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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“My answer to that is that every day the civil courts have to decide cases on the balance of probabilities and whether it is likely, on the balance of probabilities, that a claim being made by a plaintiff is correct. That is what will happen here. A judge will have to look at the example we have of McDowell Butchers Limited and agree that the huge supermarket chain defamed it by saying that the meat it was selling was rotten and that, of course, this would damage the McDowells in the particular area in Ranelagh in which it operates. A court in that instance could decide, although it would not have the financial reports yet, that it was, on the balance of probabilities, established that it would likely cause the company financial loss. For those reasons, I am not prepared to accept the amendments.”
“Are we really going to say that we should not allow people who live in Northern Ireland to bring claims in Ireland, particularly if, for example, the defendant - a large broadcaster - publishes something in the South? Unfortunately, I am not going to accept Senator Higgins' amendments. It is important to point out that the section which is being introduced is going to restrict the ability of corporate entities to take claims. They will only be able to take claims now if they can establish that they have sustained a financial loss or that it is likely that they will sustain a financial loss. Senator McDowell asks how the courts are going to interpret this.”
“If a company's good name has been unfairly damaged as a result of a false publication by a large, more powerful competitor, that company should be able to take a claim provided it can establish it has sustained financial loss or is likely to do so. In terms of proceedings, Senator Higgins also stated that Ireland has become a place for libel tourism. I am not aware of that. If she can give me an example of a case before the courts, I would be happy to consider it. One of the points that was raised was that a defamation claim that achieved some prominence recently and that could have been brought in Belfast, was brought down here.”
“It may not be the case that financial loss could be established, but it is likely that it would cause the company financial loss. I hope Senators will permit me to say this, but a narrative has developed that the only people taking defamation actions are the strong and powerful and that the defendants of defamation actions are the weak, vulnerable and impecunious individuals. As Senator McDowell will tell us, that is not always the case. Many defamation actions are brought by those who are in weak financial positions. In a corporate context, they are brought by small companies against larger corporate entities. We should not assume or presume that people taking defamation actions are individuals who are engaged in some form of nefarious wrongdoing.”
“It will not have its financial accounts available for the relevant year. It is also important to point out that the company may want an injunction. Not everything in the Defamation Act revolves around awards of damages. You can bring an interlocutory application for an injunction to stop the huge supermarket defaming McDowell Butchers Limited. In that instance, it would be unfair to say to the small company it could not take a claim or even look for an injunction because it has not been able to establish that it has actually sustained financial loss. For that reason, a company in that instance should be able to say it was likely it would sustain financial loss and, looking at the broad publication of the statement, that its customer base was down.”
“I will not give a name, but let us say that some enormous supermarket chain decided McDowell Butchers Limited was a real irritant and wanted to do damage to it. In that instance, the large corporate entity could decide to put out stories about the meat in McDowell Butchers Limited being rotten. In such circumstances, the enterprise of McDowell Butchers Limited would be entitled to bring a claim. Simply because it cannot prove at the time it takes a claim that it suffered financial loss should not preclude it from being able to say what was being said about the company was likely to cause financial loss. That is appropriate because in many instances defamation actions have to be taken quickly, and it might be difficult for the eponymous butchers to be in a situation where it could immediately establish that it had sustained financial loss.”
“It is important to note that, notwithstanding the fact that they lost in the UK courts, Ms Steel and Mr. Morris were subsequently vindicated because they won before the European Court of Human Rights. What I am introducing here is a mechanism, a statutory scheme, to make it more difficult for corporations to take cases. Deputy Higgins says that we should just limit it to corporations that can prove, as a matter of fact, that they have sustained financial loss and that if they are not able to do so, that should be the end of it. That would be too draconian in the context of corporate entities. I return, and I hope Senator McDowell will forgive me for doing so, to the example of McDowell Butchers Limited. Let us look at a case where McDowell Butchers Limited has been defamed by a much larger entity.”
“The way I am doing that is by saying that companies cannot bring defamation claims unless they have suffered financial loss or as a result of the statement are likely to suffer financial loss. That is a marked distinction from what is currently there. At present, a company can take a defamation action and does not need to prove financial loss. It may be a factor that the court takes into account that no financial loss has been sustained. At the moment, however, there is no requirement for a company to establish that it has sustained or is likely to sustain financial loss as a result of a defamatory statement. Part of the reason the law in the UK was changed was because of the defamation proceedings brought by McDonald's against two Greenpeace activists, Helen Steel and David Morris, which became known as the "McLibel" case.”
“I think that is the clear objective of the legislation that is being introduced. The reason that is so is because there is a perception, which indeed in some cases perhaps transfers into reality, that the defenders of defamation actions probably need a bit more protection than those who are bringing the claim. We in these Houses have to be careful that we still recognise and seek to protect the former right, namely the right to one's good name. No one else is organising groups of people to represent individuals' good name, and we have an obligation to ensure that we do so and that we protect their good name. Regarding the specific amendments tabled by Senator Higgins, the purpose of the new section 12 that I am seeking to insert into the existing Act is to make it more difficult for a corporate entity to bring a defamation claim.”
“I informed Senators on the previous occasion I was here that one of my functions, and it is a really important function, when it comes to introducing defamation legislation is to try to balance the two conflicting rights that are present in this area. On the one hand, there is the well-known right to freedom of expression, an absolutely essential right that must be protected. Similarly, there is the right to one's good name, which probably is not as organised or as represented a right as the right to freedom of expression but it is one that I also have to take into account. Any defamation legislation necessarily will try to balance those two rights. I think it is clear to all Members of this House that the purpose of the amending legislation is to slightly shift the balance in favour of the freedom of expression right.”
“I thank Senator Higgins for her amendments. She has put forward two amendments, Nos. 6 and 7, which are identical and which seek the removal of the words "or is likely to cause" in the new section 12 governing defamation of a body corporate. I think it is always important when we are discussing and debating amending legislation that we recall what the underlying existing legislation provides. Colleagues will be aware that, at present, 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". The test at present is that this constitutes a defamatory statement. Obviously, it must be published to other persons. There is a whole series of defences set out in the legislation as it exists at present.”
“We really need to be focusing on the type of remedy we can provide for them. That is all I want to say on these amendments. I am happy for them to be put to a vote.”
“Even if the worker in the shop is wrong and the person does not have an object in their possession, the worker is still protected because of this statutory defence. Senator Conway asked if I could give a guarantee that costs will decrease. My assessment of it is that the reduction of juries, the efficiencies introduced in the system and the strengthening of defences available to retailers will result in a reduction of costs. The Senator also spoke about defamation online. As I said earlier, the elephant in the room here is defamation that is happening online. I know Senator Nelson Murray referred to them, but the number of defamation claims in Ireland is small. Where defamation really operates in Ireland is online, with the vast amounts of defamatory publications put out by individuals about Irish citizens.”
“If somebody walks up the aisle, puts something in their pocket, takes it out, puts it back again and a shopkeeper stops them, the shopkeeper is perfectly entitled to do that at present. At times in the debate, this may not be apparent but I am putting in a further provision to give retailers even further protection. Sometimes, listening to some of the objections from the lobby groups might make one think I am reducing the protections available to retailers. I am increasing the protections for retailers. If people do not want it, I will take out the section, but I think this section will provide even greater protection to retailers because it includes, for the first time, a specific statutory defence entitling them to ask questions about somebody.”
“I am conscious that this is the first time Senator Conway has spoken on this grouping of amendments. At the end of his contribution, Senator McDowell mentioned that insurance companies are dictated to by the bottom line, and he is absolutely right about that. However, as legislators, we cannot be dictated to by people whose only interest is the bottom line. We need to enact legislation that balances constitutional rights. Simply because insurance companies decide to pay out because it suits their commercial interest, that is not a factor on which we should be deciding proposed legislation. Senator Nelson Murray gave the example of somebody walking up and down an aisle. At present, that is fully protected.”
“No one else has this protection that says they cannot have a claim brought against them. I will consider the matter. I think I will sit down now so the Senator may be able to get a vote in.”
“I note what he said about online defamation. We will talk about it in due course, not today. However, the provision says that the court may award costs. There is nothing mandatory about it, and obviously the court will exercise that with discretion. I listened to what Senators Fitzpatrick and Nelson Murray had to say. I asked Senator Fitzpatrick yesterday if she could find an example of where any entity is immune from legal suit. In fairness, I knew there was none. Regarding what Senator Fitzpatrick said about absolute privilege, at present what would happen if someone sued her for what she said in this Chamber is that they could issue proceedings against her. She would have to put in a defence pleading absolute privilege. She could then bring an application to go to court to get it struck out but she would still be in the court system.”
“Obviously, that could not happen in that situation because the wife would not believe it so the person could not prove their case. The Senator also referred to McDowell Butchers Limited and if someone said McDowell Butchers Limited sells rotten meat. If that does not affect the business of McDowell Butchers Limited, why should it have a claim? If it went on to reference the principle behind the business and say they were involved in this activity, they would have a personal claim, but unless the business suffered a financial loss, I do not see why it should have a defamation claim. Senator McDowell spoke about the procedural applications. He thinks it will shorten procedure. I disagree. I think we will have a whole series of defamation preliminary applications as to whether serious harm is involved or not.”
“I will try to answer Senator McDowell's and the other Senators' points quickly. Senator McDowell spoke about the serious harm test. However, I still do not know from listening to him what constitutes a serious defamation. He gave an example of someone saying in the presence of a person's wife that that person was a paedophile. On the Senator's reading, that would not be a serious defamation. As things stand at present, however, that is dealt with and provided for in the legal system. In order for someone to succeed in a defamation action, they have to call a person who heard it to say they heard what was said about the person and they believed it. They have to say they heard somebody accuse a person of being a paedophile and, when they heard it, they believed it.”
“I do not know how in a preliminary stage it would be assessed whether a statement was one of serious harm or lasting effect or not. In respect of the amendment from Senators Fitzpatrick and Nelson Murray, I cannot accept it because it is a revolutionary amendment that would have the effect of conferring immunity on one group of people. Why would newspapers not come in and say they want to be immune from any defamation suits against them that relate to stories of public interest? Everyone would be queuing up to have immunity from suit and we generally do not do immunity from suit in Ireland. I will reflect, however, on what both Senators Fitzpatrick and Nelson Murray said to see if there is any other mechanism within the draft at present that could make it more efficient and effective for retailers.”
“If they get it right and the person is a thief, they are perfectly entitled to do it - there is no issue there - but if they get it wrong and the person had, in fact, paid for it or they did not have something in their bag, this is also to protect them. I know a vigorous campaign is being waged against it but I would have thought this is heading in the right direction. I urge insurance companies to fight cases they believe are unmeritorious. The more you give in to a particular type of claim that is unmeritorious, the more likely it is to persist. For that reason, I cannot accept the first two amendments. I have listened carefully to Senators McDowell and Keogan. I think a serious harm test would make the issue more complicated. There is a legitimate reason we distinguish companies from persons.”
“They were trying to steal from the shop." This is separate protection; this is an added protection. This is to protect the shopkeeper who gets it wrong. That is what qualified privilege is generally about. The law creates circumstances where the law of defamation does not operate as it normally does. It is like the communication between a person writing a reference and a prospective employer. He or she could get it wrong, but because the law has decided that such arrangements and communications should be protected, we are therefore going to permit wrongful statements to be made. Similarly, under what will be the new section 18, this is to protect shopkeepers who get it wrong.”
“However, if I was shopkeeper who started excessively roaring someone or roaring around the shop and out the street stating, "You never paid for it. You are a thief" and walking up the street after the person, but it turns out to be untrue, then that person has no remedy. I have to balance their right to their good name as well. It may be an unlikely circumstance, but it has to be taken into account. We need to recognise that all these defences like the defence, as Senator McDowell said, of qualified privilege, only kick in where the statement published has been established to be defamatory. The defence of truth still applies. If somebody has not paid for something and it is said that they never paid for it, the shopkeeper can rely upon the defence of truth and say, "It was true what I said.”
“Under the laws that are drafted and if the proposal by the two Senators was enacted, it would mean that a shopkeeper could say virtually anything to anyone who comes in. If a person comes into a shop, at present the law provides that retailers have to be proportionate and cannot be malicious in their inquiry. If they are disproportionate or malicious, they will lose the defence. That is what stated at the end of it. It was not published excessively so it was not disproportionate. At present, a shopkeeper can vigorously to say to someone: "You haven't paid for that; show me your receipt." Senator McDowell said it is statement. It is still part of an inquiry: "You haven't paid for that; show me your receipt." That is all protected at present.”
“I probably should be doing this more obediently, but I will read from the script that my efficient Department officials have provided me with in respect of this issue. On serious harm, there is a specific constitutional obligation in Ireland to protect a person's good name and the right of access to the courts. Legal issues were raised by the Office of the Attorney General with the introduction of a general serious harm test. That is in response to the serious harm test, but similarly I have to take that advice into account when I am looking at the amendment being put forward by the two Senators on behalf of the retail sector. It is in effect excluding access to the courts for persons who in unusual circumstances may claim that they have a valid claim against a retailer.”
“I would have to put in a defence saying, "Sorry, I have a defence of absolute privilege. I said it in Seanad Éireann. It is expressly protected under the Defamation Act and the Constitution." However, there is no rule that states that the no cause of action lies that I cannot bring the case, and I have an absolute defence. If we got into the route of saying that no cause of action lies in respect of certain events, it would transform the law. We could say no cause of action lies in respect of personal injury accidents where the claim is less than €5,000 or where the claim is small. We do not go down that route. Senator McDowell asked if I had got advice from the Attorney General's office.”
“As I mentioned yesterday in reply to Senator Fitzpatrick when we were discussing this amendment, I am not aware - and I would be interested to hear if other Members are aware - of any provision in our law that states that a group of people is immune from suit. That is, in effect, what the Senators are seeking to do here by stating "no cause of action shall lie where the defendant can" show that this was just an inquiry about goods. We do not even have it in respect of these Houses. The Constitution states that Members “shall not, in respect of any utterance in either House, be amenable to any court”. However, under the Defamation Act, there is a list of absolute privilege, but absolute privilege like qualified privilege is a defence. Somebody could sue me for a statement that I made in the Houses of the Oireachtas.”
“What is happening - and it happens too much - is that settlements are being entered into because insurers predominantly are excessively cautious and wholly unnecessarily anxious about what is going to be outcome to the court case if it goes to a hearing. They need to fight the cases. I have looked carefully at the amendment that has been tabled by the two Senators. They are proposing that the wording would be changed. I provide in section 8 that it will be a defence to a defamation action for the defendant to prove that the statement was simply an inquiry in respect of whether someone has paid for the goods or not. The Senators are asking me to insert "no cause of action shall lie where the defendant can” prove that the statement to which it relates was an inquiry. That would be a significant change in our law.”
“The way to deal with that is that there needs to be more unified and stronger response from retailers and the insurers of retailers that they do not pay out when these claims are made. There is a certain store in Dublin that I will not name. People do not sue it for things like this because they know it is not going to pay them out. If there was a bit more vigour in the defence and standing up to people who bring false claims, that would have an impact. Senator Nelson Murray mentioned a number of settlements. I am not criticising her. However, there is no corresponding example of court cases where judge X awarded a sum of because somebody was asked whether they had paid for the goods.”
“Recently in the High Court, there was an appeal brought by a large supermarket, which again successfully protected and recognised the right of retailers to enquire if someone has paid for the goods. Those cases are being thrown out on a frequent basis. That still does not answer the main issue raised by Senators Fitzpatrick and Nelson Murray about people wining the cases, but ultimately it costs them a lot of money to do that. Why do they have to go through that process when in fact at the end of it they win, but they still have lost a lot of money because they cannot get their costs back from the individual who brought the false claim? I am giving consideration to the amendment.”
“There are a whole series of cases that have been given under current law where courts have thrown them out on the basis that the shopkeeper was perfectly entitled to raise a query about whether or not the complainants paid for the goods. I am looking at an example of a case where somebody had put a bottle of wine into their bag. They had then put it back on the counter. They left the shop. They were pursued afterwards by the shopkeeper who said they had a bottle of wine in their bag, and they had not paid for it. They were able to show that they did not have a bottle of wine. They instituted proceedings, and the case was thrown out. We need be aware that judges are not some naive remote persons who are not aware of what is happening in the world. These cases are being thrown out.”
“I am putting in a new section into section 18 of the principal Act, which will provide a separate defence for retailers. Senator McDowell referred to it as a "defence of qualified privilege". It comes within the section on qualified privilege in the principal Act, but in truth, it is a statutory defence that stands on its own. It provides an express defence to, for example, a shopkeeper who can say in respect of the defamatory statement for which they are being sued that it was a statement being made in the context of enquiring, "Have you paid for that or not?" People are perfectly entitled in shops to ask people to produce receipts and to ask whether goods have been paid for. While I was listening to Senator Fitzpatrick, and I hope she did not think I was rude, I was looking up a couple of legal websites to look at some cases.”
“In fairness to both Senators, I carefully listened to what they had to say and what Senator McDowell said to follow up on them, and their argument is that a defendant may have a defence in place but, notwithstanding that, people are bringing claims and small businesses are required to devote resources to defending those claims. Insurance companies take responsibility for them. There are settlements agreed. In the long term, these small businesses are paying out money, which they should not have to pay out because of the unmeritorious nature of the claim. I appreciate that valid and strong point. I have listened to it carefully. However, we should not underestimate or understate the provision that is being put in place in this legislation that was introduced last year.”
“It is a valuable tool and fundamental right. My job as Minister is to ensure that the laws facilitate freedom of expression. A vocal community urges me to do that and I am very supportive of it. I also have to take into account the right of an individual to his or her good name. There is not a vocal community advocating that but, constitutionally, I and indeed all Members of this House have an obligation to ensure that we seek to vindicate that name. Senator Keogan also talked about trivial and vexatious cases. I agree that we do not want a situation where the courts are being used for frivolous and vexatious cases. Those cases should be challenged. The way for them to be challenged is that applications are brought to strike them out. I move to amendment No. 9 in the names of Senators Fitzpatrick and Nelson Murray.”
“All of us as politicians take it on the chin that there will be defamatory statements online about us, but that should not preclude us from trying to ensure that in our legal system there is some mechanism to ensure that people have a remedy. Senator Keogan referred to the situation in the United States. Some people in the United States think the defamation laws there are out of control because they are so weak. In the United States, to succeed in a defamation action, malice has to be proved on the part of the publisher. A newspaper could publish a front page story claiming a prominent politician is involved in corruption, and unless that was published maliciously, the individual has no remedy in respect of it. We need to formulate our own laws in respect of defamation. I fully respect the right to freedom of expression.”
“They were given to the Senator by others. Regarding defamation being out of control, I will defer to Senator McDowell in respect of this, but my own assessment from some experience in the courts is that the number of defamation cases is declining. I will come to deal with the amendments about shops in due course. Where real defamation is taking place at present is online, where people are being defamed. Their good name is being degraded and there is a very limited remedy available to them because sometimes it is extremely difficult to identify who the actual publisher is and the social media companies do not accept liability for their publication. They say they are merely a hosting environment. Defamation is an issue in our society.”
“I acknowledge and thank Senator Keogan for her apology. I accept it gracefully and thank her for what she said. I knew when she was reading out those statements that they were not her words and I am happy to accept her apology in that regard.”
“I do not want to see defamation law used unnecessarily or vexatiously, but it is the only statutory remedy that is available to a person whose constitutional right to his or her good name has been impinged. My fear about amendments Nos. 5 and 8 is that although they are seeking to make the system more efficient, they will result in it becoming more protracted and costlier. There will inevitably be disputes at an early stage about a defamation not being serious harm, since although it accused a person of being involved in child abuse, it was only published to three people and is not serious enough. Somebody has to determine at some stage what is serious. It is already being done but it is at the end of the process and the efforts to put it in as a preliminary step will not make the system more efficient.”
“Again, I have to ask how that would be determined by the court, using the example that I have, if it was a serious allegation of child abuse made to three people? Is that something that is there for a lasting extent or does the fact that it was just communicated orally to three people mean that it is not to a lasting extent? These are all factors that are taken into account in determining the seriousness and consequence of the defamation statement. I know the objective of many Members is to try to ensure that we reduce the number of defamation actions, and the voice here seems to be predominantly on the part of the persons who are being sued, to ensure that they are not dragged into costly, unnecessary litigation. I support that too.”
“Are we going to say at the outset that it has to be broadcast or published to a wide range of people for it to constitute serious harm, or do we recognise that serious harm could arise through publication to a small number? These are all the issues that are ultimately dealt with by the courts. The judge hearing the case or indeed the jury hearing the case, which may no longer be the case, has to determine if this is serious and if it causes serious harm. There is a determination of whether or not it is serious. If it is serious, there would be very negative consequences for the claimant. Senator McDowell's amendment also refers to there having to be a requirement that it is a statement that harms the reputation of a person to a lasting extent.”
“At the determination of it, the conclusion, the court assesses that it is not that serious and so nothing is due on foot of it. I also have to remind Members that the courts are vigorous in ensuring that their processes are not abused. Anyone who brings a frivolous or vexatious case can have the case thrown out. Many applications are brought to dismiss frivolous or vexatious cases. Senators need to be aware that if we are introducing a serious harm test, we need to define what constitutes serious harm. We can do it quite readily for corporate plaintiffs because we can say that they have to prove financial loss but for a personal plaintiff, how do we determine or how does a court confirm that it constitutes serious harm?”
“If somebody describes a person on a front page of a newspaper as being a paedophile, I assume everyone accepts that is of serious harm. It is being published to hundreds of thousands of people. Everyone can see it. I assume we agree teat is of serious harm to the individual concerned. If somebody says it in the confines of a quiet room to three people, as has happened previously, do we say that that is a test of serious harm or not? My view is that does constitute serious harm if a really serious defamatory statement is made, even to a small group of people. I use that example for the purpose of showing that somebody is going to have to determine what constitutes serious harm. The way we do it at present is that the defamation action is issued, defences are put in and the matter is determined by the court.”
“We need to think on a procedural basis that if we change the law so that there now has to be a serious harm test, we will increase costs, increase in the number of hearings, increase the jurisprudence of the law of defamation, and there will be a series of interlocutory applications at an early stage to the courts trying to determine if this alleged defamation is serious harm or not. It will make the law of defamation procedurally more complex and more costly. They are factors that I have to take into account. There is the other substantive factor, aside from the procedural factor, of what serious harm actually means. I will come back to Senator McDowell's lasting extent point. Let us assume that we are talking about a serious harm test.”
“As was indicated by Senator Nelson Murray, England introduced this back in 2013, but we also have to look to see what happens there as a result of that. Predominantly what happens, as I mentioned on the last occasion, is that if someone issues a defamation action in the UK and there is a dispute, as generally there is, about whether the alleged defamation constitutes serious harm, that results in there being an application to the court and a hearing before the judge to determine if the statement is in fact one that constitutes serious harm.”
“It is reasonable for the Oireachtas to decide that a company making a claim of defamation has to establish financial loss. I think Members of this House are predominantly supportive of that but the issue they have is as to why we do not extend that to persons as well. I do not think anyone here is trying to say we should remove the serious harm test for corporations. Instead they are suggesting we should have the serious harm test for personal litigants as well. That brings me on to dealing with that issue of why we do not just have in our law the amendments as tabled by Senator McDowell or indeed Senator Keogan, which both state that for a person or indeed anyone to take a defamation action, there must be serious harm or, in Senator McDowell's version, it must be serious and to a lasting extent.”
“A negative comment about a company is completely different from a negative defamatory comment about an individual. There really needs to be a consequence and an apparent result from the defamatory comment about the company. In the proposal here, we are trying to ensure the company can only succeed in a defamation case if it can show it has sustained serious harm. How do we assess whether a company has sustained serious harm? We look at its profits and look to see whether there has been financial loss. How do we determine whether a human has sustained serious harm? If somebody referred to a person as a child abuser, it is not possible to look at the person's bank account and say that because they have not sustained any financial loss, the statement was not harmful. There is a reason for distinguishing between a company and a person.”
“However, it is also important to point out that the amendment tabled by Senator McDowell and his colleagues requires that the harm be to a serious and lasting extent. I will start by trying to answer the first issue that Senator McDowell raised as to the reason for a different test for a corporate entity. There is a very significant difference between a corporate entity and a human person. Corporate entities are created pursuant to the Companies Acts predominantly and most are designed to make a profit, while there are also some companies that are not for profit. Predominantly, however, companies that are established are in the business of making a profit; that is their sole purpose. I am trying to deal with a situation where a company, let us call it McDowell Enterprises, claims that it has been defamed.”
“I thank all Senators for their contributions. We are considering three amendments that have been tabled. I propose to deal with each amendment in the order in which they were raised. I will start with what I refer to as Senator McDowell's amendment No. 5. In this amendment, Senator McDowell and his colleagues propose that we would go back to section 2 of the Act and redefine "defamatory statement". Senator McDowell makes the correct point that the Bill we are discussing introduces a rule in respect of a corporate plaintiff that requires it to have suffered serious harm in order for it to succeed in a defamation action. The first question Senator McDowell asked me was why we have this distinction that on the one hand a corporate plaintiff has to have sustained serious harm, namely, financial loss, while a personal plaintiff does not.”
“I have answered that already. I said we have fully transposed the Council decision. It is part of Irish law. We fully transposed it. There are no further steps for Ireland to take. However, I believe we all have a responsibility to ensure we challenge hate speech. Irrespective of whether it is challenged in the courts or by the Garda, we have a responsibility to challenge it.”
“I also make the point that there is a responsibility on all of us to try to challenge hate speech. Although hate speech may not result in everyone being brought before the courts, we should be able to ensure that we do not tolerate people engaging in hate speech which is designed to undermine or upset others. There are two ways of looking at this. We can look at it from the strict legal point of view or from a societal point of view. From the latter point of view, we should certainly all be challenging hate speech.”