ISME, the Irish Small and Medium Enterprise association has asked for protections against “transient retail defamation” to be reinstated as part of the Defamation (Amendment) Bill, in order to protect retailers from the threat of incurring enormous legal costs.
The request forms part of the associations pre-Budget submission that was sent to Oireachtas members on Friday.
Writing on the same issue in July however, ISME chief executive Neil McDonnell asked readers of the Irish Times if they were aware that “simply asking a customer at an off-licence for ID can be framed as a defamatory statement? Or asking for a till receipt? Or quietly refusing to accept a €50 that failed a counterfeit check?”
All have resulted in legal actions against retailers said Mr McDonnell.
He was also critical of TD’s and Senators who during the debate process focused almost exclusively on those provisions of the Bill that dealt with “the ending of jury trials for defamation,” while utterly failing to address the retail issue despite ISME drafting two specific amendments, “one on the definition of defamation and the other on the capping of damages.”
The Bill which has now almost completely passed through the legislative process is currently before the Seanad.
Noting the bind that many retailers find themselves in due to the risk of defamation proceedings, Mr McDonnell said that “the cost of fighting them in court is so high that many businesses choose to settle, even when they have done nothing wrong. On legal advice, many retailers now operate a “no challenge” policy toward suspected shoplifters because it is far cheaper to let them steal than it is to defend a defamation action.”
Reporting on the issue last year the Law Society Gazette observed that an additional major problem is “the increasing proportion of perpetrators under the age of 16,” with retail respondents informing the Gazette that they believe “these young people are taking advantage of the fact that there will be little or no repercussions if they’re caught.”
One off-licence owner in west Dublin also conveyed his experiences involving incidences of violence on a weekly basis:
“We have been robbed by people using a machete. As a licensed premises, we must behave by law in certain manner, for example when refusing someone when you believe they’re underage and can’t prove it. Over the years, staff have been threatened to be shot, killed or have their vehicles vandalised if they refuse someone,” he said.
“The effect on staff is the thing that upsets us the most. The level of abuse they take is unacceptable. They always step back and get out of the way. The risk of being sued is too high otherwise. Our policy is to record everything and let the offenders go, unless it’s a major incident when we’ll call the gardaí.
“Years ago, the gardaí would be there in ten minutes if we made an emergency call; now you could be on hold for five minutes if you call 999.”