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

Cuirim fáilte roimh an Aire. I welcome the initiative the Minister has taken in bringing forward this proposed section. You would have to be some strange kind of free speech absolutist to say that what has been going on in these days, times and years on social and online media is acceptable for the sake of maintaining an absolute free flow of ideas. Senator McDowell, others in this House and I have acted strongly and purposefully to defend the free exchange of ideas, particularly the free exchange of political ideas. Going back to the legislation on hate speech and so forth last year, it has always been the view of reasonable people that stuff is said online that should never be said. Serious harm is being done, not just to people's reputations, which we are concerned with here in the context of defamation legislation, but to people's welfare, full stop, in all sorts of different ways.
Everyone here has been subjected to abuse of one kind of another online. Sometimes, we have been subjected to fair criticism, but sometimes it goes far beyond that. I have often thought that one of the problems with the online space is that it gives people, who in the past only had toilet walls in public places to write on, an opportunity to seriously attack people and to bring their ugly invective and accusations to the attention of a wide audience.
I remember thinking some years ago that everybody in public life and anybody concerned with their own mental health needs to think very carefully about how they engage with social media and, if they communicate ideas into social media, how much attention they pay to what is said. A lot of politicians seem to be on social media very often and are arguing back and forth with people. It seems to me that, in many cases, they are giving very unreasonable and ugly people a big stick to beat them with.
If you read someone saying nasty things about your appearance or making false or defamatory claims about you, you may try to convince yourself that it reflects on those people and not yourself. You may try to convince yourself that such people are so unreasonable that no notice should be taken of them, much less no recourse sought to the courts to seek to vindicate your reputation. However, it is very rare that people are not in some way affected in their happiness and well-being by being exposed to such ugliness and nastiness. My advice to people has always been to treat social media sparingly and to use it to communicate their messages outwards. If you are in public life, it really does not make much sense to be reading about what people are saying about you at all. Presumably, if a person is fortunate enough to be elected, that means you must have some number of supporters who can maybe keep an eye on these things for you, winnow them out, draw your attention to the things you absolutely have to know about and, hopefully, fight a bit of a battle of your behalf as regards those things you do not need to know about.
Like Senator McDowell, while I applaud what the Government is doing, I am concerned that it is making it too hard for people to get the redress it proposes to make available or to access the levers it proposes to make available in order to obtain important information that could be relevant to defamation proceedings.
Senator McDowell very helpfully went through the rationale for each of his amendments. I will comment briefly on what I thought of them. I have some questions too, which I maybe should have posed to him earlier, that may be answered in the course of this debate.
The amendment the Senator tabled on the possibility of a concurrent jurisdiction of the High Court makes great sense. He pointed out that this should not give rise to further legal costs; quite the contrary. If one imagines a High Court with seisin of a defamation matter, it surely means that the court, in dealing with the case, has a much clearer idea of what is at stake, and why it is relevant to the proceedings that information be obtained about the identity of somebody who made an allegedly defamatory statement online. Surely the court sees matters more clearly than a different court being asked to adjudicate on that matter alone. It is relevant that the High Court would have the knowledge of the seriousness of the situation that would enable it to determine properly whether to make such an order.
If you imagine circumstances where, in the context of defamation proceedings, something else is said online by a defendant that is itself alleged to be defamatory, that is the kind of thing that would surely involve exemplary damages, for example. Again, that seems to be another reason the High Court, having seisin of the principal defamation action, should also consider and be enabled to consider it appropriate that it would make a determination about the order sought regarding the identification order.
I have some questions - and perhaps I was not listening closely enough - as to why Senator McDowell is proposing the insertion of the word "seriously". On the face of it, I am quite happy that "a claim by the applicant in any defamation proceedings against the anonymous publisher that the statement is defamatory [and could] ... succeed at trial" would be sufficient. I would prefer to leave it at that low bar, but, again, Senator McDowell may have good reasons for the proposal. I look forward to hearing more about it.
I support the other amendments, in particular the reference to page 22, line 20, where Senator McDowell proposes the substitution of the word "shall" for "may". I have a question in relation to that. If the Minister were minded to accept the amendment, the section would read, "A court [shall] ... make an identification order only where it considers", etc. Were the word "only" to remain, would that in some way weaken the obligation of the court to make an order? Is it arguable that if the word "shall" is substituted for "may", then the word "only" should be removed? That occurred to me as I listened to Senator McDowell explaining the amendment. It is a question rather than a statement.
Amendment No. 26 proposes the substitution of a new section 22(45)(5) that would read, "The court may order that the relevant internet service provider pay any or all of the applicant’s costs". I could not agree more with the proposal that the existing lines 38 to 42 be deleted in favour of Senator McDowell's proposed wording. In fact, I am astonished that the Minister, in his proposed section, would open up the possibility that a court, having possibly made an identification order, would then punish the applicant and potentially leave them with the costs. That would result in a very pyrrhic victory for an applicant. As Senator McDowell said, the normal principle is that costs follow the event. I presume that is his proposed wording states, "The court may order ... the relevant internet service provider", as opposed the phrase "the court shall" being used. I presume that allowing the courts to do their work normally means that the costs follow the event, and that the amendment does not seek to displace the courts' normal jurisdiction and approach in those matters by not proposing the use of the word "shall".
It is vital that the Minister's proposed section 22(45)(5) goes. One hopes that the courts would not follow it, quite frankly. It is almost impossible to imagine circumstances where it would be right or seem right to make an identification order because it is relevant to defamation proceedings and then leave the successful applicant with the costs. We have had a number of moments during the debate on this legislation where it really would be good to hear a practical example of the mischief the Minister is seeking to prevent or address. I cannot think of a situation where that could be just. To put it in there almost reminds the courts of what they might want to do in situations like that, whereas the balance should surely be very much in the direction of it being the norm that costs follow the event in relation to such an application. In fact, it might even be the case that it is easier to imagine cases where a person's request for an identification order might fail but that person's request might not be so egregious that the court would not consider making the parties go back to back on the costs, at the very least, when, again, one considers the probably disproportionate power and resources involved.
I also very much support what Senator McDowell said about guaranteeing avoiding any of the problems around hearsay, so that if an identification order is made, the successful applicant in such a case should not have to jump through further, perhaps costly, legal hoops to bring that relevant point before the court in any defamation action.

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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