Michael McDowell
National University of Ireland · Independent · Ireland
“Then I think of this particular Chamber where people are polite and kind to each other and listen to each other respectfully. There is no baying or shouting down or whatever. It is a great tribute to the Seanad staff that that spirit continues to exist in this House.”
“I note that the whole scheme of the planning Act is that exempt development proposals are considered by the Houses. It is questionable whether this House has really considered the exempt development regulations. Without debate, we sent them off to a committee.”
“I am one of the people who disagrees with the substance of that report. We have to have a real solid debate on it here in this House, not merely a cursory one. It is an issue of fundamental importance. It cannot be avoided, one way or the other. Whatever your views are on it, it needs to be thrashed out.”
“Although coming up to the end of this term we are rushing things through, and the guillotine is well-oiled and slicing this way and that, we have a lot of work to do in the autumn.”
“The people who did that were brought before the International Court of Justice and condemned and imprisoned. If Ireland does not clearly state that there are to be consequences for people who do things like what Mladić, Milošević and Karadžić were brought to account for, if we are incapable as a State of publicly saying that what Secretar…”
“If we cannot, as a State, say publicly to Rubio, "Hands off the International Criminal Court", when they were quite happy when the people who did the 7,000 murders in Srebrenica got their just desserts, but when there is any suggestion that what has happened in Gaza, with 70,000 innocent people killed by aerial bombardment and land bombar…”
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Every one of 1,224 lines we hold for Michael McDowell, in date order, each linked to its source. Free to read, in full, without an account. Page 12 of 25.
“He was subjected to a grilling that was wholly unacceptable. Today, I was driving to the House and passed Bord Bia's headquarters on Pembroke Road. There is a rolling occupation taking place by members of the Irish Farmers Association, IFA. There is a portable loo on the pavement. Other interest groups in Ireland do not have the licence to conduct rolling occupations of Government buildings or State agencies. I put on the record my admiration for Mr. Murrin. I am grateful for all he has done during his period as chairman of Bord Bia. My strong view is that the Government should under no circumstances buckle in the face of a politically motivated and personalised campaign against a decent businessman. Bord Bia is not simply about agricultural output. It is there to represent the food processing industry in general.”
“I ask the Leader to arrange on some occasion a discussion in this House on what is happening to the chair of Bord Bia. Mr. Larry Murrin is a competent and devoted businessman who has done his best for his industry. He has the confidence of the board of Bord Bia. He is a man who has never taken a cent from the Irish taxpayer in expenses or salary for the position he holds. Mr. Murrin was called before these Houses' joint committee on agriculture and subjected to a barrage of half-thought-out criticism, mainly inspired by people who appeared to be operating to the common theme of trying to discredit him and put to him questions that were wrong. He was subjected to many things, including questions about his political support in the past. He was asked about the shareholdings of his family and children in the food business.”
“As probably one of the few people in this House who served with her for so long as a Member of the Oireachtas, I want to say how deeply I miss her as a friend but also how appreciative Ireland should be for a woman of her calibre, drive and intelligence and also her commitment and bravery.”
“She graced these Houses with her kindness, her dignity and her wonderful personality for many years. Later, she became a Member of this House Politics is a rough game sometimes but you could not meet somebody more gentle and more sweet-natured than Máirín Quill. She was predeceased by her sister, Ita, and they were inseparable. They lived on Wellington Road in Cork. Senator Boyhan and I visited them recently. To say she was a matriarch would be an unfair description of her; she was a loving, kind, decent colleague who thought the best of everybody and did the best for everyone. I want to take this opportunity to endorse everything the Leas-Chathaoirleach said about her contribution to national life.”
“I want to add my voice to the kind, well-chosen and generous words that the Leas-Chathaoirleach spoke about the late Máirín Quill. The Leas-Chathaoirleach outlined Máirín's history of work, her commitment to her community and her devotion to her city and to national politics. As the Leas-Chathaoirleach said, she was, along with myself and others, a founder member of the Progressive Democrats. What I want to say about Máirín and her late sister Ita is that you could not meet two nicer people, either inside or outside of politics. Máirín was kind, gentle, brilliantly well read and sophisticated. At the same time, she cared passionately about those people in her community and her constituency who needed assistance, particularly through education, the arts and the like. She came to Dublin as a TD.”
“I move amendment No. 21: In page 22, after line 42, to insert the following: “(6) Where an identification order has been made in accordance with this section, and where an anonymous publisher has been identified thereunder by an intermediary service provider, the said identification as relevant information shall, subject to the right of any party to contradict or disprove that he or she is or was the anonymous publisher, be admissible in evidence in any defamation proceeding where the court hearing such proceeding so directs.”.”
“All I am saying is that it should be admissible, subject to contradiction or denial. It should at least be enough that the plaintiff in the defamation proceedings says they got an identification order naming Joe Bloggs as the poster. That should be enough for the court to be going on with, unless Joe Bloggs is named as the defendant. If Joe Bloggs is then in the situation that he wants to come in and contradict it, under our amendment, he is fully free to do so under our amendment. At least he cannot have a smart-ass barrister stand up and say the Minister refused point-blank to make this admissible in the Act, and that is it. I believe, therefore, that this is a reasonable amendment.”
“He has been identified in court, under an order, as the anonymous publisher of a defamation, but how does my country solicitor in the Circuit Court actually prove the identity of the poster? Do they summon somebody?”
“In those circumstances, where someone wants to contradict or disprove that, a court can say that, at the very least, given the fact that an identification order has been made, it seems fair to the court that the substance of the relevant information, namely, who was the poster of the anonymous defamation, should be admissible in evidence - not admissible to prove beyond contradiction and not against the capacity of any party to say, "It was not me, as a matter of fact", but that at least it should be admissible. The Minister must realise that an identification order just slapped down like that is of no use to someone if they have to prove that Joe Bloggs posted this. How do they actually prove it?”
“How does somebody whom I have defamed prove that, except by calling witnesses from the Internet service provider and producing records from the Internet service provider? It seems to me that, where a court has gone to the trouble of saying that it is necessary for the prosecution of the defamation case that the anonymous publisher be identified by way of an identification order, no injustice is done by saying to the person who sought and obtained that order that they can produce that in court. Where somebody wants to say that is wrong and it was their son, not them, who used the computer and put that up, or it was the cat who usurped their access to the website and put that up and that they never did anything of the sort, they can do that.”
“After Committee Stage, we redrafted our amendment to state: Where an identification order has been made in accordance with this section, and where an anonymous publisher has been identified thereunder by an intermediary service provider, the said identification as relevant information shall, subject to the right of any party to contradict or disprove that he or she is or was the anonymous publisher, be admissible in evidence in any defamation proceeding where the court hearing such proceeding so directs. I am not saying that it is always admissible. I am saying that a court will state that the Internet service provider has identified Michael McDowell as the person who posted this.”
“In relation to the second of the two amendments we are discussing, the Minister has resolutely taken the position that where an identification order is made, the fact that it has been made and has identified a particular person cannot be used by the victim of the defamation as evidence that the person identified was the poster online of the defamation. It cannot be used directly as evidence because it is hearsay. The Minister, for some reason, is digging his heels in to stop the use of an identification order as evidence.”
“The amendment simply provides that where a condition has been attached to the making of an identification order, the court will retain the right to vary any condition thereafter. What I am saying is, supposing the Circuit Court says that the identification order will be used solely for the purpose of a defamation case and not for any other purpose. There may well be circumstances in which there are very good reasons somebody who is in possession of an identification order may want to use that information in a collateral way. What I am saying here is, that where that is just that they should be able to use it for a different purpose. Then, in those circumstances, the court should have jurisdiction to relax the conditions which were applied to the making of the identification order at the time it was made.”
“I move amendment No. 20: In page 22, after line 42, to insert the following: “(6) Where an identification order has been made under this section, a court may at any time thereafter vary any condition to which the order may have been made in accordance with subsections (4) and (6).”.”
“It seems to me that the very least that an Internet service provider could do is to say at the outset, "We will consent to an order being made and will not be represented", and if that happens then it seems to me that in those circumstances the discretion that the Minister refers to is fine but if they come in and start defending the privacy of some defamer then, in my view, they are taking sides in the issue.”
“I have to express my disappointment in relation to the Minister's continued opposition to normalising the provisions of the proposed identification order procedure in respect of costs and I do make the point, who is facilitating anonymous defamation? Who actually is doing it? I mean I cannot defame somebody that easily, anonymously, except through an Internet service provider. They are the people who are profiting from and disseminating the defamation against me. As I said on the last occasion, it is not like An Post or a telephone company being found liable for a conversation. It is very different. The other provisions of the section make it very clear that what has happened is defamation.”
“I do not know and cannot find out who the anonymous poster was." Still, after that, X comes into court and says, "I want my costs against the plaintiff." I think that is an unjustifiable obstacle to throw in the path of a plaintiff who simply wants to know who took to social media to defame him or her and section 169 of the Legal Services Regulation Act affords flexibility in this matter. The notion that a body like X can come to court and say it wants its costs for identifying the anonymous defamer is, in my view, unfair and an unwarranted obstacle to put in the path of somebody whose lawful rights to their reputation have been, on the face of it, violated.”
“The amendment simply says that the ordinary rule as to costs following the event subject to the certain exceptions, which are set out in section 169 of the Legal Services Regulation Act 2015, will "apply in relation to the costs of any application for an identification order." I do not accept the proposition that X should ever be entitled to its costs. If somebody comes to court and goes through all the hoops of saying, "I have been defamed. The Defamation Act will probably succeed.”
“I move amendment No. 19: In page 22, to delete lines 38 to 42 and substitute the following: “(5) The provisions of section 169 of the Legal Services Regulation Act 2015, shall apply in relation to the costs of any application for an identification order.”.”
“The amendment seeks to give the High Court an identical jurisdiction to the Circuit Court in respect of identification orders. It may well be that the Circuit Court is cheaper. I sometimes wonder about that. It certainly is a lot more inconvenient in certain circumstances. The other point is that the Circuit Court is a court of local and limited jurisdiction. So is it where the defendant resides or where the defamation took place? Is that to determine which circuit is to exercise the jurisdiction?”
“I move amendment No. 18: In page 21, to delete lines 30 to 32 and substitute the following: “ “45. (1) The Circuit Court and the High Court (in this section referred to as the ‘court’) shall each have concurrent jurisdiction to hear and determine an application in accordance with this section.”.”
“I move amendment No. 14: In page 10, between lines 23 and 24, to insert the following: “(4) In deciding whether publication of a statement to the public at large or any section thereof was fair a court may have regard to— (a) the extent to which the statement concerned refers to the performance by the person of his or her public functions, (b) the seriousness of any allegations made in the statement, (c) the context and content (including the language used) of the statement, (d) the extent to which the statement drew a distinction between suspicions, allegations and facts, and (e) the extent to which there were particular circumstances justifying the publication of the statement at the time of publication.”.”
“I know the Act proposes to get rid of the Reynolds defence but the Reynolds defence was supposed to deal with responsible journalism. We are not talking about journalism in the conventional sense at all. If I put something up on social media that I, bona fide, consider to be in the public interest and make an accusation in good faith, should I, as a poster on X or whatever platform, be entitled to the immunity conferred by this amendment? I am not happy that it does not extend to cases such as that.”
“If somebody starts putting stuff up on social media giving a fair and accurate or impartial account of an accusation made against a public figure by a tenant, or whoever it is, this section will apply. I am just making those points. The assumption has been that we are talking about RTÉ, other independent TV channels, newspapers and formalised publications such as magazines, but we are not. We are talking about anything. That is the point I find slightly worrying about this. We are handing this defence to people putting up on social media that there is a dispute between politician A and Ms B about what happened in a particular case at night-time. The same test applies to that as to a responsible newspaper. Publication on social media is hugely wide.”
“It applies to anybody who runs a podcast or who uses social media who then makes a defamatory statement. The assumption in this debate has always been that we are talking about responsible media doing A, B and C. We are not. We are talking about opening defences to people who are not, by definition, responsible. We are talking about people who are using social media, day in, day out, to propagate particular causes or to damage particular enemies. It is in that context that a later amendment in our name talks about publication to the public at large. That is one proposition. I wonder about disputes of a fairly private kind about matters which have a public dimension to them, for instance, a dispute as to whether a public figure has behaved honourably as a landlord. We have had some of those.”
“I do not want to delay things too much but this section was effectively an effort to recreate in Irish law section 13 of the UK Defamation Act 2013. As far as I am concerned, to make it obligatory to disregard any omission is, as Senator Mullen has said, a very far-reaching proposition. Although we have not reached it yet, amendment No. 13, which is in my name and that of Senator Craughwell, proposes to insert the word "reasonable" before "omission". If The Irish Times has to report on a row between Musk and Trump, a court is not going to say it better send a reporter to find out whether Mr. Musk's accusations are true or false, whereas the thing would be quite different in other circumstances. This new section 26 does not just apply to newspapers and broadcasters.”
“I move amendment No. 11: In page 10, between lines 16 and 17, to insert the following: "(3) Failure or refusal by a plaintiff to respond to any attempt by the defendant to elicit a response to a statement proposed to be published by or with the involvement of the defendant shall not— (a) constitute or imply consent to the publication of the statement, or (b) entitle a court to draw any inference therefrom adverse to the plaintiff.".”
“We are being asked to enact unconstitutional law because the mere fact that one person says X, the other says Y and they are in dispute over it cannot allow a newspaper to make that public without any obligation to assess whether the defamatory imputation of the accusation that is in dispute is true.”
“If a public figure is accused of a private wrong, such as sexual impropriety, is it seriously to be the case that because people know he disputes it that they can publish her accusation and his denial without taking any step at all to determine where the truth lies? That is unconstitutional, because that is designed to subvert the good name of a plaintiff. A newspaper might say Miss So-and-So says that politician A raped her and he denies it, here is an objective account of her claim and his denial. The newspaper is under no obligation whatsoever, in respect of such a dispute between them, to take any step to inquire as to where the truth lies and to verify the truth of the imputation conveyed by the statement. To me, this is fundamentally important, and that is why I moved the recommittal of this section.”
“I am making the point seriously that it is unconstitutional to say that a newspaper that is publishing a clearly defamatory allegation, because there is a dispute as to its truth, is free to publish it on a he says this, she says that basis and is under no obligation to take any steps to investigate whether the fundamental accusation being made against the plaintiff is truthful. I think this is a catastrophic mistake to put into our law. I strongly urge the Minister to take out subsection (3). It does not add anything. Its parameters are vague as to what a dispute is. Is it a public dispute or a private dispute?”
“The Minister has never come to this House and outlined the category of disputes he has in mind, or has said this particular situation is restricted to newspapers talking about particular forms of accusation that are in dispute. It is a charter to any newspaper to say it does not have to take any steps to verify the truth of a defamatory accusation as long as there is a dispute involved. The Minister owes this House and the Irish public an explanation as to what this is all about, because as far as I am concerned, it is grossly unfair and arguably unconstitutional.”
“Can a private accusation of rape, sexual assault, theft or anything else like that be put on the front page and as long as the newspaper is satisfied that the proposed plaintiff denies the matter and has disputed the allegation, the newspaper is entitled to put on its front page the fact that there is a dispute as to whether So-and-So is a thief, a rapist or whatever, with her saying he did do it and him saying he did not? In those circumstances, we go one stage further and say that the newspaper is under no obligation whatsoever to work out if the accusation is true or false. How can we possibly enact that as our law?”
“It is quite extraordinary and this is the point that I really want the Minister to explain. To what kinds of dispute does this subsection apply? "You raped me". "I did not". Is that a dispute? In an impartial account that Ms So-and-So alleges that Mr. So-and-So raped her, there is a dispute between them because he does not accept that. In those circumstances, is the defendant - the newspaper - under no obligation to take steps to verify the truth of the allegation? That is a pretty shocking proposition. That is why I wanted to recommit this section. Precisely what kind of dispute does the Minister think he is dealing with? Is it like a dispute between Ryanair and Elon Musk, a public thing, or is it any dispute of any kind whatsoever?”
“This subsection means that where there is a dispute and the court becomes aware, for instance, that a solicitor's letter was exchanged between those two people, "in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest, [the court shall] disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it." What are we doing here? This is what I want the Minister to explain. Why should the court disregard any omission on the part of the defendant to take steps to verify the truth of the imputation conveyed by a defamation? Why should we make that part of our law? Where did this come from? I take it that the newspapers cooked this little lad up.”
“It states: Where the statement in respect of which the defamation action was brought was an accurate and impartial account of a dispute to which the plaintiff in the defamation action was a party, the court shall, in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest, disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it. When you consider it, that is an extremely far-reaching proposition. Somebody tells a newspaper "Public figure A raped me". The public figure obviously denies they have raped this person and states that they are innocent.”
“I know from experience as a barrister and politician that there are many occasions when you simply say nothing to a journalist, who is then confronted with the question of whether to run the allegation with no response and whether that would be fair. The journalist cannot rely on the fact they gave you an opportunity to respond and you, for one reason or another, failed to avail of that opportunity. Then we come to lines 17 to 23 on page 10. I want to ask the Minister about this. I cannot understand what subsection (3) actually means.”
“He is on the front page of a newspaper, whereas if he keeps shtum, says nothing and the newspaper publishes, naming him in the manner proposed in the email it sent him, it knows full well that it will have caused people in the community to think the worse of the Senator because of the defamatory nature of the allegation it carries. It is essential that this provision, which was mirrored in section 26 of the existing law, should be repeated now in the context of what is or is not fair. First, it does not imply consent to the publication of the defamatory statement. Second, a court, that is, a judge, confronted with the fact that the plaintiff refused to answer the question put in an email on the Friday afternoon, may not draw any inference adverse to the plaintiff from that refusal.”
“If someone is advised by a solicitor, a close relative or whoever it may be that, under no circumstances, should they give life to that story and they should say absolutely nothing and let them publish and be damned, there should be no adverse implication for somebody who takes that advice. If that happens to you, you should be entitled simply not to reply to the email. The newspaper may be free to say an allegation has been made against Senator Craughwell but it has to show it was fair to publish that in the circumstance. Saying it gave the Senator a chance to deny it and have "Craughwell denies" X allegation or Y allegation is no defence of his good name.”
“The reason we tabled the amendment is to make the point clearly that when considering fairness, there is a notion a reporter can ring you up on a Friday and say, "In our Sunday edition, we propose saying X about you." That transaction should not in any way prejudice somebody told by his own solicitor not to respond to it under any circumstances. These things happen in emails. A reporter will write: "We propose to write the following about you on Sunday; your response would be appreciated." The problem with all of that is that if you respond and say it is untrue, the newspaper can then say, "Senator Craughwell denied the allegation which was made against him". That is one headline - "Craughwell Denies Story".”
“Undoubtedly, it would have had an effect on opinions received by the media, in particular, as to whether they could or could not publish certain matters. It was guidance to the media as to what tests they had to abide by to avail of the original section 26 defence. Amendment No. 11 states, and I passionately believe, that: Failure or refusal by a plaintiff to respond to any attempt by the defendant to elicit a response to a statement proposed to be published by or with the involvement of the defendant shall not— (a) constitute or imply consent to the publication of the statement, or (b) entitle a court to draw any inference therefrom adverse to the plaintiff.”
“9 gives the court guidance, in paragraph (d), as to what we mean by "fair" - that it is "fair having regard to the plaintiff including the right to his or her good name." That is an important provision to remind the court that, in this context, the plaintiff's good name has to be protected and the concept of fairness is qualified, not merely by the overall meaning of the term "fair" but by the right of the plaintiff to his or her good name, which every plaintiff starts with in a defamation action. Amendment No. 10 is to facilitate amendment No. 9. In relation to amendment No. 11, I remind the Minister of the following. Although he may not love the original section 26, it is not sufficient to say it was not successfully invoked in reported case law.”
“I move amendment No. 9: In page 10, to delete lines 10 to 12 and substitute the following: "(b) the defendant reasonably believed that publishing the statement was in the public interest, (c) the statement was published in good faith, and (d) the publication of the statement was fair having regard to the rights of the plaintiff including the right to his or her good name.". Amendment No.”
“I welcome that the Minister has moved in relation to this issue and that the somewhat sterile language this Bill arrived in the House with has been tempered by a wise decision by him to introduce an overall requirement of fairness in respect of publications on matters of public interest. I am grateful to the Minister for doing that and will support his amendment to retitle the section and insert the words he wishes to. Amendments Nos. 9 to 11, inclusive, in the names of Senators Craughwell and I are intended to-----”
“We will have a vote on that then, which is a waste of time. I am being asked to group these amendments together and usually a speaker, under Standing Orders, is given the opportunity to say why it is necessary to do so and anybody else who says they disagree is given the opportunity to say why it should not be done, so I do not think it can simply be done in the matter Senator Gallagher has done. If he wants to say why I should not ask some questions about the meaning of this section that is proposed to be changed, he has to justify his case according to the Standing Orders. All I am trying to do is put questions to the Minister. It will all be over in a quarter of an hour one way or the other.”
“I also want to move that the section be recommitted. This is not to delay proceedings but there are some questions I want to put to the Minister and I ask under Standing Orders that the section be recommitted. It will not lengthen the proceedings.”
“It is not a proposition of fact; it is a question. It is wrong to confine the protection to shopkeepers to inquiries when it could be so simply changed to accede to the amendment proposed by me and Senator Craughwell.”
“I believe that it would be a more reasonable proposition to say that the statement must consist of a statement or an inquiry, because an inquiry is not a statement. If you say, "Did you pay for this?", that is not a statement. If I say, "Did you pay for something?", it is not a statement.”
“The Minister correctly concedes that what he says here is not in any sense looked to by the courts as to what the section actually means but in my view it is not an overly strict interpretation of the word that the statement consists of an inquiry to say that it must be interrogative in nature. We will only find out whether the Minister is right that it is the case that judges will say they will expand the meaning of the term to cover statements and inquiries when a case is actually decided in the Circuit Court one afternoon in Galway. On the ordinary canons of construction, the ordinary and natural meaning of words fall to be interpreted as the intention of the Oireachtas, not what I say here and not what the Minister says here in debating this particular amendment.”
“I cannot see any useful purpose of confining it to that because in the real world, people in shops will, in fact, say frequently, "That has not been paid for." I fully accept that they may be entitled to general protection on the basis that it was qualified privilege on a different front but insofar as the Minister is now saying that he is coming to the aid of beleaguered shopkeepers, to confine the defamatory statement to one which constitutes an inquiry is unnecessarily narrow and the word "inquiry" should be "statement".”
“They are in a different position. They cannot avail of this statutory amendment to the law of qualified privilege. I consider that it should be that the statement consists of a statement as to whether the person whom the statement concerned had paid for goods or services. In the real world, to say "That has not been paid for" is effectively the same as "Have you paid for that?", in front of other customers. Store detectives, staff and the like who see somebody go back to a shelf and substitute goods into a basket or whatever may say, "That has not been paid for." I cannot understand why the Minister has restricted this provision to a situation where only an inquiry is made as to whether the person paid for it.”