I welcome the Minister, Deputy O'Callaghan. Before we commence, I remind Senators that a Senator may speak only once on Report Stage except the proposer of an amendment, who may reply to the discussion on the amendment. On Report Stage, each amendment must be seconded.

Amendments Nos. 1 and 2 are related; amendment No. 2 is consequential on amendment No. 1; and Nos. 1 and 2 may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 1:

In page 6, between lines 28 and 29, to insert the following:

“(2) A party to a defamation action in the High Court may apply to the President of the High Court for an order permitting the trial of the action with a jury in any or all of the following circumstances:

(a) that by reason of the exceptional nature of the case or the identity of one or more of the parties in the case, it is preferable that it should be tried with a jury, or

(b) that the claim or counterclaim in the proceedings includes other issues triable in the High Court with a jury and that the interests of justice would be served by the trial of the claim in defamation with a jury.

(3) Where a trial with a jury is ordered under subsection (2), the jury shall not decide the amount of any damages to be awarded for defamation but shall be entitled by its verdict to decide whether aggravated or exemplary damages be awarded.

(4) In any case to which subsection (3) applies, the trial judge shall determine the amount of any damages, including any aggravated or exemplary damages, to which a party is found to be entitled by the jury.”.

Is there someone to second it?

I am waiting on Senator Craughwell to appear.

I will second the amendment.

This is an amendment to soften the absolute abolition of jury trial and to give to the President of the High Court an overriding jurisdiction where, by reason of the exceptional nature of the case or the identity of one or more of the parties in the case, it is it is preferable that it should be tried with a jury or that the claim or counterclaim in the proceedings includes other issues triable in the High Court with a jury and that the interests of justice would be served by the trial of the claim in defamation with a jury. That is a very narrow proposal to soften the absolute nature of the Minister’s proposed reform. To soften it further, subsection (4) provides that in any case to which subsection (3) applies, it is for the trial judge to determine the amount of any damages, including any aggravated or exemplary damages to which the jury has found the plaintiff is entitled.

The amendment speaks for itself. I understand the Minister’s position and I do not propose to rehearse all the arguments at length but I do believe – and I saying it now; mark my words – there will be a time when a defamation case of sufficient public importance comes before the High Court where one side or the other loses on the basis that they are disbelieved by a High Court judge, presumably with a written decision, and it may give rise to very significant political controversy thereafter. That is my worry. I am not talking about the Albert Reynolds decision but I am talking about cases where the public would accept and be happier with a jury determination of the fact of defamation one way or another and the credibility of the parties rather than a single judge. It did occur to me that maybe in such cases the President of the High Court would appoint a divisional court to decide a controversial case of that kind. Maybe that is a way around it to some extent but I do believe there will be a time – it will certainly come – where a highly controversial black-and-white acceptance of whether something was or was not the case of a highly important case from the point of view of the public occurs. Take the Australian case of whether a leading cleric did or did not abuse a mass server. People will look at the outcome and they will ask themselves was it the particular judge’s prejudices that affected the matter and was it a case that would have been better determined by 12 uninterested and independent people on a matter of such sensitivity.

Amendment No. 2, which Senator Conway will second, simply deals with the consequences of making amendment No. 1. I will not delay the House any further. We have discussed this issue at length but I think it is an important point. I believe it is wrong to exclude from the judicial system determination of very important facts by a jury especially when the actual outcome of the case could have dramatic political and social consequences. It is for that reason that it is a mistake on a blanket basis to abolish all jury trials in defamation cases.

I make the point that there are cases where defamation is coupled with, say, claims in assault or trespass. In those cases, it seems to me to be artificial that a jury would arrive at one view on the assault to which a plaintiff is entitled, including a sexual assault, but a collateral issue in the same case as to whether there was a defamation related to the other charge would be decided by the judge. It seems to me that if a court sits to determine the outcome of litigation, it should be either all jury or all non-jury. Where there is a mix, which there will be under the Minister’s amendment, of issues triable by a jury and triable without a jury it will not serve any useful purpose. Supposing in a sexual assault case the jury finds there was a sexual assault, is the judge going to determine the defamation issue separate from the jury’s view, I wonder?

I will leave it at that.

I thank Senators McDowell and Craughwell for this amendment. It very much reflects one of the amendments that was put down by the Senators on Committee Stage in this House. The objective of it is to try, as Senator McDowell said, to soften the removal of juries from defamation claims by granting a jurisdiction to the High Court to permit a jury action in certain instances.

Notwithstanding having listened very closely to Senator McDowell, I am concerned about the amendment and I cannot support it. I will explain why. Senators McDowell and Craughwell are proposing that a party to a defamation action would be able to make an application to the President of the High Court that the President of the High Court, in accordance with subsection (2)(a), would be able to state and rule that it is preferable that the case should be tried with a jury because of the exceptional nature of the case or the identity of one or more of the parties in the case. I would be extremely concerned that the President of the High Court, when asked to interpret that, will be asked from whose point of view it is preferable. I could understand why a plaintive in a case may want a jury in a particular High Court action and, no doubt, from the point of view of that plaintive, it would be preferable. However, similarly, the defendant may contend that it is not preferable from his or her point of view for there to be a jury hearing the case. I would be concerned that the language used in paragraph (a), when it uses the term "preferable", would be very difficult for a court to determine and apply. The court will ask itself what the Oireachtas means by stating it is preferable that a case should be tried with a jury. In many instances, that preference has to be based on the preference of one of the parties. It cannot just be whether it is preferable from the point of view of justice.

However, in paragraph (b), in fairness to Senators McDowell and Craughwell, it is said that the claim could be determined to be one to be heard by a jury because "the interests of justice would be served by the trial of the claim in defamation with a jury." Again, the court will be asked to determine whether it is in the interests of justice for a case to be heard with a jury. Every day of the week, judges down in the civil courts hear civil actions on their own, without a jury. These include negligence actions, breach of contract actions and, indeed, defamation actions in the Circuit Court. It is the case that the people and parties to those proceedings are having a fair trial. The administration of justice is working effectively for them.

Senator McDowell predicted that, in the future, there may be a lack of public acceptance about a defamation result. That may be correct. It may be that if somebody loses a defamation action in the future, they will say they are confident that if they had had a jury, they would have won. However, I still think there is very good respect and appreciation for the orders made by the High Court, whether it sits with or without a jury. We have seen some very significant decisions in recent times emanating from the High Court which have involved assessing the truthfulness of witnesses before the court. Judges hearing those cases can be very scathing and definitive in judgments in stating that they do not believe a particular witness or that they do not believe a litigant. That has very significant consequences for the individuals concerned, but that is the administration of justice. Whether it is a jury or a judge reaching that determination, there is a respect for decisions of the High Court when they are made by a High Court judge or by a jury.

One of the other points made by Senator McDowell - and he was correct - was that we could now have the situation where an assault action will continue to be heard by a jury but a defamation action will now be heard without a jury. That situation happens at present quite significantly and quite frequently. The type of causes of action that are generally heard together with defamation are defamation and breach of privacy. A breach of privacy action, as Senator McDowell will know, does not give rise to an entitlement for the case to be heard by a jury. In general, what happens is that the plaintive can opt to have the defamation case and the privacy case heard in front of a judge. That has happened on many occasions in the past. There have been judgments of the High Court finding in favour of a plaintive in defamation actions where there has been no jury and these have been fully respected. Nobody has sought to undermine them because there has not been a jury. What alternatively happens is that the defamation part is heard by the judge and the jury, and then the jury is discharged and the privacy action continues with the judge alone. It might seem unusual but it can operate relatively efficiently.

Senator McDowell will be aware of the policy decision that was made in the programme for Government that we would remove juries from defamation actions. We can have discussions for a long time as to the merits or demerits of that. I have no doubt that people will be able to identify a list of merits and a list of demerits. However, I am absolutely satisfied - and I would not stand over this provision if this was not the case - that any litigant before the court, if this legislation is enacted, will still get access to the administration of justice on a fair, impartial and effective basis whether there is a jury or no jury.

I acknowledge representatives of the Ballincollig Business Association who were in the Visitors Gallery up to a few moments ago. They left when the Minister was speaking. They were guests of our colleague, Senator Kelleher, and were also accompanied by Councillor Sarah Kiely.

One of the points collateral to the point I made earlier, and I ask the Minister to bear it in mind, is that if the choirboy sues the bishop for sexual abuse, the choirboy is entitled to a jury. However, if a relative of the choirboy, or a newspaper, says the bishop sexually assaulted the choirboy, there is no jury and, effectively, the evidence in both cases would be the same. If we trust a jury to decide in the case of a sexual assault where the truth lies, I cannot see why we say, because the parties are slightly different and it is the parent of the choirboy who made the remark that the bishop assaulted his son sexually in the sacristy, or whatever it is, along the model of the Australian case, or if a newspaper says there is overwhelming evidence that the bishop assaulted the choirboy sexually, these cases should be tried in wholly different manners.

I am not in favour of abolishing juries in cases of assault, trespass to the person and malicious falsehood at all. However, it is very strange that we are reforming the law to say that the same evidence is effectively to be tried, tested and adjudicated on by a jury in one case and, in another, it is to be done by a judge alone.

The Minister will say that we have respect for our Judiciary. I accept that we respect members of the Judiciary and we should not attack them gratuitously. However, there are, and always have been, judges who were soft in personal injuries matters. There are, and always have been, cases, as the Minister well knows, where the amount of a personal injuries offer shoots up when a particular judge is selected to try the case. To say somehow that judges will arrive at the same view as a jury is a little bit detached from the day-to-day realities encountered, particularly by those in the courts.

I say that without any rancour towards the Judiciary or any particular member of the it. Nobody who is a practitioner of law would contradict what I have just said.

I will not spend any more time on this amendment. It is important that there should be capacity to determine - in the context of the exceptional nature of a case, not as a rule - that a jury would be more appropriate and preferable. The Minister cavils with the term "preferable". Maybe one party would prefer a jury, but the reason we selected the President of the High Court in our amendment was that when you are setting down a matter for trial, you would not know what judge you are going to get. It would be a random enough exercise. If, at that stage, you have to ask the president's permission to put a case before a jury due to its exceptional nature, the identity of the parties or the nature of the issues involved, you do not know which judge of the High Court is going appear some time later when the notice of trial of the case is put into effect and the trial happens. You do not know whether you are selecting judge A or judge B when you go to the President and ask for a jury trial. It is not as if it is forum shopping in order to avoid particular judges. The purpose of it is to allow for exceptional cases.

In my experience, the public accepts jury verdicts unquestioningly. If a jury says that it thinks witness A was untruthful or whatever, that is it. Twelve people, nine out of those 12 or whatever came to that conclusion. The acceptance of jury verdicts in such cases is extremely high. There may have been instances where people thought that juries in defamation cases got the fundamental facts wrong, but I have never seen that. If that process is adjudicated on by a judge, the unhappy media will immediately say "This is the third time that that judge has flung out a case against this particular newspaper or that particular broadcaster." They will personalise it. There will be profiles of the judge published by dissatisfied litigants. That is the point I am making.

It was in order to avoid what the proponents of the abolition of juries spent most of their time arguing, which was that the quantification of damages was erratic and unpredictable, that subsection (4) was inserted to leave it to a judge to determine damages, aggravated damages and exemplary damages in accordance with the finding of the jury. I will not put it any further than that.

In his rebuttal of my colleague's original argument, the Minister seemed to suggest that it would only be plaintiffs who would look for a jury. I can think of many reasons why a defendant in a case might look for a jury trial. I just wanted to put that in for what it is worth.

I wish to signal my strong support for this amendment. In particular, I point to the core wisdom in the proposed subsection (3) within the amendment, which is that if a matter is so serious that were it to be prosecuted by the State, the defendant or accused would be entitled to the protection of a trial by jury. That is what a trial by jury is; it is a form of protection. There is a reason why it is there as a right. If something that the State would seek to prosecute merits that level of protection, it seems that it is eminently reasonable that if somebody seeks to defend their good name against a grave accusation made by any party, they are similarly entitled to the protection of a jury trial.

I move amendment No. 3:

"In page 7, to delete lines 29 to 32."

I second the amendment.

This amendment proposes to delete lines 29 to 32 on page 7. The intention is to remove the rule that "the reputation of a body corporate that trades for profit shall not be considered to be serious harm ... unless it has caused, or is likely to cause, the body corporate serious financial loss.". I do not like that particular change for the reason that if we take the view that a body corporate - for example, a charity like Trócaire - has a reputation, we are introducing a different standard of treatment for a body which is ostensibly charitable from that which applies to a commercial enterprise. We discussed McDowell Butchers in this regard on Committee Stage. In the context of the entitlement of the Peter McVerry Trust versus that of a company, for example, a restaurant, whose reputation has been seriously affected by an untrue statement made about it, I do not believe the latter should be in a position whereby such a statement has "caused, or is likely to cause, the body corporate serious financial loss." I do not see why it is the case that one such body can sue because it is not trading for profit but the other has to engage in the highly speculative, evidential exercise of establishing that the statement which was made about it either caused or is likely to cause it serious financial loss.

To seriously defame with malice a company, perhaps a competitor, and to say, "Well, you have not proved it has actually damaged you at all, so you cannot sue," but Trócaire, the Peter McVerry Trust and whatever else can sue in such circumstances is unfair to bodies which are in good faith attempting to defend their reputation from malicious defamation. I do not see why it is necessary to introduce this extra ingredient into the question of serious harm if we are being fair as between bodies corporate.

As the Senator has said, my concern is when we enter litigation, we never know the outcome. The serious damage that may not be envisaged by this legislation may actually occur not immediately after the court case, but some time into the future and it is very hard to imagine where that is so. It would be up to the lawyers on behalf of a corporate body to try to ensure any long-term effect to the institution be taken care of in any litigation which takes place.

That is just my layman's view on it. My colleague, Senator McDowell, and the Minister, Deputy O'Callaghan, are lawyers and would have a better grip on that but that is my view on it as it stands.

I will start by saying to Senator Craughwell that just because I was and Senator McDowell is a lawyer, that does not give us any greater authority to speak on these matters or to play the role of legislator.

With regard to the proposed amendment, it deals with the serious harm test that has been introduced for the corporate claimant in defamation proceedings. The Leas-Chathaoirleach may recall that in England and Wales there is a requirement, whether you are a corporate entity or a personal litigant, that you have to be able to establish serious harm in terms of bringing a defamation action. I did not go down that route in this country. I thought it would be inappropriate to do so and the process would simply prolong the defamation proceedings because we would have many interlocutory hearings after proceedings are issued, to determine whether or not serious harm had been done should the defamation case succeed.

However, it is appropriate that when it comes to a corporate plaintiff, there should be a requirement that the corporate plaintiff would not be able to recover in defamation unless it can establish the defamatory statement caused serious harm to its reputation. Corporate entities are different from personal litigants. Let us say a person makes a false, damaging and defamatory statement about a very large, well-known airline, suggesting it is dangerous or unreliable. If that airline has not been affected by the defamatory statement, there is a logic then to stating we should not give the airline a cause of action because it has to be able to establish it was damaged by the statement. A person taking an action for defamation has to be able to show they were damaged by the defamatory statement. The way they do that is by calling evidence or, if it is obvious by the defamatory statement if somebody accuses another person of something extremely serious and it is associated with that individual person, of course, the court would then be able to determine that has had a damaging impact on them. In respect of a corporate entity and corporate plaintiff, it should be necessary to show serious harm was caused to them as a result of the defamatory statement.

The part of the section Senator McDowell wishes to remove in this amendment is paragraph (3). It states: "Harm to the reputation of a body corporate that trades for profit shall not be considered to be serious harm ... unless it has cause ... serious financial loss.” That section distinguishes the charitable organisation Senator McDowell referred to, such as Trócaire, and the not-for-profit company, from the for-profit company. If you are a not-for-profit company or a charity such as Trócaire, as Senator McDowell referred to, you will not have to show financial loss. However, if you are a corporate, for-profit entity, you will have to establish that you suffered financial loss as a result of the defamatory statement. Otherwise, there is no damage done to you.

Damage to a for-profit company is determined by looking at its accounts to see if there was financial damage caused to the company. Obviously, in that case, one has to be able to link it, on the balance of probabilities, to the publication of the defamatory statement. That is a reasonable approach. Removal of paragraph (3) of what will be the new section 12 of defamation of a body corporate would be against the interests of justice. It is appropriate there is a requirement that if for-profit companies have to be able to show they sustained financial loss in order to succeed in a defamation action.

I welcome Deputy Conor D. McGuinness and Meánscoil San Nioclás from An Rinn, i gContae Phort Láirge. They are very welcome and I hope they enjoy their visit to Leinster House.

If I may contribute on this point, I understand that many of the claims made for this legislation were that it was addressing strategic lawsuits against public participation. I suppose there is an underlying desire to prevent the ability of companies to take defamation actions to impinge excessively on people's freedom to communicate ideas. However, is serious financial loss the only serious harm one can do to a body corporate that trades for profit?

If I was a restaurant owner in Salthill and somebody in a local newspaper or wherever said something malicious and false about the restaurant, it might or might not cause me what is called serious financial loss, depending on how well set up I am as a business. It could hurt the reputation of the business around town. It might not cause serious financial loss but it would be deeply unfair and wrong that a person or entity could just go around speaking untruths of a kind, perhaps about the company's financial management practices, industrial relations attitude or the treatment of its staff and so on. It may be a relatively small company that is successful enough to withstand the financial consequences of malicious and adverse false comment, but there would still be damage. There would be damage to the company's identity, its sense of itself, its reputation around town and so on.

Can the Minister conceive of circumstances like that, where it might not be serious financial loss but it is wrong? What protection should there be against people who maliciously make false statements about, for example, a small business in the situation I have described?

Briefly, in reply, I have two things to say. I believe the defence of this particular provision put forward by the Minister is very weak. I will give him the following examples. It fails completely to distinguish between the personal proprietor of the restaurant Senator Mullen referred to, and the fact his family business has been incorporated as a shareholding with his wife. It fails completely and arbitrarily to deal with that situation, which I find wrong.

Second, there is no explanation as to where this particular provision came from. If the newspapers and their lobbyists cooked this one up I do not see what point they were trying to make. I will give a topical example. If Elon Musk, as a follow-on from his row with Michael O’Leary - who at least pays tax in Ireland - announced that the safety standards in Ryanair were so low that you would be mad to use their flights – and said that maliciously – does Ryanair have to prove that Musk’s accusation of low safety standards is likely to cause it financial loss? How can it prove it? It is out there. We know Mr. Musk accused the man who was devising the method for saving the Thai footballers who were stuck in a cave due to a flood of being a paedophile because he had the bad taste to query whether a submarine that Musk claimed he would invent to rescue them would be effective. Where you have somebody like him making an accusation against Aer Lingus or Ryanair saying their safety standards are such that nobody in their right mind should fly with them, are they free to do that? Are they free to just fling any dirt they like or are commercial competitors who see a company growing fast in a position to fling any untruth that occurs to them into the public domain without consequence because the company to which they are referring is doing very well, thank you? Why should a small company which owns a business with two shareholders in a family be in a different position from a single self-employed person providing the same service across the road if he or she is defamed? I do not see the logic of this. I do not know who the Minister thinks he is doing a favour for by introducing this particular measure. I really cannot see why such a distinction should be made in law. If you defame a business that is owned by a company deliberately, why should that company not make you answerable and ask from where did you get that data that was published that it was three times as dangerous to fly with one airline rather than another? I do not understand it and I do not understand it in the much smaller example that Senator Mullen referred to as a restaurateur in Salthill in Galway being in a wholly different position from a competing restaurant down the road which happens to be run by a business and that a charge can be made against the individual running one company that he is serving unsafe food but not against the other because there has to be immunity from suit in the absence of actual proof of the likelihood of financial loss or the actual fact of financial loss.

If you are a restaurateur and somebody says that you are serving substandard food or you are purloining the tips of your staff with complete impunity based on the proposition that the restaurant in the circumstances has not actually suffered, its reputation is nonetheless extremely compromised by giving a licence to people to say those kinds of things and, as I say, where we have identical businesses being carried on by natural persons as opposed to bodies corporate to have a different set of remedies for one rather than the other seems to me to be wholly wrong.

The last point I will make is this. The Minister, on Committee Stage, revealed that the Attorney General’s office had expressed concerns about the serious harm test applying to individuals. If there is a constitutional issue there - which I think is fanciful, to be charitable to that office - there is a constitutional issue too for the two shareholders in a company who are being told that they must prove serious harm and that it must be financial in nature rather than reputational. I will not push the point any further than that.

As a tenuous adjunct to the business of serious harm, I suggest that if Elon Musk was recommending that we should not fly with a particular airline that was dodgy from the safety point of view, I would venture to suggest that a great many people in this country would be recommending that airline to Elon Musk.

Amendment No. 4 has been ruled out of order.

I fully accept the ruling of the Chair on that but I do say it is strange that the report of a parole board in this State carries privilege but one in Northern Ireland or the island of Britain does not carry such protections.

I move amendment No. 5:

In page 8, line 26, before “an inquiry” to insert “a statement or”.

This is an amendment that I genuinely believe the Minister should take on board. The defence being offered on page 8 to shopkeepers by the new section 8, amending section 18 of the principal Act, says the protection offered by that section is restricted to an inquiry as to whether the person who made the statement had paid for the goods or services or obtained services or had in his possession goods, proof of payment for services or a statement that the means of payment proffered by the person with the statement concerned was unable to be or not capable of being accepted and was not published excessively. In the real world, people may not just make a polite inquiry. They may say “That has not been paid for”. A shopkeeper may do that.

They are in a different position. They cannot avail of this statutory amendment to the law of qualified privilege. I consider that it should be that the statement consists of a statement as to whether the person whom the statement concerned had paid for goods or services. In the real world, to say "That has not been paid for" is effectively the same as "Have you paid for that?", in front of other customers. Store detectives, staff and the like who see somebody go back to a shelf and substitute goods into a basket or whatever may say, "That has not been paid for." I cannot understand why the Minister has restricted this provision to a situation where only an inquiry is made as to whether the person paid for it. I cannot see any useful purpose of confining it to that because in the real world, people in shops will, in fact, say frequently, "That has not been paid for." I fully accept that they may be entitled to general protection on the basis that it was qualified privilege on a different front but insofar as the Minister is now saying that he is coming to the aid of beleaguered shopkeepers, to confine the defamatory statement to one which constitutes an inquiry is unnecessarily narrow and the word "inquiry" should be "statement".

I second the amendment.

This is the first time I have done Report Stage amendments in Seanad Éireann and I had not been aware that I am only allowed speak once. I apologise to the Senators for the fact that some very interesting points have been raised in respect of the previous amendment and I did not get an opportunity to respond to them. Without wishing to give officials in my Department a minor heartache, I will briefly refer to one of the points that Senator Mullen referred to on the previous amendment. If there was a restaurant, called "Mullen's Restaurant", in Galway and Senator Mullen was the front-of-house owner, obviously he personally would also have an action in defamation if it was the case that the defamatory statement had been made about the restaurant suggesting that either the food was rotten or there were financial irregularities in respect of the staff there. Just because there is a corporate entity involved does not mean that a personal litigant, who is a director and associated with that company, does not have a cause of action in defamation.

I will now proceed to deal with Senator McDowell's amendment No. 5. This is a proposed amendment in respect of a very strong protection that will now be in the Defamation Bill, if enacted, for the benefit of retailers. I will read out to the House what the section of the principal Act will be at present and then look at it with Senator McDowell's amendment. It will contain, within subsection (1A) of section 18, the following:

... it shall be a defence to a defamation action for the defendant to prove that the statement to which the action relates—

(a) consisted of—

(i) an inquiry as to whether the person whom the statement concerned had—

(I) paid for goods or services,

Senator McDowell's proposed amendment is that it should instead read:

... it shall be a defence to a defamation action for the defendant to prove that the statement to which the action relates—

(a) consisted of—

(i) a statement or an inquiry as to whether the person whom the statement concerned had ...

My own view is that there is no necessity to shoehorn in at the beginning of subparagraph (i) that extra reference to "a statement".

Senator McDowell is adopting a very strict literal interpretation of the meaning of the word "inquiry". However, when a court comes to interpret this, it will know that there is a statement that was made by the shop owner. The statement is presented and pleaded by the shopper as being defamatory and they will set out what the defamatory statement is, but whether the statement is "Have you paid for that?" or if it is the statement, as Senator McDowell says, "That has not been paid for", they are both clearly inquiries of the person in respect of whether the goods or services have been paid for and they clearly cover the circumstances where a retailer is entitled to challenge an individual by saying to him or her, "That has not been paid for", "Has it been paid for?", "I do not think you have paid for that". All of those clearly come within the definition of an inquiry as to whether the person whom the statement concerned had paid for the goods. The publication by the retailer is a statement - of that there is no doubt - but it must consist of an inquiry as to whether the person whom the statement concerned had paid for the goods.

It is unnecessary to put in another reference to the word "statement" and the provision, as provided for at present, is broad enough to cover what Senator McDowell refers to as "a statement" as opposed to a question. It would be a bizarre interpretation if a court were to turn around and say that the retailer only had the protection if they asked a question and that their statement had to be interrogative, otherwise it was not protected. That is clearly not the intention of the Oireachtas in putting forward this legislation. What I say here is meaningless when it comes to judicial interpretation but the provision here is clearer the way it is as opposed to putting in what Senator McDowell suggests.

The Minister correctly concedes that what he says here is not in any sense looked to by the courts as to what the section actually means but in my view it is not an overly strict interpretation of the word that the statement consists of an inquiry to say that it must be interrogative in nature. We will only find out whether the Minister is right that it is the case that judges will say they will expand the meaning of the term to cover statements and inquiries when a case is actually decided in the Circuit Court one afternoon in Galway. On the ordinary canons of construction, the ordinary and natural meaning of words fall to be interpreted as the intention of the Oireachtas, not what I say here and not what the Minister says here in debating this particular amendment. I believe that it would be a more reasonable proposition to say that the statement must consist of a statement or an inquiry, because an inquiry is not a statement. If you say, "Did you pay for this?", that is not a statement. If I say, "Did you pay for something?", it is not a statement.

It is a statement.

It is not a proposition of fact; it is a question. It is wrong to confine the protection to shopkeepers to inquiries when it could be so simply changed to accede to the amendment proposed by me and Senator Craughwell.

Amendment No. 6 is a Government amendment.

I thank the Leas-Chathaoirleach. Obviously I listened very carefully to what Senators said on the last occasion. I am aware we are very much focused on certain legislative provisions within the amending Bill but if it is enacted by the Houses and promulgated by the President, there will be two parts of it that will stand out as being changes of significance, or maybe three. The first will be the Norwich Pharmacal provision being put on a statutory basis, which is a very significant development. Second, I have to concede that the removal of juries from High Court actions is a significant part. The third such part is the amendment of what is section 26 of the Defamation Act, which will be seen as a very significant change to the legislation. Section 26 has been a problematic provision, in that I am unaware of any occasion it has been operated or successfully invoked. If that is the case and it has been in place for 15 to 16 years, that must raise a question of why it has not been.

My amendments are based on the amendments put forward by Senator McDowell, predominantly, and others on Committee Stage. It is a notable change that the reference to "fair publication" on a matter of public interest was not included in the Bill I got through the Dáil and brought here. In light of that I am proposing three amendments, namely, amendments Nos. 6 to 8, inclusive. The first proposed change is to the subheading of section 26. I had in the original Bill that the heading would be "Publication on matter of public interest". I agree with the Senators who suggested the word "fair" should be included, so if this amendment is agreed it will now refer to "Fair publication on matter of public interest". Should amendment No. 7 be agreed, the first line of subsection (1) of section 26 will read "It shall be a defence (to be known as the 'defence of fair publication on a matter of public interest')". Should amendment No. 8 be agreed then later in that subsection the Bill will provide:

It shall be a defence ... to a defamation action for the defendant to prove that the publication was fair in all the circumstances of the case—

(a) the statement in respect of which the action was brought was on a matter of public interest,

My experience of statutes being interpreted by the courts is the court will pay very close attention to what the general objective of the Oireachtas is as is evident from the words used in the statutory provision. That is the test set down by the Supreme Court in Heather Hill. The court will look at the words. The words are the best example when trying to decipher what the intention of the Oireachtas is. By including the words "fair publication" in section 26, in light of what Senators suggested, I think we will convey to a court interpreting that section the publication has to be fair in all the circumstances of the case. I was concerned, having listened to Senators on the last occasion, that the removal of the word "fair" could convey a meaning to a court interpreting the matter that fairness was not really a central issue when it came to the defence of fair publication on a matter of public interest. There has to be fairness at the heart of it. That fairness has to be to the plaintiff as well as to the defendant and the amendments I am proposing will give that general, broad interpretation and the courts will apply an interpretation that recognises there has to be fairness in this publication. In general, when a court is interpreting a provision like this it adopts a broad approach to what the intention was here and the inclusion of the word "fair" I propose in these amendments will convey to a court this defence cannot succeed unless there is a fairness in what was done. If something was done in an underhand or unfair way that damaged the interests of a plaintiff then in those circumstances, I do not think the court will permit a section 26 to apply.

I never got the agreement of the House that amendments Nos. 6 to 8, inclusive, which are related may be discussed together. Is that agreed? Agreed.

I also want to move that the section be recommitted. This is not to delay proceedings but there are some questions I want to put to the Minister and I ask under Standing Orders that the section be recommitted. It will not lengthen the proceedings.

In accordance with Standing Order 168, I invite Senator McDowell to move the motion.

I move: "That the Bill be recommitted in respect of section 11."

It is not agreed.

We will have a vote on that then, which is a waste of time. I am being asked to group these amendments together and usually a speaker, under Standing Orders, is given the opportunity to say why it is necessary to do so and anybody else who says they disagree is given the opportunity to say why it should not be done, so I do not think it can simply be done in the matter Senator Gallagher has done. If he wants to say why I should not ask some questions about the meaning of this section that is proposed to be changed, he has to justify his case according to the Standing Orders. All I am trying to do is put questions to the Minister. It will all be over in a quarter of an hour one way or the other.

A Leas-Chathaoirleach, I am happy to withdraw.

Okay. Senator McDowell may go ahead.

I welcome that the Minister has moved in relation to this issue and that the somewhat sterile language this Bill arrived in the House with has been tempered by a wise decision by him to introduce an overall requirement of fairness in respect of publications on matters of public interest. I am grateful to the Minister for doing that and will support his amendment to retitle the section and insert the words he wishes to. Amendments Nos. 9 to 11, inclusive, in the names of Senators Craughwell and I are intended to-----

I am sorry, Senator McDowell, but we are dealing with amendments Nos. 6 to 8, inclusive, if that is okay.

If we are only stuck on that then I am happy. The amendments should be made.

I move amendment No. 9:

In page 10, to delete lines 10 to 12 and substitute the following:

"(b) the defendant reasonably believed that publishing the statement was in the public interest,

(c) the statement was published in good faith, and

(d) the publication of the statement was fair having regard to the rights of the plaintiff including the right to his or her good name.".

Amendment No. 9 gives the court guidance, in paragraph (d), as to what we mean by "fair" - that it is "fair having regard to the plaintiff including the right to his or her good name." That is an important provision to remind the court that, in this context, the plaintiff's good name has to be protected and the concept of fairness is qualified, not merely by the overall meaning of the term "fair" but by the right of the plaintiff to his or her good name, which every plaintiff starts with in a defamation action.

Amendment No. 10 is to facilitate amendment No. 9.

In relation to amendment No. 11, I remind the Minister of the following. Although he may not love the original section 26, it is not sufficient to say it was not successfully invoked in reported case law. Undoubtedly, it would have had an effect on opinions received by the media, in particular, as to whether they could or could not publish certain matters. It was guidance to the media as to what tests they had to abide by to avail of the original section 26 defence. Amendment No. 11 states, and I passionately believe, that:

Failure or refusal by a plaintiff to respond to any attempt by the defendant to elicit a response to a statement proposed to be published by or with the involvement of the defendant shall not—

(a) constitute or imply consent to the publication of the statement, or

(b) entitle a court to draw any inference therefrom adverse to the plaintiff.

The reason we tabled the amendment is to make the point clearly that when considering fairness, there is a notion a reporter can ring you up on a Friday and say, "In our Sunday edition, we propose saying X about you." That transaction should not in any way prejudice somebody told by his own solicitor not to respond to it under any circumstances. These things happen in emails. A reporter will write: "We propose to write the following about you on Sunday; your response would be appreciated." The problem with all of that is that if you respond and say it is untrue, the newspaper can then say, "Senator Craughwell denied the allegation which was made against him". That is one headline - "Craughwell Denies Story". If someone is advised by a solicitor, a close relative or whoever it may be that, under no circumstances, should they give life to that story and they should say absolutely nothing and let them publish and be damned, there should be no adverse implication for somebody who takes that advice. If that happens to you, you should be entitled simply not to reply to the email.

The newspaper may be free to say an allegation has been made against Senator Craughwell but it has to show it was fair to publish that in the circumstance. Saying it gave the Senator a chance to deny it and have "Craughwell denies" X allegation or Y allegation is no defence of his good name. He is on the front page of a newspaper, whereas if he keeps shtum, says nothing and the newspaper publishes, naming him in the manner proposed in the email it sent him, it knows full well that it will have caused people in the community to think the worse of the Senator because of the defamatory nature of the allegation it carries.

It is essential that this provision, which was mirrored in section 26 of the existing law, should be repeated now in the context of what is or is not fair. First, it does not imply consent to the publication of the defamatory statement. Second, a court, that is, a judge, confronted with the fact that the plaintiff refused to answer the question put in an email on the Friday afternoon, may not draw any inference adverse to the plaintiff from that refusal. I know from experience as a barrister and politician that there are many occasions when you simply say nothing to a journalist, who is then confronted with the question of whether to run the allegation with no response and whether that would be fair. The journalist cannot rely on the fact they gave you an opportunity to respond and you, for one reason or another, failed to avail of that opportunity.

Then we come to lines 17 to 23 on page 10. I want to ask the Minister about this. I cannot understand what subsection (3) actually means. It states:

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

When you consider it, that is an extremely far-reaching proposition. Somebody tells a newspaper "Public figure A raped me". The public figure obviously denies they have raped this person and states that they are innocent. This subsection means that where there is a dispute and the court becomes aware, for instance, that a solicitor's letter was exchanged between those two people, "in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest, [the court shall] disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it."

What are we doing here? This is what I want the Minister to explain. Why should the court disregard any omission on the part of the defendant to take steps to verify the truth of the imputation conveyed by a defamation? Why should we make that part of our law? Where did this come from? I take it that the newspapers cooked this little lad up. It is quite extraordinary and this is the point that I really want the Minister to explain. To what kinds of dispute does this subsection apply? "You raped me". "I did not". Is that a dispute? In an impartial account that Ms So-and-So alleges that Mr. So-and-So raped her, there is a dispute between them because he does not accept that. In those circumstances, is the defendant - the newspaper - under no obligation to take steps to verify the truth of the allegation? That is a pretty shocking proposition. That is why I wanted to recommit this section. Precisely what kind of dispute does the Minister think he is dealing with? Is it like a dispute between Ryanair and Elon Musk, a public thing, or is it any dispute of any kind whatsoever? Can a private accusation of rape, sexual assault, theft or anything else like that be put on the front page and as long as the newspaper is satisfied that the proposed plaintiff denies the matter and has disputed the allegation, the newspaper is entitled to put on its front page the fact that there is a dispute as to whether So-and-So is a thief, a rapist or whatever, with her saying he did do it and him saying he did not? In those circumstances, we go one stage further and say that the newspaper is under no obligation whatsoever to work out if the accusation is true or false. How can we possibly enact that as our law? The Minister has never come to this House and outlined the category of disputes he has in mind, or has said this particular situation is restricted to newspapers talking about particular forms of accusation that are in dispute. It is a charter to any newspaper to say it does not have to take any steps to verify the truth of a defamatory accusation as long as there is a dispute involved. The Minister owes this House and the Irish public an explanation as to what this is all about, because as far as I am concerned, it is grossly unfair and arguably unconstitutional. I am making the point seriously that it is unconstitutional to say that a newspaper that is publishing a clearly defamatory allegation, because there is a dispute as to its truth, is free to publish it on a he says this, she says that basis and is under no obligation to take any steps to investigate whether the fundamental accusation being made against the plaintiff is truthful. I think this is a catastrophic mistake to put into our law.

I strongly urge the Minister to take out subsection (3). It does not add anything. Its parameters are vague as to what a dispute is. Is it a public dispute or a private dispute? If a public figure is accused of a private wrong, such as sexual impropriety, is it seriously to be the case that because people know he disputes it that they can publish her accusation and his denial without taking any step at all to determine where the truth lies? That is unconstitutional, because that is designed to subvert the good name of a plaintiff. A newspaper might say Miss So-and-So says that politician A raped her and he denies it, here is an objective account of her claim and his denial. The newspaper is under no obligation whatsoever, in respect of such a dispute between them, to take any step to inquire as to where the truth lies and to verify the truth of the imputation conveyed by the statement. To me, this is fundamentally important, and that is why I moved the recommittal of this section. We are being asked to enact unconstitutional law because the mere fact that one person says X, the other says Y and they are in dispute over it cannot allow a newspaper to make that public without any obligation to assess whether the defamatory imputation of the accusation that is in dispute is true.

Thank you, Senator. Before I call Senator Craughwell, I remind Senators that we are on amendments Nos. 9 to 11 inclusive, with amendment No. 10 consequential to amendment No. 9. There was a bit of confusion before I took the Chair. For clarity and the information of Members, please note that the House, by agreeing to motions to recommit, allows Committee Stage-style of discussion on section 11. That means Members may speak more than once on section 11 and the amendments do not need to be seconded. Essentially, from amendment No. 9, which we are on at the moment, up until amendment No. 14, it is Committee Stage and there is no need for a seconder, and Members can speak numerous times as opposed to just once.

I am just a little concerned. Frequently, we hear orders from the courts with respect to reporting and there are restrictions placed on using names, etc. Let us consider the following. A story goes to a journalist and on Friday afternoon they send an email to a Member of this House saying they will publish the Member's name in the Sunday newspaper in a story that says the Member was involved in an inappropriate act with a minor. Can the minor and the politician be named under this subsection (3)? Is it fair to actually put names in the newspaper in an allegation even if it is not a minor and the person has reached majority? Is it fair to name two people where there may be circumstances when the judge who gets the case in the first instance believes that there should be restrictions on reporting? Have we usurped the right of a judge with this subsection (3) to place restrictions on reporting, given that it has been reported before it gets into the court? I would just like a bit of clarification on that.

I am conscious that Senator Gallagher agreed to the recommittal of section 11 but it was on the basis that Senator McDowell had indicated he just wanted to raise questions and to get a response from me on them. I intend to do that but I hope it will not extend things too much. To be frank, I hope we can finish this today. That was the basis upon which I agreed to go along with it, or Senator Gallagher-----

I thought it was the Minister's commitment to have a full and free debate on this.

I certainly have not blocked full and free debate here.

Hear, hear.

In terms of the amendments that are put forward here, amendment No. 9 in the name of Senators McDowell and Craughwell wants me to put in a further paragraph at the end of subsection (1) that will say, "the publication of the statement was fair having regard to the rights of the plaintiff including the right to his or her good name."

I believe amendments Nos. 6, 7 and 8 which I have tabled achieve that objective because they have put back in, front and centre, the requirement that the publication be fair on the matter of public interest, and that the defendant is required to prove the publication was fair in all the circumstances of the case. I do not think it is necessary to put in an extra paragraph (d) that states, "the publication of the statement was fair having regard to the rights of the plaintiff including the right to his or her good name". I would have thought fairness applies to everyone, and it cannot just be fairness applying to one litigant before the courts. Obviously, when it comes to section 26 on fair publication, the court is going to look at whether or not the publication was fair, primarily from the point of view of the plaintiff. I do not think what is proposed in amendment No. 9 is necessary and I cannot accept it. Amendment No. 10 is consequential on that. Since I am not supportive of the inclusion of the extra paragraph (d) in amendment No. 9, there will be no need for me to agree to the amendment in section 10, which asks for that paragraph (d) to be included subsequently.

I turn to amendment No. 11. Senators McDowell and Craughwell propose that I would insert after subsection (2) of the new section 26 the following:

Failure or refusal by a plaintiff to respond to any attempt by the defendant to elicit a response to a statement proposed to be published by or with the involvement of the defendant shall not -

(a) constitute or imply consent to the publication of the statement, or

(b) entitle a court to draw any inference therefrom...

As I said on the most recent occasion, the purpose of section 26 is to provide protection to a publisher in circumstances where the publication they made was false. There are a lot of protections within the defamation law in Ireland that provide protection. Obviously, for a publisher that publishes something that is true, we have the defence of truth. However, there are also many defences that operate to provide a defence when something is stated that is false. For instance, if I say something in this House that is completely defamatory of another person and is completely false, I still have a defence, because we have decided as an Oireachtas that we will defend publications in the Houses of the Oireachtas with the defence of absolute privilege. Similarly, we have decided in the legislation provision dealing with retail protection that if a shopkeeper stops somebody to say they have not paid for something or wants to know if they have paid, the implication there is that the person has stolen it. We are providing a defence to the retailer by stating this will be recognised as an interaction deserving of protection and, even though what was said is false, we are still going to provide protection to them. That is what qualified privilege is in general. There is a separate statutory defence for the retailer. If you look at the traditional qualified privilege, there is the letter from the former employer to the prospective employer of a person, where they set out something in a reference, without malice, that is false. Even though it is false, we have decided as an Oireachtas that it is still an occasion deserving of protection because we want to protect that communication between a former employer and a prospective new employer in respect of an employee. We have also decided that a letter from a doctor to a consultant should be protected, but if the doctor writes something in it about the patient, which is defamatory and false, but not malicious, we still provide protection. I know everyone in this House understands this, but sometimes the public does not appreciate that the law of defamation does provide a number of defences for when a publication is made which is false.

Similarly, section 26 is designed to provide protection, to be frank, in respect of responsible journalism, to publishers who have published something that has turned out to be false. I know instinctively the response of some people will be that if it is false you have to be liable for it and there should be no further steps. That is not how our common law has developed. That is not how section 26 was intended. It was introduced by Senator McDowell when he held my office may years ago. It was intended to provide protection for a responsible journalist or broadcaster who carefully investigated a matter, took steps to ensure it was true and then published it. The issue we are looking at here is the extent to which they tried to get a response or answer from the person about whom the story was being written as to whether or not the story is true. Senator McDowell said there is a lot to be said for somebody just saying nothing, but there is another side to this. I disagree with Senator McDowell when he states that we just need to look at it from the point of view that a person should be entitled to just state nothing. With the greatest respect that is like the Homer Simpson defence, where in one of his shows he is accused of something and says, "Prove it." If there is a serious investigation into me and people believe they have information suggesting I have been engaged in wrongdoing, and a journalist sends me an email saying they have received information that I have done something, and sets out in detail what it is, and I decide to say I will not answer that, that is a decision I make. However, the fact that I do not answer it is something that a court is entitled to take into account if I subsequently issue defamation proceedings against the broadcaster or the publication. They may say they published this story about the Minister. They had information they got from credible sources. They contacted him and he did not bother to get back to them, and never said a word to them. They contacted him again and gave him a week, ten days and two weeks and got no response. That is a factor the court is entitled to take into account in determining whether or not the publication was a fair publication on a matter of public interest. It is a public interest issue, so to a large extent we are talking about people such as us or people in the public sphere who are involved in issues which may give rise to a matter of public interest. I think we, and others, have a responsibility to respond. If a person do not respond it does not necessarily mean that he should be criticised for that, but it means the publisher is entitled to say at the hearing of the action that they wrote to him and asked him repeatedly, and he never even bothered to respond to them. If Senator McDowell were representing the publisher in court and I were giving evidence he would say to me that I received emails on three occasions asking me whether or not I was involved in this wrongdoing and that I never responded, and it was unreasonable of me not to respond. I think it would have been unreasonable for somebody in my position not to respond to something like that.

I know it is moving on to another amendment, but Senator McDowell also raised the issue about subsection (3) of section 26. The purpose of this is to try to deal with a situation where a publisher is reporting on a dispute between two parties. There is a dispute that has obviously got public recognition. It does not have to have gone to court, but there is a dispute. It could be a political dispute between two individuals, like two Cabinet Ministers having a row about what was agreed or about the carrying out of their functions. There is a dispute that will necessarily involve allegations or coverage that will be defamatory of one of the Ministers. In that instance, as it is on a matter of public interest, and we need to remember this, the section simply seeks to ensure that the publisher is entitled to report accurately and impartially the dispute ongoing between the two Ministers. They do not then have to investigate by contacting me or my predecessor Deputy McEntee to try to identify which of us is telling the truth. It is in the public interest for them to say the dispute is ongoing and what it involves. Again, I provide assurance to Senator McDowell and other Senators that the purpose and benefit of having the word "fair" back in it is that a court will look at all the circumstances of the case like how this story was prepared, whether the person was given an opportunity to respond, whether the highlighting of this dispute in the newspaper was in the public interest and whether it was impartially and accurately reported.

Disputes happen between people. There was a dispute between President Trump and the aforementioned Mr. Musk that went on for quite a period of time. Terrible things were said about each other. I think President Trump made allegations of drug use against Mr. Musk. Are we to say that a newspaper cannot publish details of that dispute without trying to verify whether the things said by President Trump about Mr. Musk were correct? That puts too much of a burden on a publisher.

Senator Craughwell asked a number of specific questions about whether a person or victim can be named. They are all separate issues. When it comes to a court considering a publication and trying to determine whether the publication is defamatory and, in this context, whether a publisher is entitled to the defence under section 26 of the principal Act, the court will look at it in the round. This section is designed to protect responsible and fair publications that have made efforts to identify and get feedback from the person who is the subject matter of the article. If it is not fair, it will not get the protection. If the individual who is the subject matter of the article decides not to engage with that, it does not mean there is no cause of action against the publisher. Rather, it means the publisher is entitled to present these as factors that should give it a defence.

I appreciate the comprehensive and fluent nature of the Minister’s response. Everyone here understands that the meaning of something being in the public interest is not the same thing at all as something being of interest to the public. Do we rely on the courts? How can we be sure about the threshold that has to be met for something to be deemed to be in the public interest? We live in times where there is so much said in so many forums about all sorts of issues. Often, disproportionate time and attention are given to issues that are not necessarily that important. What assurances can the Minister give us about how the question of whether something is in the public interest is determined?

I wish to go back to the question of whether a person is entitled to withhold comment. For example, I am a person and I have something put to me that I know is false. We are all aware of that old line from whichever university president who said, “Let's make the [b--] deny it.” I refer to an allegation that everyone knows to be false. In the criminal context, a person has the right to silence. There can be good reasons someone does not want to dignify a false allegation and participate in the process of falsifying it. Even to falsify something or state that it is false can, in the view of someone about whom something false is being said, contribute to the possibility of it being published and so on. Where does that concern stand in the light of the Minister’s response to the proposed amendment?

I remind the Senator that we are speaking on amendment Nos. 9 to 11, inclusive, rather than amendment No. 12. Before I bring in Senator Craughwell------

I am talking about amendment No. 11, I think.

Amendment No. 12 is also in the name of Senator Mullen-----

Yes. I will get to that.

-----but we are not on that. We are on amendment Nos. 9 to 11, inclusive.

I was referring to amendment No. 11.

I understand. I am just reminding the Senator that amendment No. 12 is on the way.

Before I bring in Senator Craughwell, I welcome to the Public Gallery guests of Deputies Malcolm Byrne and Roderic O'Gorman and the Minister, Deputy Hildegarde Naughton. They are very welcome to the Chamber today. I hope they are enjoying their visit to Leinster House.

I know the Minister wants to get this Bill finished this evening and I do not intend to delay it. I wish to mention the issue of subsection (3) and the right of the courts to order a restriction on reporting. In the likelihood that this passes, is it likely that, in a particular case, names will be reported before the judge gets the opportunity to implement restrictions on reporting? I am a little confused on that one still.

In respect of Senator Mullen’s question about the public interest, the Constitution delegates the administration of justice to the courts. As the Senator knows, they are not remote entities. The courts have to assess what is in the public interest quite frequently in terms of rulings that come before them and judgments they have to give. They have to do it in the context of privacy and defamation as well. In the case of Nolan v. Sunday Newspapers Limited, it was suggested by the defendant that it was in the public interest to reveal something about a retired former intercounty GAA player, who had not played in about ten years, that was actually defamatory about him and a breach of privacy. The courts did not accept that because it was not a public interest issue.

It is difficult, as the Senator will appreciate, for the Legislature to set out what is in the public interest. We cannot formulate an endless list of matters that are in the public interest. We have to defer. We can all state in here what is in the public interest but when it gets to court and the interpretation of a statute, it is for the court to assess what is in the public interest. However, I have to say that the assessment of the court will be very much the same as ours.

When it comes to the point about a false statement being made and the right to silence, I may have a different view to the Senators who have spoken in this regard. To use my earlier example, if a reputable broadcaster or publication informs me that it has serious allegations against me and sets them out before me, if they are false, I will rush to say that they are completely wrong. If it goes ahead and publishes it, then it will certainly not be able to get much benefit out of section 26 if I have put forward a coherent response as to why it should not publish it.

The advantage to the publisher in court in invoking section 26 is that it can say it went to the person and asked them for an answer but they did not give an answer and never got back to the publisher at all, or that they gave an answer that was demonstrably false. If I go back and give the publisher an answer stating that the story is completely false - I do not have to prove it, but coherently state that to the publisher - then it will be extremely careful about publishing it. The publisher will have difficulty invoking section 26 in that context.

With regard to what Senator Craughwell said about people being named, the media can take chances. Sometimes, they are too cautious and nervous. Justice is administered in public. People should be named. There are some occasions when names are not provided, however. There are statutory provisions that say that if the media is going to reveal someone’s medical condition, they will not be named. Obviously, people are not named in family law proceedings. If someone takes a defamation action, one of the consequences of it is that the person has to be named. That can be understood because the individual is saying their reputation is being damaged in the public domain, so of course they should identify themselves.

In respect of other persons whose names may come up, one of the consequences of justice is that people are required to be identified unless there are children involved. Obviously, the criminal sphere is different, as the Senator will know. We saw recently some horrific cases on which reporting restrictions were put. We also need to take into account that the High Court has full original jurisdiction. It can decide how its procedures should operate subject, of course, to the constitutional requirement that justice should be administered in public.

I move amendment No. 11:

In page 10, between lines 16 and 17, to insert the following:

"(3) Failure or refusal by a plaintiff to respond to any attempt by the defendant to elicit a response to a statement proposed to be published by or with the involvement of the defendant shall not—

(a) constitute or imply consent to the publication of the statement, or

(b) entitle a court to draw any inference therefrom adverse to the plaintiff.".

Amendments Nos. 12 to 14, inclusive, are related. Amendment No. 13 is a physical alternative to amendment No. 12. Amendments Nos. 12 to 14, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 12:

In page 10, to delete lines 17 to 23.

This amendment simply proposes the removal of subsection (3) of the proposed section 26, which proposes that where we are talking about an accurate and impartial account of a dispute to which the plaintiff in the defamation action is a party, the court shall, in determining whether it was reasonable to believe that publishing the statement was in the public interest, disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it. We are talking about a decision that has been taken by a publisher that something is in the public interest. We are talking about a false statement having been made and a defamation action taken. We have just heard the Minister speak about the right of a court to draw an inference from the non-co-operation of a person against whom an accusation is being made when that person is contacted by the media. Here we have a situation where, because the publisher can say that this is some kind of dispute - undefined, I think, in the legislation - that somehow it does not matter in terms of the decision about whether it is in the public interest to publish or whether steps were taken to verify the truth of the imputation conveyed.

I queried this previously on Committee Stage. What kind of scenario can the Minister present that makes it a matter of no importance whether the defendant in a case, a publisher, has made any effort whatsoever to verify the truth of what they propose to publish? What chilling effect on good judgment would it have to require that a person will always take steps to verify the truth of something serious that they are about to publish, whether by way of inquiring with the person who is the subject of the potentially defamatory statement or third parties who may be in a position to confirm or contradict what it is proposed to allege?

I tried to understand the rationale for this in terms of some kind of a dispute between two public persons, but there is nothing here which indicates that have to be two public persons. It could be a student making an allegation against a teacher but doing so in a very public way or where a dispute is known about where there are some kind of disciplinary proceedings going on, in the context of a school, for example, where A has made an allegation against B and where there is some talk about it in the privileged context of a school perhaps having to go through its investigative and disciplinary procedures. What difference does the fact of it being a dispute between two parties as opposed to it being a claim by a whistleblower that somebody had their hand in the till make regarding the fact that it is no longer of any importance whether the defendant has taken steps to find out if what they are proposing to publish is true or false?

I will start by stating that in order for this section 26 defence to succeed, there is a requirement that the statement in respect of which an action is brought must relate to a matter of public interest. There is also a requirement that the defendant reasonably believes that publishing the statement is in the public interest and that this is done in good faith. These are all necessary requirements before we even get to consideration of subsection (3), which the Senators' amendment seeks to remove.

Senator Mullen asked me to set out an example of how subsection (3) will apply. I gave the example earlier. I do not want to use too many domestic examples, but in terms of the dispute between President Trump and Mr. Musk, whom I use as an example because they are not listening and everyone will feel comfortable with me doing so, that was a serious dispute between two individuals. Obviously, that dispute was in the public interest, I would have thought, even though it was an international issue. I am using it as an example. Obviously, there are all sorts of jurisdictional issues as to whether the Irish courts would have jurisdiction, but that is an example of a dispute between two public figures where it is in the public interest for it to be reported upon. Very serious allegations were made by one of them that the other was taking serious drugs. In that circumstance, one would have thought that a publisher should be entitled to impartially and accurately publish the details of that the, because it is in the public domain, without having to find out the nature of the allegation President Trump made about Mr. Musk, correct or not, or contact Mr. Musk to get his side of the story before publishing details of the dispute. What is in the public interest is the dispute itself. There are certain times when it is in the public interest to publish details of a dispute between public figures in the newspapers or in broadcast media without a newspaper or a broadcaster having to verify whether the details are true or not.

This was recommended in the review of the 2009 Act. I think I also dealt with that on Committee Stage. However, the important part of the provision is that the defence will only apply where there is an accurate and impartial account of a dispute. Unfortunately, I cannot accept the amendment.

It is difficult to predict the type of scenario that will arise when this provision will be invoked. I could, but will not, give domestic examples of public disputes that could be reported on, but they also exist.

I appreciate the fact that the Minister met the first test by coming up with some kind of example. One could argue, however, that even President Trump and Elon Musk are entitled to some measure of due diligence on the part of any media organisation proposing to publish something that is false and damaging.

If the Minister does not accept that line of argument, I point out to him that he makes an extreme case to defend a clause which does not say that the court may disregard an omission to take steps. Rather, it states that the court shall do so. If the aim of this subclause is to state that there may be cases where it really is not reasonable to expect a putative publisher to try to find out whether what they are about to publish is true or not - and that it is not necessary for them to do so in order for them to believe that it is in the public interest to take steps to verify whether it is true or not - one would have to say that such circumstances, if they exist, would be exceptional. I say this because it stands to reason that if you are in the business of publishing statements which, if false, will be very damaging to an individual, however unsympathetic the individual may be in the public mind, however famous and well resourced the individual may be and however unreachable by your barbs that individual may be, the fact remains that there is a considerable onus on publishers to take steps as a matter of common sense and on the basis of people's general expectation.

If you are leading with an allegation or claim, it must nearly always be the case that you should take steps to verify the truth of what you are saying, if it is capable of being defamatory. The Minister wishes to create an exception to address cases, such as that he has described, without requiring a newspaper or broadcaster to contact the Musk organisation or the Trump organisation, or whatever. I would imagine that is not a particularly onerous responsibility but let us assume there are cases where that would not be expected of a proposed publisher. Surely the language here should imply exceptionality. It should state that the court may disregard such omissions. It should be remembered that the Minister has just said that we have to depend on the courts. That is quite right and quite reasonable. We have to leave it to the courts to assess the public interest issue from case to case, according to standards with which we would all sympathise and agree. However, precisely because that concept of public interest is being left to the courts to adjudicate and we are not attempting to define it in legislation, surely we should not be so prescriptive as to say that the courts shall disregard any omission of the defendant to take steps to verify the truth.

This is about a dispute between parties. There are all sorts of disputes between parties where it would be essential. I tried to give an example, although it may not have been a very clear one. I can imagine all sorts of situations where there would be a dispute between parties. The mere fact of there being a dispute between parties cannot mean that the court must henceforth disregard any omission to take steps to find out whether something is true or false in its determination of whether a person reasonably believed something was in the public interest. I get what the Minister is saying about prior requirements and the need for publication to be in the public interest. I am not talking about potential disputes in respect of things that are not in the public interest. It could be a dispute about a very serious allegation made by one person against another, not for the purposes of public grandstanding but for the purpose of doing real damage. It may be the person's mistaken belief that what they claim is true but the fact remains that it is a seriously damaging claim arising in the context of a dispute. Why is the Minister not saying that the court may disregard an omission to take steps to verify the truth? Why is he making it an all-embracing provision and mandating the courts to disregard any omission to take steps to verify an allegation?

I do not want to delay things too much but this section was effectively an effort to recreate in Irish law section 13 of the UK Defamation Act 2013. As far as I am concerned, to make it obligatory to disregard any omission is, as Senator Mullen has said, a very far-reaching proposition. Although we have not reached it yet, amendment No. 13, which is in my name and that of Senator Craughwell, proposes to insert the word "reasonable" before "omission". If The Irish Times has to report on a row between Musk and Trump, a court is not going to say it better send a reporter to find out whether Mr. Musk's accusations are true or false, whereas the thing would be quite different in other circumstances.

This new section 26 does not just apply to newspapers and broadcasters. It applies to anybody who runs a podcast or who uses social media who then makes a defamatory statement. The assumption in this debate has always been that we are talking about responsible media doing A, B and C. We are not. We are talking about opening defences to people who are not, by definition, responsible. We are talking about people who are using social media, day in, day out, to propagate particular causes or to damage particular enemies. It is in that context that a later amendment in our name talks about publication to the public at large. That is one proposition. I wonder about disputes of a fairly private kind about matters which have a public dimension to them, for instance, a dispute as to whether a public figure has behaved honourably as a landlord. We have had some of those. If somebody starts putting stuff up on social media giving a fair and accurate or impartial account of an accusation made against a public figure by a tenant, or whoever it is, this section will apply. I am just making those points.

The assumption has been that we are talking about RTÉ, other independent TV channels, newspapers and formalised publications such as magazines, but we are not. We are talking about anything. That is the point I find slightly worrying about this. We are handing this defence to people putting up on social media that there is a dispute between politician A and Ms B about what happened in a particular case at night-time. The same test applies to that as to a responsible newspaper. Publication on social media is hugely wide. I know the Act proposes to get rid of the Reynolds defence but the Reynolds defence was supposed to deal with responsible journalism. We are not talking about journalism in the conventional sense at all. If I put something up on social media that I, bona fide, consider to be in the public interest and make an accusation in good faith, should I, as a poster on X or whatever platform, be entitled to the immunity conferred by this amendment? I am not happy that it does not extend to cases such as that.

I move amendment No. 13:

In page 10, line 21, after “any” to insert “reasonable”.

I move amendment No. 14:

In page 10, between lines 23 and 24, to insert the following:

“(4) In deciding whether publication of a statement to the public at large or any section thereof was fair a court may have regard to—

(a) the extent to which the statement concerned refers to the performance by the person of his or her public functions,

(b) the seriousness of any allegations made in the statement,

(c) the context and content (including the language used) of the statement,

(d) the extent to which the statement drew a distinction between suspicions, allegations and facts, and

(e) the extent to which there were particular circumstances justifying the publication of the statement at the time of publication.”.

The debate now returns to Report Stage. Before we commence, I remind Senators that they can only speak once on Report Stage except for the proposer of the amendment who may reply to the discussion on the amendment. Each amendment must also be seconded on Report Stage.

Amendments Nos. 15 to 17, inclusive, are related. Amendment No. 17 is consequential on No. 16. Amendments Nos. 15 to 17, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 15:

In page 11, after line 42, to insert the following:

“(f) whether, any statement having been made which a reasonable or prudent person would conclude was capable of being defamatory, the presenter took prompt steps to—

(i) challenge the person making the statement,

(ii) alert viewers or listeners to the problem of possible defamation, the right of the subject of the statement to defend his or her good name and to initiate an action where appropriate against the publisher of defamatory material, and

(iii) where the person the subject of the statement, or his or her representative, was actually present, to give the person or the representative an immediate opportunity to challenge the published statement.”.

I second the amendment.

We discussed this on Committee Stage. We are into the section dealing with the proposed live broadcast defence. We can all imagine the scenario where somebody pops up in the audience or maybe somebody on a panel delivers the shocker of the year of a kind that would have any defamation lawyer twitching either in anticipation or any client twitching in terror. We all understand the value of live broadcast. We can understand that there will be television moments that will involve a live audience where the risk is perhaps even greater potentially that something defamatory could be said.

The Minister set out the context in which the courts may uphold a defence where something false and otherwise defamatory or a defamatory statement is made during a live programme. I recall saying to the Minister on Committee Stage a point about putting myself in the position where I am sitting at home watching TV and something is said about me by either an audience member or panellist. I would expect a presenter to have the same concern for my reputation and rights as he or she would have if the statement was made about themselves. That the test we have to apply here. What would the presenter do if something defamatory was said about him or her by somebody on the programme? We know what would happen. They would immediately falsify it. For all intents and purposes, they effectively would take the mic away from that person. There would be consequences.

The same sense of justice to a person who is, first of all not present, or may be present but is not controlling the debate and discussion, is not achieved simply in the subclause 2(e) that is currently there at line 40 onwards of page 11, where it talks about "the overall management in practice of the live programme concerned, and of its participants, by the broadcaster and in particular by the presenter". What does "overall management" mean? Does it mean that at some point in the course of the programme that they say something conciliatory or cautionary? That would have to be determined by the courts as to whether whatever is meant by "overall management" was satisfactory in all the circumstances.

There are all sorts of other measures that will inform the court's determination about whether reasonable and prudent precautions were taken, including the effective control over the relevant person or the level of it was reasonable to expect, the nature of the live programme, whether the person was a contributor or the overall measures employed by the broadcaster to ensure the taking of reasonable and prudent precautions and the extent to which the broadcaster carries out an appropriate risk assessment. That all strikes me as RTÉ guidelines kind of stuff. If I am the subject of a defamatory comment or statement, what I want to happen in that moment is immediate and prompt action. The promptness of action must surely be a factor that would need to be considered.

I remember being in a difficult TV debate once. I said something and somebody jumped in and said something very critical of what I had just said. The audience clapped which is not a nice experience. I remember in that moment acting instinctively by grabbing the elbow of the person beside me and saying to them sotto voce, "Please, let me in here." Maybe because of the pain they were feeling on their elbow they stopped, and I was in again with my comment, which did not entirely ameliorate the situation. However, the point was that I was still on my feet and seen to be on my feet as it were. If the discussion had moved on and I only got in three or four minutes later, it would have been a very different kind of impression that was left with the public. In live broadcasting, time matters and sequence matters. If something potentially defamatory is said about somebody, it is vital for fairness that there is an immediate intervention. The presenter of the programme may not be in a position to say, "That is false. You can't say that. Everybody listen up. That is not true." I get that. They are not in a position to prove or disprove what has just been said. However, they are in a position to operate on the presumption that it is not true or on the understanding that there is a reasonable possibility that it is not true. If that is the mindset from which they are operating, then they would act immediately. That would be the reasonable approach to expect.

Therefore, that is why I am proposing that what would have to be considered before such a defence could succeed would, among the reasonable and prudent precautions, be that where a statement was made which a reasonable or prudent person would conclude was capable of being defamatory, that prompt steps were taken to challenge the statement, to alert viewers or listeners to the problem of possible defamation, the right of the subject to defend his or her good name and to initiate an action ,where appropriate, against the publisher of defamatory material, and, where the person the subject of the statement, or his or her representative, was actually present, to give the person or the representative an immediate opportunity to challenge the published statement.

Only that gives the person against whom an accusation is made the kind of equality of arms they deserve.

In the context of a live broadcast, a presenter has an enormous responsibility to seek to ensure fair play. They are not acting in loco parentis, but they are the person with responsibility in that moment in the context of the right of a person not to be defamed. That is why I proposed this amendment, which requires that a court must consider whether prompt action was taken to make the necessary challenge and to give the opportunity, if the person is present, to falsify the statement immediately. The purpose of what I am seeking to achieve in the public interest is to put the issue of defamation into the public mind in order that it is not seen to be some kind of closed issue that must be true because it has just been stated on television but, rather, that it be seen as something which is contentious.

The purpose of the live broadcast defence, which is dealt with in section 13, is to try to protect live broadcasting. Everyone involved in politics will know that there is a great advantage to the public at large in there being live broadcasting. It is vital during elections and it is vital during other issues of great public concern. I want to try to ensure that we have a provision within the legislation that facilitates the continuation of live broadcasting.

The section that has been drafted and that was approved on Committee Stage is sufficient to deal with the concerns that Senator Mullen outlined. The first and foremost requirement in respect of this defence being effective is that in advance of and during a broadcast, the broadcaster must have taken reasonable and prudent precautions to prevent the publication by a relevant person of a defamatory statement during the programme. This is something that is going to be looked at in advance of and during the broadcast. Subsection (2) sets out a variety of factors that the court can consider for the purposes of determining whether or not these prudent and reasonable precautions were taken, and they are very detailed, fair and balanced. I have to be fair, not just to the interests of the person who may be defamed but also to the publisher, in this instance the broadcast publisher, who, in fairness, does not have a complete responsibility or control over an individual during a live broadcast. It is certainly the case that if somebody on a live broadcast says something defamatory about another person, then that individual is liable in the context of defamation. What we are trying to do here is to ensure that the broadcaster will have a protection.

The Senator's amendments are too specific and restrictive and would mean it would be very difficult for the defence ever to succeed. When we look at subsection (2), I think that what the Senator is seeking to ensure is considered is already dealt with by way of subsection (2)(e), which states that the court should consider "the overall management in practice of the live programme concerned, and of its participants, by the broadcaster and in particular by the presenter of the live programme". These are very much the issues the Senator has identified, namely whether the presenter challenged the person concerned, has identified that the person about whom the statement was made would completely dispute it and said that that person will have an opportunity to defend themselves. We see this happen frequently on broadcasts that occur when somebody is not represented in the studio. In fairness to our broadcasters, in general they go out of their way to that someone is not there to defend themselves against a charge. This is a difficult area for broadcasters. I have put it in for their protection. I cannot just be thinking about the individual who may have been defamed. I also have to think about fairness for defendants who can end up being sued as well. Unfortunately, I cannot accept the amendments.

I am have brought forward an amendment in this area in light of what was said by Senators on Committee Stage. I refer to amendment No. 16, which will be moved presently.

I thank the Minister for his reply. Promptness matters and sequence matters. Again, as I explained, there is no mention of promptness in paragraph (e). The phrase "overall management" could be interpreted as almost allowing a broadcaster to give some kind of a nod to the question of the right of the person to their good name. However, the urgency of the problem is in no way addressed in the section as it stands. While I appreciate the Minister saying that he cannot always be thinking of the person against whom a defamatory statement might be made - and I hope I have not inaccurately paraphrased what he just said - and that he wants to give some comfort to those who produce live broadcasts, I get that, my proposed amendment does not negative the live broadcast defence. What I am saying is that I believe he has got the balance wrong. He is going a great distance in order to protect live broadcasts. Fair enough, they have their public value; but so also does a person's right to their good name. What I am urging upon the Minister - unsuccessfully, because he is the person with the votes behind him - that it should not be a fault of my amendment that it is specific. It is universally valid to say that if something potentially defamatory is said, the presenter of a programme should immediately intervene. That is fairness 101. There is nothing about promptness in the text of the section, and I think that is a real flaw.

It is one thing to give comfort in respect of live broadcasts - and, fair enough, I am all for that - but I think we are forgetting just how serious it is when an allegation is made in a live context. We know what it did to a presidential aspirant somewhat more than a decade ago. What can be said in a live broadcast situation can have serious consequences for a person's life. I am not saying that the Minister is not putting in any requirements in respect of broadcasters, clearly he is doing so, and the phrase "reasonable and prudent precautions" is used in this regard. It seems, however, that he is leaving out one of the most essential features. It could be argued, in the context of the wording of my amendment, that the requirement that a particular action take place once a defamatory comment has been made cannot really be described as a precaution because, to some degree, it is after the fact. I am of the view, however, that if there was a will, there would be a way to overlook that flaw in my drafting. The absence of a direct recognition of the importance of promptness and the duty of a presenter - with a producer making an intervention via that presenter's earpiece - to have a sense of duty of fairness in a particular moment is a serious omission from this otherwise very reasonable departure in law.

I move amendment No. 18:

In page 21, to delete lines 30 to 32 and substitute the following:

“ “45. (1) The Circuit Court and the High Court (in this section referred to as the ‘court’) shall each have concurrent jurisdiction to hear and determine an application in accordance with this section.”.

I second the amendment.

The amendment seeks to give the High Court an identical jurisdiction to the Circuit Court in respect of identification orders. It may well be that the Circuit Court is cheaper. I sometimes wonder about that. It certainly is a lot more inconvenient in certain circumstances.

The other point is that the Circuit Court is a court of local and limited jurisdiction. So is it where the defendant resides or where the defamation took place? Is that to determine which circuit is to exercise the jurisdiction?

I thank the Senator for his amendment, which we also discussed on Committee Stage.

I want to provide a statutory mechanism for people to apply in the Circuit Court. I think the Circuit Court is cheaper and it is an appropriate mechanism for the purpose of granting an identification order.

I have to say to the Senator that nothing that I do in this statute is going to interfere with the jurisdiction of the High Court. The existing powers of the High Court will not be affected by this section in the Bill. For that reason, I am not accepting the amendment.

Amendment No. 19 is in the names of Senators McDowell and Craughwell and arises out of committee proceedings.

I move amendment No. 19:

In page 22, to delete lines 38 to 42 and substitute the following:

“(5) The provisions of section 169 of the Legal Services Regulation Act 2015, shall apply in relation to the costs of any application for an identification order.”.

I formally second the amendment.

The amendment simply says that the ordinary rule as to costs following the event subject to the certain exceptions, which are set out in section 169 of the Legal Services Regulation Act 2015, will "apply in relation to the costs of any application for an identification order." I do not accept the proposition that X should ever be entitled to its costs. If somebody comes to court and goes through all the hoops of saying, "I have been defamed. The Defamation Act will probably succeed. I do not know and cannot find out who the anonymous poster was." Still, after that, X comes into court and says, "I want my costs against the plaintiff." I think that is an unjustifiable obstacle to throw in the path of a plaintiff who simply wants to know who took to social media to defame him or her and section 169 of the Legal Services Regulation Act affords flexibility in this matter.

The notion that a body like X can come to court and say it wants its costs for identifying the anonymous defamer is, in my view, unfair and an unwarranted obstacle to put in the path of somebody whose lawful rights to their reputation have been, on the face of it, violated.

I thank Senator McDowell for the amendment and his contribution. We had an extensive discussion about this on Committee Stage.

In terms of costs following the event, what the means is that generally the winner of a court dispute is granted their costs on a party and party basis. However, that is a difficult rule to apply in circumstances where there is an application which is not an inter partes application. In fact, it is a non-party application. I used the example previously of where there could be two parties in a dispute - an individual against another individual. Then, for the purpose of resolving that dispute, there is a requirement to get a discovery from, say, another third entity who is not involved in the dispute at all, and that third entity is sometimes required to make a disclosure of documents for the purpose of facilitating this dispute. It is never the case that that third non-party is required to pay the costs. It is always the case that the non-party will have their costs paid.

I think Senator McDowell's concerns are met by the fact that we all know that costs are always going to be at the discretion of the court, no matter what the statutory provision, and the statutory provision that is contained here, and which he seeks to amend, simply says that the court may "order that an applicant pay any or all of the costs of the relevant intermediary service provider". So it is not a mandatory requirement. It is a discretionary order.

Senator McDowell refers to a well known Internet service provider - a social media company. Again, when I am dealing with creating new law and putting forward new law for the Oireachtas to make, I have to look at it objectively and not try to identify any entity. If a non-party is playing a role in inter partes litigation, in general, at some stage in the proceedings, that non-party is recompensed for facilitating the resolution of the dispute by providing information or documents so I cannot accept the amendment.

I have to express my disappointment in relation to the Minister's continued opposition to normalising the provisions of the proposed identification order procedure in respect of costs and I do make the point, who is facilitating anonymous defamation? Who actually is doing it? I mean I cannot defame somebody that easily, anonymously, except through an Internet service provider. They are the people who are profiting from and disseminating the defamation against me. As I said on the last occasion, it is not like An Post or a telephone company being found liable for a conversation. It is very different. The other provisions of the section make it very clear that what has happened is defamation. It seems to me that the very least that an Internet service provider could do is to say at the outset, "We will consent to an order being made and will not be represented", and if that happens then it seems to me that in those circumstances the discretion that the Minister refers to is fine but if they come in and start defending the privacy of some defamer then, in my view, they are taking sides in the issue.

Amendments Nos. 20 and 21 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 20:

In page 22, after line 42, to insert the following:

“(6) Where an identification order has been made under this section, a court may at any time thereafter vary any condition to which the order may have been made in accordance with subsections (4) and (6).”.

I second the amendment.

The amendment simply provides that where a condition has been attached to the making of an identification order, the court will retain the right to vary any condition thereafter. What I am saying is, supposing the Circuit Court says that the identification order will be used solely for the purpose of a defamation case and not for any other purpose. There may well be circumstances in which there are very good reasons somebody who is in possession of an identification order may want to use that information in a collateral way. What I am saying here is, that where that is just that they should be able to use it for a different purpose. Then, in those circumstances, the court should have jurisdiction to relax the conditions which were applied to the making of the identification order at the time it was made.

I cannot see any problem with that amendment.

I thank Senators McDowell and Craughwell for their amendment. In respect of the point raised by Senator McDowell, if I can refer to the example I referred to in the previous amendment about discovery, sometimes individuals get discovery of documents in proceedings because they are necessary and relevant to the proceedings. The individual can only use those discovered documents, whether they are from another party or a non-party, for the purpose of the litigation. There is an implicit undertaking given by an individual who is granted discovery of documentation that it will only be used for the purpose of the litigation. It cannot be used for a collateral purpose.

I note what Senator McDowell says, but in the context of the Defamation Act and defamation Bill, the only reason a court will grant an identification order is for the purpose of facilitating a defamation action. I cannot provide a mechanism outside of the defamation Bill for somebody to find out this information out of curiosity. If I am going to put it in the defamation Bill, it has to be for the context and in the context of the individual bringing the application because they want to initiate proceedings against the defamer.

Amendment No. 21 refers to being able to go back to the court in respect of the identification order. In subsection (4)(b), when the court is making the order, it can make it subject to such conditions as it considers appropriate, which may include the issues I set out in rules subparagraphs (1) and (2). The court will always have control of its jurisdiction. It can apply whatever conditions it wishes. All we can do is provide the statutory architecture for the court to provide these identification orders. I do not believe it is necessary, or would be appropriate, for us to allow for an identification order to be made for purposes other than the defamation action.

In relation to the second of the two amendments we are discussing, the Minister has resolutely taken the position that where an identification order is made, the fact that it has been made and has identified a particular person cannot be used by the victim of the defamation as evidence that the person identified was the poster online of the defamation. It cannot be used directly as evidence because it is hearsay. The Minister, for some reason, is digging his heels in to stop the use of an identification order as evidence. After Committee Stage, we redrafted our amendment to state:

Where an identification order has been made in accordance with this section, and where an anonymous publisher has been identified thereunder by an intermediary service provider, the said identification as relevant information shall, subject to the right of any party to contradict or disprove that he or she is or was the anonymous publisher, be admissible in evidence in any defamation proceeding where the court hearing such proceeding so directs.

I am not saying that it is always admissible. I am saying that a court will state that the Internet service provider has identified Michael McDowell as the person who posted this. How does somebody whom I have defamed prove that, except by calling witnesses from the Internet service provider and producing records from the Internet service provider? It seems to me that, where a court has gone to the trouble of saying that it is necessary for the prosecution of the defamation case that the anonymous publisher be identified by way of an identification order, no injustice is done by saying to the person who sought and obtained that order that they can produce that in court. Where somebody wants to say that is wrong and it was their son, not them, who used the computer and put that up, or it was the cat who usurped their access to the website and put that up and that they never did anything of the sort, they can do that. In those circumstances, where someone wants to contradict or disprove that, a court can say that, at the very least, given the fact that an identification order has been made, it seems fair to the court that the substance of the relevant information, namely, who was the poster of the anonymous defamation, should be admissible in evidence - not admissible to prove beyond contradiction and not against the capacity of any party to say, "It was not me, as a matter of fact", but that at least it should be admissible.

The Minister must realise that an identification order just slapped down like that is of no use to someone if they have to prove that Joe Bloggs posted this. How do they actually prove it? He has been identified in court, under an order, as the anonymous publisher of a defamation, but how does my country solicitor in the Circuit Court actually prove the identity of the poster? Do they summon somebody?

A solicitor can say they got an identification order from the Supreme Court. They could say, "This is the document that was produced from X on foot of the identification order". That is sufficient proof of the identification order.

Is it admissible?

I would have thought so.

All I am saying is that it should be admissible, subject to contradiction or denial. It should at least be enough that the plaintiff in the defamation proceedings says they got an identification order naming Joe Bloggs as the poster. That should be enough for the court to be going on with, unless Joe Bloggs is named as the defendant. If Joe Bloggs is then in the situation that he wants to come in and contradict it, under our amendment, he is fully free to do so under our amendment. At least he cannot have a smart-ass barrister stand up and say the Minister refused point-blank to make this admissible in the Act, and that is it. I believe, therefore, that this is a reasonable amendment.

I move amendment No. 21:

In page 22, after line 42, to insert the following:

“(6) Where an identification order has been made in accordance with this section, and where an anonymous publisher has been identified thereunder by an intermediary service provider, the said identification as relevant information shall, subject to the right of any party to contradict or disprove that he or she is or was the anonymous publisher, be admissible in evidence in any defamation proceeding where the court hearing such proceeding so directs.”.

I second the amendment.

When is it proposed to take the next Stage?

Now.

Is that agreed? Agreed.