator Mullen. The reason the word "seriously" was included in the amendment was that at the time I tabled these amendments, a seriousness test was being suggested for other sections.To my surprise, the Minister indicated that the Office of the Attorney General had constitutional doubts about inserting the seriousness threshold into Irish defamation law on the basis that it could infringe unnecessarily on the good name guarantees given under the Constitution to citizens. I simply do not accept that this is good advice. I know it was not put in terms of strong advice but, as the Minister reported it, it was that it could create an issue. I do not see how it could create an issue that one could go to court in respect of a defamation that is not serious. I do not follow what that problem is there. To answer Senator Mullen, that is why "seriously" was inserted. It was also to stop people wasting the courts' time with frivolous defamation cases via the identity disclosure order procedure.

If the Minister is saying that it is a necessary proof that the applicant has no other practicable means of obtaining the relevant information, that is a very high threshold to throw in the way of an applicant. He would need to be clear as to what is meant by the term "practicable". Is somebody supposed to do his or her own research on the Internet? Is the person meant to do his or her own analysis of the poster's other postings with a view to revealing that the poster is likely to be X or Y person because of remarks he or she has made through postings of a different kind or on a different occasion? Regarding subparagraph (e), it is unnecessary to say that a person has no other practicable means of doing it because paragraph (a) says it is not readily ascertainable on the face of a statement or from other information available to the person. That should be enough. You should not be saying, "Is there some other way that I can avoid getting this information the simple way?"

While Senator Mullen, the Minister and I strongly favour making it impossible to seriously defame people by anonymous postings on the Internet, it has to be said that it is not just simply that they are offensive to the person who reads them. Politicians have to have a very thick skin. As Senator Mullen said, if incoming fire wounds you that badly on the basis of personal remarks, that is one thing, but we are not just dealing with politicians. We are dealing with young people aged 18, 19 or 20 who are going to apply for a job in five or ten years' time, the employer googles that person's name, which happens every day in the world in which we live, and a gross defamation - a suggestion that the person has committed a crime - is sitting there. That is the damage of anonymous defamation. It is sitting there like a time bomb waiting to go off when somebody stumbles upon it or goes hunting for it as a substitute character reference. It is hugely important that anonymous defamers are very vulnerable to being exposed - not just that they could be if you get lawyers to the courts but that they are very vulnerable and they know it. They know that if they take out their little keyboard and begin to type an untruth, this is likely to end up with them being made accountable if they defame a person. It is likelihood that is important. If somebody writes a letter to a newspaper defaming somebody, the editor usually throws it in the wastepaper basket. If, to use Senator Mullen's very colourful example, someone starts scratching things up on toilet walls, he or she may be identified but the likelihood that people will believe what they see on a toilet wall is minimal. However, a serious defamation against a young college student that he or she engaged in sexual behaviour of a non-consensual kind will be there forever unless somebody takes it down. People who can make those kind of accusations with impunity do so with extraordinary regularity. They accuse people of corruption. They accuse people of all sorts of things and it is immensely difficult for citizens to defend themselves from those kind of charges.

Instead of accepting what the Attorney General says, which is that "seriousness" could be a problem as a threshold, the Minister should ask himself whether he and his Department have seriously taken into account the obligation in Article 40 of the Constitution to defend as and as far as practicable vindicate the rights of people to their good name - "as far as practicable". What is practicable is bringing into our laws real remedies that protect people from this kind of day-to-day damage. It is not just a policy choice the Minister has. It is far more than that. It is a duty to say that people who are defamed on the Internet are in a position to do something about it. That is the State's obligation. That is the obligation of all of us in this House and the other House. It is not just a choice - a case of being able to do it if we think it desirable.

Internet service providers claim this right to be agnostic about the content on their service. We see the likes of X and its owner Elon Musk claiming that European standards of protecting character are inconsistent with what Americans think can and cannot be published in the US about people. There is a minor difficulty. The Constitution in Ireland says that the Irish State must protect people. It is not that the US Supreme Court says, ludicrously, that the right of free speech trumps everything. The Irish Constitution guarantees free speech and precedes it by forcing upon the State the obligation to defend and as far as practicable vindicate people's right to their good name.

This is why I am really sceptical about Internet service providers coming to the Government or going around Europe waving the US Constitution and the rather silly jurisprudence of the US Constitution that allows people to say absolutely anything they like about anybody else as long as it cannot be proved that they knew it was false. That is so wrong. The Minister is to be commended on doing something about anonymous defamation but it is timid and inadequate. It is really timid and inadequate. I believe very firmly that what we are dealing with here is of huge importance.It may offend Elon Musk, X or people in the White House who were or still are friendly with Musk or who like to defame people on their own Truth Social ISP and call people from Somalia "garbage" collectively. Those kinds of people may be entitled to pursue their policies at home but they cannot pursue them here and our Government has a very different obligation, under the Constitution, not to be intimidated by them. I make that point as strongly as I can. This is not something that we are free to do or not. This is something we are obliged by the Constitution to do, and that is it.

Senator Mullen asked how, if the word "may" is going to be substituted by "shall", the term "only" applies there? I interpreted the word "only" in the Minister's text as having a particular meaning, that is, that the court must examine whether making an identification order would be, for some reason, unjust or unwarranted against the person who is alleged to have defamed the applicant. There could be circumstances - and I can imagine in particular someone in the White House, or Elon Musk doing so - in which someone would say they have been defamed and pursue somebody in Syria, Morocco or Ireland, saying they want to find out who that person is, for all sorts of reasons. By the way, when they do find out, the undertaking that will be given to the Irish courts will not have extraterritorial effect. The person who is exposed as the alleged defamer will be subject to collateral attack in America or wherever else and the Irish courts, once they have made the identification order, will have no way to pull that back or protect that person. I understood that the term "only" was to force the Irish court to think about whether it could be doing something grossly unfair to the person who is identified, such as exposing them to retribution of a political or criminal kind, or all sorts of things, elsewhere in the world, and whether anonymity, notwithstanding apparent defamation, should be preserved for that reason, because there are other rights involved.

Senator Mullen referred to the question of costs. Let us take the case of anybody who is defamed, and specifically a young student who is accused of, say, some sexual impropriety where that is now available to the entire world to look at it, if people go hunting for that student's name. Someone in those circumstances is not going to have a bag of money to go to any court, whether it be the Circuit Court or the High Court, to retain solicitors or barristers to argue with X about the necessity for identifying the person who is defamed. They are not going to have that kind of money. They are vulnerable people and they have already been damaged because the order cannot be made unless it is probable, in the eyes of the court, that they will succeed in establishing that their reputation has been damaged. These are vulnerable people whose reputations deserve to be vindicated insofar as we can do so practicably. By the way, even if you win your application, Elon Musk's bank account could benefit from his costs being paid by you. I cannot understand saying that is just in some way. I really cannot understand why anybody would suggest such a thing. You could say that the cost of the application could somehow be reflected later if you did get damages against the defamer, but what happens if the defamer turns out to be the man in the bedsit with no assets? There is no redress then. Finding out his or her identity is as far as the process will go in terms of getting any redress in the form of damages, but you could get correction orders against the person, again at your own expense.

What I really want to do is impress on the Minister what this looked like. By the way, the Dáil, as was typical in this debate, just waved all this stuff through without seriously considering any single line of it, in a really sad abdication of that Chamber's function and duties. It has to be examined at some stage, and here is the place, alas, where it ends up being examined for the first time. The amendments the Minister has brought forward appear, superficially, to be a response to anonymous defamers on the Internet, but they do not go far enough or as far as the Constitution requires them to go. On the contrary, they would deter anybody who did not have the means from going to court to vindicate their name, especially if their own solicitor says, "Yes, you have been defamed but bear in mind the Oireachtas enacted a law saying that even if you win, you lose, because you can pay Elon Musk and X the cost they have incurred in unsuccessfully contesting your right to find out who has defamed you." I find it difficult to believe that this is as far as we not merely can go but that this is far as we should go, bearing in mind the duties imposed on us as legislators.

The time has come to really tackle anonymous defamation on the Internet. The time has come to make Internet service providers really amenable to a letter from a solicitor saying, "Can you disclose to us who the defamer is before we have to go to court?" What other procedure is there, where you have to go to court and cannot send a preliminary letter saying, "Please avoid the costs that you will incur if my case turns out to be correct"? That is why the second leg of subsection (5), as proposed by us, is designed to give cheap, inexpensive and accessible redress to somebody who wants to know who has defamed them, and to say to the Internet service provider: "Okay, keep it secret if you like but if I get an order against you, you can pay for the cost of having kept this information away from me when I am entitled to it and my character depends on it." However, the Minister's subsection actually reverses that.

I do not want to waste more time but I want to say that I feel passionate about this. I feel passionately that we are not doing enough. If we accept the Minister's amendment, we are putting in place a mere pretence, which the Internet service providers will hide behind and obstruct to the maximum possible extent. Those are my thoughts on the matter. In case anybody says I am filibustering, I am not. I believe that this is a very serious issue and that Dáil Éireann did not do its duty by even querying this amendment adequately when it was its constitutional duty to vindicate the rights of ordinary citizens.