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

It is my view that section 22, which we are discussing at present, is probably the most consequential and important provision in the Bill. The reason I say that is because it is predominantly the case at present that people in Ireland who are defamed are defamed on an online basis. They find themselves being subject to very serious defamatory publications that are made in circumstances where the identity of the publisher is unknown. Therefore, it is important that, as an Oireachtas, we try to put in place a statutory mechanism that enables a person who is the victim of such a defamation to be able to identify who it is that is the publisher that has made defamatory stations statements about the person concerned.
At present, the procedure that operates is that if I am defamed on social media and it is defamation through what we would refer to as an anonymous or unidentified account, in order for me to do anything about it I have to bring an application to the High Court to seek an order from the Internet service provider so that it will provide me with details as to the identity of the individual behind the particular publication. Once I get that information, by way of going to the court, I can then institute proceedings for defamation against the now identified publisher. It is a procedure that operates in the High Court. In this provision in section 22 I have sought to ensure that within the Act, there will now be a simpler, and obviously cheaper, statutory mechanism available that can be pursued in the Circuit Court. The benefits of pursuing such an application in the Circuit Court are, in the first instance, that it will be cheaper. Second, it should be faster because the Circuit Court operates issues on a more speedy basis.
Last week, a number of Senators made some very interesting points about online defamation. If I may, I will briefly respond to them. It is important for the purposes of understanding this issue that we are aware of the differences between online defamation and how it can be pursued and defamation through the more orthodox mechanisms. Obviously, if an individual defames another individual and that is done in the public sphere and the person is identifiable, one can institute proceedings against that individual for defamation. If, as is more common, an individual is defamed through what we would refer to as the traditional media, there is a mechanism available to the person who is the subject of the defamation to bring a claim against the traditional media provider, whether a newspaper or broadcaster. It is also worth pointing out that if somebody is quoted in a newspaper or something is broadcast by a broadcaster making defamatory comments about another individual, it is open to the individual so defamed to institute proceedings against the traditional media provider and the individual who made the defamatory comment.
There may be consequences for the person initiating the claim under the Civil Liability Act if they do not sue both. In most instances, however, if an individual is defined by a newspaper or broadcaster, they sue the broadcaster or newspaper. The reason for that is because in law the newspaper or broadcaster is held liable for publications that they make in their newspaper or which happen through their broadcasting mechanism. If somebody says something in a newspaper – this of course is separate to any statutory defences that are available – a newspaper can be held liable. If a newspaper article publishes something false about an individual, the individual can sue the newspaper.
The law in respect of online Internet service providers is different. It may be the case that Senators and other individuals in Irish politics and elsewhere believe the law should not be different but I have to deal with what the law is. The law is different in a material respect if somebody is defamed online. The reason for this is because of the e-commerce directive and the more recent Digital Services Act. The latter piece of legislation, which is an EU regulation, has a section that deals with the liability of providers of intermediary services. This is how online service providers are described in the legislation. In effect, they are designated in the Digital Services Act as being what is referred to as mere conduits. They are people who are designated in law as merely passing on information. This is provided for in Article 4 of the Digital Services Act. Similarly, there is also a reference to them hosting information that is put online by individuals who are the immediate publishers of it. There is a significant difference between the liability of Internet service providers and a traditional media provider. Many people may object to this and say it is wrong but this is what the law is. It is law that has been transposed, and will need to be transposed, on the basis of the Digital Services Act. This is the way it applies.
However, if somebody is defamed online, a serious defamation is put up, the individual defamed contacts the Internet service provider, tells it they are being defamed and puts it on notice they are being defamed, it may be the case there will be a liability on the Internet service provider because it has been informed and it has been advised of the fact the information is false. This, however, is the only circumstance in which an Internet service provider is going to be held liable for defamation. There were previous examples in the UK where this was invoked. A decision of one of the superior courts in the UK referred to it as being like writing or graffiti on a wall. If I own a wall, or if there is a wall on my house, and it says on it that Senator X is corrupt, if this is brought to my attention and I leave it up there and do not take any steps to remove it, even if I did not write it, I can then become liable in terms of the publication of it.
It is important to make this statement in respect of the different laws that apply in respect of the liability of Internet service providers and the liability that applies in respect of the traditional media. I am fully aware that many in the traditional media may think it is unfair that Internet service providers have this defence that they are mere conduits but it is the law. There is a difference between what is practically achievable where there is a newspaper or broadcaster making a conscious decision to publish information and an Internet service provider that probably has very little immediate control over what is put up there.
I will now deal with the amendments tabled by Senator McDowell. Amendment No. 20 seeks to amend what would be the new section 45 by stating there will be jurisdiction not only in the Circuit Court but also in the High Court. My response to this is that it is important to note the common law power that exists in the High Court to make Norwich Pharmacal orders will continue. This will remain in the High Court. What I did not want to do was find myself in a situation where there was going to be a statutory power in the High Court provided for in the legislation and, at the same time, there would also be a common law power to make orders pursuant to Norwich Pharmacal. It is important to point out that section 45 has no impact on the existing powers of the High Court to grant identification orders by way of Norwich Pharmacal orders. It is an equitable remedy and its application is not limited to cases of alleged defamation. It will still be possible for parties to seek an identification order in the High Court should they wish to do so.
Consideration was also given to providing statutory jurisdiction to the High Court, as has been suggested by Senator McDowell, but it was felt this would be unnecessary given the High Court's existing powers in that it has this power already. Further, it was felt that confusion might arise if the High Court had two jurisdictions for carrying out the same function, one equitable and one statutory, and that this could add to the complexity of applications for such orders. It would also create a situation where distinction was drawn in the High Court between cases seeking an identification order based on whether they concerned a defamatory statement or any other category of wrongdoing. The point being made is that if it was the case the statutory provision was going to be extended to the High Court, it would only apply in respect of defamation actions. There are still many Norwich Pharmacal orders that apply in the High Court which are not in respect of defamation actions. In a way, we would have too many parallel jurisdictions if I extended the statutory power to the High Court. Regrettably, therefore, I do not propose to accept Senator McDowell's amendment No. 20.
Senator McDowell's next amendment is amendment No. 21. This is in respect of subsection (3)(b). It replicates a previous amendment proposed in respect of the Bill by Senator McDowell, which was that we would have to have a serious defamation test. What Senator McDowell proposes is that such an identification order would only arise where there is a claim by the applicant in any defamation proceedings against an anonymous publisher that the statement is seriously defamatory. I have defined it as a statement that is defamatory and Senator McDowell wants to change this to it being seriously defamatory. As I stated previously, my concern with the introduction of a serious harm test is that, rather than making the system more efficient, it would result in it becoming more protracted and more costly. If we are going to have a situation where a Circuit Court judge on an interlocutory basis or, I suppose, a preliminary application basis has to determine whether the defamation is serious, it will add a different level of test.
Since it is not within the body of the legislation that a defamatory statement has to be seriously defamatory, it seems it would be completely inconsistent if this section stated an identification order could only be granted if it was established the statement was seriously defamatory. Had Senator McDowell's earlier amendment passed, I could see the logic of this, but in light of the fact that it was rejected, it would create confusion and it would be inappropriate if this provision was agreed to. In circumstances where the amendments seeking to introduce a serious harm test have not been accepted, this amendment would see an applicant needing to establish a higher level of harm to succeed in an application for discovery against a third party. Unfortunately, I cannot accept amendment No. 21.
Amendments Nos. 22 and 23 concern the requirement set out in the proposed new legislation that an identification order would only be granted if there was no other practicable means of obtaining relevant information. I will start by stating in response to this that people should only be going to court if it is absolutely necessary to do so. Because of this, it is appropriate that we would have a provision in this statutory test for an identification order. The order should only be granted if there is no other practical means of obtaining the relevant information. If people have another means of obtaining the information, they should not be going to court. In such circumstances it is unnecessary for them to go to court.
In many respects this mirrors the procedure in place for the discovery of documents in proceedings. People looking for inter partes discovery or non-party discovery are granted an order for this discovery by the court only if they can convince the court that the discovery is necessary. Similarly, when people go to court looking for an identification order, if there is another mechanism they can simply avail of to find out who is the publisher of the information online or if it is available to them otherwise, then they should not seek to invoke the jurisdiction of the court. It is important that a party who has been the subject of an anonymous defamatory statement can have recourse to the courts to assist in vindicating their right to a good name. However, this should only happen where it is necessary, and it is not necessary where there is another practicable means of obtaining the information.
It is important we recognise that identification orders are sought and granted on an exceptional basis. I do not want to see a situation or statutory provision created where people can haphazardly seek to go down the route of going to court and seeking an identification order if they do not need to go down that route. The whole architecture of civil law should be that we should only be providing a mechanism for people to go to court when there is no other mechanism available. Identification orders are necessary in some cases but they should only be available where necessary and not where it is practicable to obtain the information by other means. My understanding is the word "practicable" will be given its ordinary meaning when this condition is being considered by the courts. It is appropriate the Legislature provide such an indication to the courts, which will be in a position to determine what is practicable based on the circumstances of individual cases. Regrettably, therefore, I cannot amendments Nos. 22 and 23 from Senator McDowell.
Amendment No. 24 is proposing an amendment to subsection (4) of what will be the new section 45. At present, the provision I have sought to introduce is that a court may make an identification order only where it considers that a series of tests have been complied with. Senator McDowell wants to change that so that it reads a court "shall" make an identification order. We have to be very careful about introducing mandatory obligations upon a court. We would have to be very certain that a mandatory obligation was required in what is at present a discretionary remedy. If you go to the High Court seeking a Norwich Pharmacal order in respect of a defamation case, there is not a mandatory obligation on the court to provide it. It is a discretionary equitable remedy and it is preferable in the statutory framework if we continue with the test that a court shall exercise its discretion in terms of determining whether to grant an identification order or not.
Subsection (4), which is the one Senator McDowell seeks to amend, provides that where the conditions of subsection (3) are satisfied, a court may make an identification order only where it considers it is in the interest of justice and that the interests favouring disclosure outweigh the interests against disclosure. Again, this reflects the case law on identification orders, which notes there is a broad consensus that certain threshold conditions must be satisfied but that even where those conditions are satisfied, identification orders are not available as of right and are a matter for judicial discretion. Subsection (4) also provides that, in making an identification order, a court may attach conditions to the order. In other words, subsection (4) leaves it to the discretion of the court to determine whether an identification order should be granted but at the same time seeks to provide guidance to the court when exercising that discretion to ensure the making of identification orders is proportionate and considers the rights of all impacted parties.
My understanding from looking at Senator McDowell’s amendment No. 24 is it would remove the court's discretion and instead require the court to grant identification orders where the conditions in that section were satisfied. That should be for the courts to determine rather than the Oireachtas directing them that they must do it. Obviously, it will depend on the individual circumstances of the case as to whether it is appropriate to grant an identification order. It should not be a mandatory obligation on a court to provide it. I understand Senator McDowell’s concern is to ensure identification orders are granted in appropriate cases. However, that does not require removing the discretion provided to the courts and replacing it with a mandatory provision. We entrust the Judiciary to defend rights and provide access to justice and it is the courts that will be aware of the individual circumstances of cases, so it is appropriate that the courts retain discretion in this matter.
I also noted what Senator Mullen said on the previous occasion that were this amendment to be accepted, subsection (4) may be interpreted as having a limiting impact on the jurisdiction conferred by the new section 45. I note Senator McDowell’s intention but agree that there is a risk the wording might be interpreted as requiring a stricter application of the conditions than is intended, so I cannot accept amendment No. 24.
Amendment No. 25 seeks to remove subparagraphs (i) and (ii) from paragraph (b) of subsection (4). These are the provisions that say that, when making the order, the court can make the order setting out terms restricting the use of the relevant information so disclosed to the bringing of defamation proceedings against the anonymous publisher. This is an important statutory provision but what I do not want to see happening is individuals or entities using the identification order procedure for the purpose of just securing information that they are then not going to use for the purpose of a defamation action. I can envisage a situation where somebody wants to find out who the person who has been defaming them online is. They find out that information through an identification order. They then decide that rather than issuing defamation proceedings, they will target that individual online through social media or use this information for another purpose - lawful, no doubt – like trying to damage the interests of the online publisher. When we are setting out a statutory provision to enable an identification order, we need to be absolutely clear the only reason we are providing that statutory mechanism is to enable an individual to access justice through the courts. It is not for any other non-court reason. That is why I am concerned about removing the subparagraphs via amendment No. 25.
Subparagraph (ii) says there will be “an undertaking by the applicants not to use the relevant information so disclosed other than to bring defamation proceedings against the anonymous publisher”. In many respects, this is similar to the implied undertaking that exists when somebody is granted access to documents by way of a discovery or disclosure order. You are only entitled to use those documents for the purpose of the litigation. If somebody obtains documents pursuant to a discovery order in civil proceedings, they cannot then decide to use those documents for the purpose of damaging the individual who disclosed them or another individual in the public realm. Those documents can only be used for the purpose of the proceedings and that is why it is important that subparagraphs (i) and (ii) be kept within subsection (4)(b). For that reason, I regret I cannot accept the proposed amendment.
In response to what Senator McDowell said previously, I emphasise that subsection (4)(b) provides that the court may make an order subject to such conditions as it considers appropriate and they may include what is in subparagraphs (i) and (ii). It allows the court to consider the circumstances of an individual case so that if, as Senator McDowell mentioned, proceedings for malicious falsehood are also contemplated by an applicant, this can be reflected in the conditions attached to the order. Regrettably, I cannot accept amendment No. 25.
A very powerful discussion emanated from Senators at the last debate on amendment No. 26. This is the provision that provides that when an identification order is made by the court, the court may, whether or not it has made an identification order and whether it considers it appropriate to do so, order that an applicant pay any or all of the costs of the relevant intermediary service provider. I think it is accurate to describe this as irritating Senators who believed this was going to be unfair and that these large Internet service providers, which have vast amounts of money, could find themselves getting an order for costs against an individual who has been defamed on one of their platforms. When we are discussing the principle of these issues, we need to not take into account the identity or the relevant status of the individuals or entities that may be concerned. We need to look at this from a point of principle. The point of principle here is that an individual in law does not have liability for the publication. That is the law as set out the Digital Services Act and e-commerce directive. An entity that does not have any liability for the publication is being asked to provide information to an affected party so that the affected party may institute proceedings against a third party. That is something we have in other aspects of our civil law.
We have many times in civil procedure seen examples of parties to litigation seeking what is referred to as non-party discovery from a party that is not a party to the litigation. In many instances, two parties could be suing each other and they look, for instance, for non-party discovery against a bank or another individual or corporate entity. Those individuals, entities or banks have no responsibility for the litigation. They are not being sued and they are not party to it but they find themselves caught up in it because they may have relevant information in respect of the issues in dispute in the proceedings.
Similarly, on a point of principle, the Internet service provider does not have a liability for the publication. It may have a liability, as I said earlier, if it is the case that it has been informed of it and has not taken it down, but in principle, it does not have a liability for the publication. An application is being made in court to get it to provide information. It is understandable why it would want a court order to provide that information. In practice, however, and this happens already when it comes to Norwich Pharmacal orders, what may happen is that courts will either reserve the question of the non-party’s cost to a future date - the determination of the action - or alternatively, if they are granted their costs, a court may put a stay on the order for costs until the conclusion of the proceedings. It is strongly likely that at the end of the proceedings, if the plaintiff has succeeded in his or her claim against the actual publisher, the costs of the Internet service provider will be held to be the liability of the publisher who has been held liable.
What is contained within this subsection (5) reflects the position adopted by the superior courts in the case law on identification orders at present, when they are done through the Norwich Pharmacal procedure. The view of the courts is that cases for identification orders are similar to non-party discovery applications, where it is appropriate to expect the person seeking information to cover the costs of the party providing the information, unless there are particular circumstances justifying a departure from that approach. The courts in those cases have also recognised that it is generally not possible for Internet service providers to provide identifying information without a court order, and that it is legitimate for a respondent to an application for an identification order to have those orders thrashed out, and to have their costs covered, even where they unsuccessfully but in good faith object to the making of an identification order.
I know that may come as a surprise and an annoyance to Senators, but I ask them to consider it as a point of principle. What the amendment seeks to do is change the wording to: “The court may order that the relevant internet service provider pay any or all of the applicant’s costs”. What Senator McDowell is seeking to do is direct that the Internet service provider may pay the costs of the applicant in bringing the application. That would be a significant change to what happens in civil proceedings at present. We are seeking, under Senator McDowell's amendment, that a party that is not liable in proceedings, and not a party to the proceedings, may have to pay the costs. We all accept that in order for that information to be given, they need a court order. That is why I am putting in the statutory mechanism for the Circuit Court. They need a court order. If they comply with the court order, and there are costs associated with that, there will be a liability for those costs. I can hopefully give Senators some solace by pointing out that, at the end of the process, the publisher who is held liable will be the entity that, ultimately, has to pay the costs for the identification order being sought. Regrettably, therefore, I cannot accept amendment No. 26.
Amendment No. 26 would also delete the existing subsection (5) and replace it with one that provides that the intermediary service provider could be considered liable for the applicant's costs. This amendment could be interpreted as allowing costs in any case where an applicant obtains an identification order. I understand that costs normally follow the event in court proceedings, but this is not a normal adversarial court case. This is a case where a service provider, who is not a party, is being asked to disclose the personal data of one of its users. Whether that disclosure is appropriate involves a weighing up of the rights of the parties, and a determination as to whether the applicant's claim for defamation is likely to succeed. It is appropriate that such an exercise would be carried out by a court. It would be difficult, in my view, to think of a scenario where it would be reasonable to expect a service provider to make such an assessment and to fix it with the costs of an identification order application for failing to do so.
It is also important that Internet service providers engage fully with applications for identification orders because there are some cases where, as Senator McDowell acknowledged, identifying an anonymous service user may expose that user to significant adverse consequences. It is, therefore, not desirable, in my view, that we might have a scenario where Internet service providers limit their engagement with applications for identification orders because they may be fixed not only with their own costs for appearing at the proceedings, but also with those of the applicant. There may also be potential legal risks with such an approach. I understand that EU law - I specifically mentioned the Digital Services Act and the e-commerce directive - limits the liability of intermediary service providers in relation to the actions of their service users for information transmitted, cached or hosted by them, subject to certain conditions. The subsection as presently drafted is discretionary. It provides that a court “may” order that the costs of an Internet service provider be covered by the applicant. It does not require that they must be, so it is a discretionary order that the court can exercise. This would not prevent a court refraining from making an order requiring an applicant to cover an Internet service provider’s costs if it is considered that such a provider acted unreasonably in opposing the application, or used a more inefficient or costly method than necessary to obtain or provide the identifying information to the applicant.
It is also important to remember the purpose of an identification order, which is to enable an applicant to bring a defamation action against an anonymous poster of a defamatory statement. It will, therefore, be open to an applicant who successfully obtains an identification order to seek damages from the poster of the statement. Section 31 of the 2009 Act provides that in making an award of damages, regard should be had to all the circumstances of the case, which, in my view, and as I said earlier, could include the need for the plaintiff to incur the costs of identification order proceedings in order to initiate the defamation action. Therefore, I cannot accept amendment No. 26.
I should also point out that we are assuming, when it comes to this type of application, that, if I can use the expression, it will be the small man or woman who is trying to identify who is the villain out there who has defamed them online. I am also conscious that this statutory procedure could be used by a large entity to try to find out the identity of a much less powerful individual who, maybe because of his or her position, cannot identify himself or herself, but has made statements online. We have to be conscious that this is not always going to play out in the way we assume it will. It is important for me not so much to ensure that this does not happen but, rather, to accept there may be circumstances where identification orders may be used to try to ensure that a defamatory statement is not repeated, and to pursue an individual who has made it. I am conscious that in the realm of the SLAPP provision that I have already introduced, I want to ensure that this is something that is guarded against in the legislation. I believe it has been so done. Therefore, I cannot accept amendment No. 26.
Senator McDowell has put forward amendment No. 27. This amendment seeks to insert a new subsection (7) in section 45. It would provide that a court may order that any information supplied on foot of an identification order would be admissible in any subsequent defamation proceedings without further proof. That is quite a radical amendment. We need to think about how that would play out in terms of the identification order and the subsequent proceedings that are initiated.
Let us use the example of a Senator who is defamed online on a social media platform. An outrageous statement has been made in respect of them, and they want to find out who has published this statement. They can go to the Circuit Court under the statutory regime that I am putting in place. They apply to the Internet service provider for the identification of the individual who the service provider says is liable for the account. That is all they are going to get; they will get who is liable for the account. That information is then provided to the Senator. The Senator decides to issue defamation proceedings against the individual who has been identified by the service provider.
Senator McDowell's amendment is suggesting that the order that is being made can be admissible without further proof of the fact that the individual identified by the service provider is the publisher. It may be the case that the individual is not the publisher even though the individual's name is the name on the account. I would be extremely hesitant about putting in place a statutory procedure which would, say, enable a person who has issued proceedings - let us say that Mr. Murphy is the person whose name is being given as the person identified with the account - to go to court to say “I have issued proceedings against him; he is the publisher of it; I do not have to prove this any further”. It is an essential part of any defamation proceedings that you prove who has published it. In many instances the publisher will admit publication. If they do not, you have to prove it. Obviously, there will be enormous advantage in having the information from the Internet service provider that Mr. Murphy is the publisher. You have issued proceedings against him, and he will then have to deny or admit liability in respect of it. If he does not admit liability, you can still bring the case against him. You can give evidence in the court that you went and got an identification order and he was identified as the person who owned the account. However, he should be entitled to come in and say that even though his name was on the account, he was not the publisher. The publisher might have been another individual who used his account; perhaps an employee who used the account. I do not think we should automatically assume and say that in law it is admissible without any further proof. I think that would be a step too far.
I do not consider such an amendment to be necessary or appropriate. An identification order is only to be made where it is necessary to allow an applicant to obtain information necessary for them to bring defamation proceedings. Such information would generally be limited to a party’s name or contact details. I do not think it is necessary to enable the court to order that such information would be admissible in subsequent proceedings without further proof. As I have noted, identification orders are exceptional orders made in the absence of representations by the party whose information is to be disclosed. This is one of the reasons that section 45 sets out conditions which must be satisfied before they are granted and goes on to provide guidance to the courts as to the factors to consider when exercising its discretion to grant them. I would be wary of including a provision in this section which might be interpreted as an indication that information beyond that necessary to bring proceedings could be obtained through an identification order. For that reason I cannot accept amendment No. 27.
I am coming to the end of my response to the grouping of amendments Nos. 20 to 27. I thank Senator McDowell for putting the amendments down. I cannot accept them but I agree with him that section 22 is a very consequential provision that will have a very significant impact in enabling people who are defamed to find out who the defamer is so they can seek access to justice before the courts.

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Retrieved: 2026-08-14T04:54:27+00:00
Sitting date: 2025-12-11