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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“Last week the Oireachtas Joint Committee on Justice, Home Affairs and Migration delivered a report on the Government's proposed legislation to ratify the European migration pact. The committee recommended that the Government, on Ireland's behalf, should opt out of most of the provisions of the pact, the reason being that they did not believe it was credible that Ireland could actually deliver on its obligations under the pact, particularly to open detention centres and deal with all applications within three months. This is completely unreal. When the pact was rushed through this House with the aid of a guillotine last year, those of us who opposed it said it was a fundamentally dishonest and impractical way of dealing with asylum seeking in Europe.”
“If we do not spell out the package in absolute detail, then the relevant proposal will be defeated in a referendum held on both sides of the Border. It could even be defeated in the South as well as in the North.”
“All of those issues will work to decide, one way or the other, whether there is going to be at least 51% in favour of a united Ireland. People are not going to buy a pig in a poke. I will happily work with anybody to generate a model or a number of models designed to get 51% support. Northern unionists, Protestants and Northern Catholics who are disposed towards remaining in the United Kingdom have to be shown that somebody is coming up with something that is better than the society in which they live at the moment. That requires really hard work. It requires work on the part of the southern Government. It also requires that those who are involved in the political process south of the Border state what it would be like if people voted "Yes" for a united Ireland.”
“What will be the effect in the context of all sorts of practical issues? Much more importantly, in accordance with the Good Friday Agreement, what is going to be the dimension of this new Ireland which is going to recognise Britishness and the loyalist and Protestant traditions in Northern Ireland? How is that going to be given concrete effect? I say this to Sinn Féin: go and do the work. On one occasion I made the point at the JFK summer school that a confederal system on this island, a transitional arrangement, is more likely to succeed in getting to 51% support than a big bang whereby one day we all wake up to an entirely new state with entirely new institutions. People have fears, even those in the South, regarding issues such as whether the Constitution will still protect their property rights.”
“Where is the document now where Sinn Féin says, “This is what we believe a united Ireland will be and this document can be read by everybody in Northern Ireland - Protestant, unionist, Catholic, republican, loyalist, nationalist, whatever you want - and this is our vision for a united Ireland”? Where is the document that sets it out not just in visionary terms but details precisely how it will work? If, for instance, someone is a doctor in the Northern Ireland health service - I heard it mentioned here that there will be a new health service - will that be better? Will there be more resources? If someone is a lawyer in Northern Ireland, will the courts system and the legal system there be absorbed into a new all-Ireland system or will it be preserved for the time being? Will there be transitional provisions?”
“For that to happen, 51% of the people of Northern Ireland will have to be convinced that by marking a particular box on a ballot paper they will be better off, not worse off, and their future will be better if they mark the box beside “Yes” rather than the “No” box. That is the fundamental reality. Sinn Féin calls for various steps to be taken to articulate what a united Ireland would be, can be and should be. I aspire to a united Ireland like it does but I wonder why it is that those who call loudest for an early poll are the people who have not done the homework themselves. Where is the document? There was “Éire Nua” when I was a kid in college.”
“One of those rules is that in order to get a referendum passed, 51% of the people have to look at what is on offer and say that is better than where they are at the moment. If you ignore that, you are going to lose. All our experience in this State in referendums has always been that it is very easy to oppose a referendum. It is very easy to work on people’s fears and emotions. It is very, very easy to build up at least 30% or 40% of "No" votes. We had the children’s referendum and I was astonished that a percentage somewhere in the high 30s voted "No" when there was not even a single political party advocating “No”. What I am saying now to those who, like myself, aspire to a united Ireland is that a package has to be prepared that will be supported by 51%, at least, of the people of Northern Ireland.”
“I welcome the opportunity to speak on this subject and welcome the tone in which this debate has been carried on so far. It seems to me that, although I admired him greatly, Seamus Mallon was incorrect in one matter, and I am glad the Minister of State has stated that. I refer to this notion that somehow it would be better had the Good Friday Agreement stipulated something more than 51-49 and given more of a comfort cushion to unionism and that somehow this would have been more conducive to better relations in Northern Ireland. Let us just remind ourselves of one fact: there would have been no Good Friday Agreement if it was not 51-49. Those who call for an early referendum on Northern Ireland should understand some basic rules of politics.”
“I do not want to waste more time but I want to say that I feel passionate about this. I feel passionately that we are not doing enough. If we accept the Minister's amendment, we are putting in place a mere pretence, which the Internet service providers will hide behind and obstruct to the maximum possible extent. Those are my thoughts on the matter. In case anybody says I am filibustering, I am not. I believe that this is a very serious issue and that Dáil Éireann did not do its duty by even querying this amendment adequately when it was its constitutional duty to vindicate the rights of ordinary citizens.”
“The time has come to make Internet service providers really amenable to a letter from a solicitor saying, "Can you disclose to us who the defamer is before we have to go to court?" What other procedure is there, where you have to go to court and cannot send a preliminary letter saying, "Please avoid the costs that you will incur if my case turns out to be correct"? That is why the second leg of subsection (5), as proposed by us, is designed to give cheap, inexpensive and accessible redress to somebody who wants to know who has defamed them, and to say to the Internet service provider: "Okay, keep it secret if you like but if I get an order against you, you can pay for the cost of having kept this information away from me when I am entitled to it and my character depends on it." However, the Minister's subsection actually reverses that.”
“On the contrary, they would deter anybody who did not have the means from going to court to vindicate their name, especially if their own solicitor says, "Yes, you have been defamed but bear in mind the Oireachtas enacted a law saying that even if you win, you lose, because you can pay Elon Musk and X the cost they have incurred in unsuccessfully contesting your right to find out who has defamed you." I find it difficult to believe that this is as far as we not merely can go but that this is far as we should go, bearing in mind the duties imposed on us as legislators. The time has come to really tackle anonymous defamation on the Internet.”
“What I really want to do is impress on the Minister what this looked like. By the way, the Dáil, as was typical in this debate, just waved all this stuff through without seriously considering any single line of it, in a really sad abdication of that Chamber's function and duties. It has to be examined at some stage, and here is the place, alas, where it ends up being examined for the first time. The amendments the Minister has brought forward appear, superficially, to be a response to anonymous defamers on the Internet, but they do not go far enough or as far as the Constitution requires them to go.”
“These are vulnerable people whose reputations deserve to be vindicated insofar as we can do so practicably. By the way, even if you win your application, Elon Musk's bank account could benefit from his costs being paid by you. I cannot understand saying that is just in some way. I really cannot understand why anybody would suggest such a thing. You could say that the cost of the application could somehow be reflected later if you did get damages against the defamer, but what happens if the defamer turns out to be the man in the bedsit with no assets? There is no redress then. Finding out his or her identity is as far as the process will go in terms of getting any redress in the form of damages, but you could get correction orders against the person, again at your own expense.”
“Let us take the case of anybody who is defamed, and specifically a young student who is accused of, say, some sexual impropriety where that is now available to the entire world to look at it, if people go hunting for that student's name. Someone in those circumstances is not going to have a bag of money to go to any court, whether it be the Circuit Court or the High Court, to retain solicitors or barristers to argue with X about the necessity for identifying the person who is defamed. They are not going to have that kind of money. They are vulnerable people and they have already been damaged because the order cannot be made unless it is probable, in the eyes of the court, that they will succeed in establishing that their reputation has been damaged.”
“The person who is exposed as the alleged defamer will be subject to collateral attack in America or wherever else and the Irish courts, once they have made the identification order, will have no way to pull that back or protect that person. I understood that the term "only" was to force the Irish court to think about whether it could be doing something grossly unfair to the person who is identified, such as exposing them to retribution of a political or criminal kind, or all sorts of things, elsewhere in the world, and whether anonymity, notwithstanding apparent defamation, should be preserved for that reason, because there are other rights involved. Senator Mullen referred to the question of costs.”
“I interpreted the word "only" in the Minister's text as having a particular meaning, that is, that the court must examine whether making an identification order would be, for some reason, unjust or unwarranted against the person who is alleged to have defamed the applicant. There could be circumstances - and I can imagine in particular someone in the White House, or Elon Musk doing so - in which someone would say they have been defamed and pursue somebody in Syria, Morocco or Ireland, saying they want to find out who that person is, for all sorts of reasons. By the way, when they do find out, the undertaking that will be given to the Irish courts will not have extraterritorial effect.”
“It may offend Elon Musk, X or people in the White House who were or still are friendly with Musk or who like to defame people on their own Truth Social ISP and call people from Somalia "garbage" collectively. Those kinds of people may be entitled to pursue their policies at home but they cannot pursue them here and our Government has a very different obligation, under the Constitution, not to be intimidated by them. I make that point as strongly as I can. This is not something that we are free to do or not. This is something we are obliged by the Constitution to do, and that is it. Senator Mullen asked how, if the word "may" is going to be substituted by "shall", the term "only" applies there?”
“The Irish Constitution guarantees free speech and precedes it by forcing upon the State the obligation to defend and as far as practicable vindicate people's right to their good name. This is why I am really sceptical about Internet service providers coming to the Government or going around Europe waving the US Constitution and the rather silly jurisprudence of the US Constitution that allows people to say absolutely anything they like about anybody else as long as it cannot be proved that they knew it was false. That is so wrong. The Minister is to be commended on doing something about anonymous defamation but it is timid and inadequate. It is really timid and inadequate. I believe very firmly that what we are dealing with here is of huge importance.”
“That is the State's obligation. That is the obligation of all of us in this House and the other House. It is not just a choice - a case of being able to do it if we think it desirable. Internet service providers claim this right to be agnostic about the content on their service. We see the likes of X and its owner Elon Musk claiming that European standards of protecting character are inconsistent with what Americans think can and cannot be published in the US about people. There is a minor difficulty. The Constitution in Ireland says that the Irish State must protect people. It is not that the US Supreme Court says, ludicrously, that the right of free speech trumps everything.”
“They accuse people of corruption. They accuse people of all sorts of things and it is immensely difficult for citizens to defend themselves from those kind of charges. Instead of accepting what the Attorney General says, which is that "seriousness" could be a problem as a threshold, the Minister should ask himself whether he and his Department have seriously taken into account the obligation in Article 40 of the Constitution to defend as and as far as practicable vindicate the rights of people to their good name - "as far as practicable". What is practicable is bringing into our laws real remedies that protect people from this kind of day-to-day damage. It is not just a policy choice the Minister has. It is far more than that. It is a duty to say that people who are defamed on the Internet are in a position to do something about it.”
“They know that if they take out their little keyboard and begin to type an untruth, this is likely to end up with them being made accountable if they defame a person. It is likelihood that is important. If somebody writes a letter to a newspaper defaming somebody, the editor usually throws it in the wastepaper basket. If, to use Senator Mullen's very colourful example, someone starts scratching things up on toilet walls, he or she may be identified but the likelihood that people will believe what they see on a toilet wall is minimal. However, a serious defamation against a young college student that he or she engaged in sexual behaviour of a non-consensual kind will be there forever unless somebody takes it down. People who can make those kind of accusations with impunity do so with extraordinary regularity.”
“We are dealing with young people aged 18, 19 or 20 who are going to apply for a job in five or ten years' time, the employer googles that person's name, which happens every day in the world in which we live, and a gross defamation - a suggestion that the person has committed a crime - is sitting there. That is the damage of anonymous defamation. It is sitting there like a time bomb waiting to go off when somebody stumbles upon it or goes hunting for it as a substitute character reference. It is hugely important that anonymous defamers are very vulnerable to being exposed - not just that they could be if you get lawyers to the courts but that they are very vulnerable and they know it.”
“Regarding subparagraph (e), it is unnecessary to say that a person has no other practicable means of doing it because paragraph (a) says it is not readily ascertainable on the face of a statement or from other information available to the person. That should be enough. You should not be saying, "Is there some other way that I can avoid getting this information the simple way?" While Senator Mullen, the Minister and I strongly favour making it impossible to seriously defame people by anonymous postings on the Internet, it has to be said that it is not just simply that they are offensive to the person who reads them. Politicians have to have a very thick skin. As Senator Mullen said, if incoming fire wounds you that badly on the basis of personal remarks, that is one thing, but we are not just dealing with politicians.”
“To answer Senator Mullen, that is why "seriously" was inserted. It was also to stop people wasting the courts' time with frivolous defamation cases via the identity disclosure order procedure. If the Minister is saying that it is a necessary proof that the applicant has no other practicable means of obtaining the relevant information, that is a very high threshold to throw in the way of an applicant. He would need to be clear as to what is meant by the term "practicable". Is somebody supposed to do his or her own research on the Internet? Is the person meant to do his or her own analysis of the poster's other postings with a view to revealing that the poster is likely to be X or Y person because of remarks he or she has made through postings of a different kind or on a different occasion?”
“I will address the points raised by Senator Mullen. The reason the word "seriously" was included in the amendment was that at the time I tabled these amendments, a seriousness test was being suggested for other sections. To my surprise, the Minister indicated that the Office of the Attorney General had constitutional doubts about inserting the seriousness threshold into Irish defamation law on the basis that it could infringe unnecessarily on the good name guarantees given under the Constitution to citizens. I simply do not accept that this is good advice. I know it was not put in terms of strong advice but, as the Minister reported it, it was that it could create an issue. I do not see how it could create an issue that one could go to court in respect of a defamation that is not serious. I do not follow what that problem is there.”
“Not least of these is that a solicitor to whom somebody comes saying that he or she wants to find out who has defamed them anonymously on the Internet would, if the Minister's section stands, be obliged to say that the person may well be right, that the person may well be able to establish to a court's satisfaction that her or she will succeed in all probability in a defamation case against whoever posted that material, it may well be the case that, on the face of it, the damage done to the person outweighs any possible risk to the rights of the poster, and it may well be the case that it is established to the satisfaction of the court that the person does not know who the person is, but the solicitor would have to warn the client that, due to the way the Minister has drafted his section 22, it is possible that the Internet service provider, having disputed the matter, will say that it wants its costs of complying.”
“I completely support the Minister's determination, which I hope it is, that anonymous defamation and defamers be easily identified, subject to whatever rights protect against abuse or that somebody would not be identified in circumstances where, for instance, if a person is from another state or a dissident in a tyrannical regime, their personal rights in relation to privacy or protection against coercion or punishment were compromised. People like that should have protections - I have no problem with that - but I strongly believe that the Minister's amendments are too conservative as set out in his section 22 and leave a whole series of problems there.”
“It means that if X says that it appears that Michael McDowell posted this defamation and it is his account, whomever I defamed anonymously should be able to bring that before the court in the subsequent defamation case without bringing X along to court to prove how it arrived at that state of knowledge and that it should not be hearsay. There is a big problem with hearsay here if simply all a person has is a piece of paper identifying the alleged defamer. Those are the arguments I have put forward for amendment Nos. 20 to 27.”
“Is the person to bring witnesses from X to establish how X decided that the anonymous defamer was Joe Soap? How does someone prove it? It is within the almost exclusive knowledge of the Internet service provider as to who actually caused some defamation to be posted. If we do not change the laws of evidence to allow the fruits of an identification order to be admissible without further proof, we will have to tell people who obtain such orders that they will have to use their own resources to prove that it was Joe Soap. Are they to subpoena ISPs? All that subsection (7) proposes in my amendment is that if X says it is Joe Soap, that is admissible against Joe Soap. It does not mean it is proof beyond contradiction.”
“Since we are dealing with alternative dispute resolution, it provides a mechanism whereby somebody can write to X and say this particular person has defamed them and that it is anonymous, and if the company has any good bona fide reason to consider that it should not identify the person to them, that is fine, but if it does not have such reason, it should be on its guard that if it insists that the matter goes to court, it will have the costs of the application lodged at its doorstep rather than otherwise. Amendment No. 27 is something which really needs to be considered by the Minister as well. If an order is made directing X to say that the anonymous defamer was Joe Soap, how does the person who has been defamed prove that in subsequent proceedings?”
“The second circumstance is, with this having happened and the applicant having succeeded in obtaining an identification order, the court has jurisdiction to award the would-be plaintiff costs of winning the case against the resistance of the Internet service provider in circumstances where the court may order that it has jurisdiction so to do. Subsection (5) as proposed by me is designed to switch the emphasis in the Minister's subsection (5) to say costs should usually follow the event. This is the normal provision. There is no need to hold out to Internet service providers that they can get their costs even when they ignore a reasonable request and even where the court finally finds in favour of the applicant.”
“This is also related to amendment No. 26. Instead of subsection 5, it should read as follows: 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. If the person who would be an applicant writes a letter beforehand to the Internet service provider stating they have been very seriously defamed and that they will go to court to get an order against it, if the provider unreasonably forces the person to go to court, this is one circumstance in which the provider would be liable for costs.”
“Having to comply with all of the other necessary proofs and having to satisfy the court on the matters which are set out in this section mean that only a person who has a good case in defamation and who can satisfy the court that nobody else has interests which outweigh the potential plaintiff's interest in finding out who is defaming them online can get such an order. We are now saying that, notwithstanding all of this, an Internet service provider should have the statutory right to apply for its costs having lost the dispute and having been the vehicle whereby somebody's character was very seriously affected by something it carried for reward. I cannot understand why it should be said of such an Internet service provider that it should be entitled to be compensated for any legal application being made against it in these circumstances.”
“Why in God's name should a court be given jurisdiction to tell someone they have succeeded in satisfying all of these criteria but the Internet service provider has come to court and contested the whole thing and now wants the person to pay its costs of complying with the High Court order? That is grotesque. It really is grotesque. I hope it is not that the Irish State is so afraid of the large IT companies and tech companies that it wants to discourage these identification orders from being made.”
“I do not know the thinking that lies behind preserving the right of an Internet service provider which contests and loses an application for identification, where all the proofs of the person defamed have been complied with, whereby they are likely to win when the case comes on, the relevant information is necessary to enable them to bring the proceedings, the information is in the possession of the relevant intermediary service provider, it is in the interests of justice that the disclosure order should be made and the interests of justice favouring disclosure of relevant information outweigh those against.”
“I know the current Norwich Pharmacal procedure operates on this basis but this seems to be cowardly, in the sense that if all of the other criteria in the section are satisfied, it is a matter of right and vindication of right that the citizen who has been defamed should be able to get that information without the risk that X or some other Internet service provider could say that is fine, it lost the case and the plaintiff did get an order against it but, in all the circumstances, the Act says the court can order that the plaintiff pay for the dispute in the High Court which the provider lost. I cannot believe this is remotely fair.”
“Is there some group of Internet service providers who, having been the vehicle of defamation, are so impoverished that it would be unfair to say that if they lose a contest on disclosure, they may not, nonetheless, ask the court to have their own costs paid? I do not see how that is fair at all.”
“If they succeed, whereby a court finds it is in the interests of justice that the identification order be made, the applicant has satisfied the court under subsection (3)(b) that there has been an anonymous publication, that the statement is defamatory and that the claim it is defamatory is likely to succeed at trial, then I cannot see any good reason the Minister should put into statute form the suggestion that some Internet service provider should be able to say this is fine and all of these things have been established but now pay me the cost of contesting the application. This cannot be right. Are we on the side of people who can show they have been defamed and that they need this information?”
“This may reflect the existing arrangements in relation to Norwich Pharmacal orders but it is not fair to potential plaintiffs that, even if they succeed in persuading the court that the identity of the defamer should be disclosed to them, they should then be exposed to the very real risk that they owe an Internet service provider the legal costs involved in debating the issue.”
“The suggestion in my next amendment that in lines 32 to 37 the specific terms are overly and unnecessarily restrictive is a strong view on my part, which I ask the Minister to take into account. The next amendment in the series of amendments I have proposed relates to subsection (5). This is an important point. Subsection (5) states: The court may, whether or not it has made an identification order and where it considers it appropriate to do so, order that an applicant pay any or all of the costs of the relevant intermediary service provider in relation to an application and the costs resulting from the making of any identification order.”
“not to use the relevant information so disclosed other than to bring defamation proceedings against the anonymous publisher." In relation to paragraph (b)(i) and (ii), I ask whether that is again written too tightly. With regard to the terms, "restricting the use of relevant information so disclosed" to the bringing of the "defamation proceedings against the anonymous publisher", can the relevant information be used against somebody else? If you have a choice of two people or it turns out that if it was not A it must be B who is the defamer, to say you cannot use the information against B because you have undertaken that it is only A that it can be used against in defamation proceedings is, in my view, mistaken. Second, it is too tight in that it could apply to a malicious falsehood situation. I make those points in relation to that.”
“If somebody can establish, to the satisfaction of a court, and the court considers it in the interests of justice to make an identification order and the interests favouring disclosure of relevant information outweigh those against, and that this consideration of the court has regard to the rights and obligations of the applicant and those of the anonymous publisher and any third parties who are reasonably likely to be affected by the order, in those circumstances there should be an obligation to make the order. Paragraph (b) does not affect whether it is obligatory or not because it purely deals with matters that the court considers appropriate - "restricting the use of relevant information so disclosed" and "an undertaking ...”
“We have to consider what the subsection says. Subsection (4) states: A court may— (a) make an identification order only where it considers that— (i) it is in the interests of justice to do so, and (ii) the interests favouring disclosure of relevant information outweigh those against, having regard to the rights and obligations of the applicant and those of the anonymous publisher and any third parties who are reasonably likely to be affected by the order If the court is satisfied that it is in the interests of justice to make it, that the interests favouring disclosure outweigh those against forcing disclosure, and that all of this is done having regard to the rights and obligations of the applicant and those of the anonymous publisher and any third parties who are reasonably likely to be affected by the order, on what basis should the court have a residual discretion to say those things may have been approved and it is satisfied of that, but is still of an ultimate discretion not to make an order at all?”
“I do not think one should then be forced to say there is no other practicable means of obtaining the relevant information. It seems vague as to what would be entailed in demonstrating to a court there is no other practicable way that I can identify the person who has defamed me. Does it involve employing somebody to analyse other postings on the Internet service provider? Does it envisage employing online detectives to arrive at the same information? I do not see that paragraph (e) adds much to the Minister's proposed requirements for the making of an order. The next proposed amendment I have is to substitute the word "shall" for "may" in line 20. That is to make it obligatory for the court exercising this jurisdiction to make an identification order on the terms set out in the remainder of the subsection.”
“The reason I am proposing this is that proof that you have "no other practicable means of obtaining the relevant information" is, in my view, an unnecessary proof, bearing in mind that paragraph (a) already provides the court has to be satisfied that: a statement was published, or caused to be published, on an information society service by means of an intermediary service provider by a person or entity (in this section referred to as an ‘anonymous publisher’) whose identity is unknown to the applicant and whose identity is not readily ascertainable on the face of the statement or from other information available to the applicant on the information society service I think that should be enough to make it easy to apply for this identification order.”
“Insofar as it is suggested that this could increase costs, it could not because the Circuit Court will, in any event, have jurisdiction to make the order one way or the other. The second amendment is to insert the word "seriously". We have already debated serious defamation in this House. The Minister has intimated, though I do not accept it, that the threshold of seriousness is problematic in the view of the Attorney General's office, in that it might be seen to be an impermissible derogation from the general right to defend one's good name. I do not accept that. However, that is why amendment No. 21 is there in my name. Amendment No. 22 is to be read in conjunction with amendment No. 23, which proposes to remove lines 18 and 19 of subsection (3) as it appears on page 22 of the Minister's Bill.”
“I do not see what is wrong with saying that the High Court should be excluded from the statutory procedure envisaged by the Minister's new section 45. That is the first point. It is not that I want to increase costs. It is quite the reverse. It is that if a court has seisin of a defamation, it may, in an ancillary way, want to make an order of the kind envisaged by this section to include a party that has not yet been properly identified. The idea that you would have to go to a different court to get your identification order and then come back to the High Court seems unnecessary. The first of my amendments is to suggest that the High Court should have concurrent jurisdiction to do so.”
“The present law is judge-made law known as the Norwich Pharmacal procedure whereby somebody who is not liable for a defamation, for whatever reason - and perhaps, too, where he or she is liable - can be ordered to identify a person who appears to have defamed a would-be plaintiff. I will speed things up by going through the amendments I have proposed. The first provides that the High Court have concurrent jurisdiction under this section. The reason I consider this sensible is that we may have situations where High Court proceedings are already in being and either a defamation is repeated in that context or a party to the High Court proceedings resorts to an anonymous publication to repeat the defamation already made.”
“I move amendment No. 20: In page 21, line 30, after "Court" to insert "and the High Court". This series of amendments in my name are intended to improve the identification order provisions proposed in section 22. I support the provision in the Bill for a workable, simple and inexpensive means whereby people who are defamed anonymously on social media can identify the defamer insofar as that is possible. It is important that anonymous defamation should be discouraged, obviously, and that anonymous defamers should be accountable and should be rendered liable to being sued personally.”
“It seems to me the obligation that is cast on solicitors to inform their clients and execute a statutory declaration would not have application if it were a case, say, against an English or Northern Irish newspaper, The Economist magazine or something like that. I just think the Minister could profitably widen the scope of the provision.”