Did I nearly get a break there?

Sentiment score: 0.00

I have just got indigestion. I am blaming the Minister.

Sentiment score: -0.25

The Ceann Comhairle is far too efficient for my liking. I will propose the deletion of the entire section. Section 4 relates to the role of the jury in High Court defamation actions. It would be important if the Minister could give us clarity on whether he is planning to proceed with this section in its entirety. I put on the record very strongly that Sinn Féin is opposed to the removal of juries from High Court defamation cases as a matter of principle and we will not be able to support the Bill if this remains the Minister's position. It is important to put on the record that our opinion is shared by many in the legal profession. It would leave Ireland as a complete outlier in common law jurisdictions globally. I was not part of the pre-legislative scrutiny deliberations, but having read the transcripts of the Oireachtas committee and the final pre-legislative scrutiny report, the importance of members of the public determining in issues relating to damage to reputation and freedom of expression was very clearly highlighted by both the Bar Council and the Law Society. This holds weight and seems like eminent common sense. In adjudicating whether a person's reputation is damaged, who better to pass that judgment than a jury of one's peers? Of course, nobody is suggesting the current system works perfectly. It is fair to say it does not always, particularly when it comes to the provision of damages. That seems to be the Government's argument, namely, that juries award damages inconsistently and sometimes excessively. Going back to the committee deliberations, everyone is open to having a discussion on how we deal with that issue without removing juries entirely. Perhaps juries could make determinations but we could restrict adjudication on the quantum of rewards to the Judiciary. There is space to address what Government says is the primary issue without throwing the baby out with the bath water or, as somebody said, taking a sledgehammer to a screw. Unfortunately, I have noticed a tendency across a number of governments that, as opposed to fixing an issue, they ban it, get rid of it or overcorrect it. I have seen this time and again when Government Departments delay EU directives, for example, and then the simple solution is to just ban a practice when a number of member states might simply adjust. Is the Minister open to reconsidering his approach to the outright gutting of the role of ordinary people serving on juries and making determinations as to whether defamation has occurred? Is he willing to have discussions on later Stages of the Bill? Like his predecessor, is he intent on going ahead with this, knowing that if we resolve this issue alone, we could easily come to a consensus and have a Bill that has the full support of this House? I urge the Minister to consider his approach carefully.

Sentiment score: 0.18

I thank the Leas-Cheann Comhairle. I ask his indulgence because we were rushing at the start and skipped over sections. I want not to oppose section 3 but to ask the Minister for clarification on a point. One of the other recommendations in the report of the pre-legislative scrutiny from the justice committee of the previous Dáil was that the definition of "periodical" should be made clearer, specifically regarding whether publications from broadcasters - say, the RTÉ website - would come under the remit of the Press Council or Coimisiún na Meán. The Oireachtas Library and Research Service produced a comprehensive review of the Bill versus the pre-legislative scrutiny report. In the review, it pointed to it not having been possible to include such a provision due to a lack of stakeholder agreement at the time. Will the Minister speak to this? Is it something he has considered since his appointment as Minister? Would he be in favour of it? If time allowed, would he be willing to look at a definition on later Stages? Essentially, does he plan to return to it?

Sentiment score: 0.17

Yes, the definition of a "periodical". It is a small point but I omitted to talk about it when we were skipping through section 3 and I want to put it on the record in case we table an amendment at a later stage. I do not know if the Minister intended them this way but I interpreted his words to mean he did not agree with this but was bound by collective government, the programme for Government and decisions previously made to pursue it. That is astonishing. Of course, a Minister can bring a recommendation to Government that, on balance, a recommendation made by a previous Minister is not only contrary to the current Minister's belief but also that being dogged in the pursuit of that particular provision prevents the Dáil collectively from moving forward with reformed defamation laws. That is very disappointing. On a number of aspects, the Minister misses the point the Opposition made and I find that disappointing considering, as has already been said, the Minister himself made virtually the same points we are making now. He understands as well as anyone, you would imagine, what it is that we are saying. Sometimes the public has the view that the media, including newspapers and broadcasters, cannot publish lies. That is not what the law says. Media can, and on occasion do, publish lies. The law sets a high bar for somebody to take a case that he or she was defamed. The definition of "defamation", though not a legal definition, is essentially that it is the publication of an untrue statement that reasonable members of the public would think damages one's reputation. That is very different from publishing lies. I reflect on a very delicate time in the peace process when a number of lazy journalists figured out that a good way of writing headlines was to say senior members of my party were accused of being informers. Those were downright lies, and at a time when it put people's lives at risk. They could not actually take a case for defamation because, in the eyes of the law, there is no distinction between British agents in a time of conflict or legal authorities in this State or elsewhere. It is not considered to be demeaning to your character if you are accused of assisting state authorities. Lies were able to be published ad nauseam and Sunday newspapers were competing against one another to see who could accuse the highest profile Sinn Féin representative or republican of being an informer, and they could get away with it. That is moving off point a little bit but it is not being flippant about it. It is to say that media have a big responsibility and they are not always held legally accountable. I have seen articles written that were untrue but to prove they were defamatory would be difficult. That gets to the crux of why this is different from other civil cases the Minister has spoken about. Nobody can make an adjudication as to whether in the eyes of reasonable people somebody has been defamed better than a jury of one's peers. Judges have a very important role and do a very important job but they are removed from lived realties. Due to the circumstances in which they operate and the incomes they have, they cannot be described as reflective of society as a whole. That is with no disrespect to our esteemed Judiciary. The principle of juries was established in the first place throughout the common law system. In that system today, the role of juries in many civil matters has been diminished or, in some cases, virtually abolished. However, if we are to move as the Government proposes in this area, we will be a complete outlier in respect of defamation cases and juries. I am trying to break down the Minister's arguments against the amendment to delete this section. The first issue he mentioned was delays. Of course we want to reduce delays. Appointing and swearing in a jury takes time. There have to be opening statements and the jury then has to deliberate. However, it is disingenuous in the extreme, and I think the Minister knows it, to suggest juries are the reason for the delays in our Courts Service. I do not believe they are at all, to be quite frank. If we were to take it to the nth degree that every component of court cases that causes a delay should be taken apart, then let us just get rid of trials altogether and arbitrarily make decisions. Presenting a defence causes a delay in the Courts Service but nobody argues we should get rid of that provision in order to speed things up. The Minister also said he had a problem with the concept of a jury making a deliberation as to whether defamation had occurred and then a judge separately making a determination in our courts, but that is precisely what happens in the criminal justice system. Juries make a finding in relation to the guilt or innocence of an accused and then judges impose a sentence based on the sentencing guidelines. It is not something I am wedded to at this point regarding whether there would be a distinction. However, it would be a good compromise to suggest there are juries and then there is the issue of costs, given the difficulty people within the legal profession might have in terms of advising clients as to the likely outcome. This would address that difficulty. I am not sure if there is another argument for abolishing juries other than delays and costs. I do not understand why the Government would be so determined to move in such a way. I am looking through the document that was produced by Oireachtas Library and Research Service, which I commend because it is a very good document that goes through all aspects of the pre-legislative scrutiny. I am not sure if there is a legal expert or practitioner in the legal services who supports this provision at all. Certainly, the Bar Council and the Law Library seem to have particularly strong views, and I have noted the comments of former members of the Judiciary who are very vocal. We know that during the pre-legislative scrutiny, as was said by a number of other Deputies, there was unanimous support for juries. This Bill was a long time in the making. Clearly, it was not something on which there was immediate agreement from the Government because previous Governments had ignored it for so long. To come to a point where there was unanimity within the Oireachtas justice committee on an issue as profound as this, including from members of the Government and the Opposition, seems a fairly big statement. To revert to Minister’s original statement, he said he was bound by the programme for Government, collective government and the agreements of his predecessors. In that case, I am sure most people would have to ask what the point of this House and of having debates is. What is the point of having Committee Stage if not only is it the case that the Minister is not going to be convinced, but even if the Minister is convinced, he tells the House he will not do anything about it because his hands are tied behind his back? I ask the Minister to reflect very strongly on this. I genuinely believe he thinks this is daft. I think it is daft. I also happen to think it is potentially dangerous to remove the voice of juries in significant defamation cases where it is, ultimately, a jury of peers who should be making the decision as to whether the very high threshold of defamation has actually been met. I want to make that case as formally as possible.

Sentiment score: 0.01

I will make a brief point in response to one of the assertions of the Minister where he quite rightly says this House should not be bound to the views of any given set of experts, whether it be the Bar Council, the Law Library, former members of the Judiciary even or the pre-legislative scrutiny of a committee of these Houses. It is ultimately, of course, for the Dáil to make a determination in respect of laws, but there has to be logic to it. The question I was asking the Minister was that all of these bodies are on one side saying this is a very bad idea, the Minister is on the other side saying he is moving ahead on this basis in line with his predecessor's intention, but he has not said on what basis he is doing that. The Minister has given some arguments but, frankly, I do not think any of them stack up. Generally speaking, a Minister will find someone, some entity or stakeholder, to say they think this is a good idea. Where did this come from? Does the Minister know what the origins of this was? Perhaps that would give us a little more clarity to understand. From my perspective, this is the pivotal part of the debate. If the Minister proceeds as he indicates, we will be opposing the Bill. It is as fundamental as that.

Sentiment score: 0.07

The fundamental concerns with section 5 are the same as those we had with section 4. I want to record my deep disappointment that the Minister could not be moved. When Committee Stage concludes and we proceed to Report Stage, the big question will be whether we have a Bill that has cross-party support and the full endorsement of the Oireachtas or a Bill that is contentious and divisive. Sinn Féin will be opposing this section.

Sentiment score: -0.01

Section 6 refers to the "harm to the reputation of the body corporate" in the context of a not-for-profit organisation. This section proposes limiting this to instances whereby publication "has caused, or is likely to cause, serious harm to the reputation of the body corporate." As I indicated earlier, there is a high standard and barrier in terms of defamation of an individual. This presents it at a much higher level for a body corporate. I refer to not-for-profit corporate bodies. The Minister will be aware that a lot of these groups do incredible and crucial work in our communities. Sports clubs, for example, can be reliant on the goodwill of their local communities for all manner of supports on a local level, in such instances where goodwill is at risk. I am concerned as to the scope of the definition of "serious harm". I am equally concerned that an incident whereby a single defamatory statement is not adjudicated to have caused serious harm, but forms part of a series of such statements over a period by different parties. Are we to say that comparable statements only become actionable if or when they are individually the straws that break the camel's back, despite the fact that serious harm may have been caused by successive compounded statements, even by different individuals? I have concerns about this. It seems to be an unjust approach and is potentially ripe for a lack of clarity as to what may or may not be defamatory. We have a different standard, essentially, for entities versus individuals. In terms of not-for-profit organisations at least, the current definition seems to be clearer and more practical. Will the Minister speak to the justification for the new section 12(2) inserted by section 6 and what he envisages will be the outworkings of this? I ask that in particular as I am not aware of any slew of cases from non-profits in terms of the definition. What problem are we seeking to actually solve by this? Is the Minister considering bringing forward amendments to this section on Report Stage?

Sentiment score: -0.11

Again, there are potential concerns here that are perhaps not envisaged in the Bill. We need to be incredibly careful. In terms of corporate profit-making entities, on the face of it, one would think that if a company has been defamed, one would automatically see an impact on profit margins or turnover. I am sure it would not take too much imagination to consider where there could be anomalies in that. Sometimes when talking about corporate entities, we think about big corporations but a corporate entity could be a local shop. We know in these cases that reputational damage can happen over a long period. One scenario might be that someone could defame a shop in a local town by spreading malicious rumours or printing something and while the shop would lose current customers, other customers would come in because of growth in the local population and the bottom line would not necessarily be affected. It is important to be mindful of that. As I say, I am much more concerned about the definition that is in place for not-for-profits because it is much harder then to define serious harm. For example, the Minister and I are members of political parties. Our parties of which we are members could fall under this criteria. If our parties were to be defamed, how would you prove serious harm? Would you come back after the next election and show a certain percentage drop in the vote or a lower percentage? How would you do that? That is why there is a need for a little bit of thought on this section. The Minister will appreciate that I am new to this Bill and following it so I was not through all the permutations in the pre-legislative scrutiny but it just struck me when I read this section for the first time that there are potential issues here. I would like the Minister to give his assurance that he has considered all of those potential issues and perhaps agree to have a look at this to ensure they do not become more contentious once the Bill is enacted, if it is to be the case we move forward on that basis.

Sentiment score: 0.07

One of the objectives of defamation law - it might not be stated in law - is that, at a time when there is so much mistrust about misinformation and disinformation, it should be a case that anybody who is publishing anything, particularly a professional media outlet, should not want to tell lies. The difficulty with this definition is that, for a for-profit entity, you can publish lies about it as long as it does not actually have a financial loss. There might be reasons for publishing lies or making defamatory remarks, even beyond media outlets, in the sense that while one company might not suffer a financial loss because of lies being told about it, another company might get a financial benefit from it, if the context in which that would happen can be understood. We know that a lot of media organisations in particular, let us call a spade a spade, have been very eager to ensure it is as difficult as possible for defamation cases to be taken. Of course, they are concerned about their own corporate future and their ability to be financially viable. It is not to dismiss those concerns at all. The right to a good name can be as equally valid for an entity as it is for an individual. We are moving to a point where, essentially, we now have three standards. We have the standard for what counts as defamation of individuals, which is a fairly high standard, in fairness. We have a standard for not-for-profit corporate entities and the definition of serious harm. I am not sure how that would be proven in that case. I could certainly see an area where that would be very contested, and I know members of the legal profession will probably be licking their lips at that prospect. We then have the third standard, which concerns for-profit entities, which is at least clear in what can be constituted in that there has to be a financial impact, but again, once there is no provable financial impact, you can essentially say what you like. I am not opposing this section of the Bill at this stage but I am raising serious concerns. This is one of the reasons Committee Stage is better in a committee room where we are able to thrash these things back and forward. There are particular concerns about this section but the Minister has given an assurance that he will look at this as we move on with the Bill. I encourage him to ensure that that happen and that there is a proper examination of the potential implications here.

Sentiment score: 0.10

The section relates to it being a defence to defamation to give a fair report of proceedings or judgments of courts in this State or in the North of our country. It extends this protection to the courts of any state, essentially. There is a certain practicality to this, particularly in the context of media essentially having become internationalised. I would appreciate it, however, if the Minister could speak to whether he believes that extending this to any state is practical or perhaps even fair and whether he has a fear that there is a risk that this would effectively lower the bar. Say, for example, a person fails in a defamation case that might be rightly taken in the United States. The United States has a much higher bar to get over in terms of defamation. Are we then to say that repeating those defamatory statements, which would have been considered to have been defamatory in the first place, in Ireland is to be facilitated because of that previous decision, if I am making the question clear? I appreciate what the Minister is trying to do in terms of being practical in a modern context but has he given consideration as to whether the appropriate response would effectively facilitate what may in fact be defamatory statements under Irish law because they were not found to be defamatory in another law? I would appreciate the Minister's thoughts on that.

Sentiment score: 0.31

May I speak-----

Sentiment score: 0.00

-----and perhaps Deputy Gannon will-----

Sentiment score: 0.00

-----be here later? SLAPP suits, which is I think what this section deals with, are of course an abhorrent attempt to place fear of financial ruin particularly on ordinary people or to scare off media outlets that might have a limited budget from taking part in either public life or public discourse. They have no place in a democracy. There cannot be selective prohibition of freedom of expression simply because there is a fear of a malign actor using defamation proceedings for that purpose where defamation has not taken place but there are deep pockets or sometimes strength. It is right and entirely appropriate that we should seek to address this and prohibit that. I do have a couple of slight concerns. I have seen definitions of SLAPPs being thrown around that are not definitions of SLAPPs. Some commentators suggest that, for example, any political representative who tries to clear his or her name through the court is engaged in a SLAPP. To suggest, for example, that a county councillor representing a south inner city area in the Minister's constituency who feels that their good name has been impinged and who goes to court is equivalent to a multibillionaire who can have any number of senior counsel bringing an organisation to court is just ludicrous. It actually undervalues just how important it is that we tackle the issue of SLAPPs. It goes back to the point I have made repeatedly. No media organisation - in fact, nobody - should tell lies, things that are not true, about others. In many respects, it is very different from everything else because the victim has to essentially prove his or her case in all these instances, and then there are others who will use the system that is there, and we know this. There have been some very high-profile cases where media outlets in this State have been afraid to publish what are facts, essentially, because they are afraid of the financial outworking of that due to powerful interventions. All these things have to be done. We have to get it right. On balance, for the most part, I think this section of the legislation does that, but I just make those points. I see Deputy Gannon coming in now. That will allow me to finish by saying that while the Bill seeks to address the issue of defamation laws being abused to make people fearful of public participation, abuse, even in terminology or through sloganeering, will not result in balanced defamation laws. In fact, it could tip the scales too far in the other direction and perhaps make people fearful of vindicating their own name, which would be the exact opposite of what we do.

Sentiment score: -0.07

May I speak about the amendment?

Sentiment score: 0.00

I fully support this amendment. It is restrictive in terms of allowing people to go through the Circuit Court to seek the identity of those behind online anonymous publications or posts. Social media in particular is one of the great advances of our time. The right to anonymity on social media can in many ways be positive and allows people to express themselves and engage in public participation and debate in a manner they may not be in a position to do otherwise. There are those, however, who use platforms such as social media under pseudonyms or anonymous accounts, sometimes claiming to represent an entire people or entire town or place and making scurrilous untrue claims and sometimes defamatory claims. If a post makes an aggressive or untrue statement about somebody else, that person should be entitled, through the courts, to find out who it is who made that statement. My only concern is the bar set for a judge to make a determination that there needs to be a belief that the case will be won. It is almost like hearing the case beforehand. Other than that, this is a step in the right direction. Perhaps the Minister will look at the criteria. It should be easier if somebody has been abused, lied about or defamed by an anonymous account to get the identity of the person or persons behind that account.

Sentiment score: 0.23

That is not agreed.

Sentiment score: -0.21

The Bill.

Sentiment score: 0.00

Committee Stage is not agreed. Is that in order?

Sentiment score: -0.10

I just wanted to let the Minister know the strength of my feelings.

Sentiment score: 0.49