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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“It has to be fair. What is fairness in this context? The fact the gardaí suspect you of something should be drawn to the attention of the people at large - is that fair? Is it consistent with, for instance, the presumption of innocence that because gardaí suspect a person in public life of doing something wrong, that can be published without more? Section 26(1) (a) (ii) states it must be "in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit". It is important under present law that the journalist states it has to be dealt with now because it is for the public benefit that it be dealt with now. It is not down the road when there will be a jury trial about it; we are entitled to know about it now because that is what the gardaí suspect.”
“It means that if those three things are satisfied tomorrow, any journalist can publish a story on the front page of any newspaper and there is a good defence to establish those three points. If a Minister, Deputy, Senator bishop or whoever you want faces that headline, it is a good defence and the end of the matter if the journalist and editor say they believe it to be true, it is obviously in the public interest and publication of it is in the public interest. They can state they did not even bother to ring the individual in question because of the evidence they had. They saw the Garda file and that was enough for them. They do not think the gardaí would have invented this, so there it is. It goes on the front page, uncontradicted. I will go back to what the law is at the moment. Section 26 refers to "fair and reasonable publication".”
“You do not even have to lift the phone to him as long as you believe in good faith that the story you have been given by a member of An Garda Síochána is true, that it is in the public interest, if it is true, that the public should know about it, and the matter is one which should be published in the public interest. If I as a journalist received information that gardaí were investigating a Minister in the present Cabinet for corruption, first of all, I might ask the garda if they were sure of what their accusation is, and if they said "Yes", I would then ask if it was in the public interest. By definition, it is. I would then ask if I could publish it in good faith, and of course I can because I believe it is true. That is the test that this Bill is proposing. The existing law was carefully calibrated to provide some balance.”
“That is the test that this Minister is putting before us in this House in future to establish a defence of publication in the public interest. Any newspaper which satisfies those things, that it in good faith believes it, it has a good source for it, the nature of the charge is of very great public importance and it is important that the public should know that a senior garda suspects a person of that offence, then it can publish. There is no requirement in the Minister's provision that the story has to be bounced off the person who is going to be defamed - none whatsoever.”
“For instance, if a well-placed member of An Garda Síochána goes to a newspaper or journalist and says Minister X is corrupt or Minister Y, although Minister for children, has a record like that which was alleged against Senator Craughwell, that is in the public interest and publishing it is undoubtedly in the public interest because the public is entitled to know that a member of An Garda Síochána believes that that particular person is a danger to children. The third point is that the statement was published in good faith. What does that mean? Does it mean that the journalist believed the garda who blackened the public figure? All three ingredients are then established by proof: I believed it was true, it came from a credible source and, in view of the nature of the charge, it is in the public interest that the public knows about it.”
“It would be of huge public interest by definition if one of us or a Member of the Dáil or a member of the Government had acted corruptly or was corrupt, so you are over that hurdle before you start. The second point is that the statement in respect of which the action was brought was on a matter of public interest and the defendant reasonably believed that the statement was in the public interest. If a Minister is accused of corruption, is a journalist or newspaper not very easily in a position to say that if this accusation has been made, it is in the public interest that it should be disclosed?”
“That is just the title of the defence] to a defamation action for a defendant to prove" in all the circumstances of the case three things: the statement in respect of which the action was brought was on a matter of public interest; the defendant reasonably believed that publishing this statement was in the public interest; and the statement was published in good faith. If somebody goes to a journalist and accuses a TD, Minister, Senator, or anybody else in public life for that matter, of very grave wrongdoing, from child abuse, as mentioned by Senator Craughwell, to public corruption of one kind or another, those three things can be established by the defendant. First is that the statement in respect of which the action was brought was on a matter of public interest.”
“They could see that if we do what the Minister is now proposing, huge consequences would follow for people in public life in particular. That is the law that we have established today. Some of it has been difficult to rely on by defendants in jury cases because the jury would say that, at the end of the day, it was not fair. That is the end of the matter. What we are proposing now to put in instead of it, and I ask Members of this House to look at it very carefully, is that "it shall be a defence [to be known as defence of publication on a matter of public interest - What is different? The phrase "fair and reasonable" has been dropped.”
“If you then ring your solicitor and he says under no circumstances respond because the publication will publish a denial story stating Senator Joe Soap denies allegations of corruption, that is not permissible as an argument in court as the law presently stands. In other words, if you are told by your lawyer that something is false but if you start mud wrestling with the journalist in question and say it is untrue, you will end up facing a story stating that Senator Joe Soap has denied an allegation by X, Y or Z that he did or did not do X, Y or Z, was or was not corrupt or whatever it may be. That is the law as we have it. It is not an accident that is the law. The generation of section 26 was done with the greatest of care and, without divulging Cabinet confidentiality, it engaged the minds of Ministers at great length at the time.”
“That is in the law as it currently stands. None of this will be the law if we pass this Bill in the form that the Minister is proposing. The fairness will go out, as does the question of whether an attempt was made to verify a story. All of that is swept aside. Senator Craughwell earlier noted the following: (3) The failure or refusal of a plaintiff to respond to attempts by or on behalf of the defendant, to elicit the plaintiff’s version of events, shall not— ( a ) constitute or imply consent to the publication of the statement, or ( b ) entitle the court to draw any inference therefrom. As has happened on many occasions to many people in public life, you are told a publication intends publishing tomorrow the following about you and it is giving you a chance to respond.”
“The subsection continues: ( h ) the extent to which the plaintiff’s version of events [That is the person about whom the story is written] was represented in the publication concerned and given the same or similar prominence as was given to the statement concerned; We just have to go back to the Adams case and we can see that his denials were published but the allegations were given far greater prominence. The subsection concludes: ( i ) if the plaintiff’s version of events was not so represented, the extent to which a reasonable attempt was made by the publisher to obtain and publish a response from that person; and ( j ) the attempts made, and the means used, by the defendant to verify the assertions and allegations concerning the plaintiff in the statement. In other words, there is a duty of verification.”
“The subsection continues: ( g ) in the case of a statement published in a periodical by a person who, at the time of publication, was not a member of the Press Council, the extent to which the publisher of the periodical adhered to standards equivalent to the standards specified in paragraph (f) ; In other words, if there was an English newspaper or magazine, did if follow the kinds of standards that the Irish Press Council put in place? Those standards are really important. They include checking the facts and putting the story to the person who is being written about. Those are all part of our law as it stands.”
“The subsection goes on: ( e ) the extent to which there were exceptional circumstances that necessitated the publication of the statement on the date of publication; [In other words, was there urgency, that this story be published on the day] ( f ) in the case of a statement published in a periodical by a person who, at the time of publication, was a member of the Press Council, the extent to which the person adhered to the code of standards of the Press Council and abided by determinations of the Press Ombudsman and determinations of the Press Council; This had the effect of asking newspapers if they followed the standards of the Press Council and complied with its recommendations or demands for retractions.”
“The subsection continues: ( b ) the seriousness of any allegations made in the statement; [We will not bring seriousness into our law at all, except for companies] ( 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; Let us contemplate that. The court is required at present, whether it is a jury trial or a non-jury trial, to ask if a statement drew a distinction between suspicions, allegations and facts.”
“Recently, we had the case, to which the Minister tangentially referred, about whether it was fair to criticise Gerry Adams in the way the BBC did. The jury said it was not but that is being abolished now. The fairness test is being taken out of defamation law. Subsection 2 states: (2) For the purposes of this section, the court shall, in determining whether it was fair and reasonable to publish the statement concerned, take into account such matters as the court considers relevant including any or all of the following: ( a ) the extent to which the statement concerned refers to the performance by the person of his or her public functions; That is an issue. Does this statement concern the performance by a person of his or her public functions?”
“The subsection continues: ( b ) in all of the circumstances of the case, the manner and extent of publication of the statement did not exceed that which was reasonably sufficient, There is a threshold in the existing law of the land, as we stand here now. It says that the defence of fair and reasonable publication was contingent on the establishment by the defendant that the manner in which the matter was reported, or the statement that was made, did not exceed that which was reasonably sufficient, and, "( c ) in all of the circumstances of the case, it was fair and reasonable to publish the statement". The journalist or the newspaper has to say it was fair and reasonable to publish this statement. That is the law as we have it at the moment.”
“It is as follows: 26 .— (1) It shall be a defence (to be known, and in this section referred to, as the “ defence of fair and reasonable publication ”) [Mark the words, "fair" and "reasonable"] to a defamation action for the defendant to prove that— ( a ) the statement in respect of which the action was brought was published— (i) in good faith, and (ii) in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit, On that, it is not just enough that it is public interest but that it is for public benefit as well and that it was done in good faith. Those are the ingredients of the law at the moment.”
“He claimed that I was opening the floodgates to the defamation of public figures and he was passionate in his condemnation of the reform I proposed at that time. It is important to put on the record of the House what the existing law is.”
“I strongly urge the Minister to reconsider this particular amendment. This amendment to the Act of 2009 was tendered in the course of the Dáil debate by the Minister. It is not referred to, as far as I can see, in the original explanatory memorandum and it actually promises a very radical effect of change in the defamation law of this country. The House should be made aware that back in 2006 and 2007, when the 2009 legislation was being prepared and was actually commenced in this House, I remember sitting where the Minister is now and somewhere behind where Senator Conway is. I remember an impassioned speech against section 26 of the original Bill being made by none other than Senator David Norris.”
“I have to say to the Chair that it is a section of huge importance. Rattling off sections in the way the Chair has is most unfair, especially if a Senator says it is "not agreed" and he is bulldozed out of the way.”
“It seems that anchoring the right to respond to a defamatory statement on the basis of its effect on a balance sheet is wrong. The other issue is that there are companies limited by guarantee, which obviously means they are not or may not be companies that trade for profit. That is another issue that is hanging there in the context of this definition. Let us even take something like a farmers' co-op. Is that a company that trades for profit or is it something else? I am suspicious that this amendment, although I accept the Minister's proposition that it is intended to relax the rules of defamation, carries with it ambiguities and unintended consequences that have not been adequately thought through.”
“I am in favour of a seriousness threshold, but I do not think that handcuffing commercial companies to serious financial loss is a fair way of dealing with what could be very serious defamation. I will give the Minister an example. If somebody says without cause that the Boeing aircraft corporation is manufacturing dangerous planes, to say that Boeing cannot come to an Irish court to stop them from saying this, unless it can also show that what they said has really affected its worldwide sales in some way, is wrong. We are not even dealing here with something that Senator Higgins would probably have more sympathy with than me, which is, boycotting companies because of suspicions they are using child labour, because their products are not green or because they are using fracked gas or whatever.”
“If someone states that a company in Dublin selling t-shirts and clothing at economic prices - which is very important to a lot of people in Ireland who depend on highly competitive, low-price clothing - is using child labour in Bangladesh, Vietnam, Burma or wherever in circumstances where that is wholly untrue and if they keep repeating that, even though it is wholly untrue as far as the company involved, which may have sent inspectors to Bangladesh, Vietnam or wherever and which can answer the claim, is concerned, saying that it is not defamatory unless the company can also point to its balance sheet and highlight the consequence of the statement that was made is not a proper test of seriousness.”
“As a result, serious harm is not to be defined by reference to the effect on the balance sheet. That is possibly a form of serious harm. Obviously, if there was damage done to the profitability of a company, I have no problem with saying that this is a species of serious harm to that company's reputation. However, it is not the only criterion.”
“Can it be stated that this can be said, effectively, with immunity unless the person publishing the statement or making the accusation can be shown to have caused or be likely to cause a serious dent in the retailer's profits? If that is to be the test, that is fine. I take the Minister's point that he feels he is liberalising the law and making it more possible to make statements without being sued, but it seems that it is somewhat arbitrary to say that because a company is trading and there is no way, and no likely way, to use that term, that we will never be able to look at its profits at the end of the year and say that what was published in The Irish Times about it put a dent in its profits and that this should prevent it from suing somebody who is causing serious harm to its reputation.”
“All I want to say is that rather than prolong this discussion, the section should be amended to make it clear that it either means it is a reasonable possibility that a company will suffer serious financial loss or, alternatively, it is more likely than not that it would do so. On Report Stage, we should be willing to say what we intend it to be interpreted as meaning. Otherwise, we are throwing up a patent ambiguity for the courts to interpret without giving them guidance as to what we actually mean. Senator Higgins referred to, say, a large retailer selling t-shirts at cheap prices and the allegation that the relevant firm is using child labour in Bangladesh, Vietnam or wherever to produce these. That would affect a company's reputation.”
“-----in the context of getting the legal meaning of the term "likely". It is stated that the term can mean "more probable than not" and that there is "a reasonable possibility". In answer to a question as to whether I could fall down the stairs, one could answer that it is a reasonable possibility. In answer to a question as to whether I will fall down the stairs, one could say that it means is I am going to fall down. The question that then needs to be asked is whether would someone take a bet on it happening at odds on or whatever. The Minister said the courts operate on the balance of probabilities, but they do not when it comes to this. All the case law people will find if they google it states that it all depends on the context in which the term "likely" is used in a statute.”
“I definitely believe that if we are going to keep the phrase "or is likely to cause serious harm", meaning serious financial loss in the case of bodies corporate, we do owe the courts, the public, litigants, lawyers and everybody who is involved clarity as to what we mean by the term "likely".”
“If it happened during the middle of a volcanic ash situation, Covid or something like that, proof that it was likely to cause financial loss, or if its very skilled management and clever advertising had in any event improved the company's financial position, can there be argument to say that an airline's safety policies are risky? Can there be argument about whether that is likely to cause serious harm in the form of serious financial loss? How can that happen and how can it be discussed in any particular case? I wonder about that. I believe the term "serious", as we have just voted on, should apply to individuals and to bodies corporate. It should mean the same thing for all defamation purposes. It should not vary from one to another. That is my own view. I presume Senator Higgins would disagree with me.”
“Both of them were sued separately so as to focus particular financial pressure on the Irish citizen, that he now had Ryanair on his case, so to speak, for remarks which he had made in a broadcast querying the safety of Ryanair's operations and suggesting that a danger arose from lax safety policies on the part of the airline. Without going into the rights and wrongs of it, because I do not think that either was ever ventilated in the end in the Irish courts, the whole idea that Ryanair would actually have to in some way say that, if this programme were to go uncorrected, it would be likely to cause Ryanair serious financial loss, would involve the court and all the parties in a highly theoretical discussion.”
“I do not know what it was actually accused of but it did go to law in the United Kingdom. The massive resources of McDonald's were used against some campaigning group that had, presumably out of some left-wing ideological conviction, thrown some insults at the company. What the Minister would say about that is that you cannot just sue, in the case of a body corporate which is trading for profit, unless you satisfy a court that the defamation has caused serious harm or is likely - that is subject to what I have just said - to cause a serious financial loss to the company. It is not just McDonald's in the celebrated English case. There was litigation in the Irish courts between Ryanair and a British broadcaster and an Irish citizen who was, I think, a pilot and a representative of the pilots' association.”
“The funny thing is that, under the jurisprudence of the Irish courts, nothing the Minister can say here as to what he thinks it means or what Senator Higgins says she thinks it means or what I think it means is even cognisable in the courts. They say it does not matter what was said at the time this Bill was passed. It is what we think the ordinary and natural meaning of the words in their statutory context is to be interpreted as meaning. There is a strong case for more clarity on that issue. On the wider point of Senator Higgins's proposed amendments, it is true that there have been cases. I think McDonald's started a lengthy case at one stage; I have forgotten precisely what was alleged against it. Let us imagine it was accused of using horse meat, condemned meat or something in its burgers.”
“However, if you actually mean "would probably" when you use that phrase, an entirely different result takes place if you legislate for it. This is not me imagining some kind of semantic difference between the two. If you look at any law dictionary, you will see entry after entry on what the term "likely" has been found to mean in one case and has been found not to mean in another case. It is important from the very least aim of certainty in what we are doing that, if we enact that phrase as in subsections (2) and (3), we are indicating to the courts that "likely" in this context means either "probably" or "could reasonably". We have to give the courts guidance as to what we mean by that phrase. Otherwise we are simply handing an ambiguity to the courts and finding out afterwards that they say the Oireachtas meant this rather than that.”
“Therefore, when we use the term “likely” in a definition of such central importance to the law of defamation, the Judiciary has to be told what it means. It is not good enough to say it will interpret it one way or the other. We only find that out after a case has been decided, and perhaps after it has gone the whole way up to the Supreme Court or wherever. If we mean “likely” in the sense of “could possibly” or “could reasonably possibly”, such as “is it a likely consequence of driving drunk that one will knock somebody down”, that is one view, and it is likely if we interpret the term "likely" as meaning "could reasonably". Is it a likely consequence of driving drunk that you will knock somebody down? That is one view of it, and it is likely, if you interpret the term "likely" as meaning "could reasonably".”
“I am interested in the amendments proposed by Senator Higgins. Two things occur to me that we should consider at this Stage in this House. The phrase “is likely to cause” is itself ambiguous. The Minister has probably come across cases in his practice - I certainly have - where the term “likely” has to be interpreted. To a layperson, "likely" can mean "probable". Is this a probable consequence? According to the legal dictionaries, "likely" can also mean "possible". The difference between those two, for the purposes of Senator Higgins's argument, is massive. If this actually means “could reasonably cause financial harm”, that is one thing. If it means “will probably cause financial harm”, that is an entirely different thing.”
“It was the Minister who introduced the question of insurance companies. He said he wished they would take a different and more robust attitude to claims of this kind. It was not me or any of the other Senators who raised that. He now comes in and says we cannot have a law which is dictated by insurance companies. In defence of saying that seriousness does not apply, he said that perhaps the answer lay with the attitude taken by insurance companies in not defending unserious or minor cases. I agree with the Minister that online defamation is a huge problem. I want to signal now that the provisions he proposes to introduce later in the Bill on that subject are wholly inadequate. I will be dealing with that at a later stage.”
“However, as the Minister well knows, insurance companies right across the spectrum from personal injuries to other matters only look at the bottom line. They consider if it is worth having a courtroom squabble for €10,000 when it is easier to give the person the money and the solicitor a few bob for costs. That is easier than being brave or taking a stance that this is a relatively trivial matter. On that basis, I maintain my view that the Bill should be amended to introduce a seriousness threshold to all defamation cases.”
“If this has in any sense affected the drafting and proposal of the measure in this Bill and insofar as it is contributing to a reluctance on the part of the Minister to accept an amendment that would bring us in line with Northern Ireland, Scotland, Wales, England, Canada and Australia, I think it is misplaced. We are in danger of missing a real opportunity to do something substantial, that is, to rid many people of the huge burden of nuisance actions in litigation for defamation, which cost individuals and individual trading concerns and retailers so much management time, concern and, in the end, legal fees. The Minister said that if insurance companies took a different view and were - I cannot use the term "manly" - brave in the defence of these cases, maybe there would be a different attitude among plaintiffs.”
“I do not see how the threshold differs from, as I said, Michael McDowell, the butcher in Ranelagh, personally running his business and having his stock defamed or whatever and a company that I own 100% of the shares in, running precisely the same business, and a different test being introduced for those two different situations. I am not saying that it is definitely the case but I refer to the concerns expressed by the Office of the Attorney General that seriousness could be suspect from the point of view of the Constitution and the citizen's fundamental rights in Article 40.”
“If something is not serious, it should not be litigable, in my view. While the Office of the Attorney General is free to express concerns to the Minister's Department on issues like that, I would be very surprised if a fully worked-out opinion that it could endanger the citizen's rights under the Constitution was ever prepared, considered, brought to the Attorney General and received the Attorney General's approval as the legal advice to the Government. It is on that basis that the refusal of the Minister to accept an amendment to introduce a seriousness threshold for defamation on the one hand, while introducing it for corporate defamation cases on the other in a later section of the Bill, fails to make a just distinction between incorporated and unincorporated businesses, retailers and the like.”
“No, I think I have said everything I have to say about amendment No. 5. I just want to make the point that the House was informed on the last occasion that there were concerns in the Office of the Attorney General about the seriousness requirement being introduced into Irish law on the basis that the good name of the citizen, which is an explicit right in the Constitution, might be in some sense compromised by introducing a threshold of seriousness in respect of defamation actions. I want to repeat that I do not agree with such concerns. I do not believe that something that is not serious can be litigated as a matter of constitutional right or that a seriousness threshold in some sense infringes the rights under Article 40 of the Constitution to the defence and vindication of a citizen's good name.”
“We are also censored in what we actually see. Our media, very kindly and very properly, perhaps, does not show what happens when a bomb hits a railway station, and very rightly. I have seen stuff in videos which turned my stomach, including videos of the execution of Ukrainian prisoners by Russians who were machine gunned into graves. Those kinds of things can never be forgotten. The House must keep returning to this matter. We must keep banging the drum in order that from Deerfield, where the United States ambassador resides, and Ballsbridge, where the United States embassy is located, the message goes clearly back to America that we want it to stop this war and that it can do so.”
“I hope that somebody in the American embassy in Deerfield or Ballsbridge listens to what is said in this House. I want to put it on the record: America must now do something. If you want Nobel prizes for peace and to parade the world as bringing peace to the Middle East, you can stop the war in Ukraine if you are determined so to do. The message should come back from these Houses via American diplomats that we expect America to do more to bring this horrific struggle to an end. American ambivalence has been problematic. We have had the extraordinary situation that Russia, China, North Korea and India were all participating in military manoeuvres in Belarus only very recently. The attitude of the Trump regime has created an international alliance against America, at one level, but against Ukraine in particular.”
“Without being recriminatory and being positive as far as I can, my mind cannot exclude the scene when President Zelenskyy was brought to the Oval Office and humiliated there by President Trump, Vice President Vance and Secretary of State Rubio. It was a disgraceful scene. I am glad that, in the unpredictable policy formulation that seems to grip Washington, at least a different attitude is now being demonstrated, but there can be more. Europe should get real backing from America in its contemplation of the seizure and application to Ukrainian reconstruction of frozen Russian assets. American behind-the-scenes negotiations with Belarus, and even the First Lady's personal initiative in regard to children who have been abducted, show an ambivalence with regard to the Russian invasion of Ukraine.”
“It is probably small in the larger dimension of that military struggle, but the Irish people have extended to Ukrainians very significant financial support. The Minister, Deputy Jim O'Callaghan, recently revealed that over €1 billion per year is spent on housing Ukrainian people seeking refuge in Ireland. It is a lot of money for a country of our size. I note and fully understand how the Fianna Fáil motion does not refer to America, but I want to say one thing. Whatever Donald Trump achieved in Gaza, and we do not know what he has achieved in Gaza or how long it will take for peace to come there, he has the capacity to end the war in Ukraine.”
“I know there are reasons we do not get accurate figures for the amount of military casualties on both sides, but not only have there been many brave Ukrainians who have died for the preservation of their country, but I would say that more than 100,000 or maybe 200,000 Russians have been driven into this conflict by Vladimir Putin and have died as well. The extent of this tragedy in Europe is almost incalculable and very hard to grasp. Mention has been made of Ukrainians playing an important part in Irish life since they came here seeking refuge. I mention Ms Zoriana Drul in our own Seanad Office, who is working to keep this establishment functioning. The extent of integration is everywhere. People ask what Ireland is actually doing, and non-lethal assistance to the Ukrainian military has been furnished.”
“I thank the Fianna Fáil Members for tabling this important motion. Those of us in the Seanad Independent Group had put down a similar motion, which was much less elaborate, on 22 September to the same effect. I thank those Members who have also tabled amendments to the motion. It is important that this House speaks frequently on this subject. While you can illuminate the outside of the Houses of the Oireachtas with Ukrainian colours, there is a sense that events in the Middle East have dwarfed the Ukrainian struggle. Figures have been given here for the number of civilians who have died in the Ukrainian conflict and the invasion by Russia.”
“I do not want to call a vote at 2.30 p.m. because we will be here until 2.45 p.m. In the two minutes remaining, I want to make the point to the Minister that if Senator Fitzpatrick received a letter from somebody saying she had defamed them in something she said in this House, her solicitor could write back and say that was an occasion of absolute privilege. If the person then commenced a High Court or a Circuit Court defamation action, she would go to a competent barrister and solicitor. They would apply immediately that on the pleadings this was an occasion of absolute privilege, and have the case flung out with costs on day one. It would be a preliminary application and not delay anything. She would not be keeping her powder dry until she has all her witnesses lined up. She would act immediately to stop it.”
“The State, through its laws under Article 40, as I recall, is obliged to defend and vindicate the rights, including the right to a good name, but only to the extent it is practicable to do so. It is not practicable to have courts considering trivial or unserious claims or claims that fall beneath a serious harm threshold.”
“Is it seriously contended that it then has to come to court to show, through an accountant, that its sales sank as a result, but the local chipper whose burgers were described in the same terms does not have to do it because it is not owned by a limited company? I do not accept that. I radically disagree with the proposition, if it is seriously held as a view in the Attorney General’s office, that to bring our law into alignment with other common law jurisdictions – not America but other common law jurisdictions - a serious harm threshold before defamation suits can succeed in general amounts to an unconstitutional invasion of the right to good name of the citizen.”