I will say a few brief words. I am back, a Cheann Comhairle, from a lengthy sojourn in the Seanad, which I have to say was interesting and productive. I think I was in the Seanad for over 28 hours on Committee and Report Stages but it was a worthwhile engagement. As a result of the contributions from Senators in the House, I am coming here with five amendments to the legislation. Amendments Nos. 1 to 3, inclusive, are changes to section 11 of the Bill, which, as colleagues will know, were substantive changes to section 26 of the original Act. It was introduced on Report Stage in this House to amend section 26 of the 2009 Act by providing for a simpler and more concise defence of publication on a matter of public interest. Concerns were raised in Seanad Éireann that section 11 removed the important element of “fairness” from the defence of fair and reasonable publication. Amendments Nos. 1 to 3, inclusive, respond to those concerns. Amendment No. 3 places the concept of fairness front and centre of the defence and clarifies that in order to avail of the defence, the publication must be fair in all the circumstances of the case. It goes on to set out that this will only occur where the publication can objectively be considered in the public interest and where the publisher, acting in good faith, reasonably believed this to be the case having conducted appropriate checks and inquiries. Amendments Nos. 1 and 2 alter the title of the amended defence to make it clear that fairness is a key element of the defence. The amendments seek to balance the concerns expressed in the Seanad with concerns raised during the review of the 2009 Act that the application of an entirely separate test of fairness and reasonableness in the existing section 26 defence was overly complex. I recommend that the House accepts these three amendments.
Sentiment score: 0.29
I thank my three colleagues for their contributions. I also thank them for their support regarding the amendments that have been brought here from the Seanad. All three spoke about juries. I will deal with that matter presently. Before I do, I would not like people to think that the primary functions of this Bill are all to do with the abolition of High Court juries. There is much more to the Bill than that, as I am sure colleagues are aware. There are two areas that deserve recognition and attention. I will mention them briefly. They are the amendment to section 26 and the provision of a new defence for retailers. Third is the provision to enable someone to go to the Circuit Court to get an identification order against a social media company that has published information about them that is defamatory but where the identity of the person is hidden. These are significant developments that will assist individuals who have been defamed and who want to get access to the identity of those who have defamed them. Most defamation that takes place in Ireland, as I am sure my friends would agree, happens online by unidentified persons who defame people by means of social media platforms. At present, in order to establish the identity of the defamer, you have to go to the High Court to get a Norwich Pharmacal order to get the social media company to identify the person behind it. As a result of the provision being introduced here, there will now be a straightforward statutory procedure that will enable people to go before the Circuit Court. I think all colleagues will welcome that.
Sentiment score: 0.18
Section 26 has not operated in the way we wanted it to when it was enacted by the previous Oireachtas back in 2009. I think this will benefit it. What I am putting in will make sure it is fair, as well as reasonable. Regarding the retailers, there is a specific section that puts in place what was previously a form of qualified privilege where they had to stop somebody and ask them whether or not they had paid for goods in circumstances where they had not. What everyone wants to hear about is the abolition of juries in the High Court. I would point out that if you take a Circuit Court action for defamation, you do not get a jury. The principle in respect of juries is that, since 1988, they are increasingly being removed from civil actions. It used to be the case, in the early 1980s, that when someone had a personal injury action in Ireland, they had an entitlement to a jury. We got rid of that on the grounds of efficiency and to speed up the process. Unquestionably, it is the case that one of the advantages or consequences of not having a jury in a case is that the trial will be expedited, and we get a solution much faster. Deputy Kelly wants to know why it is that I did-----
Sentiment score: 0.20
I am going to tell him exactly that. I answered it here before. First, when you go into government, or if you are a member of a political party, as the Deputy knows, you sometimes have to go along with things you probably do not agree with.
Sentiment score: 0.05
The Deputy has to let me speak.
Sentiment score: 0.00
The Labour Party put forward a candidate in the last Presidential election. Deputy Kelly did not agree with it. He did not run off and resign from the Labour Party. He expressed his opinion and made it known but he got on with it and rowed in. That is one of the consequences of being a member of a political party, and more so, being a member of a government. It was a Government decision that was made in the programme for Government that the Defamation (Amendment) Bill, which was commenced before I became a Minister, would be progressed and enacted. That is why.
Sentiment score: 0.09
I am sorry. The Deputy asked about my conviction. It is not a point upon which I am prepared to die in a ditch.
Sentiment score: -0.18
It is not the most significant change that I am going to be introducing as a Minister, to be frank with the Deputy. When we look at it, it is removing juries from the High Court in defamation actions. There is no right. I was listening to Deputy Boyd Barrett, who very carefully used his language. I was waiting for him to say it is a right, and in fairness, he did not - he said it is a principle. It is not a right to have a jury in a civil action. It is a principle that had developed but which has gradually been removed on the grounds of efficiency. There is a basis upon which the Government wants to remove juries from defamation actions. There is an understandable basis as to why that is happening. What it will mean in practice is that people will have a greater awareness as to the likely award in a defamation action. If somebody defames Deputy Kelly, Deputy Boyd Barrett or Deputy Ward, and it is a bad defamation, and they go to a lawyer and ask what a court will award them, it is very difficult to advise them what will be awarded if they go before a High Court jury. It depends on what a jury will assess as being the appropriate value. I know that in the Higgins case, the Supreme Court set out what the values should be but from a jury's perspective, it is very hard to advise someone as to the potential liability. If somebody is being sued, it is hard to assess or tell them the potential pitfalls of the case. There are now to be judge-only determinations. I am aware there are negative consequences to that. There will be positive consequences but, of course, there will be negative consequences as well. However, if there is judge-made law in respect of this area, we will see greater consistency and a greater ability to determine what is the likelihood of an award. It is the case, by the way, that in the Circuit Court people can get damages of up to €65,000 or €75,000 in a defamation case. A lot of people go for defamation cases in the Circuit Court, mainly because it is more predictable. There is uncertainty if someone goes before a jury of 12 because they do not really know what the outcome is going to be. A point that has been made is that there is certainly a very strong authority to a jury award, and they are very hard to overturn. What we are going to find now is that there will be a lot of recorded and reserved judgments in defamation actions. If we look through the law reports at present, we will not find High Court decisions on defamation actions in general. They are all, like criminal cases, determinations by a jury, so we just see the award of the jury report in a newspaper. Sometimes, we will see an assessment of a defamation case if it goes to appeal. From now on, however, we will see a body of law being developed, and written judgments by judges setting out why the plaintiff was entitled to €100,000, or whatever the sum is, for being defamed. It will develop a body of law which, in itself, I would have thought is a positive development, as opposed to the unpredictability. To come back to the Deputy’s point, the reason I have changed my mind-----
Sentiment score: 0.10
The reason I am here advocating this is that politics, as Deputy Kelly well knows, is about compromise. Deputy Boyd Barrett said at the outset that there are disadvantages to being in a smaller party. That is true because you cannot cover everything. However, there are some great advantages to being in a small party, and there are some real advantages to being an Independent - you never have to compromise. They are the answers. I know the Deputies will not accept them but I thank them for supporting the amendments.
Sentiment score: 0.39
Amendments Nos. 4 and 5 amend section 13 of the Bill, which introduces a defence for broadcasters where a defamatory statement is made during a live broadcast, where the broadcaster can demonstrate that it took reasonable and prudent steps to prevent the publication of such a statement. Amendment No. 4 addresses a concern raised in the Seanad as to whether the defence would apply in circumstances where there is a brief delay in transmission of the broadcast. It is not the intention that a short delay in transmission in itself would mean that a broadcaster could not rely on the defence. Amendment No. 4 therefore, provides that for the avoidance of doubt the defence shall not fail by reason only of the live programme concerned having been broadcast with a minimal delay. Amendment No. 5 is a consequential amendment which renumbers the existing subsection (3) of the proposed live broadcast defence. I recommend these amendments to the House.
Sentiment score: -0.13