Check Against Delivery

A Chathaoirligh,

I would like to respond, on behalf of the Minister for Justice and Equality, Ms Frances Fitzgerald T.D., to this Private Members’ Bill .

At the outset, I would like to thank Senator Crown, Senator Barrett and Senator Daly for preparing and introducing this Bill, for opening this issue to discussion, and for providing me with an opportunity in the House today to set out the Government position in relation to it.

The Bill is a short one, which seeks to amend the Defamation Act 2009 on the relatively narrow issue of the bringing of defamation proceedings by corporate bodies under s. 12 of the Act.

The Minister considers that the Bill, as drafted, is deficient and would require extensive further examination and amendment. On a preliminary examination, we have a number of substantial concerns which I’ll present briefly.

The present legal position is that the Defamation Act provides at section 12 that:

‘The provisions of this Act apply to a body corporate as they apply to a natural person, and a body corporate may bring a defamation action under this Act in respect of a statement concerning it that it claims is defamatory, whether or not it has incurred or is likely to incur financial loss as a result of publication of that statement’.

This provision sought to recognise the full importance - commercial and non-commercial - of a body corporate’s reputation, and to protect that reputation against defamatory statements, even in situations where it might be difficult to prove or to measure resulting financial loss.

For example, it might be difficult if a company had only recently started up, or had just entered a new market. Or if the main impact of the defamatory publication was to make it very difficult to recruit or retain staff, or to cause distrust in relations with core partners such as its bank, customers, or trade unions.

Under section 12, a body corporate which is not involved in commerce is similarly entitled to protect its reputation against defamatory statements, whether it operates in the public or in the private sector, and even if it is not suffering identifiable financial loss.

The Defamation Act of course also provides for a number of statutory defences to a defamation action – the defences of truth, absolute or qualified privilege, honest opinion, and fair and reasonable publication on a matter of public interest.

 

That’s the current position. Now for the changes proposed by the Bill.

 

The Bill would amend just 3 sections of the Act:

– section 12, which as I just outlined, provides that bodies corporate can bring defamation proceedings ,

– section 13, which allows for the Supreme Court, on appeal, to revise the amount of damages awarded for defamation in the High Court (by a jury), and

– section 31, which lists various factors that the court must take into account when deciding on an award of damages for defamation.

 

All the Bill’s proposed changes relate to the bringing of defamation proceedings by bodies corporate, under section 12 of the Act.

The central change put forward by the Bill is the proposed new subsection 12(2), which would radically limit the damages that could be awarded to specified types of corporate bodies, in a defamation case, to a nominal 1 euro.

The proposed changes to sections 13 and 31 are ancillary in nature, so I’ll concentrate my remarks here on the proposed changes to section 12.

As I indicated, the Minister considers that the Bill as drafted is deficient, and would require extensive further examination and amendment.

Based on a preliminary examination, her reservations include the following :

1) The Bill’s central proposal is to impose a limit of 1 euro on the damages that can be awarded in a defamation case to any of the very wide range of bodies corporate listed in proposed section 12(3). The text provides that a court may not even consider any higher award, irrespective of the nature and extent of the damage actually suffered. This is a very radical proposed intervention, and would require very careful scrutiny, including as regards its constitutionality.

2) The Bill would impose this new limit on any body which falls into any of the extraordinarily broad and diverse list of categories set out in proposed section 12(3) (‘the List’). The Bill also defines any body covered by the List as a ‘public body’.

We would have very serious concerns about the excessively broad scope of the List, and I’ll explain them briefly.

The Bill’s stated objective is to limit the damages that public bodies can be awarded in defamation cases, apparently with a view to discouraging them from bringing defamation proceedings.

But the List in proposed section 12(3) seems to fundamentally confuse different sorts of public and corporate bodies, so that it includes in the Bill many bodies which don’t seem relevant to the Bill’s objectives.

We have to bear in mind that what we know as public bodies are in fact a diverse mix including bodies incorporated under the Companies Acts, under other statutes, or (in some cases) under charter. They include bodies which have corporate identity and entities which do not. Some have commercial purposes or activities, and others are non-commercial. Many of our commercial state-sponsored bodies operate and compete in markets alongside private company competitors.

To give some non-exhaustive examples - The List includes:

- Bodies which are not corporate (which means they were never eligible to bring defamation proceedings under section 12 of the Act, and aren’t relevant to the Bill’s purpose) – e.g. Departments of State, listed at proposed 12(3)(a), are not bodies corporate. Similarly, it’s not clear that all of the diverse public health bodies, in category 12(3)(h), would be bodies corporate.

- Bodies which are not ‘public’ (That’s a problem, because once a body is included in this list, the Bill defines it as a ‘public body’, at section 12(2)). For example, the entities established by charter, which are included in proposed 12(3)(b) and 12(3)(g), are not necessarily public bodies.

 

- Bodies which are undefined: Half of the eight categories in the list – proposed 12(3)(b, d, f and g) - refer to ‘entities’, but this term has no legal definition, so it may be difficult to decide what bodies fall into those categories.

- Bodies which are public but commercial – e.g. categories 12(3)(b),(c), (d), (e) and (f) appear to cover a wide range of State-sponsored bodies with commercial activities. But this means that under the Bill, a commercial state sponsored body which suffered financial losses due to a defamatory publication could only recover nominal damages - whilst one of its competitors operating in the same market would not be subject to any such limit.

- Charter bodies - which may be corporate and public, but not governmental

Proposed section 12(3)(b) includes in the list any body which is ‘an entity established by charter’. This group seems to include bodies established by charter such as Trinity College, the Incorporated Law Society, and the Royal College of Surgeons: it is not clear whether the Private Members’ Bill intends to impose a 1-euro limit to the damages that can be awarded in a defamation claim by any of these or similar bodies.

3) Section 13 of the Bill refers to appeals in defamation cases, but it identifies the Supreme Court as the normal appellate Court from the High Court. Since this Bill was published, significant changes were made to the Supreme Court's appellate jurisdiction, with the coming into effect on 28 October 2014 of the amendments in the Thirty-third Amendment of the Constitution, and the establishment of the Court of Appeal on 28 October 2014 under that Amendment.

In addition the wording of proposed section 13(1)(b), unlike section 13(1)(a), does not seem to indicate what the appellate court may substitute for an award of nominal damages made by the High Court under the Bill.

4) Furthermore, the Bill proposes the substantial approach of imposing a far-reaching limit to redress in any defamation action taken by a broad range of corporate bodies, in pursuit of an objective which appears quite disproportionate.

The Bill’s stated intention is to prevent public bodies from using the resources of the State to issue defamation proceedings in order to influence comment by the press and public. But in practice, defamation proceedings by public bodies are very rare, and it can hardly be argued that the press or the public in Ireland are reluctant to enter into robust criticism and debate regarding the actions and policies of public bodies. This Bill seems – at best – a legislative sledgehammer to crack a very small nut.

I would point out that the Defamation Act is only 5 years old, was debated in some detail in both Houses in 2009, and represents a recent and well thought-out balance between the right to freedom of expression and the right to protection of good name and reputation.

I have highlighted, non-exhaustively, some of the numerous questions that have arisen in our preliminary examination of the Defamation (Amendment) Bill 2014. More time would be needed to consider the Bill in detail and to further assess its potential wide-ranging implications. The Office of the Attorney-General would also need to be consulted, as well as the Government Departments and State agencies potentially involved.

What’s more, section 5 of the Act already provides for a statutory review of the Act’s operation, to be commenced within five years after the passing of the Act and to be completed within one year. Preparations for this statutory review have already begun within the Department of Justice and Equality.

Subject to the reservations I have already mentioned, however, the Minister considers that there may be a case in principle for reviewing the specific question whether, and to what extent, a public body which is a corporate body should be entitled to bring a defamation action under section 12 of the Defamation Act, and for assessing to what extent such an action remains relevant and appropriate.

Such a review will need to take careful account of the many different types of public bodies which are corporate bodies.

In particular, the issue being raised via this Bill is only one piece of a large and complex jigsaw. It would be unwise to treat it in isolation, and particularly, outside of the context of the imminent statutory review of the Act. That review offers a valuable opportunity for consultation and discussion with stakeholders on this question, and on the wider context of the Defamation Act overall, which should be fully used.

A Chathaoirligh,

The Government will not oppose the motion before the House today.

However, in view of the reservations I have set out, further examination, and substantial amendment, of the Bill will be required, and proposed, by the Government at Committee Stage.

 

ENDS