Defamation (Amendment) Bill 2024: Committee Stage (Resumed)
Seanad Éireann — 2025-11-12
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Jim O'Callaghan (FF), Dublin Bay South

I thank Senators Nelson Murray, Keogan and Cosgrove for their amendments. Senator Nelson Murray has withdrawn her amendment. It is very much in line with the general thrust of the amendments put forward by Senator Keogan, and Senator Cosgrove to a lesser extent.
Defamation actions vary in their seriousness, impact and nature. In many respects, they are similar to personal injury actions. You could have a very minor personal injury action where somebody trips over and sprains their knee. Similarly, you can have an extraordinarily serious personal injuries action, such as a child having been delivered through negligence at birth and having suffered life-changing injuries. There is a variety in terms of defamation actions, just as there is in terms of personal injury actions.
Much of the motivation behind the amendments from Senators Nelson Murray, Keogan and Cosgrove relates to the position of retailers. It is the case that retailers have been subjected to inappropriate defamation actions. That is why I have put into this a specific statutory defence for retailers that never existed before and that will be of great benefit to them.
However, we need to recall that defamation goes beyond just retailers. We also need to reflect on what was reflected in the previous debate: the right to the good name of the individual. That is one of the rights that has to be balanced and the other is the right to freedom of expression. We have seen, in the past, very serious examples of people being defamed. Prominent people have been accused - and Senator McDowell will be aware of this from his previous tenure here - being involved in the most serious elements of child abuse. That was published broadly. There has to be a consequence to that and in this House, we need to consider that if we are dealing with the serious end of the range of defamation actions, what should be the remedy? If we are talking about the serious end, we have to give an example of the serious end. It is somebody being accused of very serious criminal wrongdoing when there was no liability on their part, in circumstances where the publication has been broadcast very widely - let us say it has been broadcast in a national newspaper or on a national broadcaster - and it has had a very significant detrimental impact on the individual concerned. For instance, earlier Senator Mullen gave the example of the case of Fr. Reynolds against RTÉ. I would have thought that was an example of a defamation action at the very serious end of the range.
We need to recognise that if that serious type of defamation occurs, there needs to be an appropriate remedy for the person whose good name has been severely damaged. That is why I am concerned about and opposing the two amendments that are still subsisting, those from Senators Keogan and Cosgrove. First, in respect of Senator Keogan's amendment, she wants to put a cap on damages for a defamation claim limiting general damages to €250,000. Subsection (2) indicates that there would be an overall cap of €400,000 that would apply to all forms of damages, with the exception of special damages. My concern about that is that it may not be permissible constitutionally because we could find ourselves having examples where somebody has been severely defamed and the court would turn around and say an award of that amount does not accurately reflect the damage done to the individual's good name.
The Senator also talked about guidelines. We have guidelines for defamation action at present. They are not in the same way as the personal injuries guidelines, amendments to which were suggested recently, but the decision in the Higgins case in the Supreme Court set out guidelines for appropriate awards of damages relating to general damages in a defamation case. They indicated that the presumptive upper limit would be €300,000. In setting out that figure, the Supreme Court noted that while such cases would be exceptional, there would be cases in which exceeding that threshold would be warranted. What the Supreme Court did in the Higgins case was set out about four categories of defamation cases referred to in the decision of Mr. Justice MacMenamin. He said that minor defamation cases should not exceed €50,000 and, in many instances, they would be much lower. Then he went to two higher levels and the highest level and set out grades. Generally, the presumptive upper limit of the Supreme Court's ruling in the Higgins case is €300,000.
The Higgins decision also went on to consider questions of aggravated damages. This indicates to me that there would be serious cases in which the mandatory cap proposed by Senator Keogan would be too low to sufficiently vindicate the right to a good name. Although those cases may be rare, we still need to consider them and the State has a constitutional obligation to ensure that in those cases, the individual impacted is sufficiently compensated and their reputation sufficiently vindicated.
The thresholds indicated by the Supreme Court in the Higgins decision, although not identical, are within a similar range to the figures outlined by Senator Keogan. As was the case in respect of Senator Nelson Murray's amendment, I believe that the Supreme Court's guidance, alongside the jury reform measures proposed by this Bill, will provide courts with a flexible, sustainable and legally robust method of providing appropriate awards of damages in defamation cases.
That is preferable to a rigid statutory cap, which at best might indicate to individuals that awards of €250,000 to €400,000 are what to aim for in cases of defamation and could have adverse impacts on the settlement of claims and alternative dispute resolution. I, therefore, cannot accept Senator Keogan's amendment.
Senator Cosgrove seeks to amend section 31(3) of the 2009 Act so that it provides that general damages in a defamation action "shall not be presumed". A "defamatory statement" is defined in the 2009 Act as "a statement that tends to injure a person’s reputation in the eyes of reasonable members of society". Accepting Senator Cosgrove's amendment would amount to a legislative instruction to the court that in circumstances where a finding had been made that a person had suffered injury to their reputation, no damage should be presumed to flow from that injury. This severing of the link between injury suffered and damages awarded would be out of step with civil law generally and could be seen as an undue intrusion on the discretion of the court. It is also unclear what it would achieve. The 2009 Act already provides legislative guidance to the courts which requires them to have regard to the nature and gravity of a defamatory statement, among other factors. There is nothing in section 31 that would prevent a court from finding that an injury to reputation had occurred but the nature and gravity of the injury was such that only a nominal amount of damages was appropriate. The reforms to the role of juries provided for in the Bill will also mean that the question of damages will be decided by judges, who will produce reasoned judgments setting out why the award of damages provided for is considered appropriate and proportionate, having regard to the guidance provided by the Supreme Court in the Higgins case. For that reason, I cannot accept Senator Cosgrove's amendment.
We have previously seen examples where juries have given very large awards or awards that are hard to explain to the parties before the court. One of the advantages of removing juries is that now a High Court judge who is awarding a significant defamation award will have to set out in the judgment the basis upon which he or she has determined that the award should be made at that level. It is also the case that in the Defamation Act at present there is a section that deals with damages, as I have just mentioned, and that sets out what the court is required to take into account in determining what damages should be awarded. It is the case that the primary, though not exclusive, remedy for those who have been defamed is an award of damages. As I mentioned earlier, other remedies, such as correction orders, are available. They are something that parties should be aware of. Unfortunately, I cannot accept either amendment.

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Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2025-11-12/debate/main
Retrieved: 2026-08-14T04:54:18+00:00
Sitting date: 2025-11-12