Dáil Éireann debate -
Thursday, 19 Sep 2024

Vol. 1058 No. 2

Defamation (Amendment) Bill 2024: Second Stage

Minister of State at the Department of Justice (Deputy James Browne)

I move: "That the Bill be now read a Second Time."

I thank the Leas-Cheann Comhairle and Deputies. This is an important Bill that balances and safeguards the rights to freedom of expression with the protection of good name and reputation, and to access to justice. This legislation touches on the protection of our democracy itself and introduces innovative measures to protect responsible public interest journalism. The Bill delivers on the programme for Government commitment to review and reform our defamation laws. It provides for a range of reforms to address the many concerns raised by stakeholders during the public consultation on the review of the Defamation Act 2009.

The main purposes of the Bill are to tackle disproportionate awards and to support more consistent, proportionate and predictable redress in defamation cases, including by abolishing juries in the High Court; supporting easier access to justice for individuals whose reputations are unfairly attacked, including by ensuring that, if a person is defamed, the correction must be published with "the same or similar prominence" as the defamatory publication. The Bill also provides enhanced and clearer protection for responsible public-interest journalism, including a new defence to protect responsible live broadcasting. It has provisions to reduce legal costs and delays for all parties, including by supporting the use of alternative dispute resolution, and to deter the abusive use of unfounded defamation proceedings, particularly strategic lawsuits against public participation, SLAPPs.

The abolition of juries in High Court defamation cases is a key reform under this Bill. The Government respects the strongly and sincerely held but widely differing views held by different stakeholders on this issue. Following long and detailed consideration, however, the Government has concluded that this is the right course to take. We should recall that juries have already been abolished in almost every other type of civil proceedings, most recently under the Courts Act 1988, and juries have already been abolished in Circuit Court defamation cases, with no adverse consequences, since 2009. This reform is expected to significantly reduce the incidence of excessive or disproportionate awards of damages; the particularly high legal costs and delays; and the length of hearings in defamation cases and the high unpredictability of outcomes. It is also designed to ensure greater clarity on the law, and reduce the need for expensive appeals. In this complex area of law, the fact that a jury cannot give reasons for its decision can cause great uncertainty for stakeholders about its implications for other cases.

Strategic lawsuits against public participation, otherwise known as SLAPPs, are unfounded, abusive legal proceedings taken by a plaintiff against a person or organisation because of their engagement in debate, investigation, or discussion on a matter of public interest that is uncomfortable to the plaintiff. The main aim of SLAPP proceedings is not to genuinely vindicate rights, but to maximise high legal costs, delays and stress, in order to threaten and silence the person targeted. In common-law countries, defamation proceedings are often a favoured vehicle for SLAPPs, and serious concerns about SLAPPs in Ireland were already raised in the replies to public consultation on the defamation review.

SLAPPs are now recognised internationally as a significant challenge to press freedom, and a danger to democracy itself, given the chilling effect they have on the work of investigative journalists and others. Prior to her murder, the Maltese journalist, Daphne Caruana Galizia, faced over 40 lawsuits. The European Parliament, the Council of Europe and the European Commission are all actively engaged in measures to combat SLAPPs. The EU anti-SLAPP directive, which Ireland strongly supported, was adopted in May 2024, and is to be transposed across member states by May 2026. This Bill will already transpose the main provisions of the directive as regards defamation proceedings. In some respects, it goes beyond the minimum requirements of the directive. For instance, the Bill will apply to all defamation proceedings taken in Irish courts, not just to those with cross-border implications.

With regard to retail defamation, section 8 of the Bill will introduce a new statutory defence in so-called retail defamation cases. This responds to serious concerns expressed by retailers and the hospitality sector, particularly small and medium businesses, about a large, recent increase in unfounded claims of defamation made against retailers.

On the defence for live broadcasting, the Bill also includes a new defence for broadcasters against liability for a defamatory statement made by a contributor during a live broadcast, if the broadcaster can show that it took reasonable and prudent precautions before and during the broadcast to prevent this.

The Bill makes a number of cross-cutting practical changes to support ADR, or early settlement of proceedings, in appropriate cases. These include reforms to the offer of amends process for early settlement, which had fallen into disuse. In particular, compensation will now be decided by a judge rather than a jury, if the parties themselves cannot agree. There are new supporting measures, similar to those in the Mediation Act 2017, to encourage voluntary use of ADR in defamation cases where appropriate; and a change across the Act to ensure that where an apology or correction is made, it must be published with, at least, "the same or similar" prominence to the defamatory statement.

I will now address the main provisions of the Bill. Section 3 amends the principal Act’s definition of "periodical". This is important, because it effectively defines who may be a member of the Press Council, which is recognised under Schedule 2 to the Act. This change was requested by the Press Council, and it clarifies for the avoidance of doubt that the term includes online-only periodicals, as well as hard-copy print publications.

Section 4 provides for the abolition of juries in High Court defamation actions, as mentioned earlier. Section 5 is a consequential amendment that removes various references to juries in defamation actions across the Act. Both these sections will apply only to defamation actions that are started on, or after, the date that they come into operation.

Section 6 imposes a new limitation, where a company wishes to sue for defamation of its corporate reputation. It provides that a statement about a body corporate is not defamatory unless it has caused, or is likely to cause, serious harm to its reputation. If the company trades for profit, serious harm to reputation is defined as harm that has caused it, or is likely to cause it, serious financial loss.

Section 7 makes a geographical change, which responds to the increasingly globalised nature of news reporting. It extends the defence of absolute privilege to fair and accurate reports of the proceedings and decisions of courts that are established by law, in any state or place. Currently, absolute privilege only applies if the court is located in this State or in Northern Ireland.

Section 8 introduces the new statutory defence I mentioned in so-called retail defamation cases. The Circuit Court has repeatedly held that it is not defamatory simply to ask a person who walks past the checkout with goods to produce a receipt for them; to check with a group leaving a restaurant whether they have paid for the meal; or to explain in a pub that a bank note cannot be accepted in payment, if it does not seem to be valid legal tender. Nevertheless, defamation claims in such cases are now generating significant extra legal and insurance costs for these businesses. The new defence is not a "serious harm" test but a new specific form of the established defence of qualified privilege. It will be a defence to show that the disputed statement consisted of asking whether a person had paid for goods or services; asking whether the person had obtained a service; asking whether a person has in their possession goods, or a receipt for goods or services; or stating that a means of payment offered is unable to be accepted, for example, if a credit card is blocked or a bank note does not appear to be legal tender. The defence will protect a retailer unless they act maliciously or publish the statement excessively in the circumstances, for example, shouting across a crowded venue when the question could have been asked discreetly.

Sections 9 and 10 refer to the offer of amends process, which essentially supports agreed early settlement where the defendant admits liability. Section 9 improves the requirements for a correction and apology under this process, adding that it must be published with "the same or similar prominence" as the original defamatory statement, unless the plaintiff requests otherwise. Section 10 makes more technical amendments.

Section 11 introduces a new defence for a broadcaster, where a defamatory statement is made during a live broadcast, whether by an invited participant, or unexpectedly by a bystander. The broadcaster must show that it took reasonable and prudent precautions before and during the programme to prevent that occurring. The defence applies to broadcasters of radio or television programmes in the State, as defined, licensed and regulated under the Broadcasting Act 2009. It does not extend to the person who made the defamatory statement.

Section 12 is a technical but valuable provision. It amends section 28 of the Act, which allows a person to apply to Circuit Court for a declaratory order that a statement about them is false and defamatory. Under that section, the court must be satisfied that the maker of the statement has "no defence" to the application. This sets an unnecessarily high bar for applicants, and the amendment changes it to "no defence that is reasonably likely to succeed". Section 12 also allows the Circuit Court to make both a correction order and an order prohibiting further publication, alongside a declaratory order.

Section 13 amends the procedure for a defendant who wishes to lodge a sum of money in court in settlement of damages for defamation, without being required to admit liability. Currently the defendant has to make the lodgment at the point of filing their defence. The amendment removes this requirement, which is over-restrictive.

Section 14 amends section 30 of the Act, to add that where the court orders a defendant to publish a correction of a defamatory statement, the correction is to be published with "the same or similar" prominence as was given to the defamatory statement. Sections 15 and 16 are more technical amendments.

Section 17 inserts the important new Part 4A in the Act, containing a series of protective measures against SLAPPs. New section 34A defines several key terms, including "abusive court proceedings against public participation", which is the legal term used for a SLAPP. The definitions for all SLAPP-related terms are the same as those used in the EU anti-SLAPP directive. New section 34C provides that a defendant should notify the court if they consider the defamation proceedings issued against them are a SLAPP. This links in with the provisions allowing for accelerated treatment in such cases.

Irish law already allows a court to order a plaintiff to provide security in certain circumstances for the defendant's costs. New section 34D provides that where a defendant in defamation proceedings that relate to his or her engagement in "public participation" makes such an application, the court shall decide that application as expeditiously as possible, consistent with the administration of justice.

Irish courts already have a range of legal powers to strike out proceedings early if satisfied they are manifestly unfounded.

The new section 34E applies where such an application is made by a defendant in defamation proceedings that relate to his or her engagement in public participation. It provides non-exhaustive examples of what constitutes manifestly unfounded, such as where the proceedings disclose no reasonable cause of action, or are an abuse of the court process. The new section 34E also provides that the court shall decide such a strike-out application as expeditiously as possible, consistent with the administration of justice. This requirement for accelerated treatment also applies in Part 4A to other applications for anti-SLAPP protective measures.

The new sections 34F and 34G provide that the defendant may ask the court to decide, and issue a declaration, that the defamation proceedings are a SLAPP, that is, that they amount to abusive court proceedings against public participation. Where the court declares the proceedings to be a SLAPP, new section 34G(2) provides that the court shall, insofar as it considers appropriate, take the declaration into account when making any order in respect of the costs of the proceedings. Also, the court may, if it thinks fit, order those costs to be paid on a legal practitioner and client basis, or a legal practitioner and own client basis. These are both more advantageous to the defendant than the usual party-to-party basis on which costs are awarded.

The new section 34H provides for publication on the Courts Service website of any order or written judgment of the Circuit Court finding defamation proceedings to be a SLAPP. Judgments of the higher courts are already published there.

Section 18 inserts a new Part 4B on alternative dispute resolution, ADR, containing new sections 34I to 34L. Part 4B refers to two existing ADR procedures, that is, under Schedule 2 to the Defamation Act for a complaint to the Press Council about conduct of one of its members and under section 49 of the Broadcasting Act 2009, commonly known as the right of reply procedure, regarding broadcasters. Part 4B contains supporting and facilitating provisions for these ADR procedures. All of these reflect similar provisions for mediation in the Mediation Act 2017. Use of the Press Council and broadcasting right of reply schemes remains voluntary for the person making the complaint. Parties also remain free to use mediation, if they so prefer.

The new section 34J provides that if a solicitor is considering issuing defamation proceedings on behalf of a client, he or she must inform the client about the availability of the ADR procedures, if applicable to the case. That information must include explaining the implications of using the ADR procedure, including regarding costs. The solicitor must provide a declaration to evidence his or her compliance with this requirement.

The new section 34K provides that a court may, if it considers appropriate, invite the parties to defamation proceedings to consider engaging in either ADR procedures to resolve their dispute, and may provide them with information on the procedure. Whether to so engage remains a decision for the parties.

The new section 34L provides that a court awarding costs in defamation proceedings where it had invited the parties to consider ADR may, if it considers it just, have regard to any unreasonable failure or refusal by a party to consider using the ADR procedure or to engage with it.

Section 19 refers to Schedule 1 to the principal Act, which sets out types of public-interest reports or documents that will be protected by the defence of qualified privilege, provided that the report itself is fair and accurate. The main change made is that this defence will now apply to reports of events in this State or in any other state or place. Currently, it only refers to here, in another EU member state, or in the UK. This is a modernising provision to reflect the increasingly global nature of news reporting.

On further changes to be included during passage of Bill, several further key reforms are being finalised, which the Minister, Deputy McEntee, will bring to Government as amendments during the Bill's passage. These include the clearer and simpler defence of fair and reasonable publication in the public interest, which is particularly important to protect responsible public interest journalism; and a statutory power for the Circuit Court to issue a Norwich Pharmacal order, directing a digital services provider to identify an anonymous poster of defamatory online material. This will significantly reduce the legal costs for a person subjected to such comments. We are also working on a power for the courts to award damages for harm suffered by a person targeted by SLAPP proceedings.

This is robust, fair and proportionate legislation, that is, a modernising defamation Bill well-suited to meet the challenges of a rapidly evolving communications landscape. It is our strong view that it is a priority Bill. The Minister hopes that, with the co-operation of all sides, we can facilitate its swift passage through the House with a view to early enactment. I commend the Bill to the House.

Deputy Pa Daly

I thank the Minister of State for his briefing. While reform of this legislation is required and is something that we have previously called for, it is important for a balance to be struck. I thank the Library and Research Service for its briefing document, which, as usual, is excellent. I note in that document the comments of a previous Minister for Justice and Equality, Deputy Charles Flanagan, who said that defamation law in Ireland essentially seeks to balance three different rights, which are protected under both our Constitution and the European Convention on Human Rights. They are the right to freedom of expression, protection of good name and reputation, and access to justice. This is an assessment on which I presume we are all agreed, even though it could be argued strongly that the rights of access to justice in many cases, particularly in family law, have not seen great improvements over the years. In fact, it has gone back.

Any defamation legislation needs to be assessed in how it balances those rights, along with the impact it has on the wider health of democratic discourse. Every one of these rights is a two-way street. I always remember when I was working as a solicitor, dealing with a family whose deceased loved one was about to be defamed in a Sunday publication. They contacted the office and there was little that we could do about it, except to appeal to the better nature of the company to say, if she was alive, how extremely libellous and damaging the comments that were going to be and unfortunately were published in the newspaper would be. Unfortunately, that fell on deaf ears. My experience of it has always been framed in the context of when there is an open door, that has unfortunately often been exploited by some media outlets, in that you cannot libel the dead. Without the protection of the tort of defamation, there was no recourse for the family.

In that context, I was taken aback by some interventions from the Tánaiste. One was described by Frank Buttimer and Company solicitors as a rant and a feral attack on many of the pillars of justice of the State, and an attack on the decision of the Director of Public Prosecutions not to prosecute in the Sophie Toscan du Plantier case. He should maybe read some of the recommendations about the gathering of evidence in that case, which was prepared by the Director of Public Prosecutions for the decision that was taken in that case not to prosecute. I note there is a cold case review and it will be interesting to see what is in that.

I also note what the Minister of State said about further changes to be included in the passage of the Bill. The Bill is incomplete pending what the Minister of State has stated the Minister, Deputy McEntee, will bring as amendments regarding the fair and reasonable publication in the public interest, the statutory power for the Circuit Court to issue a Norwich Pharmacal order, and also the power for the courts to award damages for harm suffered from the SLAPP proceedings. We wait to see that. It is interesting to see, in the Minister of State's document, the defence for live broadcasting. We welcome that there will be a new defence for broadcasters against liability for defamatory statements made by a contributor if the broadcaster can show that it took reasonable and prudent precautions. We think that is welcome. It is onerous on a media outlet. Of course, that should not extend to the presenter of the show if engaged in damaging and defamatory commentary. One would expect that he or she would know better.

I note also what the Minister of State has written in section 8. I am not sure it is a significant difference from what is there. As the Minister of State said, the Circuit Court has repeatedly said that it is not defamatory simply to ask persons who walk past the checkout with goods to produce a receipt. The Minister of State says it will be a defence to simply show that any disputed statement consisted of simply asking a person whether he or she has paid, obtained the service, or had in his or her possession goods or receipts.

I am not so sure that there are significant legal and insurance costs for these businesses. That is what is alleged but often in cases that come before the courts, it is not that they are simply asked for receipt; it goes way further than that. Often, it is untrained and inexperienced staff who made a serious error and defamed ordinary shoppers because, for example, of the way they look or they belong to certain groups. It is often perhaps more to do with that. Those are the type of cases we should keep in the forefront of our minds. We should avoid defamation as a rich man's law and not to score points. Not all cases are clear-cut but there is little doubt we must see a rebalancing without compromising the fundamentals of the law and the balancing act within it, which was mentioned.

We had extensive engagement with representatives of the media at the Oireachtas Joint Committee on Tourism, Culture, Arts, Sports and Media and the committee on justice. After the justice committee issued its recommendations, media outlets prepared more extensive lobbying on the Government. It could be argued that we are seeing the results of that today. Section 2 changes the definition of a periodical to cover online publications. Some further work may be required on Committee Stage on this matter but the evolution is important and one the justice committee and Press Council of Ireland supported. The bandwidth of stories made through online publications means informal settlements through the Press Council of Ireland may accelerate. Will the Minister of State provide details of any impact assessment in that regard on Committee Stage?

Part 3 deals with the abolition of juries in defamation trials. That will be more contentious than most. It is disappointing that despite calls by the committee, Opposition parties including Sinn Féin, the ICCL, Mr. Justice Bernard Barton and many others, the Government is proceeding with the abolition of juries in those cases. The overwhelming concern seems to be the size of the awards but this is surely obviated by a judge ruling on the quantum of damages, as well as procedural delays. It is worth recalling, which the Minister of State will be aware of, that we were promised by insurance companies many years ago that if juries were abolished, premiums would be reduced. That was the first of many amendments to the personal injury legislation, almost all with the promise that the cost of premiums would be reduced. Of course, that has not happened. I dealt with two cases over the summer in which people were trying to renew their insurance. Following incidents in which their cars were parked and collided into, because there was an ongoing claim, their premiums were increased even though clearly it was no fault of their own. That was used as yet another excuse by insurance companies to say they would have to pay a much higher premium than they did the year before. I am not convinced that removing juries will make this more efficient. In fact, one could argue the other way.

I saw in the briefing document that the Department said that, "Juries are unused to dealing with large sums of money. They are much more likely than judges to award damages that are unpredictable, excessive or disproportionate". The only evidence seems to be one case which is mentioned. The commentary reads like the Department was convinced by media outlets when they were invited into Leinster House after the report by the justice committee. One could just as easily have mentioned one case such as Gordon vs the Irish Racehorse Trainers Association in which the Court of Appeal unanimously upheld the amount of damages awarded by the jury, rather than using the one case mentioned. There is a slight tone of condescension about juries but they deal with murder cases, for example, all the time. It is difficult to see how, if they are trusted to deal with murder cases, they cannot deal with deciding whether or not a citizen has been defamed. As matters of defamation are about one's good name, it is arguable that a jury of one's peers should be entrusted with weighing the balance of rights and harms. While we appreciate the procedural concerns and the risk of disproportionate awards, we do not feel they are sufficient justification for curtailing the right to due process. We previously opposed this move in the Six Counties and have concerns about it in this jurisdiction also. In fact, it is more difficult to overturn the decision of a jury so it could be argued that maintaining the presence of juries would reduce the number of appeals and make the system more efficient. A Supreme Court decision in the case of Higgins established categories of damages in defamation, so that may also help to make it more efficient.

Measures relating to the body corporate suing for defamation in section 6 strike more or less the right balance where a for-profit body sues, requiring that it proves a serious financial loss, is positive but it also must be clear that this is a necessary but not sufficient condition. SLAPPs are dealt with in later parts of the Bill but the power of corporations matched against media outlets, citizen journalists or ordinary people is no contest. On this point, the defence of retail defamation needs to be approached carefully, as I said. There is of course the odd frivolous or vexatious claim but there is not a significant amount, as is alleged. We need a larger visible Garda presence in city centres, which would alleviate a lot of public order issues and this type of incident. I took a few cases in which people were accused wrongly and quite often it was an untrained staff member who made the defamatory action.

Sections 8 to 10 offer to make amends and require corrections to be made in the same prominence as the original statement giving rise to proceedings. In a lot of instances, this should prove satisfactory and will, I hope, encourage both parties to settle early and avoid costly court proceedings. Where proceedings go ahead, there should be sufficient evidence of the seriousness for either side in settling the matter. Ultimately, an apology, withdrawal and financial recompense are what a court can offer. If there is a way this can be gained in cases where they are merited prior to court sittings, this is to be welcomed.

I already dealt with live broadcasts. We support the alternative dispute resolution mechanism. We look forward to further engagement on many of these issues in the course of Committee Stage. We know the Government is taking more time and has had ample time to consider the draft heads and the report. We look forward to dealing with it. We will support the provision on SLAPPs, which is in line with our overall belief that people have the right to fight for their own good name but also highlight the wrongdoing by large-scale employers and companies that are in a strong position to take cases. The mediation council has still not been established and adversarial circumstances still exist across the justice system, where promised reforms have not taken place. We hope this council will be established as soon as possible.

Deputy Ruairí Ó Murchú

There is a considerable amount in this Bill with which we will all agree. A lot of us will look for balance and something that works from a point of view of people have a right to maintain their good name, ensuring that we allow for freedom of speech and do not inhibit responsible journalism. We know that is an absolutely necessary part of the democratic process. An awful lot of this is the outworking of public consultation. We also want to see consistency, which is sometimes lacking.

Deputy Daly dealt with the issue we have around the abolition of juries in High Court Defamation actions. That falls into one's right to a jury of one's peers to make determinations. Deputy Daly also spoke about the proposals that the belief that has been sold around reducing insurance premiums and the absolute failure with regard to that, as we have seen all of the legislation that has changed in latter years. We also know there are backlogs in courts but these issues need to be addressed and action needs to be taken on them. We do not want to inhibit people's rights if there is no need and there is no particular gain in doing so.

There is the requirement for solicitors to inform clients of alternative dispute resolution options, including mediation, before issuing defamation proceedings and obliging parties to have considered those options. While there may be caveats in certain sets of circumstances everyone would say that is sensible. If a person is defamed the correction must be published with equal prominence in the defamatory publication. We have all seen instances where that was not the case. This is straightforward. The idea is that if an action can be taken early and in a very fair way then an awful lot can be avoided. The plaintiff or defendant may lodge an offer of settlement in court which will be taken into account when determining costs. Reforms of the defence of fair and reasonable publication on a matter of public interest are needed to make it simpler and clearer and there is more work to be done. In general, there will be an element of support with regard to this. There is also the reform of the live broadcasting defence. This is when a contributor unexpectedly makes a defamatory comment during a live broadcast provided the broadcaster shows it took reasonable measures before starting the broadcast to prevent that from happening. That makes absolute sense. Mistakes will happen but we need to make sure these bodies are kept accountable and they have to be given an easy means of resolving problems and mistakes. Once again, it is about fairness and balance.

The insertion of a new part into the Act to deal with strategic lawsuits against public participation would have to be balanced against a person's right to defend his or her good name. With regard to the statutory notice of a complaint process to make it easier, quick and cheaper to notify a publisher about defamatory online content and request it to be taken down, we might see some issues around the operation of that. I believe some work needs to be done and there are still some issues with disclosure orders. There needs to be a complete acceptance that the legislation and reform of this legislation is absolutely required. We must also show that regular people see they have the right to these sorts of protections because it is sometimes seen that it is those who have power and are privileged can take defamation cases. We need to make sure any reforms deal with any financial barriers for ordinary people to have the right to fight for their good name. That is a legitimate ask.

With regard to defamation, we are in a very different world from 2009. We have all seen plenty of commentary during the last while. Whatever about entities such as newspapers or broadcasters, the unfortunate thing is these generally can be held to some account and this is a means of ensuring fair rules apply in being able to do that. However, we have a gigantic job to hold social media companies to account. We have seen the Digital Services Act and the Digital Marketing Act, the European Commission will have a part to play, we have Coimisiún na Meán and we are looking at an online code of conduct. Do I see anything that gives me great hope at this point? No. We have all seen everything from defamation right through to disinformation, misinformation and the old one of, "I am only after hearing", or "somebody told me", and then an absolute lie, misinformation and even beyond that. We have people who are, on some level, more than slightly unhinged and literally record themselves shouting and screaming at people. We are talking about companies such as Meta, TikTok and I do not know how we will deal with WhatsApp and Telegram. We need to find a means of dealing with them. It is about having this legislation to ensure we have a means to deal with defamation but we need to look at the online space and at the companies that have optimised algorithims for money.

An Leas-Cheann Comhairle

And look at the clock.

Deputy Brendan Howlin

As legislators, we approach the whole area of defamation law reform guided by two constitutional values. First, there is the citizen's right to protection and vindication of his or her good name under Article 42.3. Second, there is the right of the citizen to express freely his or her convictions and opinions, which is guaranteed under Article 46.1. The Bill before the House must be judged by reference to both these provisions. Does it respect both the right to protection of one's reputation as well as the freedom of expression we all enjoy? Does it truly give meaning and effect to both provisions?

It is important to note an allegedly defamatory statement is, at least at the start, protected in principle by the Constitution as an expression of conviction or of an opinion. However, if a court decides at the end of a trial that the statement is both defamatory and wrongful and that none of the defences protecting free speech applyies when the court then comes to assess damages for defamation it does so only after it has decided first, that the words are not true and so are not subject to any constitutional protection as bona fide expressions of conviction or opinion; and the Constitution does not protect defamatory statements under the guise of free speech.

It is important to note the European Court of Human Rights confirmed that jury trials are an entirely legitimate way to assess defamation cases and that it was not its task to call into question that national legislative choice to retain and have juries make these decisions. There have been issues for the European court as to the nature and extent of the direction given to juries to protect against disproportionate awards. The European court has welcomed the fact that since 2009 it has been possible for a trial judge to give more detailed instructions to a jury as to the assessment of damages in this jurisdiction, and the European court has never argued for the abolition of juries.

It is also important to note the changing times. Previous reviews, and this most recent review, have been based on defamation law as experienced by traditional media, which is often on the receiving end of it. The traditional media have traditional and increasingly old-fashioned views on these matters. For all the sympathy one might have for an Irish newspaper when hit with a very large damages award it claims to be excessive; is there anyone in this House who sympathises with Alex Jones, the notorious far right conspiracy theorist who claimed the US authorities had falsified the 2012 Sandy Hook Elementary School shootings and that they were all a fiction in which 20 students and six staff members died, and who, in the American courts, had a total of $1.48 billion in damages awarded against him and has since filed for personal bankruptcy?

The sort of concerns we may have about financial viability of responsible news outlets have little or no bearing in the age of so called "citizen journalists" and citizen journalism promoting online, far right agitprop and hate. Our laws already provide for a reasonable distinction to be made along these lines insofar as they already allow for a defence of fair and reasonable publication on a matter of public interest, a defence that is custom made for bodies that belong to the Press Council of Ireland and that abide by its code of conduct.

It may be, however, that we should consider strengthening that defence, but the concerns of the bodies that belong to the Press Council of Ireland are a world away from the vitriolic assaults on reputation that are now being made online and in the social media world, and which, according to the Tánaiste, constitute a public health threat of our time.

The purpose of this Bill, as set out in its Long Title, is to provide that defamation actions in the High Court may not be tried by a jury, and to give effect to the EU anti-SLAPP directive. As to its first stated purpose, this Bill is based on recommendations by the in-house review of the Defamation Act 2009 that was published by the Department of Justice in March 2020. Importantly, that report was published two years before a significant judgment by the Supreme Court, which has been referenced both by the Minister and the Sinn Féin spokesperson, in the case called Paidraig Higgins v. Irish Aviation Authority, where the lead judgment was delivered by Mr. Justice John MacMenamin on 7 March 2022.

It seems that there is a significant respect in which that report and this Bill are simply out of date. I am referring to the principal recommendation, which is the abolition of juries in defamation cases. There are aspects of this argument that those of us with long memories will recall well. The Courts Act 1988 abolished juries for personal injuries while retaining juries a small number of important cases, such as false imprisonment defamation. Then, as now, we were promised that this particular reform, which I remember well, would reduce the incidence of excessive or disproportionate awards, significantly reduce delays and legal costs, reduce the length of hearings and provide greater clarity and certainty, which would facilitate earlier settlements of cases. Of course, as we know and has been stated by others, it did nothing of the sort. Road traffic and public liability insurance premiums continued to soar for decades after that much-trumpeted and much-sought after reform. We only managed to put some meaningful reform of control in place when we introduced, first, the book of quantum and, second, personal injuries guidelines, and we still have a long way to go on that. I do not know whether the competition authority might play a more vigorous role in ensuring that all the demanded reforms, once delivered - by God, there has been a slate of them in that regard - should have the consequences that were promised.

I recall that in 2016 the Competition and Consumer Protection Commission opened an investigation into the anti-competitive practices in the market for private insurance in this State, contrary to both domestic and EU law. The commission has since secured legally binding commitments from six parties that were under investigation for price signalling practices. That is why the Supreme Court judgment in the Higgins case is so important. The Department's review of recent defamation law includes aspects of the Higgins case as decided in the High Court and in the Court of Appeal, which was referenced, and an earlier but different point in the Supreme Court but it does not deal with the Supreme Court judgment, nor could it.

In that case, the Supreme Court, for the first time, categorised general damage awards in defamation cases as falling into four general categories or ranges. The first and lowest applies to what was termed “moderate defamation” and was for awards of €0 to €50,000. A second band in the medium range of cases was for where awards of €50,000 to €125,000 were deemed to be appropriate. A third category of award deals with seriously defamatory material where the perimeters range from damages of €125,000 up to €199,000. The very top scale of awards is in cases of the most egregious defamation, in which awards in excess of €200,000 could be made before the courts, seldom awarded more than €300,000. Finally, the Supreme Court recognised cases that it said must be seen as being truly exceptional, where there was a very real damage to the individual's reputation, and where clearly the balance tilted decisively in favour of the vindication of good name. In those exceptional cases, a higher reward could be justified.

There is very little subsequent case law on defamation, I am informed. These cases are not a feature of the daily life of our courts and there are very eminent members of the Bar in this House who will be able to attest to that. The judgment in the Higgins case should be given some time to bed down. It needs to be applied, and that application needs to be assessed, as does how the courts actually deal with those very clear guidelines. We should not rush into this particular reform, namely, the abolition of juries, when the latest reforming judgments have yet to be truly embedded in our system and to be truly assessed. What we do know is that the law, as set out in the Higgins case, is for now the law, and that nothing in this Bill will attempt to change that law. It does not matter whether future cases are heard by a jury or a judge sitting alone. Either way, the law requires that, as set out by the Supreme Court, there are four bands of awards under which any proven defamation will lie. If the substantive law is not changed, it will continue to be applied, whether it is by juries or by a judge sitting alone. Even in its own terms, therefore, I do not see how this change will affect the level of damages awarded in future cases, since they will continue to be awarded in a manner set down by the binding decision already on the statute book, if you like, of the Supreme Court.

Incidentally, the Paidraig Higgins v. Irish Aviation Authority case is also a good example of why we should not address defamation reform purely from the vantage point of the traditional media. The plaintiff in that case was an airline pilot who was seriously defamed in his professional standing and in terms of his compliance with the law and regulations, not by any media, but by a State agency in its external and internal emails. There was no media involved on either side of the case. As the Supreme Court pointed out:

The conduct and words in question bear some comparison to misfeasance in public office. The acts here were committed by a public official in the conduct of his work.

I therefore strongly believe we need a set of defamation laws that can protect us against the overweening and invasive actions of public bodies just as much as we do from the overweening and invasive action of certain media. It is for these reasons that I am opposed to sections 4 and 5 of this legislation, the provisions of which would abolish civil juries in defamation actions. In a 2017 case, McDonagh v. Sunday Newspapers Ltd., Mr. Justice MacMenamin noted:

The right to a good name, freedom of expression and public opinion are closely connected concepts, in which the concept of ‘the view of right thinking people’ are inherently part of the test. Juries are intended to reflect the views of the public. They represent the public mind and public opinion in balancing the constitutional values embodied in statutory form. This ‘public dimension’ is of great relevance in measuring whether a publication is actually defamatory at all; if it is, whether there is a defence to it; and if a publication is found to be defamatory, the measure of damages.

That is a really profound statement from him. If the measurement is the standing of the person with the public view, who is better able to decide it? Is it a judge who is, with all due respect, not the most typical representative of people or is it a cross-section of the Irish electorate or the Irish people as a jury that would be selected?

They are the people who will understand the value of a person’s good name in a pub, in a clubhouse and so on with a much more real value judgment than, I would submit to the Minister of State, any judge who is not exactly drawn from the broad strata of public life. We have seen and heard nothing from the Government that justifies disturbing the status quo.

I broadly welcome the second objective set out in the Long Title as regards the anti-SLAPP directive, as does my party. It is important to note that these provisions do not change the law as to what is and is not defamatory. Nor do they make any changes to defences of privilege that might apply. They make procedural reforms so as to safeguard against plaintiffs who pursue unfounded claims and to allow a court to strike out at an earlier stage what it determines to be manifestly unfounded claims or abuses of process. It is ironic that that great free speech warrior, Elon Musk, was himself, if the Leas-Cheann Comhairle will pardon the pun, slapped own by US courts for launching proceedings of these kinds. This initiative is worth pursuing at both Irish and EU levels and we will await to see how it progresses.

The anti-SLAPP directive does not change the substantive law. The rich and powerful - even Mr. Musk - have a right to defend themselves against defamation, and if they are defamed, they have a right to recover damages. The laws of defamation must, if they are to be seen to be effective, be seen to have a dissuasive effect on shoddy, careless or, more importantly, vindictive journalism or reporting.

I wish to single out another amendment in the Bill that will replace the definition of "periodical" so as to allow for the inclusion of online-only publications. The Journal has been a welcome addition to the Irish news media for some time. It is a member of the Press Council, subscribing to the Press Council’s code of conduct since its inception. It is good to see the amendment, which clarifies the entitlement of online-only publications to be such members.

It is now the case, and I fear will remain so, that the defamation law is too complex and too cumbersome. Cases are expensive and time consuming, and because of the cost involved, they are well beyond the reach of ordinary citizens. For participants on both sides, the stakes committed are enormous. While I accept that there is an argument for some awards being too high, I also believe that we should do much more for cheaper and greater access to the law.

The first purpose of reforming legislation should be to ensure that more cases are heard and decided on their merits expeditiously in the most convenient and appropriate venue and at an affordable price. For the great bulk of Irish people, if they are defamed, they cannot dream of taking a case because the exposure they would have financially would be well beyond their capacity. Was it a distinguished former President of the High Court who said that, in this country, you had to be a pauper or a millionaire to pursue legal proceedings? That was amended by a subsequent utterance when he said he believed it had increased to a billionaire now. I hope this matter will be on the reform agenda as well.

We should also consider whether to create a defamation jurisdiction in the District Court. We should take a hard look at the Civil Legal Aid Act 1995, which lists designated matters in respect of which legal aid may not be granted by the Legal Aid Board. The refusal to cover defamation under the legal aid scheme is based on a prim notion that, like polo or fox hunting, suing for defamation is an esoteric and expensive pursuit to be contemplated only by those who can afford the costs. This attitude is completely at variance with the constitutional obligation of the State to vindicate the good name of every citizen. Given the constitutional status of the right to one’s good name, the exclusion in the list of civil legal aid accessibility is unjustifiable and should be deleted. There are more than enough safeguards in the Act to ensure that legal aid is not used to fund frivolous or spurious actions.

The Minister of State has indicated that there are three more amendments to come. Introducing fundamental principles on Committee Stage that have not been examined during pre-legislative scrutiny or on Second Stage is not a good way to make law.

Deputy Jim O'Callaghan

I will start by saying that, as a barrister, I have represented many people who have taken defamation claims. I have also represented many media organisations that have defended defamation claims. That does not give me any more authority than anyone else in the House to speak, but I have an insight into how defamation law has developed since the last significant enactment came into effect on 1 January 2010.

I will start by dealing with an issue raised by Deputy Howlin when he stated that ordinary citizens did not gain access to the defamation courts. My experience – not just from my cases, but from seeing other cases – has been that ordinary citizens can and do get access because of the no foal, no fee-based litigation system that seems to be one of the methods of funding litigation in Ireland. I do not believe it is accurate to say that the only people who come before defamation courts are paupers or millionaires.

We have defamation laws because we have to give statutory effect to the constitutional provision in Article 40 whereby the State must defend and protect from unjust attack the good name of every citizen. This is why we have a Defamation Act. Even if that provision were not in the Constitution, this House would collectively agree that we should have some laws to prevent the publication of damaging statements about individuals that are false. Otherwise, we would find ourselves in the situation that exists in America now. It is interesting to note that, in America, such is the craziness of their free speech amendment that defamation law is now being engaged again and there have been some successes, as Deputy Howlin identified.

What makes this matter contentious is that it sometimes conflicts with the other important constitutional right, that being, the right to freedom of expression. The purpose of any defamation litigation and our job as legislators is to try to ensure that we balance both of those rights. In recent years, there has been a shift towards protecting more the right to freedom of expression. There are many reasons for that. It is unquestionably the case that there has been strategic litigation against public participation. Otherwise, we would not have an EU directive to which we are giving effect in this legislation.

We need to recognise that the public may sometimes have a negative view of defamation. I regret to say that part of the reason for this may be the frequency with which some politicians avail of the defamation laws to confront and respond to criticism in the media. I excuse Deputy Daly from this, but it has certainly been the case in the past four or five years that there has been a significant increase in the frequency of Sinn Féin politicians instituting defamation proceedings.

Deputy Pa Daly

That is not what the media said when they appeared before the media committee.

Deputy Jim O'Callaghan

The Minister of State can respond, but I suspect that that is part of the reason we have the provisions that are included in section 17.

Politicians are perfectly entitled to institute defamation proceedings. In fact, some of the more significant defamation judgments have been as a result of politicians’ proceedings, whether instituted by the former Minister, Proinsias De Rossa, or the former Taoiseach, Albert Reynolds. However, we need to recognise that defamation proceedings cannot be issued simply to confront or contest media criticism. If that is done with frequency, it will look like a strategy, and that is part of the reason for section 17.

I wish to consider the abolition of juries. I share many of the concerns being expressed by other Deputies. The decision to abolish juries in the High Court would be short-sighted.

The reason for it is that there is a belief among media defendants, in particular, who are subject to defamation claims that if they get rid of juries, awards will go down and defamation cases will not go on for as long. My assessment is that is not correct.

Deputy Howlin mentioned that there is very little case law when it comes to deformation. That is correct. The reason for that is that most cases that are heard in the High Court by way of defamation hearings are heard by a jury which gives a judgment in response to an issue paper. The jury gives an answer stating whether a plaintiff has succeeded or lost in a claim of being defamed and assesses damages. That is why we do not have a vast amount of jurisprudence.

If we abolished juries, I can guarantee the House that we will develop a whole body of jurisprudence that will result in cases being repeatedly appealed to the Court of Appeal and probably the Supreme Court. It is seldom the case that people appeal awards or decisions of juries because they know the appellate courts will be very respectful of any decision reached by a jury. Obviously, if a jury gives an excessive award, as happened a long time ago, that will be dealt with by the appeal court, but, as has been indicated by others in this House, the Higgins case clearly set out guidelines for what awards should be in terms of categorising different types of defamation.

Given the awards juries are making, I would have thought they are a lot more in tune with the value of money than judges on their own having to decide that issue. The Minister should consider the fact that in one section he is introducing legislation to deal with strategic litigation that goes against public participation, while in another we are trying to remove public participation in this process by taking out juries. That is something that should be looked at. We could still have juries for malicious falsehood, which is also dealt with under the Defamation Act. We would still have juries in respect of assault and trespass to the person. I am concerned that the reason to remove juries for the purpose of defamation actions has not been thought out.

Finally, there is the issue of online defamation. The vast amount of defamation that occurs today occurs online. It may be difficult to try to specify in the Bill how that is to be dealt with, but I ask the Minister to give consideration to including a statutory provision that would enable people to apply to a court to seek what are referred to as Norwich Pharmacal orders. That is where somebody believes they have been defamed online on Twitter or Meta. They have to go to the High Court to get in order directing Twitter or Meta to hand out the name of the account holder who published the information. We should have a procedure in place, which could be availed of in the Circuit Court, whereby people could bring forward an application based on rules established under the amending Act that would entitle citizens to take such action. That is a real challenge in defamation cases and something we should confront.

Deputy Catherine Murphy

There are aspects of the Bill that we can support and other aspects about which we have concerns. If we were to ask the average person on the street whether they see this as something that applies to them, they would say it does not, not because they fear their reputation being defamed but because there is a perception and reality about the cost of taking legal proceedings. It would only be in the most egregious cases that the vast majority of people would even consider taking such action. Taking a defamation case is perceived as being for someone with fairly deep pockets.

Some aspects of the Bill are welcome. For example, attention must be paid to the alternative remedies in place, such as the requirement for equal prominence. If an article appears, the article to remedy what has been stated has to have the same level of prominence. I recall a number of cases that were taken, in particular one against a Sunday newspaper which went on for a few weeks. It would have probably put a fairly decent size publication out of business, not so much due to losing the case but because of the cost of the legal challenge as a result of the length of time the case went on for. It is important that we get a balance.

Judge Bernard Barton has spoken to many of us and I met him earlier this year. What he said was quite interesting and I took notes at the time. We want to put something in legislation that actually works, and is constitutional and fair. The point the judge made was that this Bill was largely taken from the 2013 Act in England. He said some of the changes were not the panacea that people were expecting. In fact, he said they turned out to be the opposite. Juries were not completely abolished under the 2013 Act. The Act promised that cases would be shorter, but the reverse happened. It promised that legal costs would fall, but they have actually increased significantly to about £1 million a day. It was promised that there would be fewer appeals, but there are in fact more. The judge made the point that judge-only rulings are easier to appeal than jury decisions, due to the value of a jury's decision.

I do not know if all of that analysis has been taken into consideration, but if that is the outcome of the 2013 Act in England, why do we think it will be any different in this jurisdiction? I believe we are trying to have a reasonable system to deal with cases where defamation has happened and a reasonable amount of money is involved, but that does not appear to be the remedy. I will continue the point that Deputy Howlin made, namely, that judges do not come from a broad spectrum of society and may well have a different value system.

I have as much confidence in a jury in respect of the amount that would be paid out. The committee did not recommend that juries should be removed, but rather that there would be a recommendation from a jury that could then be taken into account by a judge. I am not sure that the right balance has been struck or the correct analysis has been done to produce the change that it is hoped the Bill will bring about.

We all have concerns about the anti-SLAPP directive. There are also concerns regarding residents' associations and other groups which have a fear about putting their head above the parapet in situations where they have a justifiable and legal entitlement to represent their community in a planning objection, for whatever reason.

Newspapers are, more and more, online rather than in print. Some have dual versions but there is movement towards the online version. The nature of the industry is changing substantially, but that differs from social media. I recall one individual who had to go to enormous lengths to rehabilitate his reputation.

He was misidentified online in an egregious way. The report was about an attack on an individual and he was being fingered for it and had to go to enormous lengths, even to get the social media companies to take down the allegation. He could even show he was out of the country, that he could not have been in the location and he could not get the social media companies to take it down, never mind amend it or put in place some sort of remedy, in the way a newspaper would in an area of equal prominence. There are serious challenges for us that relate to the behaviour of social media companies. That is the area where most people have the greatest fear in respect of defamation. A lot more will have to be done on it, including insisting on timelines for taking down things that cause serious harm.

On the serious harm test, we have a different jurisdiction from England and Wales and our Constitution will shape what can be done, but the Bill does not go as far as I would ideally like it to go. Other things in it are helpful. It may well at some point go further in relation to jurisdiction, but not in this legislation by the looks of it. A number of things are important.

Sometimes when people talk about the awards that have been made, there is a tendency to talk about some of the cases before the 2009 Act. The 2009 Act was helpful. The Supreme Court ruling in the Higgins case has also been helpful in setting out some parameters. It may well be that they are of more value in reducing the amounts in the awards than what we might do by taking juries out of the equation in defamation cases.

Speaking about the principle of legislation, I agree that we should see the entirety of what is proposed so we can speak about it. Not everyone is on the committee, although I know it will come back to the House on Report Stage and there will probably be amendments at that Stage. However, it is a sloppy approach and it is not the way to deal with legislation. It is unfortunate we are seeing that in this case.

Deputy Richard Boyd Barrett

At the outset, let me thank former judge, Mr. Justice Bernard Barton, for giving me a briefing on this issue some time ago and apologise to him - he is probably watching - that I have not been able to get back to him in the past two days. It has been a bit manic in advance of this debate. However, I am cognisant of his strong views on this Bill and I agree with them and with the concerns the Irish Council for Civil Liberties and others have raised about the Bill.

I do not claim to be a legal expert but, in a way, that is the point. The legal system and the jury system are precisely about law and justice being accessible to ordinary people and not just being the property of legal experts. In this case, a judge is replacing a jury of peers and the right to have a jury of your peers judge whether your good name has been defamed. The attempt to remove the right to a jury in High Court cases concerning people's right to protect their good name against defamation strikes at the heart of democracy. The right to a jury is in the Constitution to protect all sorts of rights people have and for those rights to be judged by a jury is absolutely critical to our entire democracy and to the possibility of getting the best justice. No system is perfect. It can have absolutely devastating consequences for people to be defamed, to be wronged in that public way. I do not see, when we talk about people's character being defamed, how anyone could argue that having a single judge, who with the best will in the world is just one person and may have prejudices and a limited ability to appreciate what defamation might do to someone, could possibly be superior to having a jury of 12 people who are randomly selected to represent the community and society. Defamation is precisely about, among other things, how people are perceived by society. The Bill replaces that representative sample of society with a single individual. I am not trying to malign judges in any way, but they tend to be from a certain class of society and appointed by the political system. Inevitably, there are limits to their ability to fully appreciate how things might be perceived or understood across a society that is much more diverse. The idea of a jury that is genuinely representative of society, of different genders, different class backgrounds and different or no religious beliefs, brings us at least closer to the possibility of having a real appreciation of whether someone is being defamed, what the potential impacts of that might be and, if they find that people have been defamed, their good name has been taken, of being able to decide what recompense they deserve and what is required to give them justice. It goes to the heart of a decent justice system and democracy because that kind of jury system is a central part of what democracy is about. To remove the right to a jury in those cases, which can have such huge impacts for people, is a retrograde step and we should not do it.

I understand that there is something about freedom of speech which is very important. I understand that a free media and their right to criticise people, question people and investigate the wrongdoing of people are also important and precious. We also have to protect that. We all know there are degrees of responsibility when it comes to the media and that certain social media companies would say anything about anyone and allow anything to be said about anyone even if it does not have the remotest connection to the truth. They do not care.

If a lie will get lots of clicks, they are willing to publish the lie. More than ever, people are vulnerable to that kind of defamation in respect of their character or actions. Unfortunately, lies are rampant. There are certain people who make money out of sensational lies who have no desire - in fact, they see it as striking at their ability to make extortionate amounts of money - for there to be any restrictions on their ability to slander and defame people. They do not care about that. People need protection in that regard.

Yes, we must protect freedom of speech. However, we must also ensure that people with lots of money cannot just use their access to that money to protect themselves from serious questioning and public interrogation, including by people who might want to expose something in the public interest that amounts to real and important information or questions. It is a difficult balance to achieve. I do not see how getting rid of juries can possibly help us to deal with that. Where there is a difficult balance or where there might be a very serious contention of the issues in a case, requiring efforts to unravel all of that and come to a fair and just adjudication of the arguments that might be made or the facts of the case, it does not make sense to replace a representative cross-section of society with one individual. With the best will in the world, the individuals in question tend to come from the better-off sections of our society and from a particular educational background. I do not mean to paint all judges and members of the legal profession with the same brush. There is a variety of legal perspectives from people who work in the profession. However, nobody is completely free from a certain degree of prejudice. No matter how much we assert the independence of the Judiciary, we cannot claim that people are not in some way influenced by their own prejudices and life experiences.

A jury gives us some prospect of balancing out the different prejudices, perspectives, world views and life experiences in trying to adjudicate on the very difficult matter of people's good name being taken, while also balancing that out against the right of people to have freedom of speech and expression and the freedom of the press. That is my main argument against the Bill. Unless the Government gets rid of this element of the legislation, I will vote against it. I will support those who are campaigning against getting rid of juries in these types of cases. Juries are just too fundamental to democracy. There is a slippery-slope potential in that if we do this in these cases, will an argument be made to get rid of the right to a jury trial in other circumstances?

My other points probably have been made by other speakers. I did not have the opportunity to hear everybody else's contributions. It is asserted by those who have looked closely at these issues and are more expert in this area than I am that any suggestion that this proposal will save time or money is erroneous. While a jury trial might take a little more effort, time, cost and so on, it is much more difficult to overturn a jury decision, whereas if it is just a judge making the decision, it is much easier to appeal it. What is gained on the swings is lost on the roundabout, and vice versa. There is no reason to believe there will be any particular saving in terms of time or costs by doing this.

Moreover, the right to a jury trial is one of the oldest components of common law and of the entire legal system. This proposal is really striking at the very foundations of what is considered to be a crucial part of a good justice system, going right back to the beginning of justice systems. We would do that at our peril. We should also be concerned that certain corporate interests will be very glad if this measure goes through. Social media companies and so on will be delighted if the provision is enacted. That should give us pause for thought as to what the Government is proposing. For all those reasons, we will oppose the Bill unless this central element of it is removed.

Deputy Catherine Connolly

I appreciate the time to speak on this Bill. I wish I had more time. The Dáil is just back in session and this is very serious legislation, as is the next Bill we will consider, the Mental Health Bill 2024. The Defamation (Amendment) Bill involves a lot of reading. I have a lot of people to thank for their help. Once again, under pressure, the library and research service has produced a Bill digest. I thank the justice committee for its work. In particular, I thank Deputy Pringle for organising a presentation in the audiovisual room with eminent people who, with nothing to gain, put information before us.

I will start on a positive note because I certainly will be going on to a negative note in regard to the proposal to abolish juries in the High Court. The rationale behind that proposal and the arguments for it that I have read are absolutely contemptuous of the ordinary person. There is a complete failure to recognise the importance of the citizen or resident of Ireland taking part in court proceedings, whether as a concerned environmentalist, for example, in making submissions on planning applications that end up in court and certainly in regard to protecting one's good name. The proposal to abolish the jury, on spurious grounds for which there is no evidence, is particularly worrying. I will go through some of the points as best I can.

On the positive side, I welcome the introduction in the Bill of special provisions regarding SLAPPs, which is very important. Sections 9 and 10, as the Minister of State outlined, relate to the offer of amends. Of particular note is the requirement to place the apology in a place of prominence, a requirement which applies equally to the publication of the judgment. There are many other good provisions in the Bill that I welcome. However, I will absolutely find myself in a position of having to vote against it on the basis of the abolition of juries, which, as has been noted, is based on corporate interests and is a proposal without evidence. Science Foundation Ireland has hauled us into the audiovisual room on many occasions to tell us about the importance of evidence-based policy decisions. That goes by the board on many occasions in this House because we follow a particular pressure group. We did so in 1988 when we abolished juries in personal injuries cases. Awards did not come down as a result and nor did the cost of insurance. Now, we are proposing to abolish juries in the High Court where a plaintiff has brought an action to protect his or her good name.

The Bill digest outlines many aspects clearly. On page 28, it states:

In his opening statement to the Joint Committee during PLS [pre-legislative scrutiny] of the Bill, The Hon. Mr Bernard Barton, a retired High Court judge who presided over defamation actions warned that:

"The proposal to abolish the legal right to trial by jury in High Court Defamation actions represents a far reaching and fundamental alteration in the law which, if enacted, carries with it serious consequences not only for the legal rights of any citizen or corporation bringing defamation proceedings to recover damages for injury to his, her or its good name but also for the administration of justice. The primary consequences of the proposal are inherently undemocratic."

Another legal academic who was with us today in the audiovisual room said that the Department's chosen path would render this jurisdiction an outlier in the common-law world in removing juries in their entirety from defamation actions.

I will come back to the judge in a minute but I will first go through the other submissions and their authors' views on the removal of juries. We are talking about the Defamation Act 2009, which is about to be amended and changed, and that set out the definition of a defamatory statement. It is a statement which "tends to injure a person's reputation in the eyes of ... [right-thinking] members of society". Equally interesting, important and significant is that the presumption of damage recognises the difficulty or impossibility of proving the effect on one's reputation in society or a community of a defamatory statement. We have various submissions. I will go to that of the Bar of Ireland and the Law Library. They tell us on pages 2 and 3 of their submission, again significantly:

Inevitably where reform of defamation law is contemplated, the media will prominently contribute (and rightly so) in the context of making proposals for reform. However, one important practical point that is often lost sight of is that the majority of defamation claims are made in proceedings which do not involve any media ... [outlet].

[...]

The most significant proposal ... is ... to abolish juries in civil actions. This proposal runs contrary to the longstanding jurisprudence regarding the importance and value of members of the public being called upon to determine issues with regard to damage to reputation and ... [the freedom of] speech.

The Law Society of Ireland states: "We disagree with this proposal [to abolish juries in the High Court] and maintain that juries should be retained in defamation actions." That is in a very succinct and relevant submission.

As regards the cross-party Committee on Justice, there is a great absence of its members here to speak to such an important issue. I never like to personalise matters but the committee is extremely important. It is a cross-party committee, as the Minister of State well knows, to scrutinise legislation before we pass it in the Dáil. I do not have the privilege of being on the committee. I go back to its recommendations. It made 18 recommendations. The first states, "The Committee recommends that the proposal under Head 3 [of the heads of the Bill at the time, which the Government has put into the Bill] to abolish juries in High Court defamation actions should be removed." It makes 17 other recommendations, which by and large have been ignored. It welcomes various aspects as well. This has been absolutely ignored. One would wonder why we have cross-party committees to tease things out, and I wonder where the members of the committee are. I think Deputy Jim O'Callaghan is on the committee - correct me if I am wrong. He was here today and made some very interesting points. I gather from what he said, although it is sometimes difficult to make out what Government people are saying, that he thought the proposal to abolish juries was not acceptable. Again, I am subject to correction, but that is what I heard him say. I wonder then, since he is a member of Fianna Fáil and a possible future leader, what influence his opinion has on the Fianna Fáil Party. Will Fianna Fáil Members vote for this to abolish juries in the High Court, even though their spokesperson on justice says this is wrong?

We talk about disinformation and the importance of communication. All of this is a narrative based on nothing but saving costs, contemptuous of the ordinary person on a jury because it is believed he or she cannot cope with big sums. It seems to me that the Government is a particularly good example of being unable to deal with big sums in the context of the big sum we are to get from Apple. The Government does not know what to do with that money. It has no idea what to do with money of that size. Yet we have a narrative that the ordinary person is not able to do that. I would think that the ordinary person is best placed to decide if a person's reputation has been reduced in the eyes of the community.

It is worth going into the submission the former judge Bernard Barton made. The reason I do so is that there was an expert report that the Government is now acting on to abolish juries, and that expert report is the first report, among all the various reports and committees up to now, that actually recommended the abolition of juries. It never happened before. It is a fundamental and catastrophic change without any basis. I repeat before I go into this submission my experience since 1999, when I was elected as a local councillor. I apologise for making any reference to that because one gets bored. I even get bored myself. The reason I mention it, however, is that I watched the systematic undermining of public participation in every aspect, at local authority and courts level. I have had 25 years of seeing that, everything from the removal of power as regards waste management plans to the removal of powers as regards water, with nothing left, really, for local authorities or their members except a development plan and a budget that is carefully choreographed. We reduce the public's participation in the planning process all based on absolute nonsense that people are objecting. My experience is that people make huge effort to make submissions because they are concerned. Any system - a planning system, a judicial system - should be robust enough to deal with such submissions, which are not objections. It takes a great effort for people to do that. What did we do? We abolished the two-part system such that if you did not make a submission at local level, you could not appeal to An Bord Pleanála. We have put every single obstacle in the way of public participation, although the courts have repeatedly highlighted the importance of the trinity in planning law: the courts, the developer and the ordinary person. Normally, a trinity is sacrosanct, but no, we keep demonising the ordinary person and going with a narrative from the expert group that the Government has gone with.

As regards that expert group, it did not take account at all of the Supreme Court decision, which I understood came after the publication. I am not sure because I have not had a chance to check. Depending on where I read it, the Supreme Court judgment came very shortly after the publication of the report. Whether it came shortly after it or later, I thought there would have been an onus on that committee to look again at that. That is what the process of consultation is about, is it not, to look again at the recommendation to abolish juries based on the idea that juries are reckless, volatile, unpredictable and costly and delay matters? The Supreme Court, which I am sure the Minister of State is very familiar with, probably more so than myself, set out in Higgins v. Irish Aviation Authority, which ran for a few years, guidelines and parameters which had to be henceforth applied to a jury in a defamation action. Therefore, the very mischief that this Bill sets out to achieve has already been sorted out.

On top of that, the former judge and other members who made a presentation today said to us that the special review group based its decision, or a lot of its findings, on a number of cases that had nothing to do with the 2009 Act. They were actually dealing with the Act prior to that, that is, the Act of 1961, 1962 or whenever it was, and did not take cognisance of the Supreme Court. I agree with the judge that it represents a radical departure from a long-settled public policy that lies behind the legal right of the citizen to trial by jury, namely, that fact-finding in serious criminal and civil cases, and one's good name being taken away, is a serious matter. All we have as politicians is our good name, and that is rapidly being eroded. That is all other people have as well - a good name.

That judge went on to outline that as far back as the Magna Carta of 1215, when citizens had very few rights, they still saw the importance of putting in individual rights and a trial by jury. The reason for that is because it became associated as a bulwark against the arbitrary misuse of authority, the exercise of which ultimately led to the inclusion of the right to jury trial in the Magna Carta as far back as 1215. I am reliably informed we had a Magna Carta in Ireland after that. I am going to quote from the judge's submission, which is unusual for me. The 18th century jurist, William Blackstone, defended and justified the concept of jury trial in civil matters as the best preservative of English liberty for it had the distinct advantage of protecting the citizen against the judicial caprice.

There is a lot of variation in judges, as there are in barristers and politicians. It is ironic that it is the judges, barristers and solicitors who are appealing to us to not abolish the juries. This must be looked at again. Another look should also be had at putting a Bill before the Dáil where there are important amendments to come in the future, which we will have barely a chance to look at. I also ask the Government to look at what the Irish Council for Civil Liberties has said, that is, to not abolish the juries. It has made other important points, one of which in particular concerns civil legal aid. There was no action on that whatsoever.

I wish I could support this Bill. There are a lot of good things in it that need to pass but, once again, something has been put in the Bill I cannot possibly support. The rational, reasonable and, if I may say so, intelligent submissions from the various groups were ignored. The decision to abolish juries has been based on an internal review which was selective in the cases it chose. The cases were either before the 2009 Act or cases after it but which came under the De Rossa judgment, which is the same year as I went in politics. It sets out a particular guiding principle that was finally undone by the Supreme Court in the Higgins case. None of that is reflected in the review on which these actions are based.

Deputy Thomas Pringle

I am thankful for the opportunity to contribute to the debate today on this Defamation (Amendment) Bill 2024. It is a very important document. It is very important in terms of the principles it is setting out to abolish juries, which are a vital part of the public and in protecting public discourse. I wish to talk about that. Unfortunately, I will not do so as eloquently as my colleagues. While a lot of the points will probably be repeated, they are important and need to be repeated because this will have very serious implications for the future, the future of the court system and the future of public participation in it, which is vitally important.

I thank the Irish Council for Civil Liberties, ICCL, for coming today to give a briefing in the audiovisual room. It gave a briefing and a lot of useful information to Members on the importance of juries. It was instructive to attend, listen and hear what had to be said. I probably did not understand fully the importance of juries and the reason they have existed through our system for so long. It goes back to the Irish Magna Carta when juries came into play in court cases. Juries have been there for so long and yet, if this Bill goes through today, it will get rid of them. Unfortunately, this Bill will go through because Government Members will make sure it goes through. That is sad.

I ask the Minister of State, even at this late stage, to withdraw the Parts in respect of the abolition to juries to allow this Bill to go through properly. That would be important and could do a lot. Perhaps he actually could have a rethink on this. That would make sense. The justice committee, of which I am a member, published a detailed report on this Bill. I wonder whether the reports feed into any decision-making within Departments at all. I have my severe doubts as to whether they do or not. Some points might be taken on board at some stage but in my experience, they do not really feed in. Reports are still important because they show that committees considered the legislation being proposed and that they put forward a report. The fact they are not taken on board is instructive as well. From that point of view, it probably is important to do that.

The evidence and reasons given for retaining juries were a lot more extensive and detailed than the reasons for getting rid of them, which also is instructive. In the audiovisual room, Declan Doyle SC stated that the collective wisdom of 12 members of society is vastly preferable in the interpretation of what a publication is actually saying to the reader than the interpretation of one appointed judge who, in all probability, is male, pale and stale. That is interesting. It shows the importance juries have, especially in cases of defamation as they relate to how someone’s standing with his or her peers has been affected. The peers of the people before the courts are the jury, not the judges. Very few people are peers to judges in Irish society.

The restoration and the vindication of the reputation of a person is much more valuable when it is done by fellow citizens than by a professional judge. That was the tenet of everyone who was in the audiovisual room today, where a retired judge, barristers, practising barristers and people from the education side of things were in attendance. The tenet of it was it is vitally important, particularly in defamation cases, that it is people’s peers who make the decision on whether a person has been defamed or not. That is what we are losing here in this case. Moreover, we appear to be losing it, at best, on grounds that do not apply any more. As was outlined, the Supreme Court set out the parameters for defamation cases in the case of Higgins v. the Irish Aviation Authority in 2022, which came after this report, on which this whole legislation is based. That maybe leads us to the question as to how responsive the Department is in making and drafting legislation. Alternatively, the Department may have just wanted to achieve different things. It could be looked at in that way, too. The Supreme Court has dealt with all these things. The courts have dealt with the issues this legislation is supposed to be dealing with in reducing the quantum, the amount and the making of the so-called arbitrary awards juries are making. This has all been dealt with and it is happening. That should be taken on board by the Minister of State.

This is serious legislation. Based on what the Minister of State has said, there does not appear to be any parameters for a review as part of this legislation or it does not seem to have been looked at as part of this legislation. The Minister of State will state, as does every Department, that legislation is reviewed all the time anyway and that kind of stuff but that is not actually the case. It will be many years before anything will be looked at in this regard. At the very least, this legislation should have a review included in it, given what has been outlined by every Opposition Member and indeed Government Members who have spoken on this, which is that there is no need for this to take place. It should be reviewed and reviewed quickly after it becomes into being to see if it is having the desired effect and whether the counter-effect is taking place as well. As was outlined today, the UK abolished juries some time ago for the same kind of reasons. That is another debate about whether we seem to just slavishly follow everything that happens in the UK, as if it is the divine prodigy or something. We just seem to slavishly follow it.

It has been shown in the UK that the measure has not reduced costs but actually increased costs, and that because judgments are written down and judges give their reasons, the avenue of appeals is opened, as outlined by Deputy O’Callaghan. There are actually increased costs in the UK, not reduced costs, and that is what we are going to see here because we follow what is done there. That is an important point.

The SLAPP legislation is welcome. It is good that the Minister of State seems to have followed the EU recommendations on this and what has happened at EU level. That is important. It should make for an effective measure on SLAPP procedures. I hope that is the case. We will see how it works. From this point of view, the legislation is important. Stand-alone legislation on SLAPP procedures would be very valuable to have in the State because SLAPPs are used by wealthy people to stop others from looking into and reporting on what they are doing. The provision in this regard is one positive that comes out of this legislation.

The Minister of State outlined that he is going to introduce amendments on Committee Stage. As usual, the debate will be stifled and we will not have discussions. There will probably be amendments making significant changes. That is a bad way of legislating, which is worrying. For all these reasons, the legislation should be withdrawn. We should look into whether it is valuable or actually makes sense to remove juries.

An Ceann Comhairle

Many heartfelt views were expressed for the Minister of State to respond to.

Minister of State at the Department of Justice (Deputy James Browne)

I thank the Deputies for their contributions. In the time available to me, I want to address some of the issues raised.

On the pre-legislative scrutiny and recommendations made, there is an increasing tendency on the Opposition side of the House to state that because the Government does not blindly accept the recommendations of an Oireachtas committee, it somehow has not taken them into consideration or is somehow undemocratic. That is disinformation. An Oireachtas committee’s role is to scrutinise. It is questionable how far it is meant to go beyond that scrutiny. The committees often make recommendations and they are taken into consideration, but it would be deeply undemocratic for a government to blindly accept the recommendations of an Oireachtas committee. It is the Dáil and Seanad that actually make legislation.

One of the recommendations made by the Oireachtas committee after pre-legislative scrutiny was a serious harm test. An implicit criticism is that because we did not accept all the recommendations, we did not consider this. I am surprised that the Deputy opposite supports a serious harm test because it would create a serious barrier to access to justice. The test was adopted in the UK in 2013 and there have been calls from certain stakeholders for it to be introduced here. We decided against it. The damage caused by defamation is primarily damage to a reputation, which can be deeply distressing. The introduction of a serious-harm test has led to very expensive pre-trial cases in the UK, which would run contrary to one of the Bill’s main objectives, to reduce the very high legal costs in defamation cases.

An aspect of the Constitution I do not believe was touched on today is access to justice. A serious harm test would seriously limit access to justice, especially for ordinary people. The stress of trying to prove serious harm so as to establish defamation would really set an imbalance in the other direction.

Most Deputies raised the issue of juries. Many people are attached to retaining juries in defamation cases. It is important for the public to know the juries were abolished in almost all civil cases a long time ago and were only kept in a very small number of areas. With regard to defamation, they were abolished in 2009 in Circuit Court cases. Therefore, there is a very tiny number of areas in civil law in which juries are still held. Our proposal is to get rid of them in the case of defamation.

It was asked why the Bill does not do more to combat online defamation. The Online Safety and Media Regulation Act 2022 focuses on online content that is harmful but not necessarily illegal and does not cover defamation. We are very conscious of the increasing importance of online and ad-based defamation; however, we do have challenges. Since the e-commerce directive of 2000 was introduced, a lot of this area comes under EU law. The competence is with the EU. The e-commerce directive of 2000 set out common law rules that in effect regulated the liability responsibilities, in Ireland and other member states, of online services providers for the content of defamatory material posted by users of their online services. An important development, therefore, was the adoption in 2022 of the Digital Services Act – Regulation (EU) 2022/2065, which replaces the relevant provisions of the e-commerce directive.

The Government has already brought into enactment the digital services directive by way of the Digital Services Act 2024. My Department is working closely with the Department of enterprise to ensure full coherence between the implementation of that and our own Bill.

Deputy Pa Daly raised the issue of retail defamation and a concern around discrimination. The Government is very conscious of the risk of discrimination against certain groups. The advantage of this defence is that it contains a built-in mechanism to protect against prejudice. If a retailer acts with malice or any improper motive, the defence does not apply. The defence, therefore, is designed to encourage the sector to develop better practice and training in this respect.

Deputies Ó Murchú and Howlin raised the issue of social media defamation and asked whether the defence of fair and reasonable publication can address social media defamation by citizen journalists. It is worth recalling that the European Court of Human Rights has considered this in several judgments and has held that a citizen journalist will be protected by the extra freedom of expression accorded to journalists if he or she complies fully with the traditional duties and careful checks that are required of professional journalists.

Deputy Howlin also raised the issue of there being no legal aid in defamation cases. This is one of the issues that fell to be considered in the comprehensive review of civil legal aid. The defamation review specifically recommends that it should be included in that review.

Deputy Richard Boyd Barrett raised the issue of the constitutional right to trial by jury and the threat to democracy of abolishing the remaining areas where juries are available in civil cases. The right to a jury in defamation cases is not constitutional. There is a constitutional right to a jury in criminal cases, not civil cases, and this is certainly the view of the leading defamation textbooks, for example, those of Cox and McCullough and of McMahon and Binchy. With regard to the threat to democracy, we should consider again Circuit Court defamation cases. Juries were abolished in 2009 and there is an option of much lower cost. It is working successfully and there has been very little criticism as a result. Appeals from the Circuit Court to the High Court are relatively rare, so the real threat to democratic access to justice is surely the extremely high legal costs of a High Court defamation case, which is outside the reach of the vast majority of ordinary people.

The argument that abolishing juries will lead to increases in appeals and costs does not reflect the experience when juries were abolished in the Circuit Court; on the contrary. It is suggested that there are very few disproportionate jury awards, not just in respect of the Kinsella case award. However, the defamation review sets out a series of cases where very disproportionate awards were significantly reduced on appeal. Reference was made to the recommended award levels set out in the Higgins judgment by Mr. Justice MacMenamin. We should let them take effect. This underlines the argument for having judges rather than juries determine appropriate awards. Judges are bound to follow a framework set out by the higher courts or explain clearly in a written judgment why they have decided differently. This is not the case for a jury. Some have argued that fewer defamation cases were brought because of juries. We need to distinguish very clearly between cases brought and cases decided. Courts Service statistics, as well as stakeholder reports, suggest an increase in defamation proceedings issued but that they are being settled out of court because of legal uncertainty over what level of award will result. Many stakeholders indicate that insurers are obliging them to settle even if they have a good case of defence because of the level of risk. I am referring to what is often known in the industry as “go-away money”. Somebody might have a very limited chance of succeeding but, because of the risk of extraordinarily high costs, they simply try to buy off the case.

I am very confident about this legislation. It is fairly balanced legislation needed to reform current defamation laws and I certainly recommend it to the House.

An Ceann Comhairle

I thank Minister of State, Deputy James Browne. Is it agreed that the Bill be now read a Second Time?

Question put and agreed to.