2026-02-11

Seanad amendments Nos. 1 to 3, inclusive, are related and will be discussed together.

I will say a few brief words. I am back, a Cheann Comhairle, from a lengthy sojourn in the Seanad, which I have to say was interesting and productive. I think I was in the Seanad for over 28 hours on Committee and Report Stages but it was a worthwhile engagement. As a result of the contributions from Senators in the House, I am coming here with five amendments to the legislation. Amendments Nos. 1 to 3, inclusive, are changes to section 11 of the Bill, which, as colleagues will know, were substantive changes to section 26 of the original Act. It was introduced on Report Stage in this House to amend section 26 of the 2009 Act by providing for a simpler and more concise defence of publication on a matter of public interest. Concerns were raised in Seanad Éireann that section 11 removed the important element of “fairness” from the defence of fair and reasonable publication. Amendments Nos. 1 to 3, inclusive, respond to those concerns. Amendment No. 3 places the concept of fairness front and centre of the defence and clarifies that in order to avail of the defence, the publication must be fair in all the circumstances of the case. It goes on to set out that this will only occur where the publication can objectively be considered in the public interest and where the publisher, acting in good faith, reasonably believed this to be the case having conducted appropriate checks and inquiries. Amendments Nos. 1 and 2 alter the title of the amended defence to make it clear that fairness is a key element of the defence. The amendments seek to balance the concerns expressed in the Seanad with concerns raised during the review of the 2009 Act that the application of an entirely separate test of fairness and reasonableness in the existing section 26 defence was overly complex. I recommend that the House accepts these three amendments.

Are there any Members wishing to contribute? I call Deputy Mark Ward.

Sinn Féin will be supporting the Minister's amendments from the Seanad, which are largely technical, as well as the amendment that explicitly clarifies the defence of live broadcasts. We will, however, be opposing the Bill itself. While the Bill contains important provisions with regard to strategic lawsuits against public participation, SLAPPs, for example, and Sinn Féin remains willing to engage constructively with the Minister in relation to defamation reform or any other matter, we oppose the removal of juries from defamation trials. It is unnecessary, given the outworkings of the Higgins case. That said, I express significant disappointment in regard to how the Minister has progressed this Bill. Government Ministers commonly talk about being willing to work with the Opposition, asking what the Opposition's ideas are and asking us to bring forward solutions. Sinn Féin has brought forward multiple proposals that would have tempered the wholesale removal of juries. So, too, did other Opposition parties and Independents in both the Dáil and the Seanad. In particular, one amendment in the Seanad would have effectively aligned the law on mode of trial with that of the North, unifying the law on this issue for the whole island. That would have added benefit that should have been given greater consideration. Distinct from this, we also brought forward amendments touching on other parts of the Bill following significant deliberations in both Houses. It is, therefore, incredibly disappointing that what we see returning from the Seanad is the Minister's acceptance of just one amendment, bringing explicit clarity to an existing provision. That, to my mind, does not reflect a Minister who is genuinely interested in hearing from the Opposition and good legislative practice, or give due respect to the function of these Houses in their totality.

We will not be opposing any of the Minister's amendments as they are broadly technical but I have to say, it is a huge pity he does not practice what he preaches in relation to this Bill. He was on the total opposite of this debate when he was sitting in a different part of this Chamber - with Government but against it. Once the Minister got the seal of office, he changed tack totally and that is a fact. We can read the record. A paper that is read a lot more in the Minister's constituency than in mine is The Irish Times. The former head of the civil juries division of the High Court, the former judge, Mr. Justice Bernard Barton, has written in the paper today. I am sure the Minister has read it or it has been brought to his attention. Getting rid of the process by which these trials are done by jury has no basis really from what the concern was. We are stripping the litigant of the right to choose the mode of trial by which the facts of the action are to be decided and also striking down the fundamental principle at the heart of our legal system by removing the jury. This requirement for fairness in law and the use of juries is as old as justice itself but for some reason, despite the Minister's own personal views not that long ago, his current views are completely contradictory. The Minister calls it compromise. I would prefer it if the Minister had conviction and stood by what he actually believes in. There is a deeper concern as to his conviction and why he does not stand by what he believes in, particularly as he is the Minister for justice. A Minister without conviction holding that portfolio is deeply worrying and troubling. The Minister has stated on the record of this House that he is of a completely different view. The explanation for continuing with and justifying this is even more bizarre, particularly when we consider that the justice committee unanimously went against it and that the premise set out in the Department of justice's report on which the abolition is founded was swept away by Supreme Court's decision in the Higgins case in 2022. I do not know why the Minister is under so much pressure in his Department or within Government to continue going down this road. This is the last opportunity for him to change what is involved here. This is a step in the wrong direction. The Minister is not doing or is not pushing for the right thing. Unfortunately, that says an awful lot about him as a Minister. He was vehemently opposed to this previously, but now, despite the Supreme Court's decision in 2022, he is bringing it in. That is an issue for me when it comes to his conviction as Minister. If that is going to be the mark of his Ministry, then it gives rise to concerns in respect of a number of matters beyond this Bill.

One of the disadvantages of being a small party is that it is not possible to follow every piece of legislation. However, I did speak against this Bill earlier. I am taking time to speak against it again because it strikes at the heart of a basic principle of justice, which is the right of people to have serious matters that impinge on them judged by a jury of their peers. That is a fundamental basic principle of law. To undermine it, without any real explanation or justification, is extremely worrying. That is what is happening here. People do not follow these things, which is understandable. They may seem quite technical to them. Deputy Kelly referred to Judge Bernard Barton. I thank the Deputy for briefing me to some degree on this and for highlighting why it is such a problem. The fact that anyone who is seriously concerned with the administration of justice, including the Irish Council for Civil Liberties, those who represent the legal profession and even the Minister, when he was in opposition - which I did not know – have opposed this kind of says it all. Now, however, it is going to be pushed through. I would be curious to know if the Minister has any justification for this. Think about it. For those who might be watching these proceedings, what we are discussing here relates to someone who is defamed and who takes a case because their good name and reputation is being taken from them. In such circumstances, a person's right to have a case on whether their good name and reputation has been taken heard by a jury of their will be decided by one individual, namely a judge. If we are talking about somebody’s good name and reputation, then who better to judge that than a group of their peers – 12 of their peers rather than just one individual – because they are surely in a far better position to assess whether someone's reputation and good name have been damaged and whether what has been done in that regard was fair or not? Surely a jury of one's peers is the ideal group to assess whether that is the case rather than a judge who, even if they are the best judge in the world, is just one individual who inevitably only represents a particular section of society. I do not think Bernard Barton would disagree with me when I say that even the best judges cannot be said to represent the broad spectrum of society. The chances that a jury might do that are far greater. That is the whole point of juries. They are supposed to represent a broad spectrum of society. Judges, even the best of them, cannot do that. So why is the Government doing what is proposed here? A claim was put forward to the effect that this has to do with disproportionate awards that were being given out. That has already been dealt with, because the changes made since the Supreme Court's decision in 2022-----

Yes.

-----mean that some guidance has being given in that area. In any event, I just do not see how replacing juries in the context of making these decisions, even when it comes to the awards people might get if their good name and reputation have been taken, with a single individual, namely a judge, can be a good thing. The only plausible explanation - it would be interesting to know if this is the case - is that those who own the big media outlets want what is being proposed. Let us be honest, sensational comments about people that may veer into the area of being defamatory or slanderous sell newspapers. They can go further when it comes to the algorithms used by certain social media outlets for that matter. It is not that I want to infringe on free speech – I genuinely do not – but somebody does have to judge whether a line has been crossed and whether something is completely wrong, unfair, baseless, slanderous, defamatory and has taken away someone’s good name and character. Given the choice between an individual judge and a representative body of one's peers, I know which I think is fairer. This is elementary in the justice system. That is true about other things as well, including serious criminal matters. Is it just that the Government is dancing to the tune of the owners of the media outlets and flying in the face of what should really be an elementary legal principle of the justice system? It seems that is what the Minister is doing. I want to flag that I believe this is fundamentally wrong and that we will be voting against it. I am curious to hear why the Minister’s volte face happened and how the Government is going to justify it.

I thank my three colleagues for their contributions. I also thank them for their support regarding the amendments that have been brought here from the Seanad. All three spoke about juries. I will deal with that matter presently. Before I do, I would not like people to think that the primary functions of this Bill are all to do with the abolition of High Court juries. There is much more to the Bill than that, as I am sure colleagues are aware. There are two areas that deserve recognition and attention. I will mention them briefly. They are the amendment to section 26 and the provision of a new defence for retailers. Third is the provision to enable someone to go to the Circuit Court to get an identification order against a social media company that has published information about them that is defamatory but where the identity of the person is hidden. These are significant developments that will assist individuals who have been defamed and who want to get access to the identity of those who have defamed them. Most defamation that takes place in Ireland, as I am sure my friends would agree, happens online by unidentified persons who defame people by means of social media platforms. At present, in order to establish the identity of the defamer, you have to go to the High Court to get a Norwich Pharmacal order to get the social media company to identify the person behind it. As a result of the provision being introduced here, there will now be a straightforward statutory procedure that will enable people to go before the Circuit Court. I think all colleagues will welcome that.

Agreed.

Section 26 has not operated in the way we wanted it to when it was enacted by the previous Oireachtas back in 2009. I think this will benefit it. What I am putting in will make sure it is fair, as well as reasonable. Regarding the retailers, there is a specific section that puts in place what was previously a form of qualified privilege where they had to stop somebody and ask them whether or not they had paid for goods in circumstances where they had not. What everyone wants to hear about is the abolition of juries in the High Court. I would point out that if you take a Circuit Court action for defamation, you do not get a jury. The principle in respect of juries is that, since 1988, they are increasingly being removed from civil actions. It used to be the case, in the early 1980s, that when someone had a personal injury action in Ireland, they had an entitlement to a jury. We got rid of that on the grounds of efficiency and to speed up the process. Unquestionably, it is the case that one of the advantages or consequences of not having a jury in a case is that the trial will be expedited, and we get a solution much faster. Deputy Kelly wants to know why it is that I did-----

Why did the Minister change his mind?

I am going to tell him exactly that. I answered it here before. First, when you go into government, or if you are a member of a political party, as the Deputy knows, you sometimes have to go along with things you probably do not agree with.

So the Minister is bringing in legislation he does not agree with.

The Deputy has to let me speak.

Order, please. Deputy Kelly has made his contribution.

The Labour Party put forward a candidate in the last Presidential election. Deputy Kelly did not agree with it. He did not run off and resign from the Labour Party. He expressed his opinion and made it known but he got on with it and rowed in. That is one of the consequences of being a member of a political party, and more so, being a member of a government. It was a Government decision that was made in the programme for Government that the Defamation (Amendment) Bill, which was commenced before I became a Minister, would be progressed and enacted. That is why.

You do not agree with it.

I am sorry. The Deputy asked about my conviction. It is not a point upon which I am prepared to die in a ditch.

That is fair enough.

It is not the most significant change that I am going to be introducing as a Minister, to be frank with the Deputy. When we look at it, it is removing juries from the High Court in defamation actions. There is no right. I was listening to Deputy Boyd Barrett, who very carefully used his language. I was waiting for him to say it is a right, and in fairness, he did not - he said it is a principle. It is not a right to have a jury in a civil action. It is a principle that had developed but which has gradually been removed on the grounds of efficiency. There is a basis upon which the Government wants to remove juries from defamation actions. There is an understandable basis as to why that is happening. What it will mean in practice is that people will have a greater awareness as to the likely award in a defamation action. If somebody defames Deputy Kelly, Deputy Boyd Barrett or Deputy Ward, and it is a bad defamation, and they go to a lawyer and ask what a court will award them, it is very difficult to advise them what will be awarded if they go before a High Court jury. It depends on what a jury will assess as being the appropriate value. I know that in the Higgins case, the Supreme Court set out what the values should be but from a jury's perspective, it is very hard to advise someone as to the potential liability. If somebody is being sued, it is hard to assess or tell them the potential pitfalls of the case. There are now to be judge-only determinations. I am aware there are negative consequences to that. There will be positive consequences but, of course, there will be negative consequences as well. However, if there is judge-made law in respect of this area, we will see greater consistency and a greater ability to determine what is the likelihood of an award. It is the case, by the way, that in the Circuit Court people can get damages of up to €65,000 or €75,000 in a defamation case. A lot of people go for defamation cases in the Circuit Court, mainly because it is more predictable. There is uncertainty if someone goes before a jury of 12 because they do not really know what the outcome is going to be. A point that has been made is that there is certainly a very strong authority to a jury award, and they are very hard to overturn. What we are going to find now is that there will be a lot of recorded and reserved judgments in defamation actions. If we look through the law reports at present, we will not find High Court decisions on defamation actions in general. They are all, like criminal cases, determinations by a jury, so we just see the award of the jury report in a newspaper. Sometimes, we will see an assessment of a defamation case if it goes to appeal. From now on, however, we will see a body of law being developed, and written judgments by judges setting out why the plaintiff was entitled to €100,000, or whatever the sum is, for being defamed. It will develop a body of law which, in itself, I would have thought is a positive development, as opposed to the unpredictability. To come back to the Deputy’s point, the reason I have changed my mind-----

The reason I am here advocating this is that politics, as Deputy Kelly well knows, is about compromise. Deputy Boyd Barrett said at the outset that there are disadvantages to being in a smaller party. That is true because you cannot cover everything. However, there are some great advantages to being in a small party, and there are some real advantages to being an Independent - you never have to compromise. They are the answers. I know the Deputies will not accept them but I thank them for supporting the amendments.

Deputy Kelly now has the opportunity to respond.

No, we have said our bit.

As no Deputies are offering, I thank the Minister. We will put the amendment.

I ask the Members for their attention. This debate will conclude in 30 minutes. We may, however, conclude prior to that, in which case we will have one deferred division on the Residential Tenancies Bill 2026 before we move to the substantive debate.

Seanad amendments Nos. 4 and 5 are related and will be discussed together by agreement. Is that agreed? Agreed.

Amendments Nos. 4 and 5 amend section 13 of the Bill, which introduces a defence for broadcasters where a defamatory statement is made during a live broadcast, where the broadcaster can demonstrate that it took reasonable and prudent steps to prevent the publication of such a statement. Amendment No. 4 addresses a concern raised in the Seanad as to whether the defence would apply in circumstances where there is a brief delay in transmission of the broadcast. It is not the intention that a short delay in transmission in itself would mean that a broadcaster could not rely on the defence. Amendment No. 4 therefore, provides that for the avoidance of doubt the defence shall not fail by reason only of the live programme concerned having been broadcast with a minimal delay. Amendment No. 5 is a consequential amendment which renumbers the existing subsection (3) of the proposed live broadcast defence. I recommend these amendments to the House.

A message will be sent to Seanad Éireann acquainting it that Dáil Éireann has agreed to amendments Nos. 1 to 5, inclusive, made by Seanad Éireann to the Defamation (Amendment) Bill 2024.