Defamation (Amendment) Bill 2024: Report and Final Stages
Seanad Éireann — 2026-01-21
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Michael McDowell (IND), National University of Ireland

In relation to the second of the two amendments we are discussing, the Minister has resolutely taken the position that where an identification order is made, the fact that it has been made and has identified a particular person cannot be used by the victim of the defamation as evidence that the person identified was the poster online of the defamation. It cannot be used directly as evidence because it is hearsay. The Minister, for some reason, is digging his heels in to stop the use of an identification order as evidence. After Committee Stage, we redrafted our amendment to state:
Where an identification order has been made in accordance with this section, and where an anonymous publisher has been identified thereunder by an intermediary service provider, the said identification as relevant information shall, subject to the right of any party to contradict or disprove that he or she is or was the anonymous publisher, be admissible in evidence in any defamation proceeding where the court hearing such proceeding so directs.
I am not saying that it is always admissible. I am saying that a court will state that the Internet service provider has identified Michael McDowell as the person who posted this. How does somebody whom I have defamed prove that, except by calling witnesses from the Internet service provider and producing records from the Internet service provider? It seems to me that, where a court has gone to the trouble of saying that it is necessary for the prosecution of the defamation case that the anonymous publisher be identified by way of an identification order, no injustice is done by saying to the person who sought and obtained that order that they can produce that in court. Where somebody wants to say that is wrong and it was their son, not them, who used the computer and put that up, or it was the cat who usurped their access to the website and put that up and that they never did anything of the sort, they can do that. In those circumstances, where someone wants to contradict or disprove that, a court can say that, at the very least, given the fact that an identification order has been made, it seems fair to the court that the substance of the relevant information, namely, who was the poster of the anonymous defamation, should be admissible in evidence - not admissible to prove beyond contradiction and not against the capacity of any party to say, "It was not me, as a matter of fact", but that at least it should be admissible.
The Minister must realise that an identification order just slapped down like that is of no use to someone if they have to prove that Joe Bloggs posted this. How do they actually prove it? He has been identified in court, under an order, as the anonymous publisher of a defamation, but how does my country solicitor in the Circuit Court actually prove the identity of the poster? Do they summon somebody?

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Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2026-01-21/debate/main
Retrieved: 2026-08-14T04:54:31+00:00
Sitting date: 2026-01-21