Defamation (Amendment) Bill 2024: Committee Stage (Resumed)
Seanad Éireann — 2025-12-03
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Michael McDowell (IND), National University of Ireland

I move amendment No. 20:
In page 21, line 30, after "Court" to insert "and the High Court".
This series of amendments in my name are intended to improve the identification order provisions proposed in section 22. I support the provision in the Bill for a workable, simple and inexpensive means whereby people who are defamed anonymously on social media can identify the defamer insofar as that is possible. It is important that anonymous defamation should be discouraged, obviously, and that anonymous defamers should be accountable and should be rendered liable to being sued personally. The present law is judge-made law known as the Norwich Pharmacal procedure whereby somebody who is not liable for a defamation, for whatever reason - and perhaps, too, where he or she is liable - can be ordered to identify a person who appears to have defamed a would-be plaintiff.
I will speed things up by going through the amendments I have proposed. The first provides that the High Court have concurrent jurisdiction under this section. The reason I consider this sensible is that we may have situations where High Court proceedings are already in being and either a defamation is repeated in that context or a party to the High Court proceedings resorts to an anonymous publication to repeat the defamation already made.
I do not see what is wrong with saying that the High Court should be excluded from the statutory procedure envisaged by the Minister's new section 45. That is the first point.
It is not that I want to increase costs. It is quite the reverse. It is that if a court has seisin of a defamation, it may, in an ancillary way, want to make an order of the kind envisaged by this section to include a party that has not yet been properly identified. The idea that you would have to go to a different court to get your identification order and then come back to the High Court seems unnecessary. The first of my amendments is to suggest that the High Court should have concurrent jurisdiction to do so. Insofar as it is suggested that this could increase costs, it could not because the Circuit Court will, in any event, have jurisdiction to make the order one way or the other.
The second amendment is to insert the word "seriously". We have already debated serious defamation in this House. The Minister has intimated, though I do not accept it, that the threshold of seriousness is problematic in the view of the Attorney General's office, in that it might be seen to be an impermissible derogation from the general right to defend one's good name. I do not accept that. However, that is why amendment No. 21 is there in my name.
Amendment No. 22 is to be read in conjunction with amendment No. 23, which proposes to remove lines 18 and 19 of subsection (3) as it appears on page 22 of the Minister's Bill. The reason I am proposing this is that proof that you have "no other practicable means of obtaining the relevant information" is, in my view, an unnecessary proof, bearing in mind that paragraph (a) already provides the court has to be satisfied that:
a statement was published, or caused to be published, on an information society service by means of an intermediary service provider by a person or entity (in this section referred to as an ‘anonymous publisher’) whose identity is unknown to the applicant and whose identity is not readily ascertainable on the face of the statement or from other information available to the applicant on the information society service
I think that should be enough to make it easy to apply for this identification order. I do not think one should then be forced to say there is no other practicable means of obtaining the relevant information. It seems vague as to what would be entailed in demonstrating to a court there is no other practicable way that I can identify the person who has defamed me. Does it involve employing somebody to analyse other postings on the Internet service provider? Does it envisage employing online detectives to arrive at the same information? I do not see that paragraph (e) adds much to the Minister's proposed requirements for the making of an order.
The next proposed amendment I have is to substitute the word "shall" for "may" in line 20. That is to make it obligatory for the court exercising this jurisdiction to make an identification order on the terms set out in the remainder of the subsection. We have to consider what the subsection says. Subsection (4) states:
A court may—
(a) make an identification order only where it considers that—
(i) it is in the interests of justice to do so, and
(ii) the interests favouring disclosure of relevant information outweigh those against, having regard to the rights and obligations of the applicant and those of the anonymous publisher and any third parties who are reasonably likely to be affected by the order
If the court is satisfied that it is in the interests of justice to make it, that the interests favouring disclosure outweigh those against forcing disclosure, and that all of this is done having regard to the rights and obligations of the applicant and those of the anonymous publisher and any third parties who are reasonably likely to be affected by the order, on what basis should the court have a residual discretion to say those things may have been approved and it is satisfied of that, but is still of an ultimate discretion not to make an order at all? If somebody can establish, to the satisfaction of a court, and the court considers it in the interests of justice to make an identification order and the interests favouring disclosure of relevant information outweigh those against, and that this consideration of the court has regard to the rights and obligations of the applicant and those of the anonymous publisher and any third parties who are reasonably likely to be affected by the order, in those circumstances there should be an obligation to make the order.
Paragraph (b) does not affect whether it is obligatory or not because it purely deals with matters that the court considers appropriate - "restricting the use of relevant information so disclosed" and "an undertaking ... not to use the relevant information so disclosed other than to bring defamation proceedings against the anonymous publisher." In relation to paragraph (b)(i) and (ii), I ask whether that is again written too tightly. With regard to the terms, "restricting the use of relevant information so disclosed" to the bringing of the "defamation proceedings against the anonymous publisher", can the relevant information be used against somebody else? If you have a choice of two people or it turns out that if it was not A it must be B who is the defamer, to say you cannot use the information against B because you have undertaken that it is only A that it can be used against in defamation proceedings is, in my view, mistaken. Second, it is too tight in that it could apply to a malicious falsehood situation. I make those points in relation to that.
The suggestion in my next amendment that in lines 32 to 37 the specific terms are overly and unnecessarily restrictive is a strong view on my part, which I ask the Minister to take into account.
The next amendment in the series of amendments I have proposed relates to subsection (5). This is an important point. Subsection (5) states:
The court may, whether or not it has made an identification order and where it considers it appropriate to do so, order that an applicant pay any or all of the costs of the relevant intermediary service provider in relation to an application and the costs resulting from the making of any identification order.
This may reflect the existing arrangements in relation to Norwich Pharmacal orders but it is not fair to potential plaintiffs that, even if they succeed in persuading the court that the identity of the defamer should be disclosed to them, they should then be exposed to the very real risk that they owe an Internet service provider the legal costs involved in debating the issue. If they succeed, whereby a court finds it is in the interests of justice that the identification order be made, the applicant has satisfied the court under subsection (3)(b) that there has been an anonymous publication, that the statement is defamatory and that the claim it is defamatory is likely to succeed at trial, then I cannot see any good reason the Minister should put into statute form the suggestion that some Internet service provider should be able to say this is fine and all of these things have been established but now pay me the cost of contesting the application. This cannot be right.
Are we on the side of people who can show they have been defamed and that they need this information? Is there some group of Internet service providers who, having been the vehicle of defamation, are so impoverished that it would be unfair to say that if they lose a contest on disclosure, they may not, nonetheless, ask the court to have their own costs paid? I do not see how that is fair at all. I know the current Norwich Pharmacal procedure operates on this basis but this seems to be cowardly, in the sense that if all of the other criteria in the section are satisfied, it is a matter of right and vindication of right that the citizen who has been defamed should be able to get that information without the risk that X or some other Internet service provider could say that is fine, it lost the case and the plaintiff did get an order against it but, in all the circumstances, the Act says the court can order that the plaintiff pay for the dispute in the High Court which the provider lost. I cannot believe this is remotely fair.
I do not know the thinking that lies behind preserving the right of an Internet service provider which contests and loses an application for identification, where all the proofs of the person defamed have been complied with, whereby they are likely to win when the case comes on, the relevant information is necessary to enable them to bring the proceedings, the information is in the possession of the relevant intermediary service provider, it is in the interests of justice that the disclosure order should be made and the interests of justice favouring disclosure of relevant information outweigh those against. Why in God's name should a court be given jurisdiction to tell someone they have succeeded in satisfying all of these criteria but the Internet service provider has come to court and contested the whole thing and now wants the person to pay its costs of complying with the High Court order? That is grotesque. It really is grotesque.
I hope it is not that the Irish State is so afraid of the large IT companies and tech companies that it wants to discourage these identification orders from being made. Having to comply with all of the other necessary proofs and having to satisfy the court on the matters which are set out in this section mean that only a person who has a good case in defamation and who can satisfy the court that nobody else has interests which outweigh the potential plaintiff's interest in finding out who is defaming them online can get such an order. We are now saying that, notwithstanding all of this, an Internet service provider should have the statutory right to apply for its costs having lost the dispute and having been the vehicle whereby somebody's character was very seriously affected by something it carried for reward. I cannot understand why it should be said of such an Internet service provider that it should be entitled to be compensated for any legal application being made against it in these circumstances.
This is also related to amendment No. 26. Instead of subsection 5, it should read as follows:
The court may order that the relevant internet service provider pay any or all of the applicant’s costs where it appears that the service provider failed or refused unreasonably to provide the applicant with relevant information when requested so to do or where the applicant succeeds in obtaining an identification order.
If the person who would be an applicant writes a letter beforehand to the Internet service provider stating they have been very seriously defamed and that they will go to court to get an order against it, if the provider unreasonably forces the person to go to court, this is one circumstance in which the provider would be liable for costs. The second circumstance is, with this having happened and the applicant having succeeded in obtaining an identification order, the court has jurisdiction to award the would-be plaintiff costs of winning the case against the resistance of the Internet service provider in circumstances where the court may order that it has jurisdiction so to do.
Subsection (5) as proposed by me is designed to switch the emphasis in the Minister's subsection (5) to say costs should usually follow the event. This is the normal provision. There is no need to hold out to Internet service providers that they can get their costs even when they ignore a reasonable request and even where the court finally finds in favour of the applicant. Since we are dealing with alternative dispute resolution, it provides a mechanism whereby somebody can write to X and say this particular person has defamed them and that it is anonymous, and if the company has any good bona fide reason to consider that it should not identify the person to them, that is fine, but if it does not have such reason, it should be on its guard that if it insists that the matter goes to court, it will have the costs of the application lodged at its doorstep rather than otherwise.
Amendment No. 27 is something which really needs to be considered by the Minister as well.
If an order is made directing X to say that the anonymous defamer was Joe Soap, how does the person who has been defamed prove that in subsequent proceedings? Is the person to bring witnesses from X to establish how X decided that the anonymous defamer was Joe Soap? How does someone prove it? It is within the almost exclusive knowledge of the Internet service provider as to who actually caused some defamation to be posted.
If we do not change the laws of evidence to allow the fruits of an identification order to be admissible without further proof, we will have to tell people who obtain such orders that they will have to use their own resources to prove that it was Joe Soap. Are they to subpoena ISPs? All that subsection (7) proposes in my amendment is that if X says it is Joe Soap, that is admissible against Joe Soap. It does not mean it is proof beyond contradiction. It means that if X says that it appears that Michael McDowell posted this defamation and it is his account, whomever I defamed anonymously should be able to bring that before the court in the subsequent defamation case without bringing X along to court to prove how it arrived at that state of knowledge and that it should not be hearsay. There is a big problem with hearsay here if simply all a person has is a piece of paper identifying the alleged defamer.
Those are the arguments I have put forward for amendment Nos. 20 to 27. I completely support the Minister's determination, which I hope it is, that anonymous defamation and defamers be easily identified, subject to whatever rights protect against abuse or that somebody would not be identified in circumstances where, for instance, if a person is from another state or a dissident in a tyrannical regime, their personal rights in relation to privacy or protection against coercion or punishment were compromised. People like that should have protections - I have no problem with that - but I strongly believe that the Minister's amendments are too conservative as set out in his section 22 and leave a whole series of problems there. Not least of these is that a solicitor to whom somebody comes saying that he or she wants to find out who has defamed them anonymously on the Internet would, if the Minister's section stands, be obliged to say that the person may well be right, that the person may well be able to establish to a court's satisfaction that her or she will succeed in all probability in a defamation case against whoever posted that material, it may well be the case that, on the face of it, the damage done to the person outweighs any possible risk to the rights of the poster, and it may well be the case that it is established to the satisfaction of the court that the person does not know who the person is, but the solicitor would have to warn the client that, due to the way the Minister has drafted his section 22, it is possible that the Internet service provider, having disputed the matter, will say that it wants its costs of complying. To me, that seems grossly unfair. Those are the points I want to make at this stage.

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Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2025-12-03/debate/main
Retrieved: 2026-08-14T04:54:25+00:00
Sitting date: 2025-12-03