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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“It is a matter for the court to determine what is the meaning of a publication. As I mentioned here on another occasion, a very damaging meaning can be communicated through the use of an innuendo or a reference. I think Senator Ruane referred, on Committee Stage, to how a prominent politician brought proceedings simply because a publication had been put up on social media, asking "Why is politician X so quiet at present?" That might appear to individuals in this House as being a completely innocuous, non-defamatory publication but, in fact, that was published on social media at a time when the whole of social media was engrossed by the fact that a politician who had not been identified was alleged to have been involved in the abusive sexual assault of another person.”
“That is my response in respect of Senator Higgins's amendments and comments. Senator Craughwell, in fairness to him, looked at it - and this is the great balance we get in this House - more with the eye of a claimant. It is important that we get a perspective in this House that looks at it not just from the point of view of parties who may be sued, but also from the point of view of a party who is a claimant. One of the issues that was raised by Senator Craughwell was his concern about innuendo and whether the Bill sufficiently takes into account the innuendo that can be used for the purpose of communicating and publishing a defamatory meaning. My own belief, and it is a strong one, is that this is adequately provided for already in the Defamation Act and in our defamation laws.”
“From the perspective of those individuals, I have to say that the provisions that have been introduced in Part 4A are very effective and novel in terms of providing a mechanism, not just for the person to bring the application to strike out or get a declaration, but also for a claim on damages on the basis that they can say that they have been sued inappropriately, that they were the subject and target of strategic litigation against public participation and, as a result of that, they are entitled to remedy beyond the standard remedy, which is the award of costs. In the Part that I am proposing to introduce, not only will they get higher costs if they can establish that they were the target of strategic litigation against public participation, but they also will have the remedy of seeking and perhaps being ordered damages.”
“On that basis, I consider Part 4A to provide protection for the targets of SLAPP proceedings, while maintaining an appropriate regard for the constitutional right of access to the courts and the obligation on the State to vindicate the individual's right to a good name. For those reasons, I cannot accept amendments Nos. 17 and 19. Senator Higgins approached her amendments from the point of view of the perspective of individuals who may be sued before our courts and who may regard themselves as being the target of SLAPP proceedings.”
“I consider section 34E to provide sufficient flexibility to the court to ensure cases that should go to full hearing are permitted to do so. It will also be remembered that even where an application for early dismissal is unsuccessful, it remains open to the target of SLAPP proceedings to seek a declaration at any stage before, during or at the conclusion of the action that the proceedings are abusive proceedings. Where such a declaration is obtained, the target of those proceedings may not only recover their costs on a more generous basis than normally provided for, but may also seek damages to compensate for any harm suffered as a result of those proceedings.”
“This gives rise to a serious risk that the provision would be seen as an unjust interference in an individual's constitutional right not only to access the courts, but also to vindicate their right to a good name. At present, section 34E allows a plaintiff to apply for early dismissal of proceedings on the basis that those proceedings are manifestly unfounded. The court has indicated in previous cases that it can apply the strike-out doctrine so that a defendant can make out a prima facie case of abuse by showing that the case has indicators of a SLAPP action. The onus would then shift to the plaintiff to demonstrate that the case was bona fide and not taken for the purpose of oppression. Section 34E seeks to transpose the directive and carefully balances the right of access to the courts and freedom of expression.”
“I understand the purpose of this amendment is to enhance protections for the targets of SLAPP proceedings. I also note that Article 12 of the directive provides that where a defendant has applied for early dismissal, it shall be for the claimant to substantiate the claim in order to enable the court to assess whether it is manifestly unfounded. However, it must be remembered that the striking out of proceedings represents a limitation on the right of access to the courts. The amendments put forward, in this case, would deprive a claimant of the right to take proceedings, which they had demonstrated were likely to proceed, unless it could be demonstrated that it was in the public interest to allow that claim to continue.”
“17 and 19 provide that where an application is made for early dismissal under section 34E, the claim shall not be struck out if the claimant demonstrates, first, that the claim is likely to proceed at trial and, second, "the harm suffered or likely to be suffered by the claimant as a result of the defendant’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in dismissing the case before trial." My understanding is that this provides for a somewhat automatic presumption in favour of strike-out, once an application has been made, unless a defendant can demonstrate not only that a claim is likely to prevail at trial, but also that the harm suffered by the claimant in the proceedings is sufficiently serious that the public interest in permitting the proceedings to continue outweighs the public interest in dismissing the case before trial.”
“I note that section 34EA(2) proposed in both amendments reflects the requirement in Article 8 of the anti-SLAPP directive, which requires member states to ensure that subsequent amendments to claims, pleadings or withdrawals of claims made by the claimant in SLAPP proceedings do not affect the possibility for the defendant to apply for remedies provided for by the directive. However, as the rules of court provide for rules and limitations with respect to the amendment of proceedings, I do not consider it necessary to introduce any additional provisions specifically in relation to applications under section 34E. For those reasons, I cannot accept amendments Nos. 16 and 18. Amendments Nos.”
“This is also the effect of the new section 34EA(2) proposed by Senators Higgins and Ruane in amendment No. 18. Amendment No. 18 would also insert a new section 34EA(1) which would allow the target of SLAPP proceedings in a defamation case to apply for a declaration that the proceedings in question are abusive proceedings at the same time as he or she applies for early dismissal of those proceedings. This is already provided for in the existing section 34F(1) to be inserted by section 19 of the Bill, so it is unnecessary. I understand the intention behind these amendments.”
“At present, in circumstances where an application is made to strike out proceedings on the grounds they are abusive, frivolous or vexatious, the effect of that application is the proceedings are, in effect, stayed. No further steps are taken in the proceedings because nothing can happen until that interlocutory application is determined. Even if that interlocutory application is then appealed, nothing would happen in the proceedings because the proceedings cannot go any further until such time as that issue has been finally determined. Section 34EA(2) introduced by amendment No. 16 would prevent a plaintiff from amending their pleadings in proceedings, subject to an early dismissal application, in order to avoid such dismissal or to continue the proceedings after dismissal.”
“First, section 34E requires the court to act as expeditiously as possible in determining an application for early dismissal and, second, in practical terms, it is difficult to envisage what further steps in the proceedings would arise in advance of the determination of that application by the court. Rules of court also provide the court with discretion to stay proceedings, where an order to strike out those proceedings has been made. This provides flexibility to the court so that cases can be dealt with according to their particular circumstances rather than the Legislature providing for a blanket rule, which may not suit all cases.”
“I am satisfied the list provided in section 34E is sufficiently broad and appropriately reflects the requirements of the directive. I do not consider that the amendments would provide any additional protections. Therefore, I cannot accept amendments Nos. 13 to 15, inclusive. Amendment No. 16, tabled by Senator Keogan, would insert a new section 34EA into Part 4A. Section 34EA(1) would prohibit the taking of any further steps in proceedings in respect of which an application for early dismissal has been made under section 34E. I do not consider such an amendment to be necessary.”
“For example, it includes where the endorsement of claim "is an abuse of the process of the court", which would seem to reflect the Senator's point in relation to abusive proceedings. The list is expressed to be non-exhaustive and is broader than that contained in the general scheme, taking account of the recommendations made by the justice committee in pre-legislative scrutiny. The wide definition aims to allow the court enough flexibility to balance those rights as fairly as possible in the circumstances of each case. These amendments would substitute the current requirement for a court to be satisfied that proceedings were "manifestly unfounded" with a requirement merely to be satisfied that the proceedings came within the definition of abusive proceedings against public participation.”
“13 to 15, inclusive, put forward by Senator Higgins, which seek to delete the reference to "manifestly unfounded" contained in section 34E of the Bill. Section 34E transposes Article 11 of the directive, under which a court may strike out proceedings that have been initiated against a person on account of their engagement in public participation, without proceeding to a full hearing, if satisfied these proceedings are manifestly unfounded. I understand the Senator's desire to provide protection for those targeted by abusive proceedings against public participation. However, this aim must also be balanced with the constitutional right of access to the courts. Section 34E(2) outlines an indicative list of circumstances where proceedings might be considered manifestly unfounded.”
“There will be an opportunity if a defendant in defamation proceedings wants to bring proceedings, or bring an application on the basis they believe the proceedings are strategic litigation against public participation and they are abusive court proceedings against public participation, to do so on a statutory basis under this legislation, once it is enacted. Alongside that will be the ongoing rules of court and inherent jurisdiction at the High Court, which permit applications to be made for the broader reasons I set out. I cannot accept Senator Higgins's amendment No. 12. I do not believe it is necessary. Before I deal with Senator Craughwell's issues, I will proceed by dealing with amendments Nos.”
“We know the directive defines abusive court proceedings against public participation as proceedings that have as their main purpose the prevention, restriction or penalisation of public participation. It is proposed by Senator Higgins that there be a different definition, which would focus on the effect rather the purpose. As I said in response to Senator Keogan, I cannot agree to that amendment because it would not, in my opinion, correctly transpose the directive. However, it is worth pointing out that the rules in respect of frivolous and vexatious proceedings, the rules in respect of abusive court proceedings or where there is no reasonable cause of action that are there at present will still continue.”
“What we are doing here is ultimately transposing an EU directive, namely, Directive 2024/1069, in respect of strategic lawsuits against public participation. We are all aware that, in this Bill, it is limited to defamation proceedings. However, as I have indicated, I will be bringing other legislation before the Houses for the purpose of transposing that directive in respect of all other types of proceedings. My primary purpose here is to transpose what is in the directive for the purpose of defamation proceedings. That is why when Senator Higgins raised her amendment No. 12, which was identical to Senator Keogan's amendment No. 11, I had to respond by saying I cannot accept the amendment No. 12. This is because it would interfere with the transposition of the EU directive.”
“The person then bringing the claim will have to put in an affidavit with their evidence stating why that is not so. There will be an interlocutory or preliminary hearing in respect of these matters in the court before the case ever proceeds to a full hearing. This happens at present, even in the High Court and defamation proceedings, and there will not be any jury involved in this. The High Court will be required to assess whether a claim is in fact an abuse of process, frivolous or vexatious, or whether there is no reasonable cause of action. It will then proceed if it believes that has been established to strike out the proceedings. It is important we are aware there is a remedy for this type of situation already in our legal system.”
“What will happen is, if a claimant issues proceedings against a defendant in our courts, let us say in the High Court, in Ireland, and if the defendant believes this is a completely frivolous case, an abuse of process or what we are talking about here and now in the Bill - strategic litigation against public participation, there is at present an avenue pursuant to which a defendant can bring an application. If proceedings are issued making an unfounded claim, a manifestly unjust claim or a claim that is frivolous or vexatious, what generally happens is the defendant or party being sued will issue a notice of motion grounded on an affidavit and in the affidavit they will set out the basis upon which they say the claim is an abuse of process, the claim disclosed no causes of action or the claim is frivolous and vexatious.”
“The reason I say this is to remind people that, for many centuries now, proceedings have been struck out in our courts because those proceedings have disclosed no cause of action, they have constituted an abuse of process or because, to use the language in our rules of court, those proceedings are regarded by the court as being frivolous or vexatious. In case people are concerned this type of issue is not being regulated or responded to by our legal system, that is not correct. It is dealt with on a frequent basis.”
“The effect of the common law is there is an inherent jurisdiction which operates within the High Court in Ireland which has full original jurisdiction, but also the common law means that, over the centuries, judges have looked at situations which have arisen. Even in circumstances where there is not a statutory provision in place to respond to the legal issue raised, the courts have historically, and continue to do so, applied the common law, which is judge-made law, to resolve and respond to circumstances where justice dictates there should be a response.”
“First, I thank Senators Higgins, Craughwell and Byrne for their contributions. I thanked Senator Keogan on the last occasion for her amendment also. Before I start dealing with the amendments that have been spoken to by Senators, it is important at the outset to remind Members here of the powers which exist at present within our courts system. Sometimes as Members of the Oireachtas, we assume all sources of the law derive from our Houses, but in fact, as people will know, the common law exists in this country and there are some advantages of having a common law system operate within our jurisdiction.”
“For those reasons, I regret to say that I consider it important that we retain that reference in Part C. I cannot accept her amendments Nos. 11 or 12. I am conscious the Leas-Chathaoirleach said that I was dealing with amendments Nos. 11 to 19, inclusive, which have been grouped. I am aware that Senators Stephenson, Higgins and Ruane also have amendments in respect of that. If they would like to speak, maybe I should hear them in the first instance.”
“It defines abuse of court proceedings against public participation as proceedings that "have as their main purpose the prevention, restriction or penalisation of public participation". The Bill's definition uses almost exactly that wording. Adopting a different definition, such as the one suggested by Senator Keogan which focuses on the effect rather than the purpose, risks causing legal confusion and uncertainty and may not correctly transpose the directive. Senator Keogan's amendment also narrows an important potential indicator of SLAPP proceedings, which may often involve multiple lawsuits or threats of lawsuits against the one individual. This is recognised as a feature of SLAPPs, not only by the European Union in the directive but also by the Council of Europe in its recommendation on SLAPPs.”
“I thank the Leas-Chathaoirleach. I am very pleased to be back in Seanad Éireann on Committee Stage of the defamation Bill. As the Leas-Chathaoirleach indicated, when I finished on the previous occasion I was dealing with amendment No. 11 from Senator Keogan, which was an amendment to section 19 in respect of the anti-SLAPP provisions within the legislation. As I indicated on the last occasion, I am seeking to transpose into the defamation Bill the defamation aspects of the SLAPP directive to ensure that the directive will apply in this legislation to any proceedings that are brought in defamation which violate the principles of the directive. The SLAPP directive specifically directs focus to the intent behind proceedings, rather than their effect.”
“This is because the definition would provide, on the one hand, that a SLAPP case is one that is not brought to generally assert or access a right and, on the other, that it includes any case that has the effect of preventing, restricting or penalising public participation. This gives rise to potential difficulty with respect to claims which are genuinely brought in good faith to vindicate a party's right to a good name but may have the effect of restricting public participation.”
“Senator Keogan's amendment also proposes a change to part (c) of the definition, which currently provides that SLAPPs may involve intimidation, harassment or threats on the part of the plaintiff, or his or her representatives, before or during the proceedings, as well as similar conduct by the plaintiff in similar concurrent cases. Senator Keogan's amendment would remove the reference to such actions taking place before, during or after the proceedings, as well as similar conduct by the plaintiff in similar or concurrent cases. My concern is that amendments Nos. 11 and 12 cast the net too widely and introduce an element of uncertainty and confusion to the definition.”
“Amendment No. 11, put forward by Senator Keogan, and amendment No. 12, which has not been moved but was referred to by Senators Higgins and Ruane, seek to amend the definition of abuse of proceedings against public participation contained in section 19. These amendments would substitute the requirement in the current definition of abusive court proceedings against progressive participation that such proceedings would have as their main purpose the prevention, restriction or penalisation of public participation with the requirement that such proceedings have the effect of preventing, restricting or penalising public participation.”
“I hope to address those concerns about when it is transposed today, although it is more likely to be the next day as we are going to adjourn relatively soon. I will clarify that while this Bill transposes some of the requirements of the directive, it does not deal with the directive in its entirety, as I said, because there are other non-defamation proceedings that will be transposed in subsequent legislation. Does the Acting Chair want me to stop?”
“As I said, the amendments in this group relate to protections for those subject to SLAPPs, or strategic lawsuits against public participation, as they are referred to. I welcome the engagement from Senators on these provisions. I am happy they share my objectives to ensure that Part 4A of the new Act provides better protection for those who are targeted by SLAPPs but also ensures fair procedures for defamation plaintiffs who are genuinely seeking to protect their good name. We also need to recognise that, in many instances, what one person regards as a SLAPP, another individual or entity may regard as a legitimate defamation claim. I know some concerns have been expressed in relation to the anti-SLAPP provisions.”
“The amendments the Senator is putting forward are amendments she is proposing in respect of section 19, which will insert a new section 34A into the Defamation Act 2009. As we generally refer to it, this provision I am putting into the new defamation Act will have the effect of giving effect to the SLAPP provision contained within European Directive No. 1069 of 2024. This is the defamation Bill and further requirements are imposed by that directive on me, aside from defamation proceedings. In this defamation Bill, I am only transposing into Irish law that directive as it relates to defamation proceedings. However, I assure Senators that work is ongoing in my Department in respect of the other elements of that directive, which cover non-defamation type proceedings.”
“One of the advantages of removing juries is that now a High Court judge who is awarding a significant defamation award will have to set out in the judgment the basis upon which he or she has determined that the award should be made at that level. It is also the case that in the Defamation Act at present there is a section that deals with damages, as I have just mentioned, and that sets out what the court is required to take into account in determining what damages should be awarded. It is the case that the primary, though not exclusive, remedy for those who have been defamed is an award of damages. As I mentioned earlier, other remedies, such as correction orders, are available. They are something that parties should be aware of. Unfortunately, I cannot accept either amendment.”
“There is nothing in section 31 that would prevent a court from finding that an injury to reputation had occurred but the nature and gravity of the injury was such that only a nominal amount of damages was appropriate. The reforms to the role of juries provided for in the Bill will also mean that the question of damages will be decided by judges, who will produce reasoned judgments setting out why the award of damages provided for is considered appropriate and proportionate, having regard to the guidance provided by the Supreme Court in the Higgins case. For that reason, I cannot accept Senator Cosgrove's amendment. We have previously seen examples where juries have given very large awards or awards that are hard to explain to the parties before the court.”
“A "defamatory statement" is defined in the 2009 Act as "a statement that tends to injure a person’s reputation in the eyes of reasonable members of society". Accepting Senator Cosgrove's amendment would amount to a legislative instruction to the court that in circumstances where a finding had been made that a person had suffered injury to their reputation, no damage should be presumed to flow from that injury. This severing of the link between injury suffered and damages awarded would be out of step with civil law generally and could be seen as an undue intrusion on the discretion of the court. It is also unclear what it would achieve. The 2009 Act already provides legislative guidance to the courts which requires them to have regard to the nature and gravity of a defamatory statement, among other factors.”
“As was the case in respect of Senator Nelson Murray's amendment, I believe that the Supreme Court's guidance, alongside the jury reform measures proposed by this Bill, will provide courts with a flexible, sustainable and legally robust method of providing appropriate awards of damages in defamation cases. That is preferable to a rigid statutory cap, which at best might indicate to individuals that awards of €250,000 to €400,000 are what to aim for in cases of defamation and could have adverse impacts on the settlement of claims and alternative dispute resolution. I, therefore, cannot accept Senator Keogan's amendment. Senator Cosgrove seeks to amend section 31(3) of the 2009 Act so that it provides that general damages in a defamation action "shall not be presumed".”
“This indicates to me that there would be serious cases in which the mandatory cap proposed by Senator Keogan would be too low to sufficiently vindicate the right to a good name. Although those cases may be rare, we still need to consider them and the State has a constitutional obligation to ensure that in those cases, the individual impacted is sufficiently compensated and their reputation sufficiently vindicated. The thresholds indicated by the Supreme Court in the Higgins decision, although not identical, are within a similar range to the figures outlined by Senator Keogan.”
“In setting out that figure, the Supreme Court noted that while such cases would be exceptional, there would be cases in which exceeding that threshold would be warranted. What the Supreme Court did in the Higgins case was set out about four categories of defamation cases referred to in the decision of Mr. Justice MacMenamin. He said that minor defamation cases should not exceed €50,000 and, in many instances, they would be much lower. Then he went to two higher levels and the highest level and set out grades. Generally, the presumptive upper limit of the Supreme Court's ruling in the Higgins case is €300,000. The Higgins decision also went on to consider questions of aggravated damages.”
“My concern about that is that it may not be permissible constitutionally because we could find ourselves having examples where somebody has been severely defamed and the court would turn around and say an award of that amount does not accurately reflect the damage done to the individual's good name. The Senator also talked about guidelines. We have guidelines for defamation action at present. They are not in the same way as the personal injuries guidelines, amendments to which were suggested recently, but the decision in the Higgins case in the Supreme Court set out guidelines for appropriate awards of damages relating to general damages in a defamation case. They indicated that the presumptive upper limit would be €300,000.”
“For instance, earlier Senator Mullen gave the example of the case of Fr. Reynolds against RTÉ. I would have thought that was an example of a defamation action at the very serious end of the range. We need to recognise that if that serious type of defamation occurs, there needs to be an appropriate remedy for the person whose good name has been severely damaged. That is why I am concerned about and opposing the two amendments that are still subsisting, those from Senators Keogan and Cosgrove. First, in respect of Senator Keogan's amendment, she wants to put a cap on damages for a defamation claim limiting general damages to €250,000. Subsection (2) indicates that there would be an overall cap of €400,000 that would apply to all forms of damages, with the exception of special damages.”
“Prominent people have been accused - and Senator McDowell will be aware of this from his previous tenure here - being involved in the most serious elements of child abuse. That was published broadly. There has to be a consequence to that and in this House, we need to consider that if we are dealing with the serious end of the range of defamation actions, what should be the remedy? If we are talking about the serious end, we have to give an example of the serious end. It is somebody being accused of very serious criminal wrongdoing when there was no liability on their part, in circumstances where the publication has been broadcast very widely - let us say it has been broadcast in a national newspaper or on a national broadcaster - and it has had a very significant detrimental impact on the individual concerned.”
“Much of the motivation behind the amendments from Senators Nelson Murray, Keogan and Cosgrove relates to the position of retailers. It is the case that retailers have been subjected to inappropriate defamation actions. That is why I have put into this a specific statutory defence for retailers that never existed before and that will be of great benefit to them. However, we need to recall that defamation goes beyond just retailers. We also need to reflect on what was reflected in the previous debate: the right to the good name of the individual. That is one of the rights that has to be balanced and the other is the right to freedom of expression. We have seen, in the past, very serious examples of people being defamed.”
“I thank Senators Nelson Murray, Keogan and Cosgrove for their amendments. Senator Nelson Murray has withdrawn her amendment. It is very much in line with the general thrust of the amendments put forward by Senator Keogan, and Senator Cosgrove to a lesser extent. Defamation actions vary in their seriousness, impact and nature. In many respects, they are similar to personal injury actions. You could have a very minor personal injury action where somebody trips over and sprains their knee. Similarly, you can have an extraordinarily serious personal injuries action, such as a child having been delivered through negligence at birth and having suffered life-changing injuries. There is a variety in terms of defamation actions, just as there is in terms of personal injury actions.”
“We should not be too censorious about live broadcasts. We want to encourage them. I will conclude by saying I will take into account what Senators have said when we come to looking at Report Stage amendments. I said I would previously in respect of the amendment put in by Senator McDowell.”
“They would be liable, and there would be a liability on RTÉ or another publisher or broadcaster if it did not take reasonable steps to prevent it. Somebody mentioned the issue of a march going down the street. Let us use the example of where every evening on the "Nine O’Clock" news we see Paul Cunningham or Míchéal Lehane standing outside Dáil Éireann and broadcasting live. If it was the case that somebody just passed by and, uninvited, as is provided for here, made a publication defamatory of me or someone else, should the broadcaster be held liable for that? Should this be the case where someone is just passing by and utters some defamatory statement saying the Minister for justice is a whatever? Do we hold RTÉ liable for that when there is nothing it could have done to stop it? I think we need to be reasonable here.”
“It is dealing with circumstances where, outside of the broadcaster's control, a defamatory statement is published and, notwithstanding precautions taken by the broadcaster, there was nothing it could do to stop it. In those circumstances, the section is seeking to provide a separate statutory defence in respect of this situation. I have to say that I think this is a reasonable amendment and a reasonable further protection for broadcasters. I do not see it as having the consequences that Senators have identified. I think it should be supported and that it would be beneficial not just to broadcasters but to public discussion in general. It will not mean individuals will know they can go on an RTÉ radio programme and publish a statement that is defamatory.”
“The way the law is at present means they do not have any real protection in respect of it. This is why this is a separate statutory defence in respect of live broadcasting. Senator Mullen also asked how they are going to overlap these different defences, including the new defence set out in proposed section 27A and the new amended defence in section 26. As the Senator will know, it is possible to use and rely upon alternative defences when it comes to defending a defamation action. The fair and reasonable defence or the publication on a matter of public interest is, as I said, designed to deal with a type of broadcast or publication that loosely comes within the definition of public interest journalism and responsible journalism. Section 27A is dealing with something very different.”
“It is also an issue to be taken into account when we are considering the review of the legislation. These are not some abstract problems; they do actually happen. If the broadcaster and the presenter seek to challenge the individual concerned, that will be taken into account. I am conscious there may be circumstances where they do not have the information available. I think broadcasters do it very effectively at present where they say a person is not there to defend themselves, has never been convicted of any criminal association, or, RTÉ or Virgin Media has no knowledge of it. There is only a limited number of things they can do. We either want to shut down live broadcasts completely, which is something I know this House does not want to do, or we are going to have to try to give broadcasters some form of greater protection.”
“It states that the court must take into account: "the overall management in practice of the live programme concerned, and of its participants, by the broadcaster and in particular by the presenter of the live programme." That is a clear reference to the fact that the court will take into account what the presenter of the programme said at the time these comments were made. It was mentioned whether this legislation is just trying to deal with some abstract issue. As Members know, I do not like mentioning previous court cases, but a court case that was previously brought by a former Sinn Féin councillor against RTÉ in respect of an utterance made by a former Member of these Houses on the "Saturday with Claire Byrne Show" got a lot of public attention. Clearly, that was an issue from the point of view of RTÉ.”
“In fairness to Senator McDowell, he probably did one of the most effective and well-known responses on a radio programme very many years ago during a presidential election campaign where defamatory comments were made about a presidential candidate. The Senator was on the panel and reprimanded the individual who uttered what were fairly nasty, if not defamatory, comments about one of the presidential candidates. Under this legislation, one of the factors the court will be required to take into account in determining whether the broadcaster took reasonable and prudent precautions, is contained within section 13(2)(e).”