Defamation (Amendment) Bill 2024: Committee Stage (Resumed)
Seanad Éireann — 2025-12-17
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Jim O'Callaghan (FF), Dublin Bay South

I appreciate the contributions Senators have made to the Committee Stage debate of the Defamation (Amendment) Bill. I have been here for around 20 hours of debate on Committee Stage. I have listened attentively and the debate has been illuminating and helpful in making me consider proposed amendments that I will bring on Report Stage. I will come to that presently.
On the last occasion, Senator McDowell was not criticising me, but he said he thought it would be disrespectful if amendments were not made in light of his proposals. I have great respect for the House, but I am sure Senator McDowell and other Senators will appreciate, when it comes to the amendments I intend to bring forward on Report Stage, it is the case that while they have, to a large extent, been influenced by what has been said here, I have to retain the autonomy and prerogative to decide what I think is in the best interests of the legislation, in accordance with Government policy.
On Report Stage amendments, we had a good debate on section 11 on reasonable publication. I have asked for some amendments to be made in respect of that. As I said at the outset, the amendments put forward by Senator McDowell in respect of section 13 and live broadcasts were also worthwhile and I have asked officials in my Department to try to give effect to the intention of the amendment he put forward in respect of that. Those Report Stage amendments will come before the Seanad in the new year.
I hope and I ask - I am conscious that I do not want to be seen to restrict Seanad debate - that we will be able to finish Committee Stage today. I think that is the intention of the Senators present as well. However, I do not want people to think I regard this in some way as an unimportant debate. It has been an important debate. I take on board what Senator McDowell said last week. In fairness to him, he was slightly critical of the Lower House. In defence of the House of which I am a Member, when it comes to Second Stage debates and Committee Stage assessment of legislation, it can be the case that pressures on Deputies have an impact on the speed with which the Second Stage or Committee Stage debates are dealt with. That is the purpose of this House. The reason many people voted in favour of keeping this House a number of years ago was that they were aware the Seanad has an important role in carefully considering legislation that sometimes might not get the same level of consideration in the Lower House of the Oireachtas. It is an important role.
It sometimes makes sure that a Minister is required to slow down to consider issues that have been highlighted in the debate. That has happened here. I commend Senators on their contribution to the debate and the amendments they tabled.
What has been apparent in the body of amendments we are looking at here, amendments Nos. 20 to 27, inclusive, is that the focus of the debate in many respects has concentrated on the opening of social media accounts. As Senators will know, that is an issue which goes far beyond what is within the parameters of defamation law or indeed the defamation Bill. Senators have raised extremely interesting questions, such as that raised by Senator Gallagher just a few moments ago, as to what should be the rules in respect of the opening of social media accounts, the extent to which people be permitted to pass off the identity of another person by using a false social media account and the remedy an individual who wants a false account taken down should be able to avail of to ensure that it is taken down. They are difficult and complicated questions. I am not trying to avoid them. They are issues that will have to be considered nationally and internationally. There are reasons individuals may not wish to disclose their identity when it comes to running a social media account. Senator Craughwell presented an account - I was not aware of it previously - of somebody presenting themselves as him. I can understand why he would want to take that down. It seems to be very targeted at him. There may, however, be circumstances in other countries where there may be an oppressive government and individuals may absolutely require to have their identity protected in order to communicate openly on social media sites. There are obligations that are going to have to be considered under EU law. I will certainly play my part in respect of them.
In terms of defamation and social media, we had a good discussion the last day on the difference between the traditional media and social media. There is a logic and understanding as to why they are treated differently. It would be impossible for a social media operator to appraise and assess every post that goes up online. It simply would not be feasible for social media to operate in that way.
What we are looking at in these amendments is the Norwich Pharmacal-type orders I am putting on a statutory basis in the Circuit Court. Senator McDowell on the previous occasion queried the need to have concurrent jurisdiction, asking why it would not be possible to set out the rules for a Circuit Court judge as to which circuit should have jurisdiction. I do not see any incompatibility between there being a jurisdiction for a Norwich Pharmacal order that continues in the High Court, not on a statutory basis, and, at the same time, there being a statutory-based Norwich Pharmacal identification order process in the Circuit Court. I have limited it to the Circuit Court because I want people to avail of the statutory mechanism of getting an identification order in the Circuit Court. I put it in the Circuit Court because it will be cheaper to obtain it there. It will also make it more amenable for individuals who are seeking it to know that they can go to a Circuit Court, get an identification order, and it does not require the ceremony and expense of going to the High Court. It is a clear and legitimate policy objective for a Minister to say he or she wants a statutory process in place and to put it in the Circuit Court. I do not want to interfere with the full original jurisdiction that rests in the High Court. It would be inappropriate for me to do so. However, in the future I hope that individuals will go to the Circuit Court for the purpose of securing an identification order.
Senator McDowell also asked why the legislation does not specify the circuit to which a person should apply. In most statutory schemes where there is a process of applying to the Circuit Court it is not set out which circuit should be applied to. In general, the individual complies with what is within the Circuit Court rules. As Senator McDowell will know, one generally has to sue in the Circuit where the defendant, or in this case the respondent service provider, has their principal place of business or registered office. In many instances the applications will be made to the Dublin circuit.
Senator McDowell also talked about the right to appeal. The right to appeal is not affected. We do not need to state that if the Circuit Court order is refused and an entity wishes to bring an appeal, it can apply to the High Court, which hears appeals from the Circuit Court. To a large extent, a significant amount of the contribution of Senator McDowell related to his wish to give voice to the ordinary citizen and protect the good name of the ordinary citizen. I hope he will agree with me that I want to do that as well. I assume everyone in this House is seeking to vindicate and protect the good name of ordinary citizens. Similarly, however, we have to respect freedom of expression and indeed, in certain instances, the right to privacy may be invoked here.
The purpose of the identification order being sought, as I said on the previous occasion, should not be viewed as it has been presented, as though it is the small man or woman against the big Internet service provider. In many instances, that is how it will be in practice but it is misleading to present it as a David and Goliath-type contest. We regularly forget who won that fight. We sometimes think Goliath won that fight. He did not. David won that fight. It was the small person. However, in the context of what an identification order is, it is not that the person who has been defamed is in combat with the Internet service provider. What they are seeking to do is they to obtain information from the Internet service provider to facilitate them in taking their claim against the defamer. In many respects the Internet service provider is a bit like a postman, as was helpfully mentioned here on the previous occasion. It does not have an immediate direct liability but it does have information that can facilitate an individual in identifying the person who has defamed them. Generally, where an entity that is not a party to litigation is brought before the courts for that purpose, its neutrality within the proceedings is recognised. In most instances, at the outset the defamed person will write to the Internet service provider asking it to identify the person who published the defamatory material. Its defence or line is that it will facilitate that person but only with the benefit of a court order. There is a logic to ensuring that there is a court order in place in order to protect its legal position and order, and also to ensure that an individual has a legal entitlement to get that information. The purpose here is that the Internet service provider will then identify the individual or entity that has published it.
One of the issues that was argued and debated trenchantly by Senator McDowell was that when it comes to that order, why would we leave in place a mechanism whereby costs can be awarded by the court against the applicant and in favour of an Internet service provider. If we are looking at the legal situation, leaving aside the characteristics of the entities involved, and it is accepted that the Internet service provider does not legally have a liability for the defamation - that is the law at present, a law that I cannot change because of the provisions of the e-commerce directive and the Digital Services Act - or the cause of action which the applicant wishes to bring, and it is only providing information to facilitate the bringing of a cause of action and a claim, in that instance it would be unusual to hold that independent entity liable for costs. The reality, as Senator McDowell will know, is that in the vast majority of instances, there may be an order for costs made in favour of the Internet service provider but a stay will be put on it pending the conclusion of the action or, alternatively, costs will be reserved.
Whatever the situation, I am leaving a discretion to the court in this instance for the court to determine what order should be made in respect of costs. That discretionary power that the court has exists at present in the High Court under the Norwich Pharmacal order where there is no statutory regime in place. I suspect, in respect of most of those Norwich Pharmacal applications, that either the costs are reserved or the Internet service provider gets its costs but a stay is put on them. There is a logic in what is proposed in the legislation as it does not change the practical operation of Norwich Pharmacal orders as they exist at present in the High Court.
Another point raised by Senator McDowell in his amendment was that he objected to the fact that there is a provision, which is contained in the identification order, which says you will only get it if there is no other practical means to obtain the information sought. That is included for a very particular reason. The requirements in terms of there being no other practical means to obtain the information sought and the need to consider the rights of the anonymous poster and any relevant third parties are both intended to address the fact that an identification order application is essentially a request to an Internet service provider to hand over the personal data of its user without that user being in a position to make representations in respect of that decision.
It is also important to remember that these provisions are based on case law from the superior courts. The requirement that an applicant would have no other practical means of obtaining the information has been applied repeatedly by the courts and it has not been interpreted as a requirement that the application must be made as a last resort or that it is the only available means of identifying the anonymous poster. Similarly, the superior courts already adopt a practice of considering the rights of the alleged wrongdoer and, to my knowledge, they do so without requiring details as to the identity of that individual or entity in open court.
On the matter of good name, I have an obligation and the State has an obligation to vindicate the right to a good name, but the State also has an obligation to respect privacy rights and the other rights which may be adversely impacted by the granting of an identification order. Section 22 seeks to achieve a balance between these competing rights and obligations. It is worth not just categorising this as a David and Goliath-type application. I have no doubt there may be circumstances where another Goliath may seek an application by way of an identification order. There could be a circumstance where a very powerful business entity or a very large employer may seek to go to court to try to get an identification order against an employee or competitor that is putting information that is stated to be defamatory into the public domain. Therefore, there has to be a balance there and an ability for the court to recognise that it may not be appropriate to grant the order in some circumstances. That balancing of rights is important.
Senator McDowell also questioned what the discretion provided for in subsection (4) is designed to achieve. The purpose of allowing the court to retain discretion, even where the conditions set out in subsection (4) are fulfilled, is to recognise that situations might arise which the Legislature cannot account for and which can be appropriately dealt with by the exercise of a discretion by a court which has vast experience in balancing competing rights.
With regard to subsection (5), which provides a court with discretion to order an applicant to cover the costs incurred by an Internet service provider in responding to the application or in providing the information requested, Senator McDowell is correct to say that Internet service providers do not require their users to verify or provide their identity in order to avail of their services and that the liability of Internet service providers in respect of content appearing on their services differs from that of more traditional media, as I said earlier. Identification orders must not only address the State’s obligation to vindicate the right to a good name. They must also take account of privacy rights and property rights. If they do not, the provision risks being found unconstitutional.
Senator McDowell asked me to identify my intentions with regard to Report Stage amendments. As a result of the contributions of Senators, I will bring forward amendments on Report Stage in relation to section 11, which provides for defence of publication in the public interest, and section 13 in relation to the defence of live broadcasts. The amendments in respect of section 13 will address the points raised by Senators and clarify that a short delay in transmission will not impact on the defence.
I know Senators may not be satisfied with the full breadth of the Report Stage amendments I intend to bring. I have no doubt some Senators will bring Report Stage amendments as well. I have an objective to try to get the legislation enacted in the most appropriate fashion possible. It is important that we change the law on defamation as it exists at present. It can always be improved. My objective is always to try to balance the right to the good name with the right to freedom of expression. I think I have sought to do that as much as possible. The courts vigorously defend the good name of the individual. They also vigorously defend the right to expression. However, as everyone in this House will be aware, when it comes to the balancing of rights, all we can do is set out the architecture. It is then for the courts and witnesses before a court to determine where the balance should lie in terms of the determination of a claim where the competing interests of defamation and freedom of expression conflict.
I thank the Cathaoirleach. I have very much appreciated my time in Seanad Éireann on Committee Stage. It shows again the benefit of the Upper House and the deliberation it gives to important legislation.

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Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2025-12-17/debate/main
Retrieved: 2026-08-14T04:54:28+00:00
Sitting date: 2025-12-17