It is a long and winding road for the defamation Bill.
Currently before the Seanad, its myriad elements have been discussed in a painstaking way. With the first on July 9th, there have been eight debates to date.
Given the length of time it is taking to get through amendments, there have been some questions raised as to whether a “filibuster” – a parliamentary tactic where legislation is delayed by debate – is in effect.
Similar accusations were made during the scrutiny of the Judicial Appointments Commission Bill in 2018 and 2019.
READ MORE
Then taoiseach Leo Varadkar accused senators of seeking to hold up the Bill and of delaying the minister for justice Charlie Flanagan from dealing with other important pieces of legislation.
The Defamation (Amendment) Bill is the most significant reform of defamation law in Ireland in decades.
It proposes the abolition of juries in libel actions and seeks to put an end to lawsuits designed to stymie comment and coverage about particular individuals or organisations. Those lawsuits are commonly referred to as SLAPPs, or Strategic Lawsuits Against Public Participation.
It could conceivably speed up the entire process of going through the courts and reduce costs.
According to Newsbrands Ireland, the representative body for the news publishing industry, of which The Irish Times is a member, it needs “immediate enactment”.
“The Programme for Government committed to passing the Defamation Bill within 90 days,” says Newsbrands chief executive Ann Marie Lenihan.
“That deadline has long since passed.”
She says reform of the “outdated” law is essential and must be changed “to properly balance the public’s right to know and the individual’s right to a good name”.
“The law has long been used by the rich and powerful as a shield against criticism,” she says.
“Defamation law, as it stands, places disproportionate risks and financial burdens on publishers, severely limiting the media’s ability to investigate and report on matters of public importance.”
Independent Senator Michael McDowell, the barrister and former Cabinet member who as minister for justice brought through the previous Defamation Act in 2009, has been to the fore in the Seanad in expressing concerns about the Bill.
In particular, he says the abolition of juries needs to be reconsidered and proposes that judges should be able to decide in certain cases if a jury is required or not. Cases, he says, which have “hotly contested facts and a public dimension”.
“The media has been scandalous – they have not referred to it once – this debate. Not one sentence, not one comma has been covered in any medium that I’m aware of,” he says.
“In the Dáil the parties gave it the most cursory scrutiny – no party wanted to retain juries because they are afraid of the media.”
McDowell dismisses the suggestion of a filibuster and says serious changes are being proposed that deserve wider public scrutiny.
He says examination should be given to changes to the public interest defence contained in Section 26.
“[Do] we want to change the law to permit anyone to inform the media that a person of public standing has been accused of a grave crime ... and is being investigated in respect of that accusation, and for the media to report as much – and in the end to leave the person defamed absolutely without any remedy at all when it later transpires that the accusation was untrue ... so long as the publishing journalist acted in good faith?” he says.
“The point we have been making – and this isn’t being covered by the media – is that it is entirely in favour of the broadcast media and wipes away important rights of ordinary people that were put there in 2009.”
The Government frames the Bill as an attempt to better balance the right of an individual to protect their good name with the right to freedom of expression.
Until recently Fianna Fáil’s Jim O’Callaghan, who is also a barrister, had found himself on the other side of the equation – lined up with colleagues in the Law Library who were againstthe proposed legislation.
As a backbencher in the previous Government, he described plans to abolish juries as “short-sighted” and “not fully thought out”.
Now as Minister for Justice he is tasked with bringing the Bill through the Oireachtas and these lengthy Seanad debates.
“I can fully understand the allegation that we are trying to filibuster,” says Senator Gerard Craughwell.
“I was involved in a filibuster – one that was fully justified – against the judicial appointments Bill which was frankly nonsense.
“But this is not a filibuster. This is about teasing out every aspect of it.”
He describes this as a situation where “two very qualified lawyers” in O’Callaghan and McDowell) are “thrashing out legal arguments – it might appear as if it is filibustering but it isn’t.”
Craughwell says he is worried about parts of the Bill which, he says, “lowers the bar for the defence and increases the cost of taking a case for the plaintiff”.
He questions why the same standards of liability that apply to the likes of RTÉ and prominent news publishers do not seem to be applicable to online podcasts and social media companies who host countless “radio and TV-type” programmes.
“Anybody can set one up,” he says. “There are a lot of different groupings with no means whatsoever who are happy to stand up and say anything they want about people.”
Several other senators have joined with McDowell and Craughwell to take issue with aspects of the Bill.
There is “plenty of good” in the Bill, says Senator Ronan Mullen, “but they’ve taken their foot off the brakes too much.”
Mullen has concerns about the public interest defence and live broadcast defence contained in the Bill.
He believes there is a “let-out” for publishers and broadcasters who cover disputes between two parties where potentially defamatory statements could be reported as part of an exchange.
“What does it mean to say we are just reporting fairly the two sides of a dispute?” he asks.
“In circumstances where A picks a fight with B – is it enough the media comes along and dutifully reports what A says about B and B simply states their own defence?”
The length of time the debate is taking in the Seanad is “concerning”, says assistant general secretary of the National Union of Journalists (NUJ), Seamus Dooley.
He says the NUJ’s position on the use of juries in defamation cases has changed over the years and it now believes they shouldn’t be used.
“We think that the evidence is that the jury system has not been good for journalism,” he says.
“There is a real issue in relation to defamation cases; there is frequently no reality in relation to the damages in particular. And there is often an assumption on the part of juries that media organisations are very wealthy.”
He says for many defendants this is not the case and that for some regional titles in particular a significant libel case could wipe them out.
“We do understand that there is a very strong tradition of respect for juries in Ireland – and how that has become a sticking point,” says Dooley.
“But the outcome of the recent Denis O’Brien case is an indication of just how expensive defamation proceedings can be. And the costs issue is one, as far as I can see, hasn’t figured a lot in the Senate debate”.
Dooley says the NUJ believes that for many people the best way to seek redress is through the more “efficient” Press Council.
“One of the big problems of the courts system is that it is so slow – and lack of speed means high cost,” he says.
O’Callaghan does appear to have exercised great patience during the Seanad process, with little suggestion that he would look to truncate – or guillotine – the debate. The prospect that the Bill could be enacted early next year has not been ruled out, according to informed sources.
Another slate of amendments are tabled for the coming days – before going to the report stage – the fourth stage of five in the legislative process where amendments arising from the third, the Oireachtas committee discussion stage, are considered.
The Minister is known to be keen on aspects of the Bill.
When he first addressed it in the Seanad, he made specific reference to a provision that would expose anonymous abuse online. Under the change, somebody would be able to obtain a court order that would compel internet service providers to identify the source of defamatory comments.
Craughwell is full of praise for the Minister: “He has addressed everything that is being said – he got up and shot a hole through all my amendments last Tuesday afternoon. He makes some very solid arguments”.
According to Seamus Dooley, the longer the Bill remains unenacted, the longer the “chill factor” around Irish journalism will continue.
“That fear of the solicitors’ letter is still there,” he says.
