I move amendment No. 4: In page 6, to delete lines 18 to 35, and in page 7, to delete lines 1 to 9. I will also speak to amendment No. 6. Amendment No. 4 is a simple but substantive amendment. We have spoken about this previously. Our principal objection to this legislation is the abolition of juries in all cases. I believe the Minister would privately accept that this is a bad, dangerous and nonsensical position to be adopting. I have not met a single person in the legal world who agrees with this move. This is one of those times when the Government has wanted to be seen to be acting as opposed to actually doing anything that will have a meaningful impact in respect of the operation of the media, the costs awarded by courts and the timeframe that these cases take. All this will do is remove from High Court defamation cases a fundamental pillar of our legal system that is older than democracy itself in many states. Any defamation case involving anybody should have at least the option of being heard by a jury. Matters of defamation are by their very nature about the value and esteem of one's name. It is Sinn Féin's contention that the ultimate arbiters of that should be a jury of one's peers. They should be entrusted with weighing the balance of rights and harms. We appreciate the procedural concerns and the risk of disproportionate awards but we do not feel that, as presented by the Minister and his predecessors, they are sufficient justification for curtailing the right to due process. If anything, any of the logic that was in place or could have been put in place has since been discounted. We have had the Higgins judgment, which shows there is now a formula for dealing with substantive awards. All the conventional wisdom would suggest that we will not see the types of excessive award being granted into the future. I find it deeply regrettable. A number of Members from across the Opposition spoke at length on Committee Stage. We set out very clearly that this was, in essence, the only provision of the legislation that prevented unanimity on its passing through the House. With a bit of humility on the part of the Government by accepting that it had got this wrong, we could have had the Bill passed through the House unanimously. Virtually every other amendment apart from this one is technical in nature on Report Stage. We would have been here for a short number of minutes and got the Bill passed, and the Minister could have said that he had addressed many of the concerns that existed within our defamation laws, particularly the potential use of SLAPPs, through one of the first Bills he brought through the House and that he had the full support of the House in so doing. Instead, the Minister has done something that goes against everybody who has entered into this debate, apart from a few mega-wealthy media owners who want to just simply curtail the rights of anybody to vindicate his or her good name at all costs. The Law Society of Ireland, the Bar Council and the Oireachtas' own pre-legislative scrutiny, with its cross-party report, urged the Government not to go down this line. A previous justice spokesperson by the name of Jim O'Callaghan made a very impassioned case in this House not to go down this line, yet here we are. I will make a final appeal to the Minister, although it appears that it will fall on deaf ears, to do what he knows is right and not proceed with this provision. The current legislative process for juries in High Court cases is sufficient, but I have gone further and moved half way. In the expectation that the Minister will whip to reject amendment No. 4, we have tabled amendment No. 6. The Minister may rule out the deletion of those sections that delete the role of citizens entirely, but let us take the process of pre-legislative scrutiny and move to an all-Ireland model on this issue. I know it is an area where the Minister shares my views in many respects. Where we can have all-Ireland harmonisation, surely that is a good thing. Why not have the same system in the North where upon application, it would allow a judge to rule that a jury may or may not be suitable for a particular case? Our amendment goes a little bit further, in that it would allow for the provision for the judge to step in on the determination of costs, one of the stated reasons for the inclusion of this provision in the legislation in the first place. The Minister has options. He can roll back on this daft idea of eliminating juries from High Court defamation cases in its entirety and support amendment No. 4, but if he is not willing to do that, he can meet us half way by supporting amendment No. 6, which allows for the use of a jury to be determined by a judge on application. I believe that would be a sensible middle ground. It is not as far as I would like the Minister to move, but it would be a positive and welcome step if he were to accept it.

Sentiment score: 0.12

I do not know if the Minister realises, but he has undershot the entire premise and logic put forward for this Part. If I am right, he dismissed the costs that might be incurred but he said there might be an impact on the time. I would argue that the time saved would be minuscule. The Minister seems to accept that we are now in a situation following the Higgins case where there is a parameter and that is being adhered to by the courts and by juries. We had a very high-profile case involving the former president of my party and awards were given precisely in line with the standards that have now been set. The Minister has not addressed something that arose in conversations, private and otherwise, with legal professionals, including judges. Has he considered that what will happen as a result of this move is an increase in the length of time and the costs because the likelihood of appeals will be substantially higher? The reason for that is because people are less likely to appeal a jury verdict because they know that higher courts are very reticent to overturn a jury decision. Very particular points of law must be made in that respect. They are not as reticent about overturning a decision of one of their colleagues in the Judiciary. That is a matter of fact. My estimation is that, far from the stated rationale he presents, this Part will do the exact opposite because we will see increased pressure on the overall court system.

Sentiment score: 0.19

I feel the Minister is chasing his tail trying to find reasons to support this provision when he knows in his own heart, and with his own legal experience, that there is no credible reason to do it. This was a move on the part of a predecessor of his, predominantly pressed by large-scale media outlets and owners, to address one particular issue and then a number of other issues were thrown in, including the abolition of juries. When the abolition of juries was put forward, it was a surprise to a lot of people, including the Oireachtas committee that was dealing with it. The entire logic that was presented by the Minister's predecessor and the Department was down to the cost of awards. That is the reason that was provided and that reason has now been put in the dustbin. The Minister has acknowledged that through the Higgins judgment. When there is a rationale for a law – not that I ever agreed with it, but I ask the Minister to bear with me - but that rationale clearly stops existing, does he not agree that it amounts simply to pigheadedness to pursue the law regardless, without any consideration of the consequences? I do not want to put words in his mouth, but if I am correct, the Minister is on the record as saying his mind has been changed on this. Previously, we know that he was very cautious and warned these Houses about abolishing juries in this instance. Now, he is advocating the exact opposite of that. How would the Minister feel if, upon further reflection in a number of years' time when he is out of office, he realises he made a real mistake and undermined the judicial system? I ask him to reflect on that.

Sentiment score: -0.01

I move amendment No. 6: In page 6, lines 22 to 24, to delete all words from and including “a” in line 22 down to and including line 24 and substitute the following: “the court may, on the application of any party to a defamation action in the High Court, or a question of fact or an issue arising in such an action, order that the action or any issue of fact in the action shall be tried without a jury if it is of opinion that such trial— (a) will require any protracted examination of documents or accounts or any technical, scientific or local investigation which cannot conveniently be made with a jury, (b) is for any special reason (to be mentioned in the order) unsuitable to be tried with a jury. (2) The court may, on the application of any party to a defamation action in the High Court, order that in matters which may involve substantial damages— (a) issues of fact shall be tried with a jury, and (b) the quantum of any damages which may arise be adjudicated by the presiding judge.”.

Sentiment score: 0.18

I will make a couple of points. On the retail defamation, as it is called, and section 8, as I have indicated before, it is incredibly important that we have this defence. It is equally important that this defence is not abused. There is clearly a communication issue. I met a retailer in the House today, a member of a representative organisation, who expressed real concerns that this section will not actually do what the Oireachtas wants it to do. Prior to Committee Stage in the Seanad, perhaps the Minister would be willing to engage with representative organisations to clarify this or to get a sense of whether there is a need for further clarity within the section. I did not move any amendments with regard to the so-called corporate provisions and the test that is to be incorporated. I think this will be the first section of the legislation that could very well result in a return of the Dáil to amend this legislation further. As I mentioned on Committee Stage, there is real potential to have what might be described as corporate entities - they could be charitable organisations, as I said in the debate, or they could be political parties - that could suffer from malicious articles or publications and while they might not meet that test, the damage could be very real. I reiterate that I have a concern in that respect. Nevertheless, we will not oppose any of the amendments in this section.

Sentiment score: 0.23

I thank the Minister for his remarks. Most people will welcome the clarification that these amendments bring. However, we need to be very clear as a House in terms of setting out precisely the need for this, if you want simplification of the defence of public interest. My position on this matter is fairly straightforward: media organisations or anybody who is publishing information pertaining to individuals and entities should not tell lies about them. They should not publish things that are not true. If they do, then people have a right to vindicate their good name through the courts, I would argue, adjudicated by a jury of their peers. I absolutely agree with the provisions in this Bill. If people maliciously use the court system to intimidate people from speaking truth to power, so-called strategic lawsuits against public participation, SLAPP, it is absolutely right that they would be held to account. That is why we will be supporting the provisions in that regard. I also think we should reflect on the reason the public interest defence has not been used or cited too often. Usually if there is a very strong argument for a public interest defence, the case would not come to trial in the first place. As I mentioned previously, I have a concern around the narrative of this whole issue. The Minister acknowledged on Committee Stage that Ireland does not have a big issue with SLAPP. We have had an issue in the past in respect of high awards. The awards were substantially too high. This sense that newspapers or other media organisations are living in fear because of defamation laws has been exaggerated. I do not think that the media sector does itself many favours. I cited earlier the recent Adams case in the High Court. Clearly, what was published and broadcast about Gerry Adams was not true. Anybody could see it was not true and was highly defamatory, yet it went to the High Court at obscene cost to the BBC, a public body. Immediately afterwards, the loser in the case, the BBC, doubled down on what in my view was an unsustainable position. Other media organisations and representatives talked about a chilling effect. I will put on the record that there should be a chilling effect on media outlets to stop them publishing things about people that are not true. If that is the case and it is one of the reasons the public interest defence has not been used regularly, so be it. Everybody acknowledges that every organisation and person can make mistakes for the right reasons. That is why this particular section of the Bill is important. There should be no get-out-of-jail-free card for people who cite the public interest but are really on witch-hunts or following their own agendas, whether political, personal or financial. We need to be very clear in that respect. It is always a bit archaic to consider that a decision of the British House of Lords became de facto common law that is applicable in Ireland. As I say, I welcome the clarification of that issue in this legislation. Above all, we need to be clear that truth matters, particularly in the modern world. There is now a broad array of broadcasting vehicles, including anonymous Facebook pages, personal TikTok accounts and multibillion euro media enterprises. There is an obligation that if you are publishing something to the world at large, you make due effort to ensure you are publishing the truth and facts, and are not demeaning somebody's good name or character. In all of this debate, we must acknowledge why defamation laws exist in the first place. It is a legitimate reason. It provides the balance between free speech and the right of a person to vindicate his or her good name. There is also the public interest provision that needs to be there and that is why I will not be opposing these amendments.

Sentiment score: 0.19

I do not argue with the Minister about any of that and that is why we are not opposing this section. I will make one point. The Minister suggested that the media never go out of their way to lie about someone. Can I suggest that he is saying that with the luxury of being a Fianna Fáil representative? If he were a representative of my party, he would not be able to say that. There have been instances where media outlets have published downright lies about my party. They have done so knowing they were lies. No defamation case was possible because it was the entity of Sinn Féin, rather than individual members, that was defamed. So be it. I will defend to the last the right of the media to do their job of holding power to account. I accept there will always be instances where genuine mistakes are made. I do not in believe in penalising a media organisation or an individual journalist when mistakes have been made, provided that they have made every effort to ensure the truth was the basis of the information that was published. We are agreeing on the outcome, but perhaps the Minister and I are coming at this with different experiences. As he rightly said, and this is important when we deal with all of this, the real threat to people's good character is not coming from a daily broadsheet or the evening news anymore. It is coming from anonymous actors who have, in many cases, malicious intent. They are publishing material that can be published much more widely than any traditional media could, and much faster. It is important when we are discussing these matters to be conscious of all of that.

Sentiment score: 0.04

I support these amendments.

Sentiment score: 0.40

I also hope these provisions address the issues the Minister outlined. I do not dispute anything he said, including the argument that politicians should have thick skins. I endeavour to live up to those standards daily. I am a passionate advocate of freedom of speech. I believe it is essential in a functioning democracy that people can feel to say things - even nasty things or critical things - about politicians or others in power, particularly those in power. There is a distinction between free speech and anonymous speech whereby somebody can hide behind a computer and not have the guts to reveal himself or herself when he or she publishes what can be abhorrent material about a person or entity with no consequences. In that vein, I mean it when I say that I hope that the provisions outlined by the Minister do their stated job. It is a high bar for a lot of people who might find themselves in that position. As the Minister said, there has been an evolution of defamatory comment. Due to the multitudes of mediums by which people can publish assertions, it is probably people who do not have access to a solicitor or recourse to or understanding of the law who are likely to become victims in all of this. I hope that we will reach a point where not only will this mechanism work but the fact that the mechanism is there will give social media companies the freedom to divulge the information early on when it is requested by people seeking to find out who is behind these anonymous accounts that in many cases are causing significant societal destruction in terms of the malicious agendas they pursue. This is notwithstanding everything I have said about the right to free speech. I believe in it passionately but if somebody wants freedom of speech, he or she should also avail of the freedom to reveal himself or herself and have the guts to stand over what it is he or she wants to say.

Sentiment score: 0.16