Amendments Nos. 11 and 12 are related and may be discussed together.
SECTION 11.
I move amendment No. 11.
In page 10, lines 9 to 13, to delete subsection (2).
Retailers will be criminally liable for supplying brochures which do not meet the requirements of section 10. The House has accepted this is a reasonable proposition. However, retailers do not usually have an input into the content of an organiser's brochure. Retailers should not, therefore, incur civil liability as a result of brochures compiled by organisers who are their disclosed principals in law. To provide otherwise and make retailers liable for the default of organisers in this regard represents a fundamental change in the law of agency as applies in this State and may have a significant effect on the availability of information for consumers. I would like to hear the Minister's views on this matter.
I support the comments made by Deputy Molloy. These two amendments are at the heart of the Bill because they deal with who is liable. Amendments Nos. 11 and 12 seek to remove subsections (2) and (4) on page 10. Line 30 on page 9 states that a retailer shall not supply a brochure knowing or having reasonable cause to believe that it does not comply with the requirements of subsection (1).
In other words, the item at line 30 on page 9 covers it and there is no need for sections 11 (2) and 11 (4) on page 10. Section 11 (4) states that a retailer shall be liable to compensate the consumer for any damage caused to the consumer as a direct consequence of and attributable to the consumer's reliance on information.
It does not say anything about having to believe that it was wrong, knowing it was wrong or giving false information. Section 11 (4) does not relieve the problem about a retailer giving a brochure because it does not mention that the retailer should have known or ought to have known. It is necessary to go back to section 11 (2) to see that it shall be a defence to show that the retailer did not know and had no reason to suspect ...
Section 11 (2) softens 11 (4) but it is very complicated and unnecessary. It seems to suggest that a retailer is guilty and that a defence shall be offered to say that he did not know he was giving wrong information. It is not a very good principle of law to suggest that it is an offence to give wrong information. It does not say it is an offence to knowingly give false information but it is an offence to give incorrect information and the fact that the retailer giving the information did not know it was false is a defence. That is a bad principle of law. This provision is not needed because it is covered by an earlier section. The Minister should consider removing both those sections or at least amalgamating them so that section 11 (4) is not as naked as it reads without giving any relief within the subsection itself.
I cannot accept these amendments as they propose to exclude the retailer from liability for misleading brochures. On Second Stage a number of Deputies felt that it would be very onerous if travel agents were liable for misleading information in brochures which they stocked. It is a requirement of the directive that brochures be fully accurate. The directive and the Bill makes the organiser and the retailer liable to a consumer who relies on the brochure. This is clearly necessary for the consumer. Exaggerated claims are often made in brochures when describing the contents and details of holiday packages. It is important that consumers should be able to rely on the accuracy of brochure contents.
Consumers are entitled to be offered an accurate description of the package for which they are paying. However, as Deputy Brennan said, it will be a defence for the retailer to show that he did not know and had no reason to suspect that the brochure was false and misleading. That is specifically contained in the Bill. A travel agent could also knowlingly distribute a misleading brochure produced by a tour operator located outside the jurisdiction. In those circumstances the consumer should be able to take action against the travel agent.
During the debate in the Dáil on the First Stage of the Bill the World Cup was given as an example where numbers of people bought packages which did not comply with the advertising attached to them. There is no liability attached to the retailer in that case. The organiser was a foreign based organiser and the public here had no means of pursuing somebody in foreign courts, whereas they now will be able to deal directly in the courts in Ireland with the retailer. The retailer, of course, will have the capacity and the right to take subsequent action against the organisers.
It is not the intention of my amendments to relieve retailers of responsibility for misleading brochures. I wish to make that clear. Both I and my party and — as far as I know — the retailers have no problem accepting their responsibility for misleading information in brochures. What I am arguing is that these two sections are not the way to do it in law. The Minister in his reply did not refer to page 9 of the Bill, section 10 (2) which states that a retailer shall not supply a brochure knowing or having reasonable cause to believe that it does not comply with the requirements.
I fully support that part of the legislation, as I believe retailers do. It is already being made illegal and a criminal offence for a retailer to supply a brochure if they know or have reasonable cause to believe that the information in the brochure is false. I commend the Minister on that section. It is very well worded. It means that the retailer is committing a criminal offence if he or she knows or has reasonable cause to know that the information is false and still supplies it, but it relieves the retailer if he did not know or did not have reasonable cause to know the information was false. The Bill then goes on in a rather convoluted way and section 11 (4) is particularly dangerous. It states that a retailer shall be liable to compensate the consumer for any damage caused to the consumer as a direct consequence of and attributable to the consumer's reliance on information.
It says nothing in that section about the retailer knowing the information is false. Nowhere in that section does it cover what is well covered on the previous page. It does offer this defence, but at that stage the retailer is being prosecuted. Under the legislation he or she is being criminally prosecuted and in court it is just a defence to show that he or she did not know. It would be much more sensible to rely on section 10 (2), which simply says that it is an offence to give a brochure out if you know or should have known that it contained wrong information. I do not know why both methods are necessary. The second method is dangerous because it allows someone to be prosecuted first and then to defend themselves rather than it being prima facie in the legislation.
Under the Bill it is an offence to give out the brochure. The Deputy is agreeing that that should be so. If somebody suffers damage arising from that brochure being given out, that person should be entitled to compensation from the person who gave it out.
Only if they knowingly did it.
Of course, we say that. It is a defence against any such claim.
Section 11 (4) does not say that.
It is a defence against any such claim that the retailer did not know the information was false. All the scenarios are covered very well in the Bill, where distributing a false brochure is an offence and the person doing so may be prosecuted. Damage arising from distributing a misleading brochure can give rise to compensation if damage is caused by the misleading information and it is a defence against that claim for compensation if the retailer did not knowingly do so.
Is amendment No. 11 withdrawn?
I ask the Minister to consider introducing a Government amendment to section 11 (4) which does not refer to knowing whether the information is false. We are saying that same thing.
I felt we had said if fairly well and that it was well covered. I see the point the Deputy is making and I will look at that again. We will talk about that again on Report Stage.
I specifically suggest that if a reference along the lines of what is at line 30, page 9 of the Bill was added to section 11 (4), that would cover it, because it would make the Minister's intention very clear that someone is not, as it were, guilty until proven innocent. It is much clearer.
Section 11 (2) states:
In any proceedings against a retailer for contravening this section it shall be a defence to show that the retailer did not know and had no reason to suspect that the brochure or other descriptive matter concerned contained information which was false or misleading.
Does that apply to subsection (4)?
It says quite clearly, "In any proceedings against a retailer". It would apply, yes.
This is an important section so I want to make it clear that I am happy to withdraw my amendments strictly on the understanding that the Minister will look sympathetically on the suggestions we have put to him, particularly subsection (4).
The "not knowingly" point there?
Yes.
We will consider that and will come back to you on it on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 12 not moved.
Section 11 agreed to.