Business of Dáil. - Defamation Bill, 1961—Second Stage.

I move that the Bill be now read a Second Time. The Bill is a composite measure. It proposes not alone to amend the law of defamation but also to consolidate the existing statutory law. The principal consolidation will be found in Part II, and I propose to deal with that Part first.

I may preface my remarks by saying that the basic principles of the law of defamation, which is the usual way of describing libel and slander, are to be found in the common law. The Courts have down through the years, laid down in a great number of cases the rules, with the exceptions and distinctions, sometimes very finely shaded, that make a man answerable in law for defaming another. Deputies will observe that Part II is entitled "Criminal Proceedings for Libel". As well as being an actionable wrong, libel is also a criminal offence. In early times, libels were prosecuted as criminal offences by the party aggrieved before a judge and jury as indictable misdemeanours, and actions for damages on the civil side were rare. In those times the party complaining of the libel could institute and carry on a criminal prosecution on indictment in his own name. The private prosecutor disappeared in this country in 1924 when the Criminal Justice (Administration) Act of that year was passed and the Attorney General designated as the only authority to prosecute on indictment for a criminal charge. However, the private prosecutor in libel cases had long before 1924 given place to the plaintiff who sued civilly and recovered damages. This was probably considered a better business proposition than seeking vindication through the criminal law. Indeed, I have been unable to find any notable instance of a prosecution for what I might call a personal defamatory libel in recent times and where criminal prosecutions occur to-day, they are concerned with blasphemous, obscene, or seditious libels. Technically the law does not in any way hamper the Attorney General from preferring an indictment in a case where he considers it is proper to do so for a libel on an individual person. Truth is not a defence in a criminal libel unless public benefit is involved. Hence the saying: "the greater the truth, the greater the libel."

It is proposed in Part II to continue subject to slight modifications called for by the passage of time, the existing statutory enactments. For example in Section 5 the essentials of the Act of the Irish Parliament of 1793 are being re-enacted. The Irish measure was a reproduction of a very well-known statute passed in England the year before and known as "Fox's Act" from its sponsor Charles James Fox. Its object was to delimit the functions of a judge and to establish the powers of a jury who in the view of a judicial authority in 1868 were "the true guardians of the liberty of the Press." Likewise, the provisions of the Libel Act of 1843 are continued in Sections 6 and 7. The bar to commencing a prosecution of a newspaper without the leave of the court which was imposed in 1888 is of course being continued in Section 8. None of these provisions calls for elaboration at this stage, and, although one might prefer an abbreviated form of Section 6, which deals with a plea of justification and publication for the public benefit in a criminal prosecution, there is the risk of departing from a formula that has governed criminal procedure for well over a century. Sections 11, 12 and 13 are intended to put all punishment on a statutory basis. This is the position at present except in cases of obscene libel and a first offence of blasphemous libel, where the punishment under the common law is unspecified fine or imprisonment.

I feel that there will be a general recognition that this tidying up of scattered sections of the present statutory enactments on the criminal side is a step in the right direction.

In dealing with Part III of the Bill which is concerned with the civil aspect of defamation, I should like to refer to the legislation passed in Great Britain in 1952 and in the North in 1955. This legislation followed the report in 1948 of Lord Porter's Committee, who recommended certain reforms in order to make the law more appropriate to modern conditions and to remove certain anomalies. The Government are satisfied that with some exceptions the English legislation could with advantage be followed here.

The introduction of broadcasting with its offspring television has made it desirable to label defamation through this agency as libel or slander. Defamation by spoken word is slander and becomes libel when published in any permanent form. To remove any doubt it is proposed in sections 14 and 15 that defamation through wireless broadcasting, television or any other recording techniques will be libel rather than slander.

The simple provisions of the Slander of Women Act, 1891, are being continued without alteration in Section 16. This Act added a further exception to the general rule that slander is not actionable except on proof of special damage.

In Sections 17 and 18 the provisions of the Libel Acts of 1843 and 1845 are being re-enacted. They embrace some defences open in court actions in mitigation of damages.

The 1843 Act applies to any action for defamation and makes it possible for a defendant, after giving due notice to the plaintiff, to give evidence in mitigation of damages that he made or offered an apology to the plaintiff for the defamation before the action was started or as soon afterwards as he had an opportunity of doing so. It is, of course, conceded that there was defamation and the only question to be settled is the amount of damages. Where the defendant is proceeded against in respect of a libel in a newspaper, the plea of apology in order to be effective must under the 1845 Act be accompanied by a lodgment of money in court. The High Court Rules do not permit in cases of libel or slander the lodgment of money in court with a denial of liability, as they do in cases of other torts except where a question of title to land is involved. Such a lodgment appears to be permitted under the English Rules.

Section 20 deals with slanders where, unlike cases of libel, the law requires that actual pecuniary loss must be proved by the plaintiff in order to recover damages. There are three classes of cases, in addition to the exception already noted under the Slander of Women Act, where words spoken are held by the common law to be actionableper se, i.e. without proof of special damage. These exceptions are:—

(a) words imputing a crime for which plaintiff may suffer at least imprisonment in the first instance;

(b) words imputing to the plaintiff certain contagious or infectious diseases:

(c) words spoken of the plaintiffin the way of his office, profession or trade and naturally tending to injure or prejudice his reputation therein.

Section 20 will modify the law in respect of the last of these exceptions, and it will no longer be necessary to prove that the words were spoken of a plaintiff in the way of his office, profession or trade. They may be spoken of him in his personal capacity, but if they are calculated to disparage him in his office, profession or trade they will be actionable without proof of special damage. I need hardly say that a personal reflection such as words attributing immorality or insobriety may have very serious consequences to a man in his office, profession or trade even though not spoken of him in that capacity.

Slander of title is "a false and malicious denial whether spoken or in permanent form of a person's title to property" and slander of goods is "a false and malicious depreciation whether spoken or in permanent form of merchandise sold and manufactured by a person." At present a plaintiff in such cases must prove actual pecuniary loss and no distinction exists between written and spoken words. Following the principle adopted in Section 20, it is proposed in Section 21 to make slander of goods, slander of title and other malicious falsehoods actionable without proof of special damage where the words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession or trade carried on by him at the time of the publication. Such slanders and malicious falsehoods will also be actionable without proof of special damage under Section 21, if the words are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form.

Under existing law, in ascertaining the meaning of words complained of as defamation, the test is not what the defendant intended the words to mean but what they would be reasonably understood to mean by those to whom they were published in the light of the surrounding circumstances. This has led to some anomalies. The first is where a defamatory statement is intended to refer to a fictitious character but is in fact defamatory of an existing person. The second is that of a statement made truthfully of an existing person, but which is found in fact to be defamatory of another existing person. In a third category, there are cases where statements quite harmless on their face and referable to an existing person are, because of facts unknown to the author or publisher, defamatory of the person intended to be referred to or some other person. All these are instances of unintentional defamation where reform is desirable to ensure that, while the reputation of an injured person is cleared by an adequate correction and apology, the heavy expense of legal proceedings will be avoided.

Section 22 of the Bill creates the defence of innocent publication and the making of an offer of amends. Innocent publication must fully satisfy certain conditions. The publisher must not intend to publish the words of and concerning the aggrieved party and must not know of any circumstances by virtue of which they might be understood to refer to him. Innocent publication may also be satisfied where the words were not defamatory on their face, and the publisher did not know of circumstances by virtue of which they might be understood to be defamatory.

In every case, in order to avail himself of this defence, the publisher must establish that he exercised all reasonable care in relation to the publication and "publisher" includes any servant or agent of the publisher concerned in the publication. The offer of amends must be made promptly and accompanied by an affidavit specifying the facts relied upon to show innocent publication. Where a defence is made under the section, no further evidence will be admissible to supplement proof of innocent publication. The offer of amends means an offer to publish a suitable correction and a sufficient apology, and, where copies have been distributed, to take reasonable steps to notify persons that the words complained of are alleged to be defamatory of the aggrieved party.

Should the offer be accepted and a question is raised as to the steps to be taken in fulfilment thereof, it may be determined by the appropriate court which may order payment of costs on an indemnity basis to the aggrieved party. The liability of any other party jointly responsible for publication is not prejudiced by the making and acceptance of an offer of amends. If the offer is not accepted it will afford a defence if the section can be shown to have been complied with and if the offer was made in accordance with the section and was not withdrawn.

The defence of innocent publication will not be available in cases where special damage is proved, or where the defendant is not the author of the words complained of, unless he proves the words were written by the author without malice. The section will not afford any defence where malice is established.

It is not in the interest of any section of the community that frivolous or unduly enterprising actions for defamation should be encouraged. At the same time, if a defendant who claims to have acted wholly innocently wishes to avail himself of Section 22, he must comply fully with its requirements; and this should afford the aggrieved party sufficient vindication without litigation.

It is a good defence in civil proceedings for defamation to prove justification, viz. that the words complained of are true in substance and in fact. A libel may contain a series of serious charges which a defendant succeeds in proving to be true and a minor one in which he does not succeed in his defence of justification. Under the existing law a plaintiff would be entitled to a verdict and to damages although in such a state of facts there could be no appreciable damage caused to his reputation. It is proposed in Section 23 to save a defence of justification in any case where the words not proved to be true do not materially injure the plaintiff's reputation when regard is had to the truth of the charges proved to be true in substance and in fact.

It is also a defence to an action for libel that the words complained of were "fair comment upon a matter of public interest." This will be regarded as an important safeguard in the maintenance of that freedom of expression of opinion which Article 40 of the Constitution was designed to protect. It is not always easy to distinguish between fact and comment. Indeed, it would be safe to say that in the majority of cases a libel complained of in this context would consist in part of statements of fact and in part of expressions of opinion. Section 24 will therefore rationalize the defence of fair comment in harmony with the preceding section dealing with justification. It will save a defence of fair comment from failing in cases where the libel or slander complained of consists partly of allegations of fact and partly of expression of opinion and the truth of every allegation of fact is not proved, but the expression of opinion is fair comment on such allegations of fact as are proved.

I now come to Section 25, which is designed to give qualified privilege to certain reports in newspapers and broadcasts. A qualified privilege is already enjoyed by newspapers under the Law of Libel Amendment Act, 1888, but the field covered by that Act was delimited by the needs and circumstances of that time and its area must be widened to embrace categories of reports appropriate to the present day. Unlike Section 22 which applies to all publications, Section 25 is referable to newspapers only. It has been the subject of representations to us by the press who seek the same measure of protection as the British and Northern newspapers enjoy by virtue of the legislation in 1952 and 1955. If there is proof of malice, there will be no protection whatever under the section for a newspaper. Subject to this, publication in a newspaper or broadcasts of reports or matters mentioned in the Second Schedule are privileged. Only fair and accurate reports are covered by the Schedule. In Part I of the Schedule, where the privilege attaches without any obligation to make an explanation or contradiction, the subjects comprise fair and accurate reports of proceedings in public of outside legislatures or bodies appointed by them to hold public inquiries. Also privileged are (1) fair and accurate reports of public proceedings of international organisations with which the State or the Government is associated, and of the International Court of Justice, and of courts and courtsmartial of a foreign country, (2) fair and accurate copies of registers or other documents open to public inspection, and (3) any notices published by authority of Courts in the State. The British Act of 1952 (and the Act of 1955 in the North) covers the public proceedings of legislatures in the Dominions. Ireland and India were specifically named. The Porter Committee recommended that all foreign legislatures should be covered. The Bill contains no limitation on fair and accurate reports of public proceedings in foreign legislative assemblies or of proceedings of a foreign court or court-martial. Thus a wider field is proposed for our newspapers in this matter.

Part II of the Second Schedule lists the statements that will be privileged but subject to explanation or contradiction. Section 25 withdraws the defence of privilege in respect of any such statement if it is shown that the defendant has been requested to publish (or broadcast as the case may be) a reasonable explanation or contradiction and has not done so or has done so inadequately or unreasonably. The subjects covered in Part II comprise fair and accurate reports of decisions or findings of certain associations formed in the State or in the North to promote art, science or learning, trade or professional bodies, and sporting associations, where the decisions or findings relate to members or to those subject by contract to some control by the association. Fair and accurate reports of proceedings at public meetings in the State or the Northbona fide and lawfully held for a lawful purpose and related to a matter of public concern, whether admission is general or restricted, are also within Part II. This Part, in addition, embraces fair and accurate reports of proceedings at meetings or sittings whether in the State or the North of local authorities, commissions, tribunals, and local inquiries where the public or the Press are not excluded. Fair and accurate reports or proceedings at general meetings of companies (other than private companies) formed in the State or the North are also within Part II of the Schedule. Likewise, Part II covers copies, fair and accurate reports or summaries of notices issued for the information of the public by any Government Department, local authority, or the Commissioner of the Garda Síochána, or by a corresponding department, authority or officer in the North.

At present, under the 1888 Act, a newspaper enjoys qualified privilege in respect of fair and accurate reports of proceedings at public meetings within the State of local bodies, etc., and of official publications and notices, subject to publication by the newspaper on request of a reasonable letter or statement of contradiction or explanation. The effect of Section 25 (2) of the Bill is to extend this qualified privilege (i) to fair and accurate reports of the proceedings at meetings of sporting, scientific, commercial and vocational associations formed in the State, and (ii) to the proceedings of similar associations formed in the North. The British and Six Counties Acts of 1952 and 1955 respectively afford protection in respect of such reports within the United Kingdom only.

In view of the fact that doubts have been expressed as to the validity of agreements to indemnify publishers against libels of which they are unaware, Section 26 will make lawful an agreement unless the party to be indemnified knows the matter is defamatory and does not believe that there is a good defence to an action in respect of the publication.

Section 27 will enable a defendant to endeavour to reduce damages by proving that the plaintiff has already been compensated for the same or similar words. This will alter the existing law.

In 1881, provision was made for the registration of newspaper proprietors in the Newspaper Libel and Registration Act of that year. The object of the Act was to enable a member of the public to inspect the entries on the register and discover the identity of the proprietor or proprietors of a newspaper. Changes in proprietorship had also to be registered. About a dozen sections in the Act dealt with the establishment and maintenance of the register, and the appointment of a Registrar, which position, incidentally, came in time to be filled as a matter of administrative convenience by the person who was Registrar of Joint Stock Companies. Certified copies from the registrar are obtainable and penalties are provided for breaches of the requirements as to registration.

The Act does not apply to companies. In due course, the Registration of Business Names Act, 1916, required the persons carrying on business under a business name to register particulars, including the names and addresses of the persons carrying on such business. Some proprietors of newspapers who also trade under a business name must be registered under both the Act of 1881 and the Act of 1916. Registrations under the Act of 1881 have fallen to a very low figure—sixteen in the current year—and the retention of the somewhat elaborate structure established by that Act cannot now be justified. Accordingly, it is proposed in Section 29 that where a newspaper is not owned by a company the proprietors must be registered under the Act of 1916 only.

I should like to say that, for the purpose of this registration, we are continuing the old and more restricted definition of newspaper which excluded monthly publications whereas in the other parts of the Bill we have adopted the new and wide definition which takes in publications appearing at intervals not exceeding 36 days. In other words, the benefits in the Bill are given to a wider range of publications while the obligations as to registration will remain with the same class of publication as came under the terms of the 1881 legislation.

I recommend the Bill to the House. I trust that the explanatory memorandum and the explanatory sidenotes in the text of the Bill have been of assisance to Deputies in studying the Bill.

Again I have much pleasure in giving complete approval to this measure, which I am sure has been given great thought and which is very badly needed in the general public interest to bring the law of defamation up to date. I congratulate the Parliamentary Secretary and the officials concerned.

I have very little to say on the text or details of the measure. Those details can be more appropriately dealt with on Committee Stage. There are just three or four points to which I would direct attention, giving my own personal point of view rather than anybody elses. It is proper that the Parliamentary Secretary when introducing a Bill of this kind would endeavour to modify the statute law and bring it up to date. I cannot see that the elaborate provisions in reference to criminal proceedings about libel are really necessary but I suppose it is better to have them there and up to date so that we will know where we are.

I wonder would the Parliamentary Secretary get some of his legal experts to ascertain for me in relation to a libel action—I am perhaps mentally lazy or too old now to go searching for the origins of matters of this sort— the meaning of the saying: the greater the truth, the greater the libel. Why is it there? I have never been able to understand it. I do not know why, if circumstances are such as to render necessary criminal proceedings for libel and the defamatory words complained of are true, it cannot be a defence to prove truth without any question of public policy. I have never been able to understand it. Perhaps the Parliamentary Secretary might be able to enlighten me.

I do not know why it is there or why it is continued, in view of our criminal libel proceedings at present, where no one but the Attorney General can prefer an indictment. The Attorney General can, in fact, interpose at any stage of the proceedings that a private citizen might be audacious enough to initiate. He can interfere if a person decides to take a case against someone for criminal libel, and he can make the decision whether he will carry on the indictment before a jury. He can decide whether there is any necessity for those proceedings at all. I do not know why it should be left to the public representative of the people, the Attorney General, to say whether or not a person should prosecute for criminal libel.

Another point to which I want to refer is again a rather ancient survival of an old law which I have never been able to understand. It has always seemed to me to be a complete anomaly. I do not know of any reason why it should be there, but it is there. The very first case I had was a case under the Slander of Women Act. The case was transferred from the High Court to the then County Court or Recorder's Court. There happened to be a very unpleasant individual presiding over the court, the late Thomas O'Shaughnessy, Recorder of Dublin. He thought the High Court were not doing their job in sending the case to him and without hearing the case—he asked me what it was about and I very timidly and very nervously told him it was a case under the Slander of Women Act—he said: "A farthing damages and 6/8d. costs." It was contrary to the law, of course, but it impressed on my juvenile mind the Slander of Women Act. That was the award I got from his unpleasant lordship. I hope I am not using the wrong word in using the word "lordship" before the Bill becomes an Act.

However, I do not understand why if a woman is slandered in her virtue, there should be any difference in costs and damages. The case may be pretty serious, and why should there be a provision that if a woman is slandered in her virtue she should not get more costs than damages? Why that anomaly is there, I do not know. I recommend to the Parliamentary Secretary that he should remove it.

That leads me to the next point I want to make. Why does not the Parliamentary Secretary in bringing in this Bill do what has been talked of by lawyers and many members of the public—abolish the distinction between slander and libel? Why there should be this artificial difference between the spoken word and the written word has been a topic for consideration ever since I became a student. People have tried to explain that it is because the written word remains and the spoken word goes with the wind. The spoken word may be very much more damaging than the written word. Why there should be that artificial distinction passes my comprehension. Apparently they have not abolished it in England, but we should abolish it here. I commend it for the consideration of the Parliamentary Secretary and the House during Committee Stage.

The last point I want to make is in reference to Section 18 which I think reproduces the provisions of one of these numerous Acts which are usually classed under the name of Lord Campbell, and most people do not know which Lord Campbell and which Act. I am referring to the Acts of 1843 and 1845 which enable newspapers to make an apology as soon as possible and lodge money in court. I think the Parliamentary Secretary's advisers will tell him that if he looks up some of our books on libel, that is a peculiar but usual provision on the statutes. I am not saying it should not be there or that it should not be continued. It is there and there is no reason why it should not remain.

In a recent case in which, I appeared the newspaper in question published what they termed was an apology and lodged money in court, but they found to their horror that it was not of any use to them. The position is that the case can be gone on with and the plaintiff may get more money than is lodged —in which event everything is grand for the plaintiff—or get less money than is lodged, in which event my recollection is that even though the jury give less, the plaintiff can take out the bigger sum. That does appear to be a very illusory defence for the newspapers. In fact, it is very seldom used. The only time I ever knew it to be used was in the action to which I have referred. It was used, I am glad to say, with success by the plaintiff.

Incidentally, the Parliamentary Secretary referred to the provision for lodging money in court. Under the rules of the High Court, a defendant sued for libel cannot lodge money in court unless he admits the defamatory nature of the words alleged to have been published. Personally, I think it is a good provision, but it is a curious thing that while our High Court rules prevent a defendant in a libel action from lodging money in court without admitting the truth of the defamatory nature of the publication our circuit court rules do allow it. The High Court do and the Circuit Court do not. No secret lodgement in such cases is permitted in the High Court.

Personally, I think the High Court rules are right. I believe the defendant in a libel action should not be enabled to lodge money in court, without admitting the defamatory nature of the publication. That is my own personal view. I think it is a piece of manoeuvring to try to get away with the libel which is published. It is a manoeuvre because if a sum of money is lodged in court and the jury think the plaintiff has been libelled but that a smaller sum of money is adequate and that no special damages can be given, the defendant may get away with it. That is a piece of legal manoeuvring on the part of the person or newspaper which has published a defamatory statement and I think they should not be allowed to get away with it.

I have expressed my gratification at this Bill. I commend the Parliamentary Secretary for bringing it in, for the erudite research which has gone into the provisions of the Bill, and for the very considerable amount of work and industry put into its preparation.

Again I find myself in the position of being very glad to express my gratitude to the House for the manner in which they have received this Bill and in particular to Deputy Costello. Deputy Costello has raised a number of points. He referred to the old maxim: "The greater the truth, the greater the libel." Like Deputy Costello I am not exactly sure of its origin. It might have been conceived because criminal libel was libel likely to lead to a breach of the peace and that likelihood was probably greater if the statement made was true. Therefore, the greater the truth the greater the libel. However, I would not attempt to be dogmatic about this but there it is for what it is worth.

I personally share the views of Deputy Costello with regard to the slander of women and I have queried the matter. Indeed, I am very glad that it has been raised and will be pleased to have a second look at it.

Deputy Costello answered himself with regard to the reason for the original difference between libel and slander. Whether or not we should consider the abolition of the difference is another matter I will look into. The same applies to the provisions of Lord Campbell's Act. I myself doubted whether in view of the new provisions we were making in this Bill with regard to newspapers it was necessary to retain the old provisions, and I finally came to the conclusion that we would retain the provisions in the Bill and ascertain the views of Deputies who had experience of such matters. Here again I share Deputy Costello's views, and I feel that the provisions of Lord Campbell's Act are probably unnecessary and illusory; but if there was no particular reason why we should get rid of them, it might be just as well to be on the safe side and hold on to them.

These are the only points I would comment on at this stage. They can be gone into more fully on Committee Stage. I should repeat that I am most grateful to the House for the reception it has accorded to the Bill.

Question put and agreed to.

When is it proposed to take the Committee Stage?

This day fortnight.

Put it down for then, anyway, and if we are not ready, we shall ask for an extension.

It might be better to put it back a little later, particularly if you wish to have the views of the Bar Council, the solicitors and newspapers and so on. I do not know if this is going to a Special Committee or not.

There is no agreement about a Special Committee.

If we order it for this day fortnight, we can always agree to put it back.

Committee Stage ordered for Wednesday May 17th, 1961.