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…”
The complete record
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 13 of 25.
“I move amendment No. 5: In page 8, line 26, before “an inquiry” to insert “a statement or”. This is an amendment that I genuinely believe the Minister should take on board. The defence being offered on page 8 to shopkeepers by the new section 8, amending section 18 of the principal Act, says the protection offered by that section is restricted to an inquiry as to whether the person who made the statement had paid for the goods or services or obtained services or had in his possession goods, proof of payment for services or a statement that the means of payment proffered by the person with the statement concerned was unable to be or not capable of being accepted and was not published excessively. In the real world, people may not just make a polite inquiry. They may say “That has not been paid for”. A shopkeeper may do that.”
“I fully accept the ruling of the Chair on that but I do say it is strange that the report of a parole board in this State carries privilege but one in Northern Ireland or the island of Britain does not carry such protections.”
“If there is a constitutional issue there - which I think is fanciful, to be charitable to that office - there is a constitutional issue too for the two shareholders in a company who are being told that they must prove serious harm and that it must be financial in nature rather than reputational. I will not push the point any further than that.”
“If you are a restaurateur and somebody says that you are serving substandard food or you are purloining the tips of your staff with complete impunity based on the proposition that the restaurant in the circumstances has not actually suffered, its reputation is nonetheless extremely compromised by giving a licence to people to say those kinds of things and, as I say, where we have identical businesses being carried on by natural persons as opposed to bodies corporate to have a different set of remedies for one rather than the other seems to me to be wholly wrong. The last point I will make is this. The Minister, on Committee Stage, revealed that the Attorney General’s office had expressed concerns about the serious harm test applying to individuals.”
“I do not understand it and I do not understand it in the much smaller example that Senator Mullen referred to as a restaurateur in Salthill in Galway being in a wholly different position from a competing restaurant down the road which happens to be run by a business and that a charge can be made against the individual running one company that he is serving unsafe food but not against the other because there has to be immunity from suit in the absence of actual proof of the likelihood of financial loss or the actual fact of financial loss.”
“I really cannot see why such a distinction should be made in law. If you defame a business that is owned by a company deliberately, why should that company not make you answerable and ask from where did you get that data that was published that it was three times as dangerous to fly with one airline rather than another?”
“Where you have somebody like him making an accusation against Aer Lingus or Ryanair saying their safety standards are such that nobody in their right mind should fly with them, are they free to do that? Are they free to just fling any dirt they like or are commercial competitors who see a company growing fast in a position to fling any untruth that occurs to them into the public domain without consequence because the company to which they are referring is doing very well, thank you? Why should a small company which owns a business with two shareholders in a family be in a different position from a single self-employed person providing the same service across the road if he or she is defamed? I do not see the logic of this. I do not know who the Minister thinks he is doing a favour for by introducing this particular measure.”
“If Elon Musk, as a follow-on from his row with Michael O’Leary - who at least pays tax in Ireland - announced that the safety standards in Ryanair were so low that you would be mad to use their flights – and said that maliciously – does Ryanair have to prove that Musk’s accusation of low safety standards is likely to cause it financial loss? How can it prove it? It is out there. We know Mr. Musk accused the man who was devising the method for saving the Thai footballers who were stuck in a cave due to a flood of being a paedophile because he had the bad taste to query whether a submarine that Musk claimed he would invent to rescue them would be effective.”
“Briefly, in reply, I have two things to say. I believe the defence of this particular provision put forward by the Minister is very weak. I will give him the following examples. It fails completely to distinguish between the personal proprietor of the restaurant Senator Mullen referred to, and the fact his family business has been incorporated as a shareholding with his wife. It fails completely and arbitrarily to deal with that situation, which I find wrong. Second, there is no explanation as to where this particular provision came from. If the newspapers and their lobbyists cooked this one up I do not see what point they were trying to make. I will give a topical example.”
“To seriously defame with malice a company, perhaps a competitor, and to say, "Well, you have not proved it has actually damaged you at all, so you cannot sue," but Trócaire, the Peter McVerry Trust and whatever else can sue in such circumstances is unfair to bodies which are in good faith attempting to defend their reputation from malicious defamation. I do not see why it is necessary to introduce this extra ingredient into the question of serious harm if we are being fair as between bodies corporate.”
“In the context of the entitlement of the Peter McVerry Trust versus that of a company, for example, a restaurant, whose reputation has been seriously affected by an untrue statement made about it, I do not believe the latter should be in a position whereby such a statement has "caused, or is likely to cause, the body corporate serious financial loss." I do not see why it is the case that one such body can sue because it is not trading for profit but the other has to engage in the highly speculative, evidential exercise of establishing that the statement which was made about it either caused or is likely to cause it serious financial loss.”
“This amendment proposes to delete lines 29 to 32 on page 7. The intention is to remove the rule that "the reputation of a body corporate that trades for profit shall not be considered to be serious harm ... unless it has caused, or is likely to cause, the body corporate serious financial loss.". I do not like that particular change for the reason that if we take the view that a body corporate - for example, a charity like Trócaire - has a reputation, we are introducing a different standard of treatment for a body which is ostensibly charitable from that which applies to a commercial enterprise. We discussed McDowell Butchers in this regard on Committee Stage.”
“If that process is adjudicated on by a judge, the unhappy media will immediately say "This is the third time that that judge has flung out a case against this particular newspaper or that particular broadcaster." They will personalise it. There will be profiles of the judge published by dissatisfied litigants. That is the point I am making. It was in order to avoid what the proponents of the abolition of juries spent most of their time arguing, which was that the quantification of damages was erratic and unpredictable, that subsection (4) was inserted to leave it to a judge to determine damages, aggravated damages and exemplary damages in accordance with the finding of the jury. I will not put it any further than that.”
“You do not know whether you are selecting judge A or judge B when you go to the President and ask for a jury trial. It is not as if it is forum shopping in order to avoid particular judges. The purpose of it is to allow for exceptional cases. In my experience, the public accepts jury verdicts unquestioningly. If a jury says that it thinks witness A was untruthful or whatever, that is it. Twelve people, nine out of those 12 or whatever came to that conclusion. The acceptance of jury verdicts in such cases is extremely high. There may have been instances where people thought that juries in defamation cases got the fundamental facts wrong, but I have never seen that.”
“It is important that there should be capacity to determine - in the context of the exceptional nature of a case, not as a rule - that a jury would be more appropriate and preferable. The Minister cavils with the term "preferable". Maybe one party would prefer a jury, but the reason we selected the President of the High Court in our amendment was that when you are setting down a matter for trial, you would not know what judge you are going to get. It would be a random enough exercise. If, at that stage, you have to ask the president's permission to put a case before a jury due to its exceptional nature, the identity of the parties or the nature of the issues involved, you do not know which judge of the High Court is going appear some time later when the notice of trial of the case is put into effect and the trial happens.”
“The Minister will say that we have respect for our Judiciary. I accept that we respect members of the Judiciary and we should not attack them gratuitously. However, there are, and always have been, judges who were soft in personal injuries matters. There are, and always have been, cases, as the Minister well knows, where the amount of a personal injuries offer shoots up when a particular judge is selected to try the case. To say somehow that judges will arrive at the same view as a jury is a little bit detached from the day-to-day realities encountered, particularly by those in the courts. I say that without any rancour towards the Judiciary or any particular member of the it. Nobody who is a practitioner of law would contradict what I have just said. I will not spend any more time on this amendment.”
“If we trust a jury to decide in the case of a sexual assault where the truth lies, I cannot see why we say, because the parties are slightly different and it is the parent of the choirboy who made the remark that the bishop assaulted his son sexually in the sacristy, or whatever it is, along the model of the Australian case, or if a newspaper says there is overwhelming evidence that the bishop assaulted the choirboy sexually, these cases should be tried in wholly different manners. I am not in favour of abolishing juries in cases of assault, trespass to the person and malicious falsehood at all. However, it is very strange that we are reforming the law to say that the same evidence is effectively to be tried, tested and adjudicated on by a jury in one case and, in another, it is to be done by a judge alone.”
“One of the points collateral to the point I made earlier, and I ask the Minister to bear it in mind, is that if the choirboy sues the bishop for sexual abuse, the choirboy is entitled to a jury. However, if a relative of the choirboy, or a newspaper, says the bishop sexually assaulted the choirboy, there is no jury and, effectively, the evidence in both cases would be the same.”
“Supposing in a sexual assault case the jury finds there was a sexual assault, is the judge going to determine the defamation issue separate from the jury’s view, I wonder? I will leave it at that.”
“I make the point that there are cases where defamation is coupled with, say, claims in assault or trespass. In those cases, it seems to me to be artificial that a jury would arrive at one view on the assault to which a plaintiff is entitled, including a sexual assault, but a collateral issue in the same case as to whether there was a defamation related to the other charge would be decided by the judge. It seems to me that if a court sits to determine the outcome of litigation, it should be either all jury or all non-jury. Where there is a mix, which there will be under the Minister’s amendment, of issues triable by a jury and triable without a jury it will not serve any useful purpose.”
“People will look at the outcome and they will ask themselves was it the particular judge’s prejudices that affected the matter and was it a case that would have been better determined by 12 uninterested and independent people on a matter of such sensitivity. Amendment No. 2, which Senator Conway will second, simply deals with the consequences of making amendment No. 1. I will not delay the House any further. We have discussed this issue at length but I think it is an important point. I believe it is wrong to exclude from the judicial system determination of very important facts by a jury especially when the actual outcome of the case could have dramatic political and social consequences. It is for that reason that it is a mistake on a blanket basis to abolish all jury trials in defamation cases.”
“I am not talking about the Albert Reynolds decision but I am talking about cases where the public would accept and be happier with a jury determination of the fact of defamation one way or another and the credibility of the parties rather than a single judge. It did occur to me that maybe in such cases the President of the High Court would appoint a divisional court to decide a controversial case of that kind. Maybe that is a way around it to some extent but I do believe there will be a time – it will certainly come – where a highly controversial black-and-white acceptance of whether something was or was not the case of a highly important case from the point of view of the public occurs. Take the Australian case of whether a leading cleric did or did not abuse a mass server.”
“To soften it further, subsection (4) provides that in any case to which subsection (3) applies, it is for the trial judge to determine the amount of any damages, including any aggravated or exemplary damages to which the jury has found the plaintiff is entitled. The amendment speaks for itself. I understand the Minister’s position and I do not propose to rehearse all the arguments at length but I do believe – and I saying it now; mark my words – there will be a time when a defamation case of sufficient public importance comes before the High Court where one side or the other loses on the basis that they are disbelieved by a High Court judge, presumably with a written decision, and it may give rise to very significant political controversy thereafter. That is my worry.”
“This is an amendment to soften the absolute abolition of jury trial and to give to the President of the High Court an overriding jurisdiction where, by reason of the exceptional nature of the case or the identity of one or more of the parties in the case, it is it is preferable that it should be tried with a jury or that the claim or counterclaim in the proceedings includes other issues triable in the High Court with a jury and that the interests of justice would be served by the trial of the claim in defamation with a jury. That is a very narrow proposal to soften the absolute nature of the Minister’s proposed reform.”
“(3) Where a trial with a jury is ordered under subsection (2) , the jury shall not decide the amount of any damages to be awarded for defamation but shall be entitled by its verdict to decide whether aggravated or exemplary damages be awarded. (4) In any case to which subsection (3) applies, the trial judge shall determine the amount of any damages, including any aggravated or exemplary damages, to which a party is found to be entitled by the jury.”.”
“I move amendment No. 1: In page 6, between lines 28 and 29, to insert the following: “(2) A party to a defamation action in the High Court may apply to the President of the High Court for an order permitting the trial of the action with a jury in any or all of the following circumstances: (a) that by reason of the exceptional nature of the case or the identity of one or more of the parties in the case, it is preferable that it should be tried with a jury, or (b) that the claim or counterclaim in the proceedings includes other issues triable in the High Court with a jury and that the interests of justice would be served by the trial of the claim in defamation with a jury.”
“-----to properly equip the Defence Forces, to ensure the appropriate effective strength and to reinstate a voluntary Reserve that in times of national emergency could assist the Government in maintaining order in this country.”
“I got the number up to 1,100 and it sank back to 200-plus under successive Governments, which included members of the parties in the present Government. The whole idea of service to the State has evaporated. I agree completely with the suggestion Senator Conway made, namely, that a small group of determined people with a well-worked-out plan could effectively put this country on its knees by landing at Shannon, Knock or elsewhere in a plane one afternoon. If we cannot guarantee against even that, we are close to the situation that exists in Greenland today, where we cannot defend our sovereign territory. The time has come, I suggest, for us to go to level of ambition 3 as a starting point-----”
“There could be political and community strife in Northern Ireland again, and anybody who says that could never happen is wrong. Nobody predicted what would happen from 1972 to 1998. Everyone thought we were home and dry and that all these things would never happen again. I believe that we need, in the first instance, a dedicated Minister for Defence. We had Michael Smith and, in the Cabinet I was in, Deputy Willie O'Dea. We had a Department of Defence with a dedicated spokesperson at Cabinet. In those days, the defence budget was taken seriously, but what has happened since has been nothing short of shocking. The membership of the Civil Defence organisation is in ribbons. It has lost half of its members. When I was a Minister, I was challenged by Opposition parties to have 2,000 reservists.”
“There was a military base outside Castleblayney, namely Camp Muckno. I was there myself. There were barracks in Wexford, Waterford and Kilkenny. There is still a barracks in Kilkenny. Right across the country, there were places where a reserve could actually have been organised and trained, but we abandoned that idea completely because we convinced ourselves there was a peace dividend in the wake of the 1998 Belfast Agreement. Things in Northern Ireland could turn quite nasty yet with a Farage government in Britain beating the drum of English nationalism and, perhaps, strident unionism. There is always the possibility that the loyalist paramilitary organisations, which from my reading of northern media are still in existence, could come back with a vengeance.”
“That is from a nominal strength of 11,000. The Reserve has almost crumbled completely. I heard what was said earlier about increased recruitment. However, reservists in the FCA had a local place. It was either a training hall in the back of the local Garda station or a barracks in the county town which they could get to within 20 minutes or half an hour on a Sunday to attend training parades. We are now in the very sad position whereby I do not know where reservists from County Mayo, for example, would do their training. Perhaps they would do it in Galway. This means that they would need to devote a couple of hours to get to the training parade and a couple of hours to get back. The idea of the Reserve Defence Force is much more problematic now than it was then. We have sold off barracks after barracks. Senator Wilson referred to Cavan.”
“It guarded installations like the Kippure RTÉ transmitter, sewage plants, ESB plants, Dublin Airport, various reservoirs and the like when there was a threat. It carried out that function at weekends in order to provide time-off for small garrisons from the regular Army that protected those locations on a daily basis. We no longer have a cohort of 15,000 to 20,000 people who could come to the aid of the Government if they were asked to do so. Other than members of the Defence Forces and those involved in gangland activity, who can handle weapons ? Who can take orders? Who can conduct searches, as happened when people were kidnapped and so on? Who could do all these things now? The answer is practically nobody. As Senator Craughwell stated, we are down to something above 7,000 people in the Permanent Defence Force.”
“I endorse what has been said just now and what was said earlier by my colleagues in the Independent Group. I do not want to recriminate, but I want to say this. Over the past 20 years, there has been an absolutely scandalous reduction in the capacity of the Irish Defence Forces. It has been supervised by a Department - I want those in the Department to hear this - that displays an unbelievable insouciance. When I was Tánaiste and Minister for justice, there was a Minister for Defence at the Cabinet table. That is no longer the case. As Senator Craughwell pointed out, it is not very clear as to who is concerned full-time about the Defence Forces and their issues. In the 1960s and 1970s, there was a force called the FCA. It was by no means perfect, but it was not Dad's Army.”
“I move amendment No. 27: In page 24, between lines 9 and 10, to insert the following: “(7) In any defamation proceeding, relevant information supplied by a relevant service provider shall be admissible without further proof where the court so orders, if it is supplied to an applicant upon request or on foot of an identification order.”.”.”
“I move amendment No. 26: In page 22, to delete lines 38 to 42 and substitute the following: “(5) The court may order that the relevant internet service provider pay any or all of the applicant’s costs where it appears that the service provider failed or refused unreasonably to provide the applicant with relevant information when requested so to do or where the applicant succeeds in obtaining an identification order.”.”
“I ask the Minister to consider adding into section 22 that the time limits provided in the 2009 Act, albeit there is already a power to extend, can also be extended further if the court considers that that is required in the interest of justice.”
“One last point occurred to me between the last day and today is that, if there were a lengthy Norwich Pharmacal or statutory identification proceeding which took months, which may well happen, the Minister might consider also adding into section 22 that a court, when granting an identification order, can extend the two-year absolute time limit for defamation, because the clock starts ticking the day the first post is made. Many people may not know that they have been defamed and they may find it out late in the day, and if they then have to face a contested identification order procedure, they may find that the time has run out for their proceedings.”
“If we are not going to have a system that frightens that person and makes them think they may be caught, identified and sued, if they do not really fear that and instead think the person they defamed is going to have to spend €2,000 or €3,000 to find out who they are and instruct a solicitor and a barrister in the Circuit Court and the High Court or wherever they want to do it, if there is no real fear in the anonymous defamer’s mind, then all of what we are doing here is slightly academic. I ask the Minister to bear those points in mind. Section 22, as it presently is, is attempting to improve things. I fully accept that, but I do not think it goes far enough.”
“If the complainant ends up with an identity order which is as opaque as they may well turn out to be, getting a correction order against nobody or against the wild son, or faced with a denial by the poster that he or she personally put that up, it is going to be very difficult. What I am trying to do is to bring justice to the ordinary person. I accept the proposition, especially when we see President Trump threatening the BBC – he has increased his claim for damages from $5 billion to $10 billion - that there are plaintiffs and there are plaintiffs. I am talking about people about whom really scurrilous things appear on social media and who really do need some kind of protection. The other thing, and this is the important part, is I am thinking of the person who is tempted to post defamatory matter about somebody else anonymously.”
“If he or she is simply told by the Internet service provider that the person who posted is Mr. Joe Bloggs who lives in Liverpool, how do they then prove that? Does he or she issue proceedings against Joe Bloggs? Does he or she have to go to England to do it? If the publication takes place in Ireland, the obstacles are fairly significant. The complainant is then confronted with Joe Bloggs saying it was in fact his or her son, who is a bit of a wild fellow, who put that up. The complainant is left with no remedy whatsoever. It is relevant from this point of view that it is not always just about damages. A person may want correction orders. They may want the publicity of saying that the allegation was false and a public acknowledgement through the court system that they have been defamed.”
“The Internet service provider will just say that even though it turned out the person was not a mark for damages, lived in Timbuktu or whatever it may be, it still wants its costs, it has an order for costs in its favour and the litigant can pay it for the effort they made to find out who was defaming them. I ask the Minister to think really hard about whether it is fair in these circumstances that the small person, the citizen who wants to defend himself or herself, faces these serious obstacles, which require resources and bravery to go to court to get justice. Regarding amendment No. 27 in my name, I ask the Minister to look at the situation as to what happens if somebody is identified. How then does the victim of defamation actually prove the contents of an identification order? It is very difficult.”
“Applying for an identification order is, in one sense, an exercise in bravery on the part of somebody who is defamed. They do not know what or who they are dealing with. They do not know if money they put into even applying for the order is just money thrown away when the identity is finally revealed. That is why I ask the Minister to think really carefully before Report Stage about whether we are in the business here of making the Davids capable of going to their solicitor and saying they want to know who did this when they face a statute that says that, even if they succeed, the court can tell them to pay the Internet service provider’s costs. I do not accept the proposition of a stay on the order or "pending the outcome of the case". That is no use.”
“I just want to say a couple of things to the Minister. I welcome his openness to further amendments to the Bill. However, in relation to section 22, whereas I take a good deal of what he says on board, I think he should consider that, from the point of view of the Davids facing the Goliath, this is a fairly frightening thing for an individual who is defamed anonymously. I ask the Minister to consider this very carefully. This individual does not know who has defamed him, by definition. He does not know whether the person is a mark for damages. He does not know, if he succeeds in getting his identification order, whether the whole thing will end up useless because the individual is not a mark for damages, lives in Timbuktu or whatever it may be.”
“In response to what Senator Gallagher said, I found on one occasion that someone was posting stuff in my name. The funny thing was that they could do so with impunity and when I tried to get it taken down, the Minister should have seen the obstacles that were put in my way, including having to get copies of my passport, sworn declarations and all sorts of things. It is not really to do with defamation, but it should be an offence to impersonate someone else. I fully accept what Senator Gallagher said about the consequences. In my case, the account was putting out views which were the diametric opposite of my views and the gullible would accept them, but that is it. In any event, I think we will wrap up Committee Stage this afternoon.”
“This will not work because, as I said, an identification order made by Circuit Court in the hands of a plaintiff in the High Court cannot even be handed up to the judge to say it was Joe Bloggs who did something. The Minister stated that, as a matter of principle, that should remain the law. I cannot believe that, but it is what we are hearing.”
“It is shocking. This is the legislation they have been pleading for. I will say one thing to the representatives of the newspapers who are in the Public Gallery. They at least should be strong on defending citizens' rights in the context of the anonymous publication of details on the Internet. They carry a different burden, as the Minister conceded. They cannot publish a defamatory letter or repeat a defamatory statement without there being editorial and legal consequences. We are trying to do something to reverse the gross injustice done day in, day out to decent people on the Internet because the Internet companies accord anonymity to keyboard cowards who know they can get away with it. If the Minster says this is one of the most important provisions in the Bill, that is fine. He should make it really work.”
“If those involved have other, more important things to do like denaming or renaming parks in Rathgar, God bless them all. This will affect the constitutional rights of ordinary citizens. I cannot for the life of me see why the improvements we are suggesting should all be batted away at the other end of the crease as if they are of no consequence whatsoever. The only coverage this debate has had so far was in an article in The Irish Times suggesting that there is a filibuster in progress. That is pretty shocking.”
“The Minister comes into the Seanad and says that, on principle, he cannot accept any amendments tendered to any part of the Bill so far. I am beginning to suspect that his plan is to pass it without even having to bring it back to Dáil Éireann. I am beginning to suspect that is the strategy. If the Minister were to tell me he even had his own Report Stage amendments to deal with something I may never even have raised, I would be interested to hear that. I feel we are dealing with the batsman blocking here. It is simply a case of holding the bat, saying "No" and hoping the game will be over fairly soon. That is no way to treat this House or this Parliament. If one part of the Parliament says it is not interested in discussing these changes, so be it. That is its responsibility.”
“There is no way of proving it if the certificate is not allowed to be admissible at the very least - not conclusive proof that the person is the defamer but that they are the account holder of the anonymous account. If the Minister cannot accept that, then I have to ask a much more fundamental question - what is this Chamber about? Dáil Éireann never considered this Bill at all. It came to this Chamber unconsidered. It passed in the Dáil without any kind of examination. The Minister comes into this court-----”
“Think of the money that would be involved in putting together the chain of evidence necessary to get around the hearsay rule. Amendment No. 27 is the least problematic of the amendments we have tendered in this Chamber. Yet, we are told that the Minister, like Senator Michael McDowell with the bat in his hand, cannot accept this. He cannot accept it because it is “wrong in principle”. Wrong in principle? X knows who runs an account. If someone who runs an account says it was their teenage son who did it, that is fine. At least if you are going to sue X and the account holder is going to establish that he allowed his teenage son to use the account to defame you, that is fair enough.”