Defamation (Amendment) Bill 2024: Committee Stage (Resumed) Seanad Éireann — 2025-12-17 ============================================================ Jim O'Callaghan (FF), Dublin Bay South The point Senator McDowell is making is on the basis that we are going to have a very large, powerful Internet service provider which is the respondent. The reality is that is correct and probably will be the case. However, I have to look at it completely legally and neutrally, and whether I like it or not or he likes it or not, we have an entity, the Internet service provider, that does not have legal liability for the defamatory publication. In many respects it is similar to a financial institution against whom somebody is looking for a non-party discovery in proceedings that do not involve the financial institution. If I am to put in place a rule which demands that orders be made against that financial institution in terms of the non-party discovery or, in this instance, against the Internet service provider for making an identification order, it is very well-resourced and will say it is a serious challenge to fairness. It is a challenge to hold an entity that has no legal liability responsible for legal costs and proceedings where it is not a defendant. I have to be conscious as to how that will play out. What is in the legislation is sufficient. I will consider what Senator McDowell said. I have no difficulty doing that, but the provision that is contained within this is a discretionary statutory power that the court has in respect of the making of a cost order in favour of the Internet service provider. It does not demand that the costs of the Internet service provider be paid. It simply says that, when making an order, the court can order that an applicant pay any or all the costs of the relevant Internet service provider in relation to the application. It is simply putting into a statutory scheme what is there at present in common law in the High Court when a Norwich Pharmacal order is being applied for. I have to be careful about imposing further obligations on an Internet service provider which does not have any legal liability for defamation in the legislation. Another point Senator McDowell raised was publication and how one proves it. However, the likelihood here is, to use Senator Craughwell as an example, Senator Craughwell has been defamed by something online. He is trying to find out who the individual is. He will write to the Internet service provider and it will write back to him and say it cannot give him the information about the identity of the person until such time as he gets an order from the court. He goes to the Circuit Court and gets the identification order from the court. The Internet service provider then complies with it. Senator Craughwell then finds out that the person publishing the defamatory posts is Joe Bloggs. Once he gets that information, Senator Craughwell then has to write to Joe Bloggs and say he or she has defamed him and he has got an identification order from the Circuit Court that has identified that he or she is the individual behind the defamatory publication about him. Whether or not the claimant goes through that procedure or a different procedure, Joe Bloggs is entitled to say he or she is not the publisher. When the claimant issues their proceedings, they will say he is the publisher. He may deny or admit publication, and that can happen regardless of whether there is an identification order. However, if the claimant does then go to the court with the identification order, he or she is in a position whereby his or her solicitor can give evidence in court that they got this identification order and it identified that Joe Bloggs is the publisher. That will be of assistance in proving to the court that the publisher is, in fact, Joe Bloggs. One cannot delineate absolutely that the person identified is going to automatically be the publisher. That cannot be done because it is for the court to determine whether, on the balance of probabilities, Senator Craughwell has proven Joe Bloggs is the publisher. With the benefit of an identification order and depending on other circumstances of the case, that will, on the balance of probabilities, enable you to prove the identity of the publisher. I will give consideration to it but I do not think putting a rule as to admissibility of evidence into an Act is a good idea. We are better off sticking to the rules of evidence as they exist at present. Senator McDowell stated there could be a lengthy Norwich Pharmacal application but in my understanding of these applications, in general, the respondent to a Norwich Pharma order simply wants the protection of a court order, provided they are not the defendant as well. Where an identification order is sought against a non-party entity before the courts, the objective in general is to get the protection of a court order and comply with it, so there are not lengthy applications for those orders. I note what the Senator said about the two years - or perhaps it is one year - in terms of the Statute of Limitations when it comes----- --- Source: Houses of the Oireachtas. Licensed under CC BY 4.0 (https://creativecommons.org/licenses/by/4.0/). The Official Report is revised after first publication; the fetch timestamp below identifies the version quoted. 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