Jim O'Callaghan
Dublin Bay South · Fianna Fáil · Ireland
“This relates to section 69 of the Bill as passed by Dáil Éireann, which amends Schedule 5 to the Social Welfare Consolidation Act 2005 to add the Courts Service to the Schedule.”
“The first four amendments in this group are minor drafting corrections. They corrected the wording in four places so that the Bill reads consistently. It is changing the word "references" to "a reference". They make no change to the substance or effect of the Bill.”
“The ARP scheme was introduced in July 2022 to recognise the generosity of members of the public who opened their houses, whether in their entirety or through the provision of a room, at their own expense to provide shelter to people displaced by the Ukraine war. The Department of Social Protection administers the scheme on my behalf.”
“I have no doubt it will be challenged, and I have to be able to convince a court, if it is being challenged, that this legislation weighs up conflicting interests and recognises there is a mechanism for somebody who has reformed himself to get off the register.”
“The scheme has been a lifeline for people from Ukraine displaced by the conflict, given high rental market rates and scarcity of rental accommodation.”
“I thank the Leas-Cheann Comhairle in the first instance for presiding over these Stages of the legislation. I am very pleased that this legislation has been enacted. I want to thank a few people very briefly. I thank Deputy McAuliffe for introducing me to Jason Poole. I thank Senator O'Loughlin for her work on this issue in the Seanad.”
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“I appreciate the contributions Senators have made to the Committee Stage debate of the Defamation (Amendment) Bill. I have been here for around 20 hours of debate on Committee Stage. I have listened attentively and the debate has been illuminating and helpful in making me consider proposed amendments that I will bring on Report Stage. I will come to that presently. On the last occasion, Senator McDowell was not criticising me, but he said he thought it would be disrespectful if amendments were not made in light of his proposals.”
“The reason I did not accept the amendment on Committee Stage and cannot accept it here is that it is going to put in place a legal statutory process that would require me or another Minister to get a review every year and then ensure that I comply with the provisions set out in this amendment. It is a much better scenario for a Minister, whoever he or she may be, to be able to have an informal scheme whereby moneys can be given directly to all these worthwhile projects. I would love to have more time to respond, but I gave it to colleagues. There is a lot of great work being done by these projects around the country. I want to ensure that we get more money from the proceeds of crime and send it directly back into the community. For the reasons I have given now and on Committee Stage, I cannot accept the amendment.”
“Regarding what Deputies have said, everyone generally recognises that the entities that have been given funding under the community safety fund this year are deserving. I heard what Deputy Ward said in respect of the FAI, but it is a project that is called a game of two halves. When we look at the broad group of people and entities who have received money under the community safety fund, they are worthwhile. The purpose of the amendment is to try to set out a statutory test that I will have to target money at areas that are indicated as being areas of high disadvantage under the Pobal scheme. As Deputy Ó Murchú said, we all know the areas of most disadvantage.”
“I thank colleagues for their contributions. I thank Deputy Ward for tabling this amendment. Deputy Ward would be aware that we had a good conversation and discussion about his amendment on Committee Stage. We all share the same objective here. Obviously, CAB does an excellent job in seizing assets that are the proceeds of crime. In recent years, we have managed to develop a situation where we can get some of those assets and reinvest them back into the community. I want to see that sum of money growing each year. It is in the region of €4 million to €4.6 million this year. I want to see it continue to grow in order that more proceeds from crime will be put back directly into the communities affected by crime.”
“The third protocol explicitly reaffirms that all co-operation in criminal matters must respect the rights guaranteed under the European Convention on Human Rights. These protections are directly aligned with the rights already embedded in Irish law. Any personal data transferred under a mutual assistance request may only be used for the specific criminal justice purpose for which it was sought. It cannot be used for unrelated investigations or shared onward without the express consent of the state that provided it. That is a central safeguard of the protocol and it is fully compatible with the principles of purpose limitation and controlled access that already apply in Irish legislation.”
“Ultimately, down the road, when it is fully transposed, I will establish by commencement order an international co-operation office. That will be the place where people from other EU countries come for the purpose of ensuring the EU e-evidence package can be complied with. I have not yet made a decision in respect of whether that needs to be the office, if there is an office required for the purpose of what we are trying to transpose and opt into at present. Senator Ruane also mentioned human rights and constitutional concerns in respect of the third protocol we are opting into. The third additional protocol explicitly reaffirms commitment to human rights, rule of law and democratic safeguards. All co-operation remains subject to Irish constitutional protections, the ECHR, domestic judicial oversight and data protection law.”
“It is preferable, if we are trying to ensure the legal instrument follows principles that are important in an Irish legal context, that we should opt in under Article 3. Senator Ruane also asked about how this is going to align with and work alongside the criminal justice (international co-operation office) Bill. As she indicated, that Bill is in the process of being drafted. It is for the purpose of transposing the EU e-evidence package. It allows authorities in one EU member state to issue an order to produce electronic evidence needed for a criminal investigation to an online service provider based in another EU member state. The e-evidence package will regulate this practice and apply the same rules to all online service providers across the EU, providing legal certainty and clarity for businesses and law enforcement.”
“The benefit of opting in under Article 3 is that we are part of the negotiations and we can mould the outcome or the final version of the legal instrument. If we opt in under Article 4, we do it after the event. The instrument will have been negotiated and finalised. We will not be able to change it and it will be very much take it or leave it. I am conscious of the fact as well that if I did it by Article 4, we would probably vote to go into it because the Government has a majority. In regard to Article 3, there is a big benefit in opting in under that article because it gives me and Ireland the opportunity to direct the legal instrument in the area we want to go. That, in some respects, answers some of the concerns that Senator Ruane highlighted in her contribution.”
“Ar dtús, gabhaim buíochas leis na Seanadóirí. I thank the Senators for their contributions. I acknowledge the points that were raised by Senators Gallagher and Kelleher. They are obviously very much in agreement with the proposal. I also want to deal with the point raised by Senator Ryan. It is an interesting point as to whether, when it comes to Protocol 21 opt-in, we should opt in under Article 3 or Article 4. As I have stated previously, I think there is a significant advantage to opting in under Article 3. The reason for that is that we get an opportunity, if we opt in under Article 3, to try to mould the ultimate outcome of the legal instrument. Our national position would carry significantly more weight in the negotiations on the final measures to be adopted.”
“That is why it is so important that we sign up to the third additional protocol. It will support Council of Europe member states to combat crime.”
“The Department of justice requested advice from the Attorney General’s office regarding the implications of a proposed decision to opt in to this proposal. The Attorney General did not indicate any constitutional or legal impediment to an opt-in under Article 3 or Article 4 in the written advices, although the wider issue of the lack of clarity as to the Commission's competence in exercising its powers with respect to this international agreement is raised. These are matters that we will raise in negotiations in Brussels, along with any other issues that arise, to ensure that the final text of the Council decision works well for Ireland and the EU as a whole. Obviously, criminal activities continue to evolve and are becoming increasingly cross-border in nature.”
“In fact, it was already open for signature at the conference of ministers for justice in Valletta, Malta, in September this year. Sixteen states have signed. In circumstances in which many have already signed, member states have questioned the necessity for this Council decision and the Commission's competence with respect to the measure. Member states have expressed significant concerns as to the approach taken by the Commission and the precedents this may create in the future. This issue will form the substance of negotiations as the measure is discussed in Brussels in the coming months. Ireland very much shares these concerns and, therefore, it is essential that we have a credible and influential voice at the table in these negotiations. That is best achieved by opting in now to the proposal under Article 3.”
“Key improvements include the simplification and acceleration of mutual legal assistance procedures, a broader scope for requesting assistance, expanded use of electronic communications and videoconferencing, authorisation of technical surveillance tools, and the introduction of time limits. Ireland supports the third additional protocol and views it as an invaluable instrument for strengthening mutual legal assistance in criminal matters. While further technical and policy work is needed before Ireland is in a position to sign and ratify the measure, it is anticipated that Ireland will be able to do so as soon as is practicable. The proposal seeks to authorise member states to sign the third additional protocol.”
“The third additional protocol was drafted by the Council of Europe's committee of experts on the operation of European conventions on co-operation on criminal matters and draws on lessons from the Covid pandemic and the growing reliance on digital tools in international judicial co-operation. Member states, including Ireland, participated in and contributed to its development. The protocol enhances the ability of member and partner states to tackle crime effectively in a rapidly evolving, political, social and technological landscape. It supplements the original convention and its first two protocols, adapting them for today's challenges.”
“Members will be aware that the protocol provides that Ireland has three months from the date of a proposal's publication to notify the Presidency of the Council of its wish to take part in the negotiation, adoption and application of the measure. It is subject to approval by both Houses of the Oireachtas. As this proposal was published on 17 September, we have until 17 December to get that approval. We got the approval of the Lower House last week. It is important to state that we are seeking to opt in under Article 3. The article emphasises Ireland's commitment to strengthen the ability of states to respond effectively to crime by improving and supplementing the mutual assistance procedures set out in the European Convention on Mutual Assistance in Criminal Matters, as well as the first three protocols.”
“I thank the Seanad for taking this motion. It is before the House to permit Ireland to opt into an EU proposal for a Council decision authorising member states to sign, in the interest of the European Union, the third additional protocol to the European Convention on Mutual Legal Assistance in Criminal Matters. The third additional protocol is not a protocol of an EU legal instrument; it is an international agreement under the auspices of the Council of Europe. Only sovereign states - not the EU as a supranational entity - can sign it. Consequently, the EU cannot ratify the protocol. Instead, its mechanism is to authorise member states to sign it in the EU's interests. I am looking for the House's agreement to opt in, pursuant to Protocol No. 21.”
“On people using the Senator’s name online, there is a mechanism for him to say that his identity is being passed off by another individual. He can contact the Internet service provider about it. We are stuck with the law at present that says that under the Digital Services Act, the commerce directive, there are protections for Internet service providers. On algorithms, I would have thought that was just an issue that goes to the increased circulation of the publication. It does not really go to the issue about liability of the publisher.”
“Obviously Senator Craughwell has raised issues that go beyond what is in the Bill here today. I know he is very conscious of that. As I said at the outset, the Digital Services Act and the e-commerce directive provide what can be described as high-level immunity to Internet service providers. They are not liable for what is put on their platform. You can understand the reason for that. Social media would not operate if somebody had to assess it and modify it every time. This is part of the reason a lot of traditional newspapers have stopped the comments section. Previously there was a liability for them in terms of their comments section although they had some similar protections but it does require a lot of review in respect of it.”
“For that reason I cannot accept amendment No. 27. I am coming to the end of my response to the grouping of amendments Nos. 20 to 27. I thank Senator McDowell for putting the amendments down. I cannot accept them but I agree with him that section 22 is a very consequential provision that will have a very significant impact in enabling people who are defamed to find out who the defamer is so they can seek access to justice before the courts.”
“Such information would generally be limited to a party’s name or contact details. I do not think it is necessary to enable the court to order that such information would be admissible in subsequent proceedings without further proof. As I have noted, identification orders are exceptional orders made in the absence of representations by the party whose information is to be disclosed. This is one of the reasons that section 45 sets out conditions which must be satisfied before they are granted and goes on to provide guidance to the courts as to the factors to consider when exercising its discretion to grant them. I would be wary of including a provision in this section which might be interpreted as an indication that information beyond that necessary to bring proceedings could be obtained through an identification order.”
“If he does not admit liability, you can still bring the case against him. You can give evidence in the court that you went and got an identification order and he was identified as the person who owned the account. However, he should be entitled to come in and say that even though his name was on the account, he was not the publisher. The publisher might have been another individual who used his account; perhaps an employee who used the account. I do not think we should automatically assume and say that in law it is admissible without any further proof. I think that would be a step too far. I do not consider such an amendment to be necessary or appropriate. An identification order is only to be made where it is necessary to allow an applicant to obtain information necessary for them to bring defamation proceedings.”
“I would be extremely hesitant about putting in place a statutory procedure which would, say, enable a person who has issued proceedings - let us say that Mr. Murphy is the person whose name is being given as the person identified with the account - to go to court to say “I have issued proceedings against him; he is the publisher of it; I do not have to prove this any further”. It is an essential part of any defamation proceedings that you prove who has published it. In many instances the publisher will admit publication. If they do not, you have to prove it. Obviously, there will be enormous advantage in having the information from the Internet service provider that Mr. Murphy is the publisher. You have issued proceedings against him, and he will then have to deny or admit liability in respect of it.”
“They apply to the Internet service provider for the identification of the individual who the service provider says is liable for the account. That is all they are going to get; they will get who is liable for the account. That information is then provided to the Senator. The Senator decides to issue defamation proceedings against the individual who has been identified by the service provider. Senator McDowell's amendment is suggesting that the order that is being made can be admissible without further proof of the fact that the individual identified by the service provider is the publisher. It may be the case that the individual is not the publisher even though the individual's name is the name on the account.”
“Therefore, I cannot accept amendment No. 26. Senator McDowell has put forward amendment No. 27. This amendment seeks to insert a new subsection (7) in section 45. It would provide that a court may order that any information supplied on foot of an identification order would be admissible in any subsequent defamation proceedings without further proof. That is quite a radical amendment. We need to think about how that would play out in terms of the identification order and the subsequent proceedings that are initiated. Let us use the example of a Senator who is defamed online on a social media platform. An outrageous statement has been made in respect of them, and they want to find out who has published this statement. They can go to the Circuit Court under the statutory regime that I am putting in place.”
“I am also conscious that this statutory procedure could be used by a large entity to try to find out the identity of a much less powerful individual who, maybe because of his or her position, cannot identify himself or herself, but has made statements online. We have to be conscious that this is not always going to play out in the way we assume it will. It is important for me not so much to ensure that this does not happen but, rather, to accept there may be circumstances where identification orders may be used to try to ensure that a defamatory statement is not repeated, and to pursue an individual who has made it. I am conscious that in the realm of the SLAPP provision that I have already introduced, I want to ensure that this is something that is guarded against in the legislation. I believe it has been so done.”
“Section 31 of the 2009 Act provides that in making an award of damages, regard should be had to all the circumstances of the case, which, in my view, and as I said earlier, could include the need for the plaintiff to incur the costs of identification order proceedings in order to initiate the defamation action. Therefore, I cannot accept amendment No. 26. I should also point out that we are assuming, when it comes to this type of application, that, if I can use the expression, it will be the small man or woman who is trying to identify who is the villain out there who has defamed them online.”
“This would not prevent a court refraining from making an order requiring an applicant to cover an Internet service provider’s costs if it is considered that such a provider acted unreasonably in opposing the application, or used a more inefficient or costly method than necessary to obtain or provide the identifying information to the applicant. It is also important to remember the purpose of an identification order, which is to enable an applicant to bring a defamation action against an anonymous poster of a defamatory statement. It will, therefore, be open to an applicant who successfully obtains an identification order to seek damages from the poster of the statement.”
“I understand that EU law - I specifically mentioned the Digital Services Act and the e-commerce directive - limits the liability of intermediary service providers in relation to the actions of their service users for information transmitted, cached or hosted by them, subject to certain conditions. The subsection as presently drafted is discretionary. It provides that a court “may” order that the costs of an Internet service provider be covered by the applicant. It does not require that they must be, so it is a discretionary order that the court can exercise.”
“It is also important that Internet service providers engage fully with applications for identification orders because there are some cases where, as Senator McDowell acknowledged, identifying an anonymous service user may expose that user to significant adverse consequences. It is, therefore, not desirable, in my view, that we might have a scenario where Internet service providers limit their engagement with applications for identification orders because they may be fixed not only with their own costs for appearing at the proceedings, but also with those of the applicant. There may also be potential legal risks with such an approach.”
“I understand that costs normally follow the event in court proceedings, but this is not a normal adversarial court case. This is a case where a service provider, who is not a party, is being asked to disclose the personal data of one of its users. Whether that disclosure is appropriate involves a weighing up of the rights of the parties, and a determination as to whether the applicant's claim for defamation is likely to succeed. It is appropriate that such an exercise would be carried out by a court. It would be difficult, in my view, to think of a scenario where it would be reasonable to expect a service provider to make such an assessment and to fix it with the costs of an identification order application for failing to do so.”
“They need a court order. If they comply with the court order, and there are costs associated with that, there will be a liability for those costs. I can hopefully give Senators some solace by pointing out that, at the end of the process, the publisher who is held liable will be the entity that, ultimately, has to pay the costs for the identification order being sought. Regrettably, therefore, I cannot accept amendment No. 26. Amendment No. 26 would also delete the existing subsection (5) and replace it with one that provides that the intermediary service provider could be considered liable for the applicant's costs. This amendment could be interpreted as allowing costs in any case where an applicant obtains an identification order.”
“I know that may come as a surprise and an annoyance to Senators, but I ask them to consider it as a point of principle. What the amendment seeks to do is change the wording to: “The court may order that the relevant internet service provider pay any or all of the applicant’s costs”. What Senator McDowell is seeking to do is direct that the Internet service provider may pay the costs of the applicant in bringing the application. That would be a significant change to what happens in civil proceedings at present. We are seeking, under Senator McDowell's amendment, that a party that is not liable in proceedings, and not a party to the proceedings, may have to pay the costs. We all accept that in order for that information to be given, they need a court order. That is why I am putting in the statutory mechanism for the Circuit Court.”
“The view of the courts is that cases for identification orders are similar to non-party discovery applications, where it is appropriate to expect the person seeking information to cover the costs of the party providing the information, unless there are particular circumstances justifying a departure from that approach. The courts in those cases have also recognised that it is generally not possible for Internet service providers to provide identifying information without a court order, and that it is legitimate for a respondent to an application for an identification order to have those orders thrashed out, and to have their costs covered, even where they unsuccessfully but in good faith object to the making of an identification order.”
“In practice, however, and this happens already when it comes to Norwich Pharmacal orders, what may happen is that courts will either reserve the question of the non-party’s cost to a future date - the determination of the action - or alternatively, if they are granted their costs, a court may put a stay on the order for costs until the conclusion of the proceedings. It is strongly likely that at the end of the proceedings, if the plaintiff has succeeded in his or her claim against the actual publisher, the costs of the Internet service provider will be held to be the liability of the publisher who has been held liable. What is contained within this subsection (5) reflects the position adopted by the superior courts in the case law on identification orders at present, when they are done through the Norwich Pharmacal procedure.”
“Those individuals, entities or banks have no responsibility for the litigation. They are not being sued and they are not party to it but they find themselves caught up in it because they may have relevant information in respect of the issues in dispute in the proceedings. Similarly, on a point of principle, the Internet service provider does not have a liability for the publication. It may have a liability, as I said earlier, if it is the case that it has been informed of it and has not taken it down, but in principle, it does not have a liability for the publication. An application is being made in court to get it to provide information. It is understandable why it would want a court order to provide that information.”
“The point of principle here is that an individual in law does not have liability for the publication. That is the law as set out the Digital Services Act and e-commerce directive. An entity that does not have any liability for the publication is being asked to provide information to an affected party so that the affected party may institute proceedings against a third party. That is something we have in other aspects of our civil law. We have many times in civil procedure seen examples of parties to litigation seeking what is referred to as non-party discovery from a party that is not a party to the litigation. In many instances, two parties could be suing each other and they look, for instance, for non-party discovery against a bank or another individual or corporate entity.”
“This is the provision that provides that when an identification order is made by the court, the court may, whether or not it has made an identification order and whether it considers it appropriate to do so, order that an applicant pay any or all of the costs of the relevant intermediary service provider. I think it is accurate to describe this as irritating Senators who believed this was going to be unfair and that these large Internet service providers, which have vast amounts of money, could find themselves getting an order for costs against an individual who has been defamed on one of their platforms. When we are discussing the principle of these issues, we need to not take into account the identity or the relevant status of the individuals or entities that may be concerned. We need to look at this from a point of principle.”
“In response to what Senator McDowell said previously, I emphasise that subsection (4)(b) provides that the court may make an order subject to such conditions as it considers appropriate and they may include what is in subparagraphs (i) and (ii). It allows the court to consider the circumstances of an individual case so that if, as Senator McDowell mentioned, proceedings for malicious falsehood are also contemplated by an applicant, this can be reflected in the conditions attached to the order. Regrettably, I cannot accept amendment No. 25. A very powerful discussion emanated from Senators at the last debate on amendment No. 26.”
“In many respects, this is similar to the implied undertaking that exists when somebody is granted access to documents by way of a discovery or disclosure order. You are only entitled to use those documents for the purpose of the litigation. If somebody obtains documents pursuant to a discovery order in civil proceedings, they cannot then decide to use those documents for the purpose of damaging the individual who disclosed them or another individual in the public realm. Those documents can only be used for the purpose of the proceedings and that is why it is important that subparagraphs (i) and (ii) be kept within subsection (4)(b). For that reason, I regret I cannot accept the proposed amendment.”
“They then decide that rather than issuing defamation proceedings, they will target that individual online through social media or use this information for another purpose - lawful, no doubt – like trying to damage the interests of the online publisher. When we are setting out a statutory provision to enable an identification order, we need to be absolutely clear the only reason we are providing that statutory mechanism is to enable an individual to access justice through the courts. It is not for any other non-court reason. That is why I am concerned about removing the subparagraphs via amendment No. 25. Subparagraph (ii) says there will be “an undertaking by the applicants not to use the relevant information so disclosed other than to bring defamation proceedings against the anonymous publisher”.”
“These are the provisions that say that, when making the order, the court can make the order setting out terms restricting the use of the relevant information so disclosed to the bringing of defamation proceedings against the anonymous publisher. This is an important statutory provision but what I do not want to see happening is individuals or entities using the identification order procedure for the purpose of just securing information that they are then not going to use for the purpose of a defamation action. I can envisage a situation where somebody wants to find out who the person who has been defaming them online is. They find out that information through an identification order.”
“We entrust the Judiciary to defend rights and provide access to justice and it is the courts that will be aware of the individual circumstances of cases, so it is appropriate that the courts retain discretion in this matter. I also noted what Senator Mullen said on the previous occasion that were this amendment to be accepted, subsection (4) may be interpreted as having a limiting impact on the jurisdiction conferred by the new section 45. I note Senator McDowell’s intention but agree that there is a risk the wording might be interpreted as requiring a stricter application of the conditions than is intended, so I cannot accept amendment No. 24. Amendment No. 25 seeks to remove subparagraphs (i) and (ii) from paragraph (b) of subsection (4).”
“24 is it would remove the court's discretion and instead require the court to grant identification orders where the conditions in that section were satisfied. That should be for the courts to determine rather than the Oireachtas directing them that they must do it. Obviously, it will depend on the individual circumstances of the case as to whether it is appropriate to grant an identification order. It should not be a mandatory obligation on a court to provide it. I understand Senator McDowell’s concern is to ensure identification orders are granted in appropriate cases. However, that does not require removing the discretion provided to the courts and replacing it with a mandatory provision.”
“Again, this reflects the case law on identification orders, which notes there is a broad consensus that certain threshold conditions must be satisfied but that even where those conditions are satisfied, identification orders are not available as of right and are a matter for judicial discretion. Subsection (4) also provides that, in making an identification order, a court may attach conditions to the order. In other words, subsection (4) leaves it to the discretion of the court to determine whether an identification order should be granted but at the same time seeks to provide guidance to the court when exercising that discretion to ensure the making of identification orders is proportionate and considers the rights of all impacted parties. My understanding from looking at Senator McDowell’s amendment No.”
“If you go to the High Court seeking a Norwich Pharmacal order in respect of a defamation case, there is not a mandatory obligation on the court to provide it. It is a discretionary equitable remedy and it is preferable in the statutory framework if we continue with the test that a court shall exercise its discretion in terms of determining whether to grant an identification order or not. Subsection (4), which is the one Senator McDowell seeks to amend, provides that where the conditions of subsection (3) are satisfied, a court may make an identification order only where it considers it is in the interest of justice and that the interests favouring disclosure outweigh the interests against disclosure.”
“It is appropriate the Legislature provide such an indication to the courts, which will be in a position to determine what is practicable based on the circumstances of individual cases. Regrettably, therefore, I cannot amendments Nos. 22 and 23 from Senator McDowell. Amendment No. 24 is proposing an amendment to subsection (4) of what will be the new section 45. At present, the provision I have sought to introduce is that a court may make an identification order only where it considers that a series of tests have been complied with. Senator McDowell wants to change that so that it reads a court "shall" make an identification order. We have to be very careful about introducing mandatory obligations upon a court. We would have to be very certain that a mandatory obligation was required in what is at present a discretionary remedy.”
“It is important we recognise that identification orders are sought and granted on an exceptional basis. I do not want to see a situation or statutory provision created where people can haphazardly seek to go down the route of going to court and seeking an identification order if they do not need to go down that route. The whole architecture of civil law should be that we should only be providing a mechanism for people to go to court when there is no other mechanism available. Identification orders are necessary in some cases but they should only be available where necessary and not where it is practicable to obtain the information by other means. My understanding is the word "practicable" will be given its ordinary meaning when this condition is being considered by the courts.”
“People looking for inter partes discovery or non-party discovery are granted an order for this discovery by the court only if they can convince the court that the discovery is necessary. Similarly, when people go to court looking for an identification order, if there is another mechanism they can simply avail of to find out who is the publisher of the information online or if it is available to them otherwise, then they should not seek to invoke the jurisdiction of the court. It is important that a party who has been the subject of an anonymous defamatory statement can have recourse to the courts to assist in vindicating their right to a good name. However, this should only happen where it is necessary, and it is not necessary where there is another practicable means of obtaining the information.”
“22 and 23 concern the requirement set out in the proposed new legislation that an identification order would only be granted if there was no other practicable means of obtaining relevant information. I will start by stating in response to this that people should only be going to court if it is absolutely necessary to do so. Because of this, it is appropriate that we would have a provision in this statutory test for an identification order. The order should only be granted if there is no other practical means of obtaining the relevant information. If people have another means of obtaining the information, they should not be going to court. In such circumstances it is unnecessary for them to go to court. In many respects this mirrors the procedure in place for the discovery of documents in proceedings.”
“Since it is not within the body of the legislation that a defamatory statement has to be seriously defamatory, it seems it would be completely inconsistent if this section stated an identification order could only be granted if it was established the statement was seriously defamatory. Had Senator McDowell's earlier amendment passed, I could see the logic of this, but in light of the fact that it was rejected, it would create confusion and it would be inappropriate if this provision was agreed to. In circumstances where the amendments seeking to introduce a serious harm test have not been accepted, this amendment would see an applicant needing to establish a higher level of harm to succeed in an application for discovery against a third party. Unfortunately, I cannot accept amendment No. 21. Amendments Nos.”