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

I will address the points raised by Senator Mullen. The reason the word "seriously" was included in the amendment was that at the time I tabled these amendments, a seriousness test was being suggested for other sections.
To my surprise, the Minister indicated that the Office of the Attorney General had constitutional doubts about inserting the seriousness threshold into Irish defamation law on the basis that it could infringe unnecessarily on the good name guarantees given under the Constitution to citizens. I simply do not accept that this is good advice. I know it was not put in terms of strong advice but, as the Minister reported it, it was that it could create an issue. I do not see how it could create an issue that one could go to court in respect of a defamation that is not serious. I do not follow what that problem is there. To answer Senator Mullen, that is why "seriously" was inserted. It was also to stop people wasting the courts' time with frivolous defamation cases via the identity disclosure order procedure.
If the Minister is saying that it is a necessary proof that the applicant has no other practicable means of obtaining the relevant information, that is a very high threshold to throw in the way of an applicant. He would need to be clear as to what is meant by the term "practicable". Is somebody supposed to do his or her own research on the Internet? Is the person meant to do his or her own analysis of the poster's other postings with a view to revealing that the poster is likely to be X or Y person because of remarks he or she has made through postings of a different kind or on a different occasion? Regarding subparagraph (e), it is unnecessary to say that a person has no other practicable means of doing it because paragraph (a) says it is not readily ascertainable on the face of a statement or from other information available to the person. That should be enough. You should not be saying, "Is there some other way that I can avoid getting this information the simple way?"
While Senator Mullen, the Minister and I strongly favour making it impossible to seriously defame people by anonymous postings on the Internet, it has to be said that it is not just simply that they are offensive to the person who reads them. Politicians have to have a very thick skin. As Senator Mullen said, if incoming fire wounds you that badly on the basis of personal remarks, that is one thing, but we are not just dealing with politicians. We are dealing with young people aged 18, 19 or 20 who are going to apply for a job in five or ten years' time, the employer googles that person's name, which happens every day in the world in which we live, and a gross defamation - a suggestion that the person has committed a crime - is sitting there. That is the damage of anonymous defamation. It is sitting there like a time bomb waiting to go off when somebody stumbles upon it or goes hunting for it as a substitute character reference. It is hugely important that anonymous defamers are very vulnerable to being exposed - not just that they could be if you get lawyers to the courts but that they are very vulnerable and they know it. They know that if they take out their little keyboard and begin to type an untruth, this is likely to end up with them being made accountable if they defame a person. It is likelihood that is important. If somebody writes a letter to a newspaper defaming somebody, the editor usually throws it in the wastepaper basket. If, to use Senator Mullen's very colourful example, someone starts scratching things up on toilet walls, he or she may be identified but the likelihood that people will believe what they see on a toilet wall is minimal. However, a serious defamation against a young college student that he or she engaged in sexual behaviour of a non-consensual kind will be there forever unless somebody takes it down. People who can make those kind of accusations with impunity do so with extraordinary regularity. They accuse people of corruption. They accuse people of all sorts of things and it is immensely difficult for citizens to defend themselves from those kind of charges.
Instead of accepting what the Attorney General says, which is that "seriousness" could be a problem as a threshold, the Minister should ask himself whether he and his Department have seriously taken into account the obligation in Article 40 of the Constitution to defend as and as far as practicable vindicate the rights of people to their good name - "as far as practicable". What is practicable is bringing into our laws real remedies that protect people from this kind of day-to-day damage. It is not just a policy choice the Minister has. It is far more than that. It is a duty to say that people who are defamed on the Internet are in a position to do something about it. That is the State's obligation. That is the obligation of all of us in this House and the other House. It is not just a choice - a case of being able to do it if we think it desirable.
Internet service providers claim this right to be agnostic about the content on their service. We see the likes of X and its owner Elon Musk claiming that European standards of protecting character are inconsistent with what Americans think can and cannot be published in the US about people. There is a minor difficulty. The Constitution in Ireland says that the Irish State must protect people. It is not that the US Supreme Court says, ludicrously, that the right of free speech trumps everything. The Irish Constitution guarantees free speech and precedes it by forcing upon the State the obligation to defend and as far as practicable vindicate people's right to their good name.
This is why I am really sceptical about Internet service providers coming to the Government or going around Europe waving the US Constitution and the rather silly jurisprudence of the US Constitution that allows people to say absolutely anything they like about anybody else as long as it cannot be proved that they knew it was false. That is so wrong. The Minister is to be commended on doing something about anonymous defamation but it is timid and inadequate. It is really timid and inadequate. I believe very firmly that what we are dealing with here is of huge importance.
It may offend Elon Musk, X or people in the White House who were or still are friendly with Musk or who like to defame people on their own Truth Social ISP and call people from Somalia "garbage" collectively. Those kinds of people may be entitled to pursue their policies at home but they cannot pursue them here and our Government has a very different obligation, under the Constitution, not to be intimidated by them. I make that point as strongly as I can. This is not something that we are free to do or not. This is something we are obliged by the Constitution to do, and that is it.
Senator Mullen asked how, if the word "may" is going to be substituted by "shall", the term "only" applies there? I interpreted the word "only" in the Minister's text as having a particular meaning, that is, that the court must examine whether making an identification order would be, for some reason, unjust or unwarranted against the person who is alleged to have defamed the applicant. There could be circumstances - and I can imagine in particular someone in the White House, or Elon Musk doing so - in which someone would say they have been defamed and pursue somebody in Syria, Morocco or Ireland, saying they want to find out who that person is, for all sorts of reasons. By the way, when they do find out, the undertaking that will be given to the Irish courts will not have extraterritorial effect. The person who is exposed as the alleged defamer will be subject to collateral attack in America or wherever else and the Irish courts, once they have made the identification order, will have no way to pull that back or protect that person. I understood that the term "only" was to force the Irish court to think about whether it could be doing something grossly unfair to the person who is identified, such as exposing them to retribution of a political or criminal kind, or all sorts of things, elsewhere in the world, and whether anonymity, notwithstanding apparent defamation, should be preserved for that reason, because there are other rights involved.
Senator Mullen referred to the question of costs. Let us take the case of anybody who is defamed, and specifically a young student who is accused of, say, some sexual impropriety where that is now available to the entire world to look at it, if people go hunting for that student's name. Someone in those circumstances is not going to have a bag of money to go to any court, whether it be the Circuit Court or the High Court, to retain solicitors or barristers to argue with X about the necessity for identifying the person who is defamed. They are not going to have that kind of money. They are vulnerable people and they have already been damaged because the order cannot be made unless it is probable, in the eyes of the court, that they will succeed in establishing that their reputation has been damaged. These are vulnerable people whose reputations deserve to be vindicated insofar as we can do so practicably. By the way, even if you win your application, Elon Musk's bank account could benefit from his costs being paid by you. I cannot understand saying that is just in some way. I really cannot understand why anybody would suggest such a thing. You could say that the cost of the application could somehow be reflected later if you did get damages against the defamer, but what happens if the defamer turns out to be the man in the bedsit with no assets? There is no redress then. Finding out his or her identity is as far as the process will go in terms of getting any redress in the form of damages, but you could get correction orders against the person, again at your own expense.
What I really want to do is impress on the Minister what this looked like. By the way, the Dáil, as was typical in this debate, just waved all this stuff through without seriously considering any single line of it, in a really sad abdication of that Chamber's function and duties. It has to be examined at some stage, and here is the place, alas, where it ends up being examined for the first time. The amendments the Minister has brought forward appear, superficially, to be a response to anonymous defamers on the Internet, but they do not go far enough or as far as the Constitution requires them to go. On the contrary, they would deter anybody who did not have the means from going to court to vindicate their name, especially if their own solicitor says, "Yes, you have been defamed but bear in mind the Oireachtas enacted a law saying that even if you win, you lose, because you can pay Elon Musk and X the cost they have incurred in unsuccessfully contesting your right to find out who has defamed you." I find it difficult to believe that this is as far as we not merely can go but that this is far as we should go, bearing in mind the duties imposed on us as legislators.
The time has come to really tackle anonymous defamation on the Internet. The time has come to make Internet service providers really amenable to a letter from a solicitor saying, "Can you disclose to us who the defamer is before we have to go to court?" What other procedure is there, where you have to go to court and cannot send a preliminary letter saying, "Please avoid the costs that you will incur if my case turns out to be correct"? That is why the second leg of subsection (5), as proposed by us, is designed to give cheap, inexpensive and accessible redress to somebody who wants to know who has defamed them, and to say to the Internet service provider: "Okay, keep it secret if you like but if I get an order against you, you can pay for the cost of having kept this information away from me when I am entitled to it and my character depends on it." However, the Minister's subsection actually reverses that.
I do not want to waste more time but I want to say that I feel passionate about this. I feel passionately that we are not doing enough. If we accept the Minister's amendment, we are putting in place a mere pretence, which the Internet service providers will hide behind and obstruct to the maximum possible extent.
Those are my thoughts on the matter. In case anybody says I am filibustering, I am not. I believe that this is a very serious issue and that Dáil Éireann did not do its duty by even querying this amendment adequately when it was its constitutional duty to vindicate the rights of ordinary citizens.

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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