Joint Committee on Justice debate -
Tuesday, 4 Jul 2023

General Scheme of the Defamation (Amendment) Bill: Discussion (Resumed)

An Cathaoirleach

Apologies have been received from Senator McDowell. Other members may come and go during the meeting or join us online. I welcome the witnesses. It is good to have them here. I remind all present to turn off their mobile phones or switch them to flight or silent mode because they can interfere with the sound system.

The purpose of the meeting is to resume our engagement on the general scheme of the defamation (amendment) Bill. I am sure the witnesses are aware how this works. We had a previous session, which I am sure some of our guests observed or read reports on afterwards. For larger pieces of legislation, we typically have more than session and this is the second day of our engagement on the proposed Bill, which is before us for pre-legislative scrutiny. We hold our deliberations and publish a report after engagement with the witnesses and other groups and that will inform the shape of the actual Bill when it begins its passage through the Houses.

I welcome: Mr. Colm O'Reilly, chairman of NewsBrands Ireland and chief operating officer of the Business Post; Mr. Michael Kealey, solicitor, representing DMG Media Ireland; Mr. Bob Hughes, executive director of Local Ireland; Mr. Ronan Kennedy, senior policy officer at the Irish Council for Civil Liberties, ICCL, who has a focus on anti-SLAPP, strategic lawsuit against public participation, legislation; Ms Jessica Ní Mhainín of Index on Censorship; Dr. Mark Hanna, professor in media law at Durham Law School; Dr. Michael Foley of the National Union of Journalists, NUJ; and Mr. Ian McGuinness, Irish organiser at the NUJ. They are all very welcome. We are also joined by two representatives from the Department of Justice: Ms Madeleine Reid, principal officer in the area of civil justice legislation; and Ms Noreen Walsh, assistant principal, civil justice legislation. They were also present at the previous session, so there is a bit of continuity there. Members are seated on the other side of the table, to my right, and may come in or out as we go through, while others may join online.

I will now read a brief notice on parliamentary privilege. Witnesses and members are reminded of the long-standing parliamentary practice to the effect that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or to otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. If their statements are potentially defamatory in respect of an identifiable person or entity, they will be directed to discontinue their remarks and it is imperative that they comply with any such direction. Witnesses participating from outside the Leinster House campus are subject to another qualification in terms of the privileges not extending that far. That is not an issue for this meeting but it is noted. It would be both unfortunate and ironic if a meeting on defamation were to result in a defamatory statement. Let us hope we avoid that situation. We might establish precedent in other ways.

Since there are quite a few groups present, we have allocated three minutes for each group's opening statement. We will then do a round of committee members, with each member getting a six-minute block to put questions and take answers. It is up to each member how to use his or her time. A member can engaged in a monologue for five and a half minutes and allow 30 seconds for responses or, dare I say it, use the time more wisely. After six minutes, we will move on to the next member. If needs be, we can have second and third rounds. We generally find that, if one member does not get to ask all of his or her questions, another member will probably pick up where he or she left off. The witnesses may find the clock in the top corner useful. They may feel constrained by the three minutes, but it will only be their opening salvo. There will be plenty of opportunities over the next few hours to elaborate.

We will start with Mr. O’Reilly.

Mr. Colm O'Reilly

Good afternoon and thanks for having us today. I am speaking on behalf of NewsBrands Ireland, which is the national association of national newspapers, and of Local Ireland, which represents the local and regional newspapers of Ireland.

Passing the defamation (amendment) Bill is crucial to the future of indigenous media in Ireland. Reform is long overdue, and without it, Irish journalism will continue to labour under one of the most repressive and financially ruinous defamation laws in Europe. They are doing so when those laws do not, in effect, apply to Internet service providers and social media companies. This facilitates the spread of fake news and conspiracy theories and a coarsening of public discourse. It is vital that the reforms, now prioritised by the Government, be implemented as quickly as possible, and certainly within the legislative timeframe of the current Dáil. We believe that the joint committee will play an important role in this.

Of the issues raised in its submissions to this committee, NewsBrands Ireland would stress a number of points. First, juries in defamation cases should be abolished without further delay. They are unpredictable, time consuming and costly. Civil jury decisions lack transparency. Jury awards that give damages greatly in excess of those available in severe personal injury actions have served to bring the legal system into disrepute. NewsBrands Ireland has been calling for this change for more than 40 years.

Second, a serious harm test should be introduced in all defamation cases. Like retail outlets, the Irish media faces unwarranted and exaggerated claims for defamation almost daily. The costs of defending these claims are significant and are often unrecoverable, even when the defence succeeds. A serious harm test would act as a deterrent to vexatious claims and alleviate the risks to Ireland’s reputation associated with "libel tourism".

Third, the proposals to restrict SLAPPs should not be allowed to delay the introduction of simpler, but no less important, reforms. While measures to restrict SLAPPs are welcome, many of the problems associated with them would be alleviated by the introduction of a serious harm test. It would be better to allow the European Commission to finish its deliberations and to introduce an EU-wide anti-SLAPP directive.

The pursuit of perfection should not lead to the loss of the good. If there are aspects of the Bill that the committee concludes would require more careful consideration, other proposed reforms should nonetheless be introduced. The most important and effective changes - the abolition of juries and the introduction of a serious harm test in all defamation cases - can easily be enacted by way of single-section legislative amendments using tried and tested wording. NewsBrands Ireland urges the joint committee to speed the passage of the Bill because, without reform, the law of defamation will continue to undermine a free and independent press, which, like the Oireachtas, is one of the key pillars of our democratic society.

On behalf of NewsBrands Ireland and Local Ireland, I thank the committee for listening.

An Cathaoirleach

I thank Mr. O'Reilly. He stayed well within time, which is a good marker. I call Ms Ní Mhainín.

Ms Jessica Ní Mhainín

I thank the Cathaoirleach for the opportunity to participate in this meeting to discuss the general scheme of the defamation Bill. I am head of policy and campaigns at Index on Censorship and a member of the Coalition Against SLAPPS in Europe, CASE. I am also the co-chair of the UK Anti-SLAPP Coalition. Today, however, I am participating in my capacity as chair of the Ireland Anti-SLAPPs Network, an informal coalition of organisations that includes Article 19, the Free Legal Advice Centres, FLAC, the Irish Environmental Network, the Public Interest Law Alliance, Transparency International Ireland and several academics, including Professor Eoin O'Dell of Trinity College Dublin. I am joined by my network colleague, Mr. Ronan Kennedy, from the ICCL.

The proposal to reform the Defamation Act 2009 is welcome. I will speak specifically to the issue of SLAPPs, which are addressed in the draft scheme. SLAPPs are brought by powerful or wealthy entities against public watchdogs in an effort to compel them to withdraw or withhold critical speech even if it is accurate and in the public interest. By driving information out of the public domain, SLAPPs make it difficult to hold power to account. Put simply, SLAPPs weaponise the law in order to harass and punish those speaking out in the public interest. They threaten not only freedom of expression, but also human rights, the rule of law and our democracies.

The Ireland Anti-SLAPPs Network is satisfied that the amendments proposed in our submission would serve to improve the Bill substantially beyond its current draft, particularly with regard to putting an end to SLAPPs. Many of the recommendations of the network are drawn from our anti-SLAPP work in the UK and EU. We believe that these recommendations would substantially improve the legislation.

Fundamentally, the legislation must make it possible for all public watchdogs to get rid of abusive legal actions quickly and cheaply. To that end, it is important that the legislation take account of any case that can reasonably be determined to have been filed with an improper purpose. The threshold of "manifestly unfounded", as currently proposed under head 26, is high and may preclude some SLAPP cases from being struck out. The definition of a SLAPP should be made more inclusive and include, rather than be limited to, the "features of concern" listed under head 24. We would like to see a serious harm test established for all defamation actions, not only those mentioned in the draft scheme. The scope of the Bill should also be widened to include anyone who is already facing a SLAPP. This recommendation is new and was not included in our previous written submission. We would like to see the legislation being applied retrospectively to cases that are already in train. Professor O'Dell of Trinity's law school, who is a member of the network, has drafted a proposed addition to head 1, which we have included in our opening statement and are happy to discuss.

We strongly welcome the long-awaited publication of this draft Bill, but we are mindful of the trend towards the slow progress of legislation. Given the long-standing demands for reform of Irish defamation laws from both domestic and international actors, including the European Commission, we call on the Government to prioritise the passage of this legislation in as short a timeframe as practicable while still allowing for proper scrutiny by the Legislature and the public. We look forward to the discussion.

An Cathaoirleach

I thank Ms Ní Mhainín. Next is Dr. Hanna from Durham law school.

Dr. Mark Hanna

I thank the committee for the opportunity to comment on the general scheme of the defamation (amendment) Bill. I am an assistant professor in media law at Durham University and I conduct research on the development of defamation law across common law jurisdictions.

In general, I welcome the Bill. It better promotes freedom of expression on matters of public interest, which is vital to any democratic republic. It also aims to curb abuse of defamation proceedings to silence those who would speak out in the public interest. I recognise, however, that although globally connected, this remains a close-knit society, where a person's reputation is not just a commodity, but an important right. In many ways, new media has only multiplied the scope and consequence of defamation. Any reform must therefore be careful to strike the delicate balance between rights. Admittedly, this is not an easy task.

On specific provisions in the general scheme, I will summarise the points made in my written submission. First, I welcome the reversal of the presumption of jury trials, not the abolition. I understand the theory behind having juries try defamation cases. In practice, however, they rarely play this role and their prospect only delays and complicates proceedings and makes them more expensive. There is no doubt that this delay, complication and expense can be gamed by those who would initiate what the general scheme refers to as "SLAPPs".

Second, I also recommend a more general serious harm test rather than the limited serious harm thresholds introduced under heads 4 through 6. It appears somewhat odd that the general scheme introduces an early dismissal mechanism, which I would say goes too far, but leaves out a general serious harm test that would help to deal with SLAPPs in a way that more effectively struck the balance. I recommend a simplification of the public interest defence under head 16. As I wrote in my submission, the easy way to achieve this is simply by excising subhead (1)(c) there.

On the "measures against abusive litigation to restrict public participation" or SLAPPS, the protection of public interest speech is obviously paramount, but this always requires a sensitivity to the facts of the specific case. I am not sure the definition under head 24 captures this. Regarding the "features of concern" under head 24 and the provision for the early dismissal of claims under head 26, any such provision must make allowance for lay litigants and ineffective legal assistance.

This speaks to the complexity of proceedings and the need to strike the balance of rights.

The early dismissal mechanism should deal adequately with SLAPPs, but will also likely bar some claims which involve a legitimate attempt at vindication. That may only amount to a small number of cases in practice but enough to violate the rights to access to justice and reputation which are otherwise held in high regard in this jurisdiction. I think this provision needs a more careful design.

I thank the committee for the opportunity to speak on this important issue, and I hope the contribution is of assistance in the necessary reform of this area of law.

Dr. Michael Foley

I thank the Cathaoirleach and committee for having us here to speak on this incredibly important legislation.

The NUJ-Ireland and UK represents staff and freelance journalists working across all platforms, print, broadcasting, both public service and independent, online and digital, whether in national or regional media. The pace of change in the media contrasts with the slowness of reform of defamation. The 2009 Act came with a provision that it would be reviewed within five years, but it was not until March 2020 that the report on the Defamation Act was published. We are now considering legislation, nine years after that review was to take place.

While the delay might indicate the low priority given to the subject, we broadly support the Bill but urge that the process be speeded up to ensure legislation gets through. We believe many of the provisions in the legislation have the capacity to enhance media freedom by addressing long-standing concerns of journalists, media practitioners, publishers, lawyers and academics. It is important to reiterate that the NUJ recognises the right of all citizens to protection of their reputation and acknowledges that the exercise of the right to freedom of expression brings with it responsibilities to behave in an ethical manner. Journalists are expected to adhere to the professional code of conduct of the union, which was formulated in the 1930s, as well as other codes, such as that of the Press Council of Ireland, of which the NUJ was a founding member.

Members will have seen our submission, so I will just highlight some areas of concern. We would like the definition of "online publication" to be made clear. There is an anomaly in that publications by RTÉ journalists on the RTÉ website are not covered by current broadcasting complaints procedure. We do not want a situation whereby journalists in RTÉ might find some form of double jeopardy where they come under the press council and the new media commission.

We would favour a serious harm test being provided for all defamation cases as we believe it would lead to a decline in the number of cases taken. We would like legislators to look again at the definition of "honest opinion".

On the important issue of SLAPPs, we welcomed the EU’s anti-SLAPP directive and the anti-SLAPP mechanism contained in the draft legislation. The NUJ is in broad agreement with the Irish anti-SLAPP network, of which we are a member, so I will not duplicate what might be said by my colleagues here.

We believe that, in the main, the defamation (amendment) Bill could be an important contribution to press freedom in Ireland and, we hope, on behalf of our members, that we can play some part on ensuring it is.

An Cathaoirleach

That concludes the opening comments. They have been very helpful.

The witnesses have the benefit of coming in as the second round, so most have presumably heard what was said the previous day. I will give them the opportunity to respond to that and engage on those points.

We heard in a couple of the opening statements that juries should be abolished. At least one or two speakers said they would see the abolition of juries as a positive. That was not the view at the previous hearing. Dr. Hanna said jury trials can add to the expense. Is there a mismatch? There is an issue, it would appear from the views around the table today, that defamation trials take too long to get heard or are too costly. Perhaps that frustration is being misdirected towards the role of juries. I would like to drill into that. Is it possible there are other impediments or blockers in the system? It will be important to understand these issues when we formulate our report. It is not apparent to me why jury trials would be more costly. There may be an issue that the Courts Service does not provide enough jury weeks in the court year. That is different from saying jury trials are causing delays. If that is the case, the lack of juries is causing the delay rather than the jury itself.

A suggestion emerged in the previous session concerning a recent Supreme Court decision on the awards that should be made in defamation cases. That decision was very helpful, albeit late in the day, and set out the categories of defamatory wrong and where an individual case might fall. I expect great guidance from that. A suggestion emerged the last day that a jury could be retained to make a finding of fact as to whether the utterance, nuance, statement or behaviour was defamatory. Words can have many meanings and demographics and class can mean all sorts of different readings of words. A jury of one’s peers can decide if it is defamatory or not and then it falls to a judge to thank them for their verdict and decide the level of damages. It is not dissimilar to a criminal trial in which a jury decides if a person is guilty or not guilty and the judge decides the appropriate sentence. That might be a way to take it if there is a concern about unpredictable or inconsistent awards of damages by jury: taking the jury out of the damage award but keeping it for the finding of fact. I am interested in the views in this room on that suggestion.

Another point made at the previous hearing on which I invite comment was that the media are only a small portion of the parties making up defamation trials. It is often neighbour suing neighbour. The retail issue is a specific subconcern, but there are many categories and the media may not even be the lion’s share. They are the more high-profile ones, but the day-to-day ones may not involve the media. There was something suggested about vexatious trials and I think retail was mentioned. It strikes me that most of the vexatious or retail-type defamations would probably go to the Circuit Court so there would not be a jury. A jury would only come into play if the case goes to the High Court so, by definition, it must have a significant value associated with it in the first place and there would be a penalty and cost if it does not.

There is an anomaly and a question the committee will have to solve. It has been said today, and is often said elsewhere, that defamation reform is long awaited and much needed. Equally, we see a World Press Freedom Index placing Ireland in the top two, three or four in the world. It does not seem to compute. I struggle to square that circle. That is something the committee will have to address when we get to our deliberations.

Mr. Michael Kealey

I have mentioned I am a solicitor so I will try to deal with those. I will deal with them in reverse order. The last question related to Reporters Without Borders and the point made was that the Irish system has done quite well. In the current league table, we are second in Europe for press freedom. That was put forward as a reason why there is no real need for reform. The issue is that in the Reporters Without Borders report we were previously sixth and went up to second. The reason we went up to second was the Government acceptance of the recommendations of the Future of Media Commission as well as by virtue of the fact the review of the Defamation Act had taken place and the Government had prioritised that reform. If this reform does not happen, we are likely to slip down the league table.

May I say, as a supporter of Derry City Football Club, I do not like slipping down the tables but we have been doing it all season? I believe this is the answer to that question.

Reference was made to the length of trials and how long it is taking cases to get on. It is a very good point and a very valid one. This impacts not just on the media but on the people who are bringing the claims. If a person's reputation has been damaged he or she will want the case on and will want it on quickly. This is a problem. Part of the problem is that so few cases that are determined by juries. We find ourselves in the position that there are only nine weeks each year given over to jury trials in defamation cases, as opposed to the 34 weeks when there are trials the rest of the time. I do not believe that the answer to that is by bringing juries down more and more. To get a jury of 12 people one would need to bring down a minimum of 36 people. To bring down 36 people every day for 34 weeks would be an imposition on the electorate and on the citizens of Ireland that would be unwarranted. What could be done, if one was to abolish juries, is that any case could be heard before a judge at any time. The cases would then come on much more quickly and we could get rid of the delays. If we look at the jury list at the moment, cases sitting before the High Court now mostly relate to matters that have been published in 2016 and 2017. That is an unconscionable delay. It is deeply unfair on the claimants, never mind on the news brands and the news industry. It is deeply unfair on the claimants and it should be brought on much more quickly. We have said that we would like juries to be abolished because we believe that this would introduce transparency in a decision and one would have a decision that is reasoned. A judge would set out the reasons he or she believed one person rather than the other. We may not like the decision but we would at least know. The position with jury decisions at the moment, unfortunately, is they are the archetypal opaque decisions. Lawyers are not even allowed to ask juries how they arrived at their decision. Even if the time for an appeal has gone, it is illegal for me to go to a juror and ask, "What swung it one way or another?" We are not allowed to do that. There is a lot of talk about transparency but jury decisions are not transparent. If juries were not on cases, we would get on more quickly.

The Oireachtas has decided, quite rightly, that in defamation cases the Circuit Court can make awards up to €75,000. That is a lot of money and it is a tax-free sum. It is an awful lot of money for anyone. On the jury point that was made, and I am aware it was said previously, in a Circuit Court case where a judge has made a reasoned decision saying, "I think you were defamed, I think it was terrible, and I am awarding you €50,000", there are very few people coming out of those cases at the end saying, "Well that is all okay but I wish it was a jury who had given it to me rather than a judge." Judges can make decisions. It is just as strong a vindication. The advantage of it is that we would have transparency, we would have reasoned decisions, and we would know where to go.

I will be very brief in conclusion as I do not want to take up any more time and I am aware there are more questions here. The European court has a view on Ireland's system of juries making decisions on awards at the moment. Let us say a jury goes mad and gives a very excessive award, we know it can always be appealed. The European court has said that this provision is not adequate to meet our obligations under the European Convention on Human Rights. Leaving aside the cost and the expense of everybody having to go to an appellant court, the European court is effectively saying that this is not adequate. Ireland is an outlier when it comes to defamation awards.

Consider the range of awards in Ireland. For example, a Supreme Court decision upheld an award of approximately €1.25 million - again an award that is tax free. That is ten times more than the plaintiff would have received in our neighbouring jurisdiction, the UK. That figure is wildly out of sync with the rest of the European Union. We are an outlier on awards and the reason is juries. If we abolished juries that is where we would end up.

An Cathaoirleach

I thank Mr. Kealey.

Ms Jessica Ní Mhainín

I will very briefly come in on the point about Reporters Without Borders, RSF. I completely agree. In addition to what has been said, I will add that Ireland's rating is a reflection of the worsening situation of media freedom worldwide. This is important to say. Media freedom is, unfortunately, in decline.

On strategic lawsuits against public participation, SLAPPs, specifically, and as a representative of the Ireland Anti-SLAPPs Network, it is very difficult for us to compile cases of SLAPPs. Drawing on our experience from working across the European Union on this issue, it has been particularly difficult in Ireland. I will give one example. In March my organisation, Index on Censorship, hosted an anti-SLAPP conference at Trinity College Dublin where many of those affected by SLAPPs went out of their way and were brave enough to speak about their experience. As an organisation, it is our practice to always publish online conferences, including SLAPP conferences, afterwards, so they are out there. We believe it is very much in the public interest to have them broadcast. Unfortunately, after the conference, the legal team at Trinity College Dublin believed that due to legal concerns, they could not publish that conference. Again, this puts Ireland into an outlier position. There have been many SLAPP conferences held in other European countries, including the UK, and they have all been published online without any issues. This compounds the sense of isolation that the SLAPP victims feel. It prevents us from being able to record these and to put them on the record. In a media freedom context it is very difficult to point to cases if we do not know they are happening. Journalists are also afraid to speak out about them due to potential additional legal concerns and also on the back of a reluctance from management in their own organisations. Those are important points to raise as well.

Dr. Mark Hanna

I want to talk about the point of juries. The Chair said that the role of juries is as the trier of facts. That is their proper constitutional role. The question was around why juries are causing complications and causing expenses. It is because they are the trier of facts and because this is the constitutional role. In defamation proceedings the facts are often complicated and are often disputed. This means that the judge's role in the initial proceedings is limited under section 14 of the 2009 Act whereby the only question the judge can determine is whether the allegation in question is reasonably capable of bearing a defamatory meaning. That is a wide ambit there. The Supreme Court said in the Ganley case it is a high threshold and the judges should not really intervene. They should be slow to intervene on that basis. Lots of things are reasonably capable of bearing defamatory meaning. It is only once a jury has been empanelled to try those facts that they can actually determine that. This is a lengthy process and a costly process. My point is that, of course, plaintiffs can game that. They know they can put the defendant on the back foot and they will not have the claim properly tested until somewhere down the line by which time the defendants will have had to pay out quite a lot money in legal fees. That is the problem here. I would be all for juries trying defamation cases. They could maybe do as good a job as judges on issues of fact, but is simply the case that they do not.

On another point, there is something of an incongruence in the general scheme in trying to introduce an early dismissal mechanism and if it does not reverse a presumption of jury trials or abolish juries. If juries are the proper trier of facts in defamation claims, how can one dismiss claims at an early basis when there will always be disputed facts and complications of facts? I assume the early dismissal mechanism imagines that it is judges alone who will try those facts at a preliminary hearing and not give claims out. I just do not see why one could even retain juries and have an early dismissal mechanism at the same time. That seems to be unworkable, in my opinion.

On the issue of Ireland's ranking, I wonder what the metrics are in relation to that. If one takes into account the public defence interest and that Ireland has done particularly well in terms of the public interest defence, that is problematic. It is something that really needs to be addressed to properly protect freedom of expression in that regard.

An Cathaoirleach

I thank all of the witnesses. I will move on and hand the baton over to the next speaker. I will bring in Senator Martin.

Senator Vincent P. Martin

This is an important exchange of opinions. I thank the witnesses for their contributions. I do not know if they had the chance to hear the recent contribution to the committee by Mr. Justice Bernard Barton. He is a retired High Court judge and a highly respected figure who presided over many of the main defamation cases for well over a decade. I was struck by the strong, compelling nature of that esteemed member of the superior courts. We are here saying the jurors would not be as smart as a judge and might get it wrong, but I suggest in human endeavour there is no guarantee anyone would get it right. There was also a contribution from Declan Doyle SC on behalf of the Council of the Bar in Ireland.

I am trying to drill down into this fervent, if you like, support for getting rid of juries. It appears to be categorised by arguing juries are unpredictable. If it is about the unpredictable nature of an award of damages, would the witnesses not reserve their position? It is jurisprudence and it is evolving. The case others have mentioned, Higgins v. Irish Aviation Authority, was, relatively speaking, a very recent case in the Supreme Court. Would the witnesses not let that case be fleshed out and give it an opportunity, rather than, as people might say, taking a mallet to it and removing a tenet of the administration of justice, namely, the role juries play in the common law, open and democratic world we are privileged to live in? Does that address the matter if it is one of costs? If it is about the unpredictable nature of findings of fact, the witnesses guests have heard from Mr. Justice Barton, who said we should leave it with them.

As in any walk of life, juries will occasionally get it wrong but let us consider the cost of removing them. They instil confidence in the system. It is a system you or I do not own, as it is the people's justice system. They are at the heart of it by virtue of the system we have and they live in the real world. The point that juries are a fundamental tenet of our justice system has been made by others.

The other big argument is about inefficiencies. Are we going to put all that at the doorstep of juries? What if we could address the inefficiencies caused by delays by resourcing judges in order that cases come to court quicker and getting rid of facetious, frivolous claims at an early stage? I respect the contributions. They were refreshing but is this really a black-and-white issue? Is there no middle ground here? Is getting rid of juries really a silver bullet which will remove all the ills we complain about? Do the witnesses not accept the competing nature of the constitutional right to freedom of speech and a person's right to his or her reputation? They are countervailing rights. It is a radical move to remove juries in defamation trials that have served us for centuries. I ask the witnesses to address the questions I raised regarding the Supreme Court case, whether other efficiencies can be made in the system and the price we would pay for moving away from the position where the public has confidence in and ownership of a system in which we are judged by our peers. Those are the three main issues.

Mr. Ronan Kennedy

I thank the Senator. There were some really useful remarks in there. The point he made about this not being an either-or issue is important. I may be somewhat of a lone voice in the desert here as I am wearing two hats. As the ICCL is a member of the Ireland Anti-SLAPPs Network, we have a proposal with respect to juries. The ICCL, as a stand-alone entity, is strongly in favour of the retention of juries for all the reasons that were set out at the previous hearing and which I will not go over again. Those democratic reasons and the decision being taken away from what could be seen to be reasonable in the eyes of the general public would be some of our big concerns.

I would not expect the committee to make a recommendation that we should either get rid of juries or keep things exactly as they are. There are shades within this and examples elsewhere that show where things can be amended. It has been mentioned that juries could be retained for findings of fact and then the award of damages could be within the gift of judges, within certain boundaries. That is something we have examined. In our submission we said either party in a case could request a trial by jury if it so wished and a judge could make a decision in the interests of justice if a trial by jury is appropriate for the case in question. I believe that is currently the case in New Zealand and possibly British Columbia. It may be interesting for the committee to look at those case studies. Ms Ní Mhainín may wish to add to that.

Ms Jessica Ní Mhainín

In England and Wales the presumption of a right to a jury trial has been abolished, or enacted rather, since 2013. It is a completely uncontentious there. Juries have rarely been used in defamation cases since then and possibly have not been used at all. That would be a logical way to go. It is a middle ground option, rather than complete abolition.

Mr. Michael Kealey

The Senator is correct that there is no guarantee a judge will get it right. As a general rule, 50% of the people who are involved in the trial are upset whenever the judge makes a decision. There is no guarantee the jury will get it right either. The difference, however, is that one at least knows why the judge has made the decision. The judge is obliged to set out his reasons. He is obliged to indicate why he has reached a particular decision. One can then look at that and determine whether one wants to appeal that decision. It is difficult to do that in a case involving a jury. One simply does not know how or why it reached the decision. Unfortunately, the position, certainly in defamation cases from my experience, does not work for both sides. I have seen cases where plaintiffs have had very good cases and the juries just do not like them, for whatever reason. It is not legal; it is just that they have "taken agin them", if I can put it that way. I obviously will not mention names, but there are cases with politicians. Of course, there are people who will come before juries making a determination on a case involving a politician and those people either disagree with all politicians or with the particular politician's point of view, but we will never know that. We want reasoned, transparent decisions and the best way to have that is to have a judge make them.

Deputy Thomas Pringle

I am going to continue on the jury trials because it is an important matter. My preference is to have a jury deciding the facts and a judge deciding the compensation. Surely it would be better to allow juries to be questioned on why they made decisions rather than just calling for their abolition? As for the assumption that juries can take a dislike to somebody, judges can do the same. They are people as well, so they take a dislike to people. Maybe the difference is judges can couch their dislike in legalese and then it is grand. That is a failing of having people involved in the system, so that is the problem there.

Does the fact that we have so few judges impact on defamation cases? I am sure it does. We have the fewest judges per capita of any country in Europe.

Jury trials are set for 30, or however many, days of the year. Given that there are very few judges, not many trials can be held within that period. Surely we should be calling for more judges rather than the abolition of juries. That would have a greater impact on the hearing of cases.

At a meeting of the Council of Europe I attended recently, we heard that Turkey had sacked 3,000 judges for political reasons. That represents 5% of the country's judges. I accept Turkey is a much bigger country than Ireland but it worked out that there is one judge for every 20,000 people in Turkey, whereas in Ireland there is probably one judge for every 250,000 people. While I have no doubt there is something wrong with the judicial system, juries are not the issue. Should we have more judges? Maybe that is a better solution.

The idea of questioning juries afterwards about why they make a decision might make more sense too. If I have time, I will ask another question.

An Cathaoirleach

I do not believe Mr. O'Reilly has spoken yet.

Mr. Colm O'Reilly

Deputy Pringle poses an interesting question around having more judges. While that is certainly extremely relevant, a proper analysis would be to look at the entire value chain here. As somebody who runs a newspaper, I find that the full gamut is open to individuals. First, they will immediately send a letter and then the matter ends up in a legal process. The Press Council is an important tool that allows people who believe they have been defamed and injured by any publication to seek for that to be corrected. That is an underutilised option because at the moment we are starting further down the process, rather than at the start. There are a number of ways that can happen and the Press Council is one.

The overriding reason people jump into the process of taking a defamation action and sending a solicitor's letter is the size of the awards and, as Mr. Kealey rightly stated, the predictable nature of things. It is not uncommon, particularly for my newspaper, the Business Post, to get a series of letters that has very little to do with defaming somebody. It is more a case of there being the ability to bully us into a process whereby we will just write a cheque in order that the person will go away. Unfortunately, that is a symptom of how the system is broken across a number of different areas. While more judges is a practical solution, there is a much wider problem with the whole value chain.

Deputy Thomas Pringle

This may be a stupid question but I am asking it as a non-legal person. On the issue of SLAPPs, while the witnesses may not be able to do so, could they mention the name of a case so that I can get an idea of what a SLAPP is?

Ms Jessica Ní Mhainín

I will speak to that. The Deputy mentioned the Council of Europe. The Council of Europe has a media freedom platform where we file media freedom alerts. In relation to Ireland specifically, there are three active Council of Europe alerts in relation to SLAPPs. I am happy to share my copy with the committee.

One that we filed earlier this year is a case that is being taken against the journalist, Mark Tighe, The Sunday Times and RTÉ. That case has been pending for nearly four years, since it was filed. This speaks to the case-management issue.

Speaking to SLAPPs specifically, there is a need for cases to be expedited. To come back to the point of retrospectivity when it comes to the legislation, we strongly recommend that the legislation be able to apply to cases that are already in train.

There are two lawsuits in relation to the case to which I referred. One is against RTÉ and Mr. Tighe and the other is against The Sunday Times and Mr. Tighe. The lawsuit against Mr. Tighe and The Sunday Times is in relation to a story he published headlined, "Rae 'changed stories' for INM chairman". It refers to Mr. Stephen Rae and was published in August 2018. Subsequently, Mr. Tighe was invited on RTÉ Radio 1 to speak about the article. That is an example of a SLAPP.

The legislation mentions several features of concern and these are some of the features we look at when we are identifying SLAPPs. These are anything aimed at driving up the cost, time and energy associated with defending a case, for example, where a lawsuit is filed against an individual rather than the individual's media outlet. In this case, one indication to us is to ask why the lawsuit was filed against Mark Tighe twice and why was it not only filed against his employer, which, at the time, was The Sunday Times. As regards the time associated with that case, I believe the papers for the case were filed on Mr. Tighe approximately a year after the article was published. These are the types of issues. We look at the time, energy and money associated with defending a cost. The fundamental point to bear in mind as regards SLAPPs is that they are just a form of harassment that use the law as a guise and to give harassment a form of legitimacy.

To briefly come back to the Deputy's point about judges, in terms of case management, which is very important with SLAPPs, more judges would certainly help. Something else which many of our colleagues in the Coalition Against SLAPPs in Europe have been looking at is training of judges. This will be important in ensuring more people can understand what is a SLAPP and judges can be aware of the symptoms of a SLAPP they need to look out for.

I am happy to circulate some other examples of cases we have come across. I caution that we have a lot of difficulty with coming across SLAPPs because they rarely make it into a courtroom. They are intended to drag out the process as much as possible.

An Cathaoirleach

That is very helpful but how would Ms Ní Mhainín define a SLAPP in 30 or 60 seconds? I seek a bird's eye view for the benefit of everybody around the table so that we are all on the same page.

Ms Jessica Ní Mhainín

As I say, SLAPPs are identified by certain features, several hallmarks. SLAPPs are not only used to target journalists. It could also be anyone speaking out in the public interest if the SLAPP litigant is throwing around claims for a large amount of money. As I said, a hallmark would be something that drives up the time, energy and cost associated with defending a case.

An Cathaoirleach

That does not necessarily answer the question. What does SLAPP stand for then? It is an acronym.

Ms Jessica Ní Mhainín

It is a strategic lawsuit against public participation.

An Cathaoirleach

Is the term "public participation" intended to mean the articulation of a particular view, perhaps a political view or a questioning of authority?

Ms Jessica Ní Mhainín

No. It could be against an academic or on anything that is a matter of public interest. If an individual is speaking out on a matter of public interest and faces any litigation as a result of that participation, that could be counted or identified as a SLAPP.

An Cathaoirleach

The public participation definition is key.

Ms Jessica Ní Mhainín

Yes.

An Cathaoirleach

It is public participation, something that has been said. If I take a jar of pickles off the shelf in my local Spar store, the manager calls out "Stop, thief" and I sue him stating I will throw in a claim for €1 million, that is obviously not a SLAPP. Must it be a public pronouncement, usually or possibly political, or a journalist either questioning of authority or something of that nature?

Ms Jessica Ní Mhainín

Yes. There are some high-profile cases that we have worked on. For example, one in the UK, which the Cathaoirleach may be aware of, was a case taken against Ms Catherine Belton. There were several oligarchs involved in cases in the UK against Ms Belton for writing about those linked to Putin for her book, Putin's People, for example. Those are some high-profile examples. Ms Belton and her publisher, Harper Collins, were sued. However, we do not want to focus on journalists or high-profile individuals. The individuals involved could be academics, campaigners or individuals. As members will be aware, it could be environmental campaigners-----

An Cathaoirleach

Politicians and public representatives

Ms Jessica Ní Mhainín

-----who speak about a mine that may be ruining water, a local landscape or such like, where someone is expressing a view on an issue of public interest. They could then be sued by the mine, for example.

An Cathaoirleach

One of the hallmarks to which Ms Mhainín referred is where the individual is sued as well as the organisation. That would definitely have a more chilling effect, so I imagine it would be a SLAPP.

I note Dr. Foley had indicated but, in the interests of time and in fairness to every speaker, I will move on to the next round of questions.

Perhaps Dr. Foley will have an opportunity to respond to Senator Ruane's question. If not, I will let him back in at some stage. I will try to get everybody in as we go along.

Senator Lynn Ruane

With regard to SLAPPs, are such lawsuits always taken after the fact of publication or speech? Can they be taken at an earlier point in time when someone becomes aware of an issue or is asked for comment or when an academic has a draft of a book? SLAPPs can stop things reaching the public realm as well as comprising suits when they have already reached the public realm. Is that correct?

Ms Jessica Ní Mhainín

Absolutely. It is easiest to get cases from journalists so a lot of what we see is from them. Very often, journalists who write to a business to offer a right of reply, saying that they have concerns and asking the business to speak to them, will get a reply from the legal team or a law firm. Several law firms are associated with this practice, particularly in the UK. They will come back and tell the journalists to be aware that, if they continue with their line of investigation, they will face a legal case. That is part of the reason it is very difficult to bring such cases to light. The story is stopped in its tracks right then and there.

Senator Lynn Ruane

It is very hard to include retrospective provisions in legislation. I have not looked at Dr. Eoin O'Dell's proposal specifically. Does it only apply to live cases or would it undo all cases that have not made it into the public domain for as long as they have existed? Does it apply only to cases that are currently live before the courts or would there be a retrospective removal of silencing provisions?

Ms Jessica Ní Mhainín

I would love for it to cover everything going back but, realistically, it would include cases that have already been filed. I mentioned a case against Mark Tighe. It would include that case because it has been filed and is ongoing.

Senator Lynn Ruane

With regard to juries, I am in favour of keeping juries involved in court proceedings but I understand people's concerns. The witnesses last week were very much against the idea that juries are what is holding up cases. It is about more than judges; it is also about court space and various other issues. I wonder about a couple of issues. Last week, one of the contributors - I forget who - made reference to the Personal Injuries Assessment Board, PIAB, model. What are the witnesses' thoughts on the use of a similar model for something like this? Ms Ní Mhainín mentioned that a provision allowing people the right to seek trial by jury as a kind of halfway house on the way to abolishing juries exists in Wales and somewhere else and that there has never been a jury called in a defamation case. Can we get behind that a little bit more? Has a jury ever been requested? What criteria are set? Are guidelines set out for judges? What criteria need to be met for somebody to get a trial by jury? Is it a matter of a judge making individual decisions within his or her own discretion at particular times? Perhaps there have been plenty of requests for juries but we do not know if requests have been refused or why or if there are guidelines as to the criteria to be met to say that it is in the best interests of justice. If a person feels it is in the best interests of his or her justice and requests a jury, should that not be the bar? Do the witnesses have thoughts on that?

An Cathaoirleach

Dr. Foley wanted to get in. Does he want to reply to that question?

Senator Lynn Ruane

Perhaps he could reply to my comments first and then he can reply to the earlier questions.

An Cathaoirleach

I was asking if he wanted to reply to the Senator.

Dr. Michael Foley

I just want to give the committee a view of what happens in a newsroom in terms of SLAPPs. Once somebody decides that he or she is going to take some sort of action against a journalist for a particular story, things stop. That journalist then has to be corralled off to talk to lawyers and no work is done. It has an incredibly chilling effect on a newsroom. The people who will take these suits are well-known in newsrooms. We will not defame people here but I could mention people.

An Cathaoirleach

Please do not.

Senator Lynn Ruane

It is in the public interest.

Dr. Michael Foley

It is well-known in every newsroom in this city who will take action and the sort of thing they will do. They are people with vast amounts of money and they will do this to stop stories about them and their companies. As has been said, journalists phone people to ask for their side of the story, because that is what they are meant to do and because it is the ethical thing for a journalist to do, and, straight away, that is it. Quite often, they try to push it as close to the deadline as possible in the hope that they might get away with it before the people in question can get a lawyer onto the matter but they will have a lawyer and will stop the story. That will go on for a long time. It is not the case that, the next day, they will say they were only joking. It will go on and it will have an incredibly chilling effect on the newsroom. The whole area of anti-SLAPPs provisions is of great importance for journalists and that is why we welcome the fact that such provisions are included in the draft.

On juries, we in the National Union of Journalists, NUJ, supported the use of juries in trials but have changed our policy. The reasons for this change include many of the things Mr. Kealy said about the lack of transparency and the fact that cases can be taken against our own members rather than their organisations, newspapers or television stations. With the decline in full-time employment and the growth of freelance work, our members are out there on their own and might find themselves subject to libel actions. We would not like to see the sort of awards that have been made against newspapers suddenly being made against individuals, our members, who obviously cannot afford them. We have had to change our mind on the whole issue of juries. The halfway house model the Irish Council for Civil Liberties has proposed is something we would probably consider, although we have not done so to date. That might be a good compromise. We have reluctantly moved away from supporting jury trials and have changed our policy. We are a trade union and are meant to be a democracy and we find it very difficult to defend the use of juries any more.

An Cathaoirleach

The clock is out but I am going to take a few others who have particular responses to Senator Ruane's comments. On the halfway house idea, I believe there are a couple of halfway houses emerging from this debate. One is the halfway house in which there is not an automatic right to a jury trial. Ms Ní Mhainín mentioned that this right was done away with in England and Wales. Mr. Justice Barton mentioned that last week as well. That is one option. Perhaps a judge could decide whether a person is entitled to a jury or not. The other option is the one I posited at the start, the possibility that a jury would be retained as a finder of fact while a judge actually awards any damages. That seems instinctively attractive. I will call Dr. Hanna, followed by Ms Ní Mhainín and Mr. Kealy. We will then go on to the next speaker.

Dr. Mark Hanna

On the point regarding making findings of fact, that is what juries already do so I do not see it as being an alternative. That would just be the status quo.

An Cathaoirleach

It is an alternative because, at the moment, juries decide both whether a person has been defamed and what award he or she should get. This is only a proposal being floated for the purposes of these deliberations but the change would be that the jury would determine whether defamation had occurred and its role would end there. The judge would then decide what award is appropriate in terms of damages for the defamed person, perhaps in a separate module or perhaps on the same day. All of that could be worked out.

Dr. Mark Hanna

The jury would not be involved in determining damages. There has to be a lot of trial regarding the facts of whether something is defamatory before getting to damages so it should not make that big of a difference.

An Cathaoirleach

To tease this out, the reason it is being posited is that the commentary has consistently been that juries are unpredictable, inconsistent and irrational. These things have been suggested. If that is the case, a compromise proposal would be to take the function of awarding damages away from the jury and give it to a legal expert, the judge, while retaining a jury of a person's peers to determine the nuances and whether the patterns of behaviour and the words, whether on social media or elsewhere, are defamatory. It is a public reputation that has allegedly been harmed so let us let the public decide whether that is the case before letting the judge decide damages. That is the hybrid proposal.

Dr. Mark Hanna

From my perspective, the issue is not that juries are unpredictable.

Juries should be as legitimate as judges, if not more so, with regard to making decisions on facts. If we are going to have juries as the triers of facts, then why are they not trusted on damages? They are trusted on trying other facts. It does not quite add up. A question was asked about how to determine it. The system in England and Wales has reversed the presumption. People still have a right to a jury trial but they have to seek it. It is not automatic. It is a judge who has to decide this on the basis of costs with regard to the complexity of proceedings. There are guidelines in legislation about what this is. In this jurisdiction there has been much discussion in the courts about who gets to make the decision and how judges can do so. There is quite a substantial body of law behind deciding it. Ultimately, it must be the judge who makes the decision. Even though juries are meant to be the triers of fact, they are excluded from many trials of facts already, such as with regard to public interest. It is a judge who makes a decision on this because it is considered too complex.

I do not know whether anyone here has been the defendant in a defamation case; I hope they have not. If they were named in a suit, they would probably opt for trial by judge alone rather than going down the road of waiting for a trial by jury. This is my honest opinion on it. That says something about the complexity that juries add. It is not that they are unpredictable; it is that they delay proceedings and add to costs.

Mr. Michael Kealey

I will answer Senator Ruane's question. The position in Ireland at present is that either party can insist on a jury trial. Plaintiffs or defendants can say they want a jury trial and it will happen, and it does not matter if the other side disagrees. In the United Kingdom, both parties have to say they want a jury trial. If they both agree, the judge determines whether it should take place. The reality of the situation is that because of the additional costs in, and complexity of, defamation trials, judges have not had jury trials, even in the very rare cases where both sides have said it is what they want. It simply does not happen because of the costs involved.

I will come back to the issue of costs for a moment, particularly the point that Dr. Hanna has just made on people being sued. Jury trials are longer than non-jury trials. This is a straightforward position. At the very least, there will be two speeches to the jury by both sides. The judge has to charge the jury and explain the legal principles that are applied. Jury trials generally take three or four times longer than a trial would take before a judge alone. What does this mean in practice? Every day that people are in the Four Courts, they are spending €40,000. For a one-day trial, it is €40,000. A six-day trial costs one side €240,000. If parties have the possibility of an award being made against them, whether as plaintiffs or defendants, it will give them sleepless nights.

The problem we have with jury trials and the fact they are so much longer and, therefore, so much more costly is that defamation nowadays has become a game for the very rich and the very poor. The very rich can afford it and the very poor can take cases on the basis that even if they lose, it will not matter because they have no assets to pay the other side's cost. For a large number of people in Ireland, being a party in a defamation case, either as a plaintiff or a defendant, is simply unaffordable. At the very least, getting rid of juries in defamation cases would reduce costs. It has reduced costs in the UK, even though the costs there are considerably higher than they are here. It will reduce costs, bring cases on more speedily and get the balance right between a person's right to reputation and the right to freedom of expression.

Senator Lynn Ruane

I want to clarify something. With regard to the very poor, I understand the point with regard to the other side's costs, but is legal aid granted to take cases?

Mr. Michael Kealey

There is no legal aid in defamation cases.

Senator Lynn Ruane

Then it would probably be a non-starter in the first place.

Mr. Michael Kealey

It is but we do find the occasional case, which is why we are looking for a serious harm test, particularly in retail, where people, on asked to produce a receipt, say they will go to court. The reality is that if they lose such a case, and costs are awarded against them, which in a Circuit Court action may be €40,000, the retailer will not be able to get that back from the person in question. The costs are even higher for defendants in a media case. People who are sued and are in the High Court for six days will run up costs of between €300,000 and €400,000 and they will never get them back. One of the problems we have now is that even if defendants win, they lose. This is why we settle.

An Cathaoirleach

I am sure Mr. Kealey will agree, as he mentioned it in his submission, that it is a non-starter for people who are very poor but many lawyers will engage on a no foal, no fee basis. What can happen sometimes is that people will run a case despite having very limited resources because the lawyers will say that if they win, they will take their fees but if they do not win, they will not taken them. The point made about the very rich and very poor could apply to all civil litigation.

Mr. Michael Kealey

It applies to a lot of civil litigation but for the reasons I have outlined, defamation cases are much more costly. The taxation rules are the rules that decide how much in legal costs people get if they win a case. In a straightforward High Court defamation case there are ten lawyers, with five on either side. There are two senior counsel, a junior counsel, a solicitor and an assistant solicitor. This is why the costs are so high. We do not have them in other civil areas. The reason they are in defamation cases is that jury trials are complicated.

Deputy Pa Daly

I thank the witnesses for coming before the committee. Some of the questions I would have asked have already been answered. Do the witnesses have a view on a Personal Injuries Assessment Board-type system being introduced? Is it true that trials in the English system have become more predictable and less costly since 2013?

I do not have a firm view on this matter. I am not bothered by the lack of reasoning for juries, quite frankly. I am more concerned about a fair balance between the rights of the plaintiffs and the rights of the defendants, particularly given that over the years I have seen an extra amount of recklessness used by publications when dealing with someone who had previous convictions or someone who was deceased. The tendency was to plough ahead because there would be no case. A jury may have what is called a chilling effect, or we might say that it might instil some conservatism in what is being published.

Senator Ruane or Deputy Pringle mentioned having more judges and longer court terms. Mr. Kealey mentioned that the courts sit in 34 weeks of the year. Should this be expanded, particularly from the middle of September to the middle of October? There no longer seems to be a valid reason why cases of all types in the higher courts should not proceed at this time.

With regard to juries, as a Derry City and Celtic fan, Mr. Kealey probably knows of a lot of referees over the years who might not be particularly in his team's favour or there might have been a perception of this. Over the years, I could probably have pointed to certain judges who were more likely to be, for instance, in favour of children or against someone who was a member of an ethnic minority who would have no chance. Is there a lot of predictability among member of the Judiciary in general?

There are very significant differences in what a person likely to get from one judge, whom may not be known until the week of the trial. Will there be more predictability from a jury decision as opposed to that position? I know there are many questions there on the English experience, the Personal Injuries Assessment Board, PIAB, and my final question.

Mr. Michael Kealey

I would prefer not to talk about referees in advance of Kerry and Derry being in the All-Ireland semi-final, but no doubt they will be more favourable to the green and gold than they are to the red and white.

Deputy Pa Daly

That is a common misperception.

Mr. Michael Kealey

First, there will be no argument at all from us with regard to longer terms. Longer legal terms mean more trials and we do not want to deal with delays. The delays do not benefit the plaintiffs and they certainly do not benefit defendants. The longer things go on, we have to carry provisions, it takes up management time, the quicker the trial comes on, and the better it is for everybody. No one is trying to do that and, again, I want to make it clear that NewsBrands Ireland is perfectly in favour of that.

We are not saying we want free rein to defame people. We do not want that. We accept that if people are defamed, they are entitled to compensation. We just want predictability and reasoning. That is all we want. There is always going to be a balance between the right to reputation and the right to freedom of expression. We know that sometimes that line is going to be difficult to draw. For that reason we would like transparent decisions. We would be in favour of that.

Again, I do not believe you will get any argument from NewsBrands Ireland about a PIAB model. We want to reduce costs and have predictability. A PIAB model, of course, would not have a jury. That is self-evident. We would have no issue with that, however. NewsBrands Ireland, and all of the news media, have been anxious to promote ways in which matters can be resolved other than by way of litigation because it is costly and is inconsistent. That is why we are in favour of the Press Council of Ireland, we would be in favour of something like PIAB, and no one is trying to stop that. We do not wish to be reckless. We are human. We make mistakes. If mistakes are made, people are entitled to have their good name vindicated and that may necessarily involve compensation. We are quite happy to speed it up. We just want predictability and transparency.

Mr. Ronan Kennedy

Just to build on some of that discussion, from the perspective of the ICCL and being in favour of the retention of juries, if we are looking for predictability, transparency and speed, I do not see the abolition of juries as a silver bullet to achieve all of that. Those things can be achieved in other ways without having to remove a very fundamental aspect of common law. The predictability of awards can be addressed by the role of the jury being limited to the finding of fact and the awards being in the gift of the judge. Transparency can be potentially achieved without the entire removal of juries. Speed is a resource issue. That comes down to the fact that Ireland has one of the lowest, if not the lowest, percentage spends on our justice system infrastructure of anywhere in Europe, and one of the lowest number of judges per head of population in Europe. Abolition of juries for defamation trials will not address those issues. It also strikes me that the idea of reducing the sheer amount of litigation with respect to defamation trials is quite important. Of the alternative measures, a way of actually stopping cases reaching courts, would be a better way of achieving at least some of the things we are seeking to look at here.

Dr. Mark Hanna

On the question as to whether the changes in England and Wales had the desired effect, the answer is “Yes” and “No”. It is "Yes" because it has speeded up things and has, with their serious harm threshold, allowed them to test things relatively quickly as to whether there is a substantial claim and they can knock things out more easily, as it were. We have seen that effect happen. I also say "No" because defamation is becoming more and more expensive and the cost of lawyers and of proceedings is eye-watering, especially in London. That, I believe, is just the nature of media now and the Internet. There is so much defamation, it has somewhat exploded. It has had the effect where it would be a great deal worse if they had not put those changes in place. I believe it will be worse here also if reform is not made here in that regard. It works.

On the point about juries, it is not going to be a silver bullet. I accept that. There will also be many other things which will need to be changed. Juries will not fix it all but it seems like one of the first things. I am not saying will be easy but it is straightforward, relatively speaking. If the presumption at jury trials is reversed and the right is kept there, that would allow things to speed up and become a little more fluid, which would help in that regard. Yes, it is a help.

Deputy Alan Farrell

I thank our witnesses for coming in. It has been an interesting conversation although a good deal of what I had wanted to cover has been well covered at this stage.

On the discussion of alternatives by Deputy Daly, for instance, and the PIAB idea, which is certainly worth exploring, the Bill proposes alternative dispute resolution. Perhaps some of the witnesses might want to make some additional comments on that as I believe it would be helpful to us.

On press freedom, Mr. Kealy mentioned at the start of the conversation, I believe, that we were second in the World Press Freedom Index, which is obviously good. He then qualified his remark by saying he was of the view that the reason we were second was based upon those who had created the list recognising the Government’s acknowledgement of previous reports. I wonder did that World Press Freedom Index come out before or after the announcement of additional members of the Judiciary across all of the courts. That would be an interesting measure to speed up access to justice, which also applies here. I imagine access to justice is a big issue in this matter.

My other point goes to Mr. Foley and his colleagues. It occurs to me it is very difficult to go to the point the ICCL made and manifestly to measure the number of SLAPP cases that have been taken because they tend to stop in their tracks at that particular point. I just so happened to be chairing the debate on SLAPP cases, which I believe was coming through the EU into the Dáil Chamber via the Minister of State, Deputy Browne, and I found quite interesting because I was not familiar with it. I listened carefully and I am just wondering if there is some means for journalism to report internally to the NUJ to give us an idea of the sort of level of these applications, or SLAPP cases, which the union might determine them to be? This might give us an idea of how prevalent this is within the sector and within journalism. We only really see the ones which make it to court or where journalists themselves, perhaps, say they cannot talk about something because it is subject to litigation. Otherwise, we are not seeing it and that in and of itself is obviously the purpose of the matter being proceeded with in the first place. I believe that would be helpful for us in trying to frame this legislation.

As I say, there may be some comments which our witnesses may like to make in response to my point here. Dr. Foley looks like he is ready to respond.

Dr. Michael Foley

To comment on Reporters Without Borders, I am actually one of the people who is quizzed every year on this and I know for a fact that it is what the committee is doing here that is one of the reasons we are number two in the world. That is because, more or less, there is a promise there is going to be reform of libel. That is very much what has happened. I have watched this and the move started as we got better.

It started with the sale of Independent Newspapers (Ireland) Limited, which addressed monopolies. Then there was the Future of Media Commission review, and then the issue of libel. Libel has always been one of the issues which has kept this country down the list in European terms. I remember saying to the people who were talking to me on the phone that this is coming in. The report is out. There is draft legislation and it is coming. They were taking the word of people like me and others.

I suspect there might be others in this room who are part of this process. We are very confident it is coming in. It has gone too far to just be dumped now. A change of government might have an impact on that, but that is not going to happen for a while. This has an impact on it, and that is why we are number two. Who knows, if this gets through quickly we might even get number one.

On the SLAPPs, I am afraid the answer is "No". There will be two issues. I remember one time when I worked in The Irish Times, many years ago, at one of the NUJ meetings somebody suggested that we have a list that comes up on the computer system showing who is currently taking action against us. We did not call them SLAPPs at the time, but it was so we would know who were the bastards who were going after us.

Deputy Alan Farrell

I am sure there are a lot of us.

Dr. Michael Foley

I knew straight away what would happen. If you put the names up then everybody says straight away: "I am not going to write about him. I am not going to have anything to do with that person." Then the chilling effect becomes even colder.

The other problem is that when we talk about SLAPPs, we are talking about oligarchs and whatever, but it is often quite a small issue. If we ring somebody and say: "I am running a story tomorrow about your company" or this, that and the other. They say: "We are getting a lawyer onto this straight away." You could dare say: "Stuff it, I am going to run it anyway" or you say: "Um, maybe not." That is small. That may not go anywhere further. That might be it, but it is still in a way like a junior SLAPP, and you cannot quantify them. I think it would be very difficult. It is great that Ms Ní Mhainín is able to show that there are a handful of cases which we can use as examples, where we can see the impact. It is probably very rough being Mark Tighe at the moment. He is a very good journalist, but he has got people going after him for a couple of stories. When RTÉ comments on the story, then they go after him again. The short answer is that, unfortunately, it is difficult to quantify.

An Cathaoirleach

I thank Mr. Foley. I am just conscious of time.

Deputy Alan Farrell

I have outstanding questions, Chair.

An Cathaoirleach

I will allow a couple of more minutes and we will have the second round then. I am going to put a point to Dr. Foley myself before I let Deputy Farrell back in if that is okay.

Deputy Alan Farrell

I think the ICCL and Mr. Kealey might want to respond to the particular points I raised.

An Cathaoirleach

I will let them do that, but first I want to put a point to Dr. Foley in response to something he said, and then I will take whoever else wants to speak. I remind members that after Deputy Farrell's engagement we will come to the end of the first round. I have had a couple of indications from speakers who want to come in on the second round already. I remind members that there is other business to discuss this evening, in addition to this engagement, so we should be mindful of that.

It strikes me that when Dr. Foley was talking about the list of SLAPPs up on the wall, it could be argued that there is another defamation taking place because they are now being published in a newsroom in what is probably a less than favourable context. I will not say more than that, but it is an interesting insight into the workings of a newsroom. It is very helpful in a general sense.

Dr. Michael Foley

That was prior to GDPR.

An Cathaoirleach

It probably was not prior to defamation. Anyway, that is fine. It is very useful to have real-world examples. I appreciate people being candid with us about their experiences.

Mr. Bob Hughes

On Deputy Farrell's point about mediation, we very much welcome the onus on the plaintiffs and defendants to go to mediation, and in particular in our case the use of the Press Council.

I just want to add a point on costs. I represent a lot of smaller publications - local newspapers - and the costs issue is incrementally inhibiting for a small local publisher. The impetus to settle a case, rather than to get into huge legal costs, is that much greater for smaller publishers. Surely that cannot be right; that a decision around freedom of speech is based on a sort of commercial and business decision.

Ms Jessica Ní Mhainín

I just want to make a point of clarification. Mr. Kennedy is from the ICCL and I am from Index on Censorship-----

Deputy Alan Farrell

I apologise.

Ms Jessica Ní Mhainín

-----but we both represent the Anti-SLAPP Network. I cannot stress enough how much we have tried to engage with different media outlets in order to get them to speak to us about SLAPPs, either on or off the record. Deputy Farrell referred to dealing with it internally and even to then highlight it with the Council of Europe platform, and using different methods to highlight this issue. It has been extremely difficult.

I will just go back to the example of the case against Mark Tighe and The Sunday Times and the case against Mark Tighe and RTÉ. Even though we already know about the case, when we go to RTÉ and ask its lawyers about it, they have completely refused to speak to us about that case. That is just an example. We have very limited hope of getting them to speak about other ongoing cases. We know there are some but we do not know the details so it is very difficult to highlight them.

Deputy Farrell and others mentioned the EU anti-SLAPP directive. We had great hopes in the European anti-SLAPP coalition about the EU directive, but unfortunately it has been extremely watered down in recent weeks by the Council. We are hopeful that when it goes back to the Parliament that there will be some fortifying of the legislation, but we cannot rely on that. That is why we would really like to see SLAPPs being included in the defamation Bill. Although it is worth recognising as well that SLAPPs will use any substantive law in order to bring an abusive case. In the UK, since the defamation legislation was reformed in 2013 we have seen an increase in privacy law being used there as a vehicle for soft cases. It is important that SLAPPs can also use vehicles like copyright, GDPR, and other such vehicles in order to bring legal harassment, so we would hope that a wider anti-SLAPP mechanism would be enacted in order to nip all of those in the bud.

Deputy Alan Farrell

I thank Ms Ní Mhainín. I apologise for mislabelling her. Does Mr. Kealey know whether it was before or after the announcement of the enlargement of the courts?

Mr. Michael Kealey

The short answer is that I do not know. I have that paper here but it does not indicate when the increase in judges was introduced.

The Department has done a terrific job in terms of the proposed drafting in regard to SLAPPs in the newspaper world. There is always a slight difficulty with SLAPPs, in that one person's SLAPP is another person's legitimate claim that he or she wants to bring. It is quite difficult sometimes to find that line.

What I would say about the defamation regime, if I can call it that, and the regime that we are under, is that I work in a newspaper, which has online as well, and we have lawyers in 364 days a year. We are now in a position where we have to employ a lawyer 364 days a year to make sure that stuff that goes into newspapers does not lead to litigation, because the cost of losing litigation is so incredibly high.

In terms of real-life examples in a newsroom, let us take a Sunday newspaper. As a general rule, a Sunday newspaper works a little bit longer on a story. They work it over a period of time. Before they publish, they will of course go to the person they are about to write about and they say they have a number of questions. Sometimes they get answers but most of the time they do not. Most of the time when they ask the questions, they get a solicitor's letter. We get a solicitor's letter every second Friday before a story goes out. We still manage to get a number of those stories into the public domain, but sometimes we do not.

I suspect that the experience in my news organisation is echoed throughout every other news organisation in the country. It is particularly difficult for local newspapers. My news organisation, which is a large one by Irish standards, is terrified of one big claim. One big claim would almost certainly close down a local newspapers or a local radio station. That is all it would take. The regime that we currently have facilitates that. I think that is why the point on reform is very well made. That is why we are moving up, but let us not lose the chance that we have now.

An Cathaoirleach

I thank the witnesses and Deputy Farrell for those questions. We are going to move to our second round of questions. There are three minutes per member. I will police it a lot more strictly than I did in the first round because the first round was very illustrative and very helpful and we got a good thrust going, but I am mindful of time and I know that the witnesses have been with us for a while as well. We have other meetings tonight. A couple of speakers have indicated for the second round.

We will stick a little more strictly to the time in this round. I will move to Mr. Kennedy first.

We talked about juries and everything else. On a different note, to what extent, if any, do the witnesses think that social media is adequately tackled or tackled at all in the proposed Bill? Head 34 has something on publication, but there are probably wider aspects that should be touched upon. There are so many different nuances to engagement with social media. There is the act of publication. In addition, there are so many different players. There is the platform and then there is the host of the page. There could be sponsored advertisement. There could be a third or fourth party commenting on, liking, amplifying or sharing a comment. There are so many different dynamics involved in a conversation on social media that I am not sure how we grasp the nettle in order that if something is defamatory, we can identify who is responsible. That is quite a simple question but it is also quite a big one that we have not managed to answer to date. I am interested in any views on this and whether the general scheme makes any sense in that context or whether there are gaps that we still need to address.

Mr. Ronan Kennedy

I will come in with something very briefly on that. In regard to head 17A, the amendment on innocent publication in relation to website operators, we in the ICCL were struck by something. There seem to be echoes of something that happened this time last year with the amendments that were added to the electoral reform legislation regarding misinformation and the problem of foreseeability. I am not 100% sure whether this will fall into the same category. However, it should give pause for thought for the drafters to look at the fate of those amendments when the electoral reform legislation was being progressed. The amendments in question were found to be in violation of the European e-commerce directive and were subject to technical regulations information system proceedings and therefore could not be properly enacted. It might be worth looking at those again, just in the context of head 17A, in order to consider whether the issue of foreseeability arises for social media platforms. I know they probably have enough to do at the moment, but it is a pity that Twitter was not able to attend today to discuss that.

Mr. Michael Kealey

I was going to make the point that one of the issues that NewsBrands Ireland and what we call traditional media have is that there is an uneven playing pitch at the moment. We find ourselves in a position where we are expected to check everything that goes into a newspaper or on a broadcast and everything that goes out on live radio, including local radio stations and the like. Yet, none of that applies to social media. They are currently in the position of saying that it is not their fault, that they are just a telephone company and that this is what they do. We do not accept that for a moment. There are algorithms that can determine whether a person hovered over a piece before reading it. They can actually put algorithms in place to ensure that this is done. This has led to a coarsening of public discourse. The social media companies are not responding to that. I would be very surprised if every single public representative around this table has not been the subject of gruesome attacks on social media that would never be permitted in the traditional media.

An Cathaoirleach

I thank Mr. Kealey. That is a good point to make.

Senator Vincent P. Martin

This will be my final contribution. We agree to disagree on some issues, but I can safely say we all agree that the right to one's good name and reputation is a legitimate, constitutional issue. It is a sacrosanct right. We all agree on that. It has been very well put forward that the transparency argument is a reason to get rid of juries. You do not get a reasoned award. There is a mystery about how that outcome is what it is. Are there any comparative studies that could open this matter up in the context of wider world of law? I refer here to the criminal courts. Let us take the example of a matter before the Circuit Criminal Court in respect of which a charge is brought on foot of the Non-Fatal Offences Against the Person Act? It is a jury trial. There is no transparency there. I say this slightly facetiously, but would there be concerns in that regard? Should jury trials in the Circuit Criminal Court, where there is no transparency, go as well? I say that in a slightly polemical sense, but I just want to make the point. Assault is a law-and-order matter and it goes to the heart of our Constitution. It is unacceptable. There is also the need to be able to vindicate one's good name and reputation. The witnesses seem to be happy to have no transparency in the Circuit Criminal Court but they want transparency in the context of someone vindicating their reputation in circumstances where damage to the latter could destroy their livelihood.

The other interesting parallel on which I would like to hear from witnesses is the comment to the effect - I agree that it makes sense and I was not surprised to hear it - that a defendant in a defamation action would prefer a judge sitting alone. What about a defendant in a criminal matter? Would he or she like a judge sitting alone? What is the difference? I mean a defendant who is not legally aided in a criminal law matter. I would imagine, despite what happened recently in the context of the Special Criminal Court - I do not think that has changed everything - that people would opt for jury trials. I accept that criminal law and civil law involve different standards of proof and that we are not comparing like with like.

With the indulgence of the Chair, I take this opportunity to commend each and every advocate who is highlighting SLAPPs. Such lawsuits are an affront to democracy. They involve the suppression of freedom of speech. We have to protect individual journalists and the democratic process. Can the witnesses tell us what can we do in the short term to make sure that heroic journalists are not silenced by having their names, in their individual capacity, added to writs?

Senator Lynn Ruane

It is okay if people do not get to come back in. Sometimes I only say things that are referenced in my reports in order to get them on the record. There were some matters in regard to PIAB. I understand that a jury would not be involved there, but it may be important to tease out a mandatory-type model and a voluntary-type model and outline how a person could indicate whether he or she wanted to enter into that model as opposed to taking legal proceedings in the courts. If it was nuanced enough, those early interventions and the mediation piece within that could be looked at, as could the test in terms of public interest as regards seriousness. There could be, not an exact, word-for-word PIAB model, but something resembling that in some sense so that it acts almost as a triage in terms of what complexity of case goes forward and what does not, and what can be dealt with on a lower level assessment basis. If people have time to come in on that, that is fine.

The second issue we sometimes talk relates to oligarchs, the elite or people with money. What I am concerned about, and I wonder if it is prevalent, is the use of SLAPPs or the threat of that from governments or politicians. Is there a prevalence of that in the context of news and media reporting when it comes to public interest?

Mr. Michael Kealey

The example of PIAB as a triage is a really good one. The reality is, we would be perfectly happy, depending on what the person who is upset wants to do, to go to the press council and see if it can be resolved quickly without money changing hands, then go to PIAB. If PIAB can reach a decision, then the person may decide to go to PIAB and it will be quicker, an award will be received more quickly, the good name will be done. However, that will not cut off the possibility of taking litigation. That would be absolutely fine. What we want to do is speed it up, have certainty and so on. The triage analogy and metaphor is a good one.

Senator Lynn Ruane

Mr. Foley is smiling at the politicians. I would like to tune into that smile and see why.

Mr. Michael Foley

I do not know of any politicians who have taken SLAPPs on, but I and many of our members are against them.

An Cathaoirleach

Politicians are sometimes the victims of SLAPPs.

Mr. Michael Foley

There was always a view about libel in general terms. When I was with The Irish Times, the editor referred to how we often paid for luxury items for politicians who were, I think, the top instigators of libel cases.

I think that journalists were number two but, at the time, politicians were the highest users of libel.

I will follow up on something Mr. Kealey said. The NUJ 100% supports the Press Council of Ireland. We were founder members of it. We think it has worked. It is a model system, which the Leveson inquiry pointed out. We would not like to see it just being used as a triage system, where somebody goes to it and then might go on. It is a thing in itself. We hope that people will use because it is quick, free and, in most cases, they will get satisfaction from it. We do not like to see it simply being used as a first step in a process that leads to the High Court. In itself, we want to see the Press Council of Ireland being supported by members. That is why the issue I mentioned briefly in my statement, regarding RTÉ and whether journalists there, when they are online, come under the press council or Coimisiún na Meán has got to be sorted out, either in this legislation or through an amendment to the Broadcasting Act. I am not sure when it will come up but we would like to see that happening. I would personally love to see RTÉ online come within the context of the press council because, at one level, it would mean more money for the press council. It would maybe mean a lot more work but it would mean that RTÉ - from what account I do not know - would have to pay into the press council. As I said, I do not know offhand any politician in particular who has used SLAPPs. I am sure there must be one or two.

An Cathaoirleach

I am sure there are.

Senator Vincent P. Martin

We are very fortunate to have such esteemed contributors. Is any of them kind enough to respond to my second contribution in respect of a non-legally aided person who is convicted in the Circuit Court? There is a mystery to it all, there is no reason in the world, and there is no transparency. Where do the representatives stand on that? Is it a fair comparison to make?

An Cathaoirleach

We might come back to that in the third round. Deputy Pringle has not come in yet and, in fairness to other members-----

Senator Vincent P. Martin

I did not get an answer to my-----

An Cathaoirleach

That is because you used the time-----

Senator Lynn Ruane

The Senator used up his three minutes speaking rather than cutting it short.

An Cathaoirleach

Members can choose how they manage their time. Senator Martin chose a certain path.

Deputy Thomas Pringle

I have a quick question that some of the representatives might not be fit to answer. What is the number of cases that are waiting to be aired now? Has it grown over the past few years? What size is the problem?

Mr. Colm O'Reilly

On average, in any given year, approximately 250 defamation cases come out. If that is based on a five-day week across 52 weeks of the year, it is getting to pretty much one a day.

Deputy Thomas Pringle

Has that increased over the past couple of years?

Mr. Colm O'Reilly

It has increased, yes.

An Cathaoirleach

Will Mr. O'Reilly set me straight? I did not fully catch that. Did he say there is one defamation case per day on average?

Mr. Colm O'Reilly

On average, in terms of-----

An Cathaoirleach

Is that before the courts or being issued?

Mr. Colm O'Reilly

Not getting to the courts but in terms of getting onto our books.

An Cathaoirleach

Okay. Very good. That is interesting.

Deputy Thomas Pringle

Are those cases on the books of NewsBrands Ireland?

An Cathaoirleach

There are other organisations that have other cases going through.

Mr. Michael Kealey

The figure is for NewsBrands members.

An Cathaoirleach

Who do NewsBrands represent?

Mr. Colm O'Reilly

National Newspapers of Ireland.

An Cathaoirleach

Which is who?

Mr. Colm O'Reilly

The Irish Times group, Business Post, Irish Farmers' Journal, Daily Mail Group, DMG, and News Ireland are the main members.

An Cathaoirleach

Is Mr. Kealey DMG?

Mr. Michael Kealey

I am DMG, which is the Daily Mail and Irish Mail on Sunday. We have Irish websites as well.

An Cathaoirleach

What about the Irish Independent and the Sunday Independent? Are they part of either Mr. O'Reilly's or Mr. Kealey's groups?

Mr. Michael Kealey

They are not currently part of either group.

An Cathaoirleach

What about the Irish Examiner?

Mr. Michael Kealey

The Irish Examiner is part of NewsBrands.

Deputy Thomas Pringle

If NewsBrands alone has 250 libel cases, not to mention all the private individual defamation cases that are in the Circuit Court, and then all the others-----

Mr. Colm O'Reilly

To put it in context, my newspaper has cases on a regular basis. We are just finishing up on the 2017 and 2018 cases that were taken against us in the middle of 2023.

Deputy Thomas Pringle

Are cases from 2018 to 2022 all waiting?

Mr. Colm O'Reilly

I have four to five years of cases that are still to be heard.

Deputy Thomas Pringle

Right. There are 250 cases outstanding over five years so it would be 50 a year.

Dr. Mark Hanna

I will pick up on the numbers and answer Senator Martin's question in that context. It might be a useful exercise to test how many of those cases the defendants chose to settle on rather than going to a jury. That might give some kind of answer on that matter. No doubt that would not be seen in criminal trials, but you cannot compare criminal trials with civil trials. You cannot even compare defamation proceedings with other civil trials. The comparison does not work. I certainly think that more defendants would choose to settle early rather than go the long haul and wait for a jury to make decisions, which are slightly unpredictable.

An Cathaoirleach

Very good. I think Senator Martin has now got his answer. Is that fair?

Senator Vincent P. Martin

I qualified my question by saying they are very different creatures. I was asking just to be devil's advocate on it.

An Cathaoirleach

Absolutely. I will finish on the Senator's point. The point was made that juries could not possibly sit every week of the year but they do in every Circuit Court in Ireland for criminal trials and in the Criminal Courts of Justice. I will not express a view on that but I make that observation as one of fact.

This was a very useful hearing.

Mr. Ronan Kennedy

I ask for the Chair's indulgence for one point that has not been made on this.

An Cathaoirleach

Okay. Mr. Kennedy has 30 seconds.

Mr. Ronan Kennedy

The issue of civil legal aid is critical in this. I know it is not in the-----

An Cathaoirleach

-----remit of this deliberation.

Mr. Ronan Kennedy

-----remit of this but it is in the remit of the committee to make recommendations beyond those in its report. It is critical that the civil legal aid issue is addressed. We encourage that. The review of the Civil Legal Aid Act is encouraged perhaps by the-----

An Cathaoirleach

Okay. That is noted. It is on our work programme as a separate module. I note Mr. Kennedy's interest in that and I thank him for his submission.

We have had very useful deliberations and discussion across the room. There are a couple of formalities. I ask the witnesses to stay in the room a moment. We normally publish all the opening statements on the committee's website. Is that agreed by members? Agreed. For the understanding and information of the witnesses - they probably already know this but just to be thorough - the committee will probably have to go on summer break at this stage because there are a number of items to get through before the Houses go into recess. We will consider all today's deliberations, and those of the previous meeting, in addition to members' submissions and other submissions received in writing that did not progress to an oral presentation. They will be taken away, we will have a long deliberation on them and then produce a report that will include a set of recommendations on this draft legislation. That will be presented to all and sundry, including the Houses, the Minister, and all the attendees, as valued participants in the process. The Minister will then take that report away as an input into the formal drafting when the Bill progresses to the more granular stage. Today was a very worthwhile exercise. It was a very good discussion with some good exchanges. We certainly got an insight into the likes of a newsroom, coming from a civil liberties perspective from the media organisations. We had quite a good cross-section, which was very worthwhile.

For the information of members, we will take a short five-minute break. We will then return for a session lasting a maximum of 20 or 30 minutes as we have a little business to do. I will release the witnesses with great thanks to them all for their considerations today.

Sitting suspended at 6.08 p.m.and resumed in private session at 6.14 p.m.

The joint committee adjourned at 6.49 p.m. sine die.