Sharon Keogan urges 'serious harm' test in Defamation Bill

Thank you. I am rising today in favour of my first amendment to the Defamation Amendment Bill, so I am talking about Amendment No. 8. This bill comes to the Chamber with a number of stated purposes, but I think they are best summarised in plain English as making defamation law fairer and more efficient. This is driven by the fact that there is simply too much defamation litigation in Ireland. I do not believe anyone in government or opposition will contest this. This purpose carries the acknowledgement that defamation law, as it is in Ireland, is not really fair or efficient and this is to be rectified by this bill. However, there is a big gap between the intent and the purpose of the bill and what it will achieve. It is my own belief, the belief of many in this chamber and the belief of far too many in the civil society organisations, that it will achieve very little. There are a number of international best practices in defamation law and the very best of them are present in either current Irish law or they are barely present in this bill. To this end, I am bringing forward a number of amendments which I hope will correct this, the first of which is to introduce a serious harm test for individuals who seek to bring a defamation case to court. We are perhaps the only common law on earth country who does not impose tests, either serious harm or malicious intent in the case of the United States on plaintiffs. This desperately needs to change. This is not a theoretical debate. Ireland does not exist in a legal vacuum and the law does not exist in a vacuum from society. We can look at how laws differ in other nations and how those laws impact their societies and we can compare it to our own laws and our own society. I and many others believe it is evident that defamation is out of control in this country. If the statistics and the estimates are to be believed, we have twice as many defamation cases in our nation than in England and Wales. Not per person, Chair, total. Let that sink in. We have twice as many cases as a state, which is over ten times our population. We need to think of how that impacts the workload of our courts, which we all know are facing erroneous backlogs in cases both criminal and civil. We need to reduce this backlog where we can. Here we have severely outdated defamation laws whose antiquateness is a cause of the caseload. And yet, still, we are not putting in the necessary updates. A serious harm test is not curtailing of people's rights to their reputation. Would we say that people lack this right in England, Canada or Australia? No we wouldn't. So why would we curtail it right here in this republic? No, in fact this amendment and my other amendments, which I will get to in time, is about rebalancing these rights in favour of the right to free expression and the right to speak and inquire in the public interest. By extension, it is about ensuring that within free public discourse we are able to achieve the end of holding one another to account without fear of grievous repercussions. And now, Chair Minister, we had a heated discussion in this chamber a few months before, which I would like to address respectfully as it is relevant to my argument. I asked if there was any conflict of interest, I would acknowledge that I used strong language in asking it, that it reflected fairly neither the Minister's character nor the nature of my concern. And I would like to apologise for the record about the offence caused. For the record, I hold you, Minister, with your integrity in high esteem as a person, as a professional and as a politician. I have praised your appointment and welcomed your appointment here and this chamber many times. And I look forward one day, I hope I am not going to jinx you now, as leader of the Fianna Fáil in the near future. However, however, however, I am still a member of the opposition and while I would not question the Minister's integrity, and I have seen nothing that would indicate improper conduct in his part, it is my duty as a public representative to act in the public interest and to put his judgment into question, which is the real essence of my concern, although I acknowledge I must do it in better and more precise language. Because as a Senator for the industrial and commercial panel, I have received serious outreach from my constituents and their civil society representatives, as well as from society more broadly, especially the press, and nearly all of them are telling me that this bill as it stands will effectively change nothing. When the system is broken, the status quo means things will only get worse, and while I acknowledge that the Minister did not draft the bill, I am forced to ask why the Minister is standing over it. Why is he proceeding to push it through our houses, when it is clear that we will be back here in a few years' time? I did initially intend to argue that the Minister's legal career left him with a tendency to overly concentrate on abstract legal principles, but last week I recall that the Minister put forward the argument to my colleague Senator McDougall that we in the Oroxis change laws because we can. So I assume that he acknowledges that laws and their principles are not perfect or inviolable, and require regular alteration for the common good. In fact, this is arguably the entire reason we are sitting here today in an elected legislation. As the Second State Minister made good arguments in favour of the individual's right to a good name, you raised the important point of the Maurice McCabe case. Let me be clear, as a member of the Opposition we have potential whistleblowers coming to us on a regular basis, and let me assure you that for everyone who is protected by defamation laws there are at least ten others who back out, keep their heads down and keep silent for fear of those exact same laws. This is what is meant when people say defamation laws have a chilling effect on our nation's public discourse. One can speak of the rights of the defamed, but let me be clear on another point. These rights do not exist de facto for the majority of our population. Defamation cases usually cost between £20,000 to £50,000 when taken to the circuit court and can fly high into six figures when taken to the High Court. The vast majority of our population do not have five figures of money floating around in their back pockets, and free legal aid is only granted to defamation cases in extreme rare cases. For the vast majority of Irish people their rights to free expression is not balanced against the rights to a good name, because the former is not effectively actionable. In fact these have neither, because they can afford neither to accuse others of defamation, nor to be accused of it. So I propose that we correct this by combating the suppressive and trivial defamation claims that are freezing free discourse in our society. That we acknowledge the balance of rights is unbalanced, and to adjust accordingly. That brings me to the core of the amendment date which I am proposing today. This amendment seeks to introduce a serious harm threshold for individuals bringing defamation cases, mirroring the standard already proposed for corporate bodies in this bill. It is a modest, proportionate and internationally recognised safeguard. It does not abolish the right to sue for defamation. It simply ensures that the courts are not used to pursue trivial, vexatious or strategic claims that are not about restoring reputation, but about silencing criticism. If we are serious about making defamation laws fairer and more efficient, as the government claims, then we must be willing to apply the same standard of seriousness to all plaintiffs, not just corporations. It is not credible to say that a small company must prove serious harm, but a wealthy individual need not. That is not equality before the law. That is not fairness. That is not efficiency. Amendment 8 is not radical. It is not partisan. It is not punitive. It is a practical reform that aligns us with the best practices in England and Wales and Australia and other common law jurisdictions. It is a reform that will help reduce the burdens on our courts, protect freedom of expression and ensure that defamation laws serve as its true purpose to vindicate reputations that have been genuinely harmed, not to chill public discourse or intimidate critics. I urge the Minister and my colleagues in the House to consider this amendment. In that spirit, let us not miss this opportunity to make a meaningful change. Let us not pass a bill that tinkers on the edges while leaving the core problem untouched. Let us not pass this bill that we can be proud of, one that protects both the right to the good name and the right to speak truth to power. Thank you very much. Thank you very much. Thank you very much.