Now that the Parliamentary Secretary has arrived, may I say how appropriate it is that Fianna Fáil should be dealing with a Defamation Bill because they are past masters in relation to it?
Defamation Bill, 1961—Committee Stage.
Is this a constructive comment or a funny joke?
A truthful comment that I cannot expect the Deputy to appreciate.
The Chair does not consider it appropriate at this time.
I would not expect the Chair to consider the truth of the comment at this stage.
The Deputy does not mean a word of it.
I move amendment No. 1:
In page 3, line 18, after "State" to insert "or in Northern Ireland".
The object of the amendment is to extend the privileges of the Bill to newspapers printed and published in Northern Ireland as well as to those printed and published in the State. The recent English and Northern Ireland Defamation Acts give statutory privilege only to papers printed and published in Great Britain and Northern Ireland. Under the Acts of 1881 and 1888 "a newspaper" means a paper published in England or Ireland. We now include a newspaper published in any part of Ireland.
In relation to this amendment and to the section, there is, I understand, considerable doubt in certain people's minds as to exactly what constitutes publication. It arises particularly in relation to newspapers that are printed outside the State and arrive here by air, shall we say, for example, and when they arrive at Collinstown are taken up at Collinstown for circulation through the rest of the country. I understand there is some grave doubt following a case that was heard some time ago as to what exactly "publication" means in that respect and that the decision in the case at issue was that the newspaper in question was, in fact, published in Manchester and was only distributed here. In the circumstances, I should like to know whether or not the Parliamentary Secretary has considered that point and if the information given to me is correct—I may add that the information was given to me by a legal adviser who had been concerned in the particular case—then, under what part of the Bill does the publication of a paper printed, say, in Manchester and distributed via Collinstown arise?
The section clearly defines a newspaper as one which is printed for sale and is published in the State. For the purpose of this section it must be both printed for sale and published.
Yes. Therefore, it depends entirely on where publication is.
If it is printed here.
No. It is not "printed for sale or is published in the State." It is both.
Exactly. That covers the point, surely, then. It is only a paper which is printed here and published here—not printed in Manchester and published here.
If it is printed here and published in Manchester, what is the situation?
It would not come under the jurisdiction of our courts.
Would it not, if it were printed here?
The libel would then be published in Britain and it would come under the English definition.
Perhaps it might be better if we got the amendment out of the way first and dealt with it on the section.
This Act is copied from the British Defamation Act, 1952. I think I am right in saying that in the British Act they have, instead of "in the State", "in the United Kingdom". Is our position now by putting in "the State and Northern Ireland" the equivalent of the British Act saying "in the United Kingdom"? The English Defamation Act, 1952 is the foundation of this Bill.
I should like to be told if it is not. The main part of it is surely found in the 1952 British Act. This definition comes entirely from Section 7 of the Act of 1952. There, naturally, they say "printed for sale or published in the United Kingdom". We put in "the State". "The State" ordinarily means with us the Twenty-Six Counties. We have now added "or in Northern Ireland". I am asking the simple question: is putting in "or in Northern Ireland" as an addition to "the State", meaning the Twenty-Six Counties, the equivalent from our angle of "the United Kingdom" in the British Act?
No. What I am concerned with in this amendment is to extend the privileges that this Bill will provide for newspapers to a newspaper whether it is published here or in Northern Ireland. In other words, no matter in what part of Ireland it is published, it will qualify for the privileges we are extending to newspapers in this Bill.
There are obligtions under the Bill also.
Surely, the foundation of the thing is printing or publishing somewhere. We are not merely extending safeguards which occur in certain sections but establishing the obligation.
In the main, we are providing in the Bill certain new safeguards, certain new protections for newspapers. We are providing obligations also but, in the main, we are affording newspapers a new type of protection and that new type of protection will be extended to newspapers no matter in what part of Ireland they are published. In other words, we are giving Northern Ireland newspapers the same protection as the Bill gives to Twenty-Six County newspapers. That is the effect of the amendment.
I will come back to it on the section.
As well as giving privileges, the Bill is intended to be a consolidating measure in relation to the law of defamation. In addition, certain obligations are established. As I understand the situation now, from what the Parliamentary Secretary has said, in respect of any newspaper—the Manchester edition, say, of one of the British newspapers—which is printed outside and comes in here, a party who is aggrieved by any article in such paper will not now have any rights——
——in relation to the obligation contained in the Bill. In its schedule, the Bill repeals certain enactments already existing. By its repeal of these enactments it lets out, so to speak, these newspapers from the effects of those enactments and at the same time it does not bring them in under this Bill.
I think I can set Deputy Sweetman's mind at rest. We are making certain new provisions with regard to newspapers and those new provisions are directed towards affording those newspapers protection against——
To a degree.
We are defining "newspaper" as any paper which is published here or in Northern Ireland, and only those newspapers will qualify for the protection. The type of paper Deputy Sweetman has in mind—an English newspaper printed in Manchester and published here, or if you like sold here—will not get this protection, but the ordinary law with regard to libel will still apply to it.
Subject to repeal here.
Practically anything repealed is re-enacted in this Bill.
It is re-enacted in regard to Irish papers but not in regard to others.
It is re-enacted in regard——
No, because it all depends on the newspaper.
All the law of libel and slander as it stands in our statutes at the moment is to be wiped out and re-enacted in this Bill. That is one of the purposes of the Bill. We want to put all the law in one Bill. Apart from the position with regard to the protection of newspapers the existing statute law is being consolidated. The ordinary law of libel will apply to English newspapers. The protection which we are giving to newspapers will apply only to our own newspapers and those published and printed in Northern Ireland.
Look at Sections 11 and 12. The word "newspaper" does not come into those sections. "Every person who maliciously publishes ..." That is the beginning and end of it.
It does not matter where. That is exactly what I am saying. The ordinary law of libel applies to the publication of libel in this country in any form. We are making changes in that law directed to protecting newspapers. Those changes will apply only to our own newspapers or to Belfast.
The Northern Ireland newspapers.
What about Section 10 which brings in the term "newspaper." Section 10 provides for the summary conviction of the editor of a newspaper.
May I ask the question again?
We shall deal with Section 10 when we come to it.
On Section 11——
I think we should proceed to deal with each section——
The Parliamentary Secretary has said that the remaining sections are consolidated.
Section 11 applies to a person who "maliciously publishes". I want to know where.
Anywhere in the State.
That is not stated.
Our laws do not run in Britain.
Supposing a person publishes a defamatory libel in Northern Ireland and comes down here, how do we get after him?
Is it published here?
If he publishes it in Northern Ireland and comes down here what happens?
You can sue him here.
I suppose it is the same in America.
I cannot see how you can in view of the definition in Section 2. Under "proprietor", "newspaper" is defined in the same way. The Parliamentary Secretary is aware of the case there has been in relation to this matter?
Those who are actually concerned have a different interpretation from the interpretation of the Parliamentary Secretary.
They made representations and we considered them fully.
So far as Section 11 is concerned I suppose the Parliamentary Secretary is aware——
We cannot be expected to discuss Section 11——
We can deal with Section 11 when we come to it.
I am speaking on Section 2 as amended and I want to know its application to Section 11.
Section 11 does not fall to be dealt with at this stage.
Section 11 is part of the legislation and the definition applies to the whole legislation.
The word "newspaper" is defined, the word "proprietor" is defined and the words "local authority" are defined. So far as I can see none of those words is used in Section 11.
That is what I want to point out.
Section 2 has nothing to do with Section 11. That is obvious in reading both sections.
Since publication runs all through the Bill it is a vital question.
Section 2 stand part?
No. I shall be speaking on Section 2 in a moment. I want a simple answer. As publication is referred to in Sections 11 and 12 is it affected by the definitions in Section 2?
Definition of what?
If the libel occurs in a newspaper do not Sections 11 and 12——
I am not prepared to discuss Sections 11 and 12 on Section 2.
I hope the Parliamentary Secretary will be better briefed when we come to Section 11. On Section 2, the section is practically copied from the Defamation Act, 1952, except that the word "State" is not used in the English Act. The phrase used is "the United Kingdom". We have added "the State or Northern Ireland". So far as the replacement of the phrase "United Kingdom" is concerned, in regard to newspapers we are now dealing with newspapers which are printed, published and for sale either in our area or in the Six Counties. We will deal with that on Sections 11 and 12 when we come to them.
There is in the second paragraph of Section 2, defining "newspaper", the statement "published in the State either periodically or in parts or numbers at intervals not exceeding thirty-six days." Section 29 is the section which deals with the registration obligation under the Registration of Business Names Act. In that section "newspaper" means much the same as it does in this definition but it goes on to say: "...printed for sale and is published in the State either periodically or in parts or numbers at intervals not exceeding twenty-six days". Why the difference? Why is it confined to twenty-six days for registration purposes and thirty-six days in the definition.
Read the Explanatory Memorandum.
I am sure the Parliamentary Secretary has read it. I want to know what is the reason for the distinction. Why should there be that distinction?
I shall tell the Deputy when he is finished.
After all, the word "proprietor" is defined and it follows the definition in the English Act 1952 except that we have added two and a half lines. I shall quote the full definition:
"proprietor" means, as well as the sole proprietor of any newspaper, in the case of a divided proprietorship, the persons who, as partners or otherwise, represent or are responsible for any share or interest in the newspaper as between themselves and the persons in like manner representing or responsible for the other shares or interests therein, and no other person.
What is added by the last two and a half lines of the section?
As explained in the Explanatory Memorandum, the reason the exception is made from the general scope of the definition of a newspaper is that we do not want to impose on monthly periodicals the duty of registration. Under the old provisions whereby a separate register was kept, 26 days was the period. Monthly papers were excluded and we want to continue that exclusion. We are proposing that the owners of these monthly publications will not have the obligation of registration.
I have been referred to the Explanatory Memorandum and, in the paragraph referring to Section 2, a newspaper is defined so as to include periodicals published at intervals not exceeding 36 days. The paragraph goes on to say that the effect of this definition is to extend to monthly publications the protection afforded newspapers under the 1880 Act. Then I go to paragraph 19 of the Memorandum which says:
A separate registry of newspaper proprietors was established under the Newspaper Libel and Registration Act, 1881, the object of which was to enable the identity of the proprietors to be ascertained. The 1881 Act did not apply to newspapers owned by companies. Because of the Registration of Business Names Act, 1916, some unincorporated proprietors of newspapers are registered under both the Act of 1881 and the Act of 1916. There has been an increase in the number of incorporated proprietors who are registered under the Companies Acts, 1908 to 1959. It is proposed in section 29 to dispense with the maintenance of the separate registry under the Act of 1881 so that all proprietors will be registered either under the Companies Acts or under the Registration of Business Names Act. As the 1881 Act did not include publications appearing at intervals exceeding 26 days and thus excluded monthly publications, it is not proposed to extend the obligation to register in respect of these publications. Cp. definition of "newspaper" in section 2 with the definition in section 29 (3).
Why is it not proposed to extend it?
Because we do not think it desirable to do so. We think it would be an onerous obligation on them. By and large, these publications are artistic, technical or cultural and we consider it undesirable to make them register in this fashion. It is as simple as that.
Can a shareholder or a company be caught under the term "otherwise" in line 22 of the Section?
What is the need for the last two and a half lines? I can see a proprietor being defined to include a sole proprietor as well as a case of a divided proprietorship, but does that not seem to cover everything?
The lines mean exactly what they say.
After that lucid explanation by the Parliamentary Secretary, what do they mean?
We are defining proprietorship. We are saying that, if a newspaper is owned jointly or by two or more people, "proprietor" means those people and nobody else.
Is that not covered by the phrase "who as partners or otherwise, represent or are responsible for any share in the newspapers"? What is added by the words "and the persons in like manner representing or responsible for the other shares or interests therein"?
If three people are partners in a newspaper are they not caught by the first three and a half lines?
This is the definition in the 1881 Act.
I do not think it is.
The 1881 Act carries down only as far as the words "responsible for any share or interest in the newspaper." Apart from the 1881 Act altogether, who extra is caught by the addition of the two and a half lines?
Nobody. It is just to make it absolutely clear that every person who is part proprietor in the newspaper business is liable.
Give me a hypothetical case of anybody not caught in the first part of the definition.
It is not necessary on my part. All I am concerned with is whether this form of words achieves what I want it to achieve. Deputy McGilligan may have a different set of words. If so, let him put down an amendment.
The Parliamentary Secretary comes in here to bring in measures that are clear. It is the duty and the job for which he is paid by the taxpayers to explain what the form of words means and I do not believe those last two and a half lines are put in for fun. I do not believe they are put there by the draftsman just for the fun of the thing. They clearly add something to the preceeding three lines and it is the job of the Parliamentary Secretary to learn his brief and ensure that he is in a position to tell the House what they are added for.
They are not added for anything special.
Of course they are. The draftsman is not a fool.
They are a form of words used to make certain that everybody is liable who should be liable— everybody who is a part owner of the newspaper. I cannot see what complications these words give rise to.
The intention is to catch everybody who has any share or interest in a concern. Do we not do that by saying "the persons who, as partners or otherwise, represent or are responsible for any share or interest in the newspaper"? Everybody is covered in that. I want to suggest that the addition is not to be found in the 1952 Act, from which most of this Act is copied and I do not believe it is in the 1881 Act.
I have here a copy of the 1881 Act. I quote from the Act:
The word "proprietor" shall mean and include as well as the sole proprietor of any newspaper, as also in the case of a divided proprietorship, the persons who, as partners or otherwise, represent and are responsible for any share or interest in the newspaper as between themselves and the persons in like manner representing or responsible for the other shares or interests therein, and no other person.
In other words, the wording is identical with the 1881 Act. I trust Deputy McGilligan will now have the good grace to apologise?
I said I believed it was not. What is the definition in the 1952 Act?
Do not twist now. The Deputy said it was not the same as the 1881 Act.
The Parliamentary Secretary will get his Bill much quicker if he keeps his temper and does his job; otherwise we will keep him here for days and days.
And I shall stay. I made a simple statement that it was the same as the 1881 Act and Deputy McGilligan said it was not.
I said I did not believe it was. I want to know what is the meaning of it.
I have told the Deputy the meaning of it.
The Parliamentary Secretary has not.
This is a form of words used to describe the situation which obtains when a number of people own a newspaper in partnership. It is intended to convey that all those people are liable as partners for anything that appears in that newspaper. It is simple and straightforward.
I agree that is a proper thing to cover. I suggest it is covered by the part of the definition I propose to read again:
"proprietor" means .... in the case of a divided proprietorship, the persons who, as partners or otherwise, represent or are responsible for any share or interest in the newspaper.
Full stop. That catches those with shares in the newspaper. What is the meaning of the rest?
I think it is for the purpose of apportioning damages.
It has nothing to do with that.
It must mean an apportionment.
No. It merely refers to a number of people in owning different shares in the newspaper. It is an old form of words used to connote the idea of owning a thing in partnership.
The idea is to catch all the people in partnership. They are caught by the beginning. I think the meaning of the last part of it is—I think this is the answer but I want the authority—that they have to pay according to their shares.
It must mean something.
It merely means this. There are different shares in the proprietorship of a newspaper.
I have a half share, the Parliamentary Secretary has one third and Deputy McGilligan has one sixth.
As between ourselves we are partners in that venture and we are liable as partners because we own these particular shares and nobody else is liable.
We are all caught by the first part of it because we are persons who are partners. I think it means this. While we are all three caught vis-à-vis the person who is the plaintiff, as between ourselves we have got the right of contribution against each other.
Then it must mean something different. It does not read as it is as meaning solely the partners.
If it does the remainder of it is completely osmosis.
Is the Parliamentary Secretary suggesting it is the same as saying the partners are jointly and severally liable? Is that the interpretation?
I am saying that this is the old form of words used to describe people owning a thing in common—partners in some business. It seems to me to be clear. It says that in the case of a divided proprietorship, the persons who as partners are responsible for any shares are the people responsible for the other shares. It is just the way of including them in it.
There is nothing in this about apportionment. What does it refer to?
It seems odd that the ordinary laws of mathematics do not apply in this House.
I have already explained that my "Tá" is worth 78 "Tás".
I know that that is the principle of the Parliamentary Secretary and his Leader. They want to turn this House into a rubber stamp. That is the purpose of endeavouring to get all this legislation through in the last couple of weeks. We understand that.
It is a question of the intellectual weight of the Fianna Fáil Party.
All these sections, Sections 5 to 13, are merely a re-enactment of the old provisions with regard to criminal proceedings. They deal with the whole manner in which criminal proceedings for libel are to be taken. There is nothing new in any of these sections.
The side note to Section 5 says "Competence of jury to give general verdict on trial of indictment for libel". We are then referred to the 1793 Act. Was there not a case on this matter?
Section 5 is a reenactment of what is known as "Fox's Libel Act" or the Act similar to that Act passed in the old Irish Parliament in 1793. Section 4 only is not being re-enacted. That section dealt with the right of a defendant on conviction to move in arrest of judgment which was the only means, and a severely restricted one, by which an appeal could be taken in former times. In view of the general power to appeal to the Court of Criminal Appeal it is quite unnecessary to re-enact the section. Otherwise, the Act is being re-enacted. A special verdict is a verdict in terms other than "guilty" or "not guilty", as where the jury state positively facts which they find. An example is where on a trial for forgery of a bank note, the jury states that they found that the defendant erased and altered the note by changing "two" into "five". This was held sufficient as a special verdict to warrant a conviction.
Fox's Act has been held to be declaratory of the common law but it was passed because of the invasion by the judges of the functions of the jury. In civil and criminal proceedings whether the words complained of are defamatory or not is a question of fact for the jury. The prior question whether the words are capable of a defamatory meaning is for the judge.
Again, this is the old law of 1843.
This is the point that was discussed on Second Reading; not merely must one plead justification but also prove that it is for the public benefit.
That it is in the public interest.
There was some doubt about that when the matter was discussed on the Second Stage and there was some talk about the old slogan "The greater the truth the greater the libel".
Deputy Costello asked, more as a matter of information than anything else, what was the origin of the old phrase "the greater the truth the greater the libel".
Surely there is more than that to it. It was discussed, was it not? It is clear that the phrase had relevance only to criminal libel.
That is right.
And it was not even then true. It was not true to say of a criminal libel that the greater the truth the greater the libel.
In a restricted sense it was. Originally there was no defence to libel. Prior to 1843, I think it was, there was no defence.
The origin of the phrase is that criminal libel had its origins in conduct liable to lead to a breach of the peace and the greater the truth the greater the likelihood that a breach of the peace would follow.
The element of justification did come in at a later stage in the law of criminal libel, but it was justification with an addition. However, this carries forward the old law that one may plead justification, but justification is not in itself a complete defence.
That is right.
Again, this is the 1843 Act.
On the section, is this an exact copy of the section in the 1888 Act?
None of these is an exact copy because we have tidied up the wording and improved the phraseology by using more modern language. We have done away with some of the archaic phraseology, but we have not changed the law in any substantive fashion.
It is not the same as the 1888 Act because in the 1888 Act the definition of a newspaper as laid down in the Act of 1881 was the operative definition while the definition that the Parliamentary Secretary has taken now in Section 2 is different from the definition in the 1881 Act.
Our definition takes account of the political changes that have transpired since.
I cannot see how on this earth that could affect the definition of a newspaper. The Parliamentary Secretary says it is the same as the old Act. Did not the old Act provide for the fiat of the Attorney-General? Section 3 of the 1881 Act, for example, provides for the fiat of the Attorney-General. Did the 1888 Act change the 1881 Act?
This is the 1888 Act. It provided that no prosecution should be commenced against a proprietor, publisher, editor, or any person responsible for the publication of a newspaper without first getting leave of the Court. Notice of the application to the Court must be given to the person accused, who shall be entitled to contest the application.
Prosecution on indictment can only be instituted by the Attorney-General, but while no authoritative decision has been given to the contrary, it is our opinion, and the practice has supported it, that any individual can issue a summons and ask a justice to conduct a preliminary investigation into a charge which may be indictable in its character. It is only when the justice receives informations that no further step can be taken without the direction of the Attorney-General. This, of course, applies to cases which, while indictable, are also triable summarily and, as Sections 9 and 10 of the Bill show, charges against newspapers may be determined in this way.
Did the 1888 Act repeal Section 3 of the 1881 Act because Section 3 of that Act states categorically that no criminal prosecution shall be commenced against any newspaper, proprietor, publisher or editor for any libel published therein without the written fiat of the Director of Public Prosecutions in England or Her Majesty's Attorney-General in Ireland? I frankly do not know whether or not that is being repealed. I thought it was still extant.
I do not think that is quite the point at issue here. This is merely carrying forward the particular provision about the commencement of these actions.
Section 3 of the 1881 Act provides:
No criminal prosecution shall be commenced against any proprietor, publisher, editor, or any person responsible for the publication of a newspaper for any libel published therein, without the written fiat or allowance of the Director of Public Prosecutions in England or Her Majesty's Attorney-General in Ireland being first had and obtained.
I am quoting the exact wording of lines 53, 54 and 55 of the 1881 Act. That may have been repealed in another Section of the 1888 Act, but I cannot find it.
This may not necessarily concern the repeal of Section 3, the Section to which the Deputy refers.
Both are the commencement of criminal prosecutions.
This is an exact copy of Section 3 of the 1881 Act transposing the order of the court and the provisions made for an application for the fiat of the Attorney-General.
This section and section 8 of the 1888 Act are merely concerned to provide that no prosecution should be commenced without first getting the leave of the Court.
Was section 3 of the 1881 Act repealed in 1888? If it was that answers my question.
That is what I was trying to get.
Why is it necessary to have a Judge of the High Court in connection with a criminal prosecution?
They may have had a bad Attorney-General then.
One would have to go back and see what the situation was like in 1888.
It is contemplated in the rest of this Act that there can be summary prosecution. Why should one have to go to the Judge of the High Court to start that prosecution instead of to the District Court?
I shall read section 8 of the 1888 Act:
Section three of the forty-fourth and forty-fifth Victoria, chapter sixty, is hereby repealed, and instead thereof, be it enacted, that no criminal prosecution shall be commenced against any proprietor, publisher, editor, or any person responsible for the publication of a newspaper or for any libel published therein without the order of a Judge at Chambers being first had and obtained.
Therefore, they just substituted the order of the Judge for the fiat of the Attorney General.
Why should one want to go to a Judge of the High Court instead of following the district court procedure?
As I said, in this section we have not set out to change the law in any way. For the convenience of practitioners we have decided to repeal them all and repeat them in this Bill.
The provision in the 1888 Act as it was read out refers to a Judge. "Judge" covers "District Justice".
Or Circuit Court Judge. Why should one go to the expense——
The 1888 Act says "Judge at Chambers".
Chamber applications went to the County Court Judge, too.
I do not think so.
Not in respect of libel but you could go to the County Court Judge in Chambers——
In regard to sections 5 to 13, I am not purporting to defend them on principle or on policy grounds. The reason they are repeated here is simply for convenience so that in future practitioners will not have to go through all these old Acts.
That is not the point. The Parliamentary Secretary in Section 8 has not taken the provision exactly as it was before because the provision before was in respect of a Judge in Chambers. A County Court Judge could also hear applications in Chambers.
I do not think the Deputy is right.
All the equity applications that the circuit court Judge now deals with were treated as "in Chambers" applications.
A County Court Judge had no criminal jurisdiction.
But he had Chambers jurisdiction.
He may have had but the Judge at Chambers under the 1888 Act is now the High Court Judge sitting in camera.
I do not agree at all. It is all very well preserving ancient law but why insist on a judge of the High Court for every possible criminal prosecution? In any event I do not think there has been a prosecution for criminal libel since the State was founded.
That is what I was about to explain to Deputy Sweetman a moment ago. I am not saying the provisions are ones we would recommend if we were to sit down and have a completely new Bill on the law of libel and slander but when we were amending the law we decided as a matter of convenience that we would repeal all the old Acts and incorporate everything in this Bill so that it would be readily available and in a convenient form for the future. It is on that basis that these sections are included, not on their merits but simply for the purpose of consolidating the law into one single Act of the Oireachtas.
They do modify the old law.
No. Certainly they do not modify it in any way of substance. Where for instance there is a change such as a "Judge of the High Court sitting in camera” being substituted for a “Judge at Chambers,” that is merely bringing the law up to date but as a general principle the idea was that the law should be merely repeated and not amended in this respect.
Section 13 is stated to modify the law, in the side note.
I move amendment No. 2.
In page 5, line 4, to delete "A court of summary jurisdiction" and substitute "A Justice of the District Court."
Amendments 2, 3, 4 and 5 may be discussed together. No. 3 is consequential on No. 2 and No. 4 is cognate with No. 5.
Amendments 2 and 3 are amendments to Section 9 and Nos. 4 and 5 are amendments to Section 10. The amendments to section 9 and the corresponding amendments to the following section 10 propose textual changes to describe more accurately the procedure appropriate to a preliminary investigation of an indictable offence. A District Justice is of course a court of summary jurisdiction but he has other judicial functions in the discharge of which he does not act as a court of summary jurisdiction. These amendments recognise that distinction.
This must be a matter of some importance to require 3 or 4 amendments.
If it is of no importance, why not leave the court of summary jurisdiction?
It is better drafting the way it is now proposed.
I do not see much difference.
Deputy McGilligan and myself rarely agree on drafting.
What is this all about?
I have endeavoured to explain that we want to give recognition to the fact that a district justice can be a court of summary jurisdiction in some instances and not in others, so we are substituting a "Justice of the District Court" for "a Court of summary jurisdiction." It is more accurate.
When is he a district justice, merely when he is doing a preliminary investigation?
He is a court of summary jurisdiction though he may not be exercising summary jurisdiction.
I am advised he is not.
That would mean a District Justice hearing a preliminary investigation that may be sent forward is no longer a court of summary jurisdiction?
That is a new one.
It may be new but it is correct.
It is very satisfying to have such an authority.
To me it is very satisfying to be able to impart this valuable information to Deputy McGilligan.
Do not give away too much information, valuable or not. You have not much to spare. Why is it different or why is it better?
It could be regarded as loose wording to refer to the "court of summary jurisdiction". The district justice is the person we mean and a district justice is not always a court of summary jurisdiction. There is nothing sinister in this.
In fact there is nothing in it. So let us go on.
I move amendment No. 3: In page 5, line 12 to delete "the court" and substitute "the Justice".
Now we are back to 1891.
Section 9 is not necessary at all. I know it is in the 1881 Act but apart from that is there any reason for it?
The object of this section is to enable a prosecution which is considered to be likely to fail to be terminated in the District Court and thus avoid the delay, inconvenience and expense of a trial before a judge and jury.
In other words, they can change from an indictment to summary proceedings half-way through?
Is that right?
I do not think it is right. He can change one way; can he change both ways? He can change to dismiss half-way through but I do not think he can change and go on to deal with it summarily and convict. Is that not so?
I think that is true, yes; he can only change the one way.
Does Section 9 add anything? Suppose you take Section 6 as the law, and that one pleaded not merely the truth of the matter but that it is in the public interest, would not the ordinary procedure be to allow evidence to be brought into the district court?
I admit there is a similarity.
And it leads to a presumption that a jury would acquit a person, or that the judge may dismiss the case.
The only difference between this and Section 6 is that this applies only to newspapers.
Section 9 applies only to newspapers.
No, publishers as well.
Where the libel is in a newspaper is what the Parliamentary Secretary means.
Publication having been made through no malice the assumption is, if the court thinks there is a strong possibility or probability the jury would acquit the person, it would dismiss the case. That is the ordinary thing. It may have been necessary in 1881 but surely our procedure has caught up on that.
Would the necessity perhaps arise because there had been an order made under Section 8?
That order does not send him to any special court.
I move Amendment No. 4:
In page 5, line 16, to delete "a court of summary jurisdiction" and substitute "a Justice of the District Court".
I move amendment No. 5:
In page 5, line 22, to delete "The Court" and substitute "the Justice".
"Summary jurisdiction"—surely the 1951 Criminal Justice Act encompasses all this?
It is quite possible we could get rid of a number of these sections, but we were only setting out to amend the law in certain limited ways and then for convenience we included all the existing statute law in this Bill. I am not prepared to defend any of these sections on the merits and I agree that for instance Sections 9 and 6 are very similar. I have explained the basis on which they are included.
I did want to suggest that there is power for anything that comes before the summary jurisdiction courts or before a district justice to have this done, to ask the person does he elect to go before a jury or to explain the situation to him. He can accept the jurisdiction. It operates generally.
There is no disadvantage. I considered getting rid of all these proceedings but there is no particular disadvantage involved and they are all in the existing statute law relating to libel.
Hearing a case the judge may think the libel was trivial and that defendant can be punished by virtue of the lesser powers. The judge may tell the person and he can say: "I will consent to be tried summarily." The section can operate without all this.
I always thought "maliciously" meant saying a thing knowing it was false. Is that not the Parliamentary Secretary's understanding of the word? I am trying to find what the difference between Sections 11 and 12 is. The only difference is that in one case it says "knowing it to be false". I thought "maliciously" meant that.
Let us have an example of a case in which it is not necessary.
I suggest you should not enter into that argument. There is no book on criminal law that does not say that the word "maliciously" is one of the most difficult words to interpret.
I thought he would rush into it. He is so sure of himself.
The difference between the two sections is that clearly it implies that an offence can be maliciously committed without knowing it.
I think it is possible maliciously to publish something without knowing it to be false.
Standing Orders would not permit the words used in Section 12.
Section 11 agreed.
Without knowing what "maliciously" means.
What are the modifications here?
Common law punishment applies to cases of obscene libel and a first offence of blasphemous libel and is unspecified fine and imprisonment. In practice the imprisonment does not exceed two years. A second offence of blasphemous libel was punishable originally with banishment.
It is proposed therefore to prescribe a fine up to £500 and for imprisonment up to two years or penal servitude not exceeding seven years for blasphemous and obscene libels in general. Seditious libel is covered by section 10 of the Offences against the State Act, 1939. The provisions in subsection (2) of this section cover the seizure by an order of the court after conviction in respect of a blasphemous libel of all copies of the libel in the possession of any person named in the order. Where a conviction is quashed provision is made for the return of any copies seized. Where appeal is not lodged or is dismissed, the Court may make arrangements for the disposal of such copies.
There is no definition anywhere of blasphemy in this Bill. Is there in any of the old Acts?
Not so far as I am aware.
Where are we then? The offences take in various things, including blasphemous libel. What does it mean?
"Blasphemy" is a common law term. It is defined by common law.
Has it anything to do with the established Church and does nonconformity come into it?
Is there a definition of it?
Blasphemy is a common law offence. There is no statutory definition of it.
Using religion for political Party purposes—is that blasphemy?
Probably. The Deputy may know more about that than I do.
No. One of the Deputies behind the Parliamentary Secretary does.
In any event, I understood the old common law definition was that blasphemy was subversion of the established religion. Surely, we are getting away from all that?
It has nothing to do with the established religion.
The Deputy should refer to a dictionary.
What has it to do with?
The common law concept of blasphemy.
Which was anything against the established religion.
It was, in 1819, quite definitely.
Everybody knows what blasphemy is.
I should like to see that put into the definition section —blasphemy is what everybody knows it to be. Do I gather that the modifications are penalties mainly?
There is a subsection (2) which permits the use of force to be applied in breaking into a place for copies of the libel found therein. Is it thought proper to carry that forward?
At the moment houses may be entered, even by force, on a certificate given by a chief superintendent of the Guards to one of his men under the Offences against the State Act. It says here that it is a matter of an order. Does that supersede whatever power there is under the Offences against the State Act which is limited to certain things?
It does not supersede it. It is just an addition. We are just carrying forward the existing provision.
In any event, it comes to this—if there is to be a search made of a house for documents which are of a blasphemous or obscene libellous type there has to be a court order. It cannot be done by a chief superintendent giving an order to his people. That is clear?
Under this section, yes. Section 10 of the Offences Against the State Act still applies.
Section 10 of the Offences against the State Act.
That is not the one. I am referring to a much later section which allows search warrants. Is Section 10 the search warrant section?
Section 10 deals with seditious libel.
Is seditious libel mentioned in the Offences Against the State Act?
Yes, in Section 10. I will have that checked.
Does it deal with seditious libel as apart from seditious documents?
What is seditious libel? Is it defined in Section 10?
My recollection is that it is but I am having it checked. I shall let the Deputy know.
I want to suggest to the Parliamentary Secretary that somewhere in one of the earlier sections—3 or 4—you get a definition of seditious, treasonable and incriminating documents. The Offences Against the State Act does not deal with libel at all.
I suggest that we proceed. I shall have that point checked. It is a point of information. It is not relevant.
The section which permits the giving of search warrants is somewhere late in the Acts, somewhere around the 30's. The Parliamentary Secretary thinks it is Section 10.
My recollection is that Section 10 of the Offences Against the State Act deals with seditious libel but, as the Deputy has queried my recollection, I shall have it checked for him. I suggest that we need not delay. It is not relevant to this point.
Does the Parliamentary Secretary want us to leave Section 13, to depart from it? If that is what the Parliamentary Secretary wants, I am agreeable.
No, that is not what I want.
I thought it was.
It is only a point of information. The Offences Against the State Act is not relevant to Section 13 but, once Deputy McGilligan raised the query, I want to be as informative as I can and to let him know exactly what the position is in regard to Section 10 of the Offences Against the State Act.
On this section we are entering into the English 1932 Act and from this to the very end it is all new.
Except the registration and then there is Section 28—consolidation of actions.
Section 29 is the registration?
Section 28 is not entirely new, but from Section 14 to Section 27 they are all new provisions.
When we are copying the English Acts, may I express the opinion that we should copy them literally, for that enables text books and cases decided on the phraseology of the English Acts to be used here. I am taking it for granted that most of these sections may be changed in that "the Minister for Posts and Telegraphs" is substituted for "the Postmaster General", but that except for that, these are exact copies.
No, they are not.
Then could we see where they are not? I take Section 14 to be an exact replica of Section 16 in the British Act.
For instance, "broadcast" has the meaning which is given to it——
Naturally, it refers in England to a Telegraphy Act on their side; ours refers to the Broadcasting Authority Act. I am taking that mutatis mutandis, but the substance is the same; the reference to legislation may be different.
There has been no such thing as copying or literal transcription. Naturally, we have been influenced by the British Act and the North of Ireland Act and, indeed, by the report of the Porter Committee, but that is as far as it goes. We have to take our own separate decisions on various matters, influenced very considerably, of course, by the British Act. There again, when we are dealing with the same problems we would first of all look at the solution that had been adopted in the British legislation. That, of course, influences the form of words but no more than that.
If you are going to approximate to the British form——
I agree with that principle.
——it is better to keep to the exact form. If you are going to strike out on your own line that, of course, is a different story.
If difficulties have arisen since the passing of the British enactment we are always able to avoid them here.
In subsection (2) of Section 14 there is a reference to "visual images, gestures and other methods of signifying meaning." Why is the word "pictures" dropped?
I suppose Deputy McGilligan would be the first person to criticise me if I included something which adds nothing to the Bill. I think ours is just as comprehensive.
This section means that broadcasting shall be libel.
It is word for word with the other.
I move amendment No. 6:
To delete subsection (2).
The object of this amendment is to delete the restriction which prevented a successful plaintiff recovering more costs than damages unless the trial judge granted a certificate, and although the aspersions on the plaintiff's virtue would have been found to have been groundless. It is conceivable that in such an action an award of damages might fall short of the costs incurred by the successful plaintiff. Deputy Costello mentioned this matter on Second Stage and cited the example of an award of a farthing damages and 6/8d. costs. The result of the deletion of subsection (2) will be that awards of damages of £2 or under will not, under the High Court Rules, carry more costs than damages but any larger award will be free from any statutory limitation.
I am glad that subsection (2) is being deleted but I want to go further. I thought this was giving a right to the courts that in any matter of defamation they would not be tied by the amount given as damages, when they came to measure the costs. This is only in respect of a libel of unchastity or adultery in a woman.
That is what we are dealing with here. The £2 rule will apply.
The ordinary rule with regard to defamation is no more costs than damages. That practice is not being changed? Will it conform to the ordinary practice in respect of this matter of damages?
But there is no guidance to damages or costs.
We are doing nothing more than conforming with the general law in regard to costs.
I am afraid the deletion of the subsection does not mean much then.
It means something in this case anyway.
It means in respect to that special rule, there shall not be more costs than damages, the matter is left to the Court. Certainly the ordinary rule is no more costs than damages. Is this necessary? Is that not the law?
It is the law as it is at present.
We are repeating it.
Re-stating the law?
We are re-stating the existing law.
Why repeat it?
Because it repeals the 1891 Act. If we did not re-state it, it would go.
It came from the 1891 Act?
It is a section of the 1891 Act.
Is it the same in the Slander of Women Act? Was this left out?
Yes. We are putting the 1891 section in, minus subsection (2).
It could have been repealed. However, we are arriving at the same point by a different route.
The whole section is going? It is to be deleted?
The whole section is to go. There was some doubt as to whether this section served any useful purpose. From inquiries and research we have ascertained that rarely if ever is this section used by newspaper defendants. This section involves the proof of two negatives, namely, that the defendant acted without malice and without gross negligence, and it also requires the lodgment of money in court. Section 17, which is of general application, enables a defendant to plead an apology in mitigation of damages. It will be for the jury to say if this is sufficient in any case. If a defendant is advised to lodge money he can do so under the Rules of Court, with the assurance that, unless the jury award a greater sum than that lodged, the plaintiff will not recover costs after the date of lodgment.
Section 18, however, confers the additional advantage of allowing a plaintiff to obtain costs although the award is less than the amount lodged. It is easy to see why the existing law which the section proposes to re-enact is seldom or ever employed by newspaper defendants. Having considered this matter carefully I am satisfied that, as was suggested on Second Stage, the section serves no really useful purpose any more.
In any event I was going to suggest we could permit a lodgment with a denial of liability and without apology. I think that can still be done. Money is always lodged in court on a tort matter.
On examination of Section 18 it seemed that it served no useful purpose and that it was a section that could be deleted altogether. It was clear to us that the existing statutory provisions were never used. So why repeat them?
I move amendment No. 7:
In subsection (1), page 7, line 25, before "shall" to insert "or in Northern Ireland".
This amendment proposes to add the words "or in Northern Ireland" and its purpose is to include the proceedings of courts in the North within the ambit of the section as well as our own courts.
We are putting in Northern Ireland only in line 25 and not inserting it a couple of lines above that?
Is the Deputy suggesting it is necessary to define newspapers as well in this section?
I am talking about broadcasting within the State. It is confined to that at the moment. If you are going to enlarge the authority in respect of the broadcasting of court proceedings from a station within the State, why not give the same facilities to a broadcast from a Northern Ireland station?
That is a British station actually broadcasting from Northern Ireland, but the court we are providing for would be a Northern Ireland court.
The Parliamentary Secretary is making a distinction between a broadcasting station here and in Northern Ireland in respect of proceedings in courts?
As a matter of policy it was decided to extend this facility to Northern Ireland courts.
It refers only to the broadcast by a station here of proceedings held before a court in Northern Ireland. Supposing U.T.V. put out a report from a court here why should they not get whatever privilege is extended to a broadcasting station within the State?
We have extended the protection to Northern Ireland newspapers because they are indigenous but, generally speaking, any broadcasts emanating from Northern Ireland would be in effect British. The corollary of what the Deputy is suggesting would be to extend the privilege to British newspapers.
Privilege is going to be extended to an Irish broadcasting station in respect of judicial proceedings either here or in Northern Ireland. The courts of Northern Ireland are under the jurisdiction of the British judicial system.
It is not the courts. What we are giving is privilege to an Irish broadcasting station and we are extending the privilege in respect of that station to court proceedings here as well as in Northern Ireland. Our own people are living in Northern Ireland and what they do is of interest to us. The reason we did this was that proceedings in Northern Ireland courts are of considerable public interest here.
Does this not mean that the Irish broadcasting station may not use a report of an English court case?
No. It only means that if it broadcasts a report of an English court case it will not have the particular protection we are affording to the broadcast of court proceedings here and in Northern Ireland.
But a newspaper——
It will be the same.
We include newspapers printed and published in the North but we refuse to attach the privilege to a broadcasting station in Northern Ireland.
Deputy McGilligan seems to be missing a point. What we are doing is affording protection to a State broadcasting organisation and we are giving it a certain protection in respect to our court proceedings and proceedings in Northern Ireland courts, which are of considerable interest to us. It is logical to extend the protection of an Irish broadcasting station to broadcasts of the reports of proceedings of Northern Ireland courts.
But the Bill gives privilege to a report in a newspaper which can be either published here or in the Six Counties. Why not attach the same privilege to a broadcasting station in the North? It seems to me to be a very peculiar limitation.
There is first of all the question of the station. As I understand it, the broadcasting from Athlone, to put it in simple terms, of a report of a case in England in relation to the doping of a racehorse sent over from Ireland, would not be privileged.
That is so.
Is that what we want? Surely what we want is to provide that the Irish broadcasting station shall be privileged, if it gives a fair and accurate report of proceedings in any court of a country which we recognise, because surely we do not want deliberately to make our news services as insular as we can. Surely we want to enable the broadcasting station to deal with items of interest wheresoever they arise, and why should we deliberately make it possible for them to be in difficulty if they publish a fair and accurate report?
Let me put this case to the Parliamentary Secretary: Athlone broadcasts a report of a case about racehorse doping in England and that obviously is a subject that would be of general interest here, particularly if the horse had been bred in Ireland. At the end of that case the defendant is acquitted. It is a fair and accurate report. It is held at the end of the case that there was no doping. As I understand the situation, because of the manner in which this section is phrased now, Radio Éireann would be liable for damages for libel in respect of that case. If that is so, I do not think that is what any of us wants.
I want to be clear about one thing. When I say "Radio Éireann" I do not want the distinction drawn between the State broadcast there is at the moment and what may be televised because of the method in which we are financing our television programmes. I want to provide in this Bill—and I do not mind where it is provided or in which section it is provided, provided it is somewhere provided—that so long as it is a fair and accurate report of court proceedings in a country whose courts we recognise, and by that I mean with whom we have diplomatic relations, that the broadcasting authority will be entitled to transmit without being caught between the two stools.
We give that sort of thing qualified privilege. We are dealing here only with absolute privilege.
I appreciate that, but is the situation not this? If there is a case in the English courts which is of great interest to our people here, under the 1952 Act in England if the proceedings are broadcast or televised in any shape or form by an English station and received here, it is absolutely privileged. But the Irish station cannot give the same coverage as the English station with absolute privilege and can only give the same coverage as would secure qualified privilege. As I understand the situation, that puts the Irish station at a disadvantage. Does the Parliamentary Secretary appreciate my point? First, I am considering a case of proceedings in an English court which are of interest to our own people.
Unless there is malice, subsection (1) of Section 25 covers that particular case. The subsection states:
Subject to the provisions of this section, the publication in a newspaper or the broadcasting by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station within the State of any such report or other matter as is mentioned in the Second Schedule to this Act shall be privileged unless the publication or broadcasting is proved to be made with malice.
So, there is nothing to worry about in the case the Deputy mentions.
If that is so there is no necessity in Section 19 to refer to broadcasting because this would cover it completely.
No, there is a difference.
I know there is a difference. It is precisely because there is a difference between the coverage provided by Section 19 and by Section 25 that the question arises. Will the Parliamentary Secretary agree with me that it is highly desirable that an Irish broadcasting station will be able to give the same coverage of a case in England that might interest our people as the B.B.C. can give under the same type of legislation?
Yes, but they have not extended it to our courts.
I know they have not and I think they are wrong in that respect.
The English Act does not extend absolute privilege to proceedings in our courts broadcast by the B.B.C. We must have reciprocity.
I do not agree.
It is a valid disagreement. I am prepared to concede there can be a difference of opinion.
I want to make it quite clear there is a very definite difference between the news that the two stations can cope with. I do not think that should be there. I do not think that is the type of matter in respect of which it is necessary to have reciprocity at all. I can see that in tax matters there must be reciprocity. If it is not a two-way street, the benefits must be all one-way. What I am trying to do in this is not to give any benefits to an English broadcasting station but to give an additional benefit to an Irish station to enable it to be able to compete on exactly the same terms with a British station in respect of anything that may happen in a British court.
I do not think it is a valid argument for the Parliamentary Secretary to say that he is not prepared to do it because it must be reciprocal. Whether the British wish to put a British station in the same position to compete with an Irish station as regards privilege or not, does not matter. That is not our business. Our business is to concern ourselves with the Irish station. We are not going to gain anything by the British giving the concession to the British station to cover Irish courts, but we are very definitely going to gain something by ensuring that the Irish station is in a position to report a British case—a case such as I have referred to dealing, for example, with racing matters, which would be of very general interest not merely to the country as a whole but even to certain Deputies I see listening to me on both sides of the House.
I do not see any reason why we should hamstring the Irish station. I do not see any reason why we should prevent the Irish station being as international in its reports as it can. The situation, as it is under this section, provides that the Irish station can report Irish court cases under a different law to that under which it can report court cases in the rest of the world. In respect of the Irish station, I say what should interest the Irish station is the interest of the court case for the listener, regardless of where it is. Obviously, Irish cases in the main are going to be of far more interest to the Irish listener than a court case in some other part of the world. But I want to ensure that when in the opinion of those who are running television or sound broadcasting there is a court case in another part of the world which they deem worthy of reference, that they can refer to it under exactly the same law as they would if they were dealing with an Irish court case.
There is an overwhelming argument in favour of that. I cannot find anything in the Bill that would permit them to do so. I think the Parliamentary Secretary admits that if they are reporting proceedings in a court anywhere outside the country, they are in a position of qualified privilege rather than absolute privilege. Let me give the Parliamentary Secretary one concrete example. What was the position in respect of the Court of Human Rights decision on the Lawless case?
A qualified privilege.
Why should it not be an absolute privilege in relation to the Irish Broadcasting Authority in reporting the Court of Human Rights on the Lawless case just as much as it is in reporting the Supreme Court here?
In Section 19 the last word "privilege" occurs. Is that absolute or qualified?
That is absolute privilege.
It does not say that here.
I advise the Parliamentary Secretary not to say anything more. If he thinks it over, he will find the principle is one with which he will agree.
I have thought it over very carefully.