Defamation Bill, 1961 — Report and Final Stages.

I move amendment No. 1:

In page 3, to delete all words after "newspaper" in line 23 down to and including "person" in line 25.

I urged this in Committee Stage. I have since discussed it with people. No one can tell me what it means. I got no answer here as to what it means. The suggestion was that it meant apportionment of responsibility. That was denied. That being the case, I can see no reason for this phrase being there.

The reason is as I indicated on the Committee Stage. It is a form of words meant to denote, in the first instance, a proprietor as sole proprietor and, secondly, people who own a newspaper in partnership. The amendment cannot be accepted because, if it were, the definition would be incomplete. I should like to point out that the word "means" is used immediately after "proprietor". It is not the word "includes". The word is "means". If we were to accept Deputy McGilligan's suggestion and delete the words after "newspaper" the definition would very definitely be defective because it would cover only those people who owned part of a newspaper and not the people who owned the other part.

Therefore, Deputy McGilligan's amendment is not acceptable. I have reconsidered the form of words and have consulted the draftsman with regard to them and I am quite satisfied that they do what they purport to do, namely, to cover both a sole proprietor and also a group of people who own a newspaper in common.

It is very odd there is no way of getting an explanation of what these words mean. Let it be agreed at once that one wants to be able to catch the sole proprietor of a newspaper where one person solely is controller. One also wants to catch, in the case of a divided proprietorship, each and every person who has any share. The provision says:

"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....

Take a newspaper that is owned by eight people with equal shares. Every one of the eight is caught by leaving out the words I want removed.

Persons who are responsible for any share or interest in a newspaper — take A, B, C, right down the alphabet — it means that they are caught.

Why does it not? "‘Proprietor' means... the persons who, as partners or otherwise, reprepresent or are responsible for any share——"

Any one share.

It does not include the others.

If it said "includes" the Deputy would be right.

No. It means the persons——

That means it excludes everybody else.

It means the persons who are responsible for any share or interest in the newspaper — A, a person who owns one-eighth, B who owns one-eighth, C, who also owns one-eighth—it includes all those.

The word "means" is vital. "Proprietor" means the persons who own any share. That restricts it to those persons. It excludes all the others. In order to cover them you must bring in the second part of the definition.

"...the persons who, as partners or otherwise, represent or are responsible for any share." A represents some share, so does B, C and so on. They are all included. I cannot understand, in any event, what is added by saying "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 that?

We have to cover all the persons.

I want to cover them all. Take the simple case where there are four people in a divided proprietorship. Each one of those four is caught.

I disagree.

The Parliamentary Secretary may disagree but they are covered because is each one of them not a person who represents a share or interest in a newspaper? I do not see what is left out.

Question —"That the words proposed to be deleted stand"— put and agreed to.

I move amendment No. 2:

In page 7, line 4, after "State" to insert "or in Northern Ireland".

We had arguments on this on the Committee Stage. Section 18 provides that there is privilege given to a fair and accurate report published in any newspaper. Newspaper means a newspaper either printed and published here or printed and published in Northern Ireland. That has already been arranged. However, if it is broadcast by means of wireless telegraphy as part of a programme or service provided by means of a broadcasting station within the State, I am asking in this amendment that "Northern Ireland" be included. What are we protecting in this provision? We are protecting a newspaper report or a broadcast of proceedings publicly heard before any court. To what court proceedings are we giving this protection? It is to "any court established by law and exercising judicial authority within the State." I cannot see why in the case of newspapers Northern Ireland is included but excluded in the case of broadcasting.

First of all let me mention a question Deputy Costello raised on the Committee Stage, the question of reciprocity. He asked to have it checked that in the matter of newspapers the British had not given us the rights he thought they had. I have had that position examined and it is quite clear. The British only extended the privileges in the 1952 Act to newspapers printed and published in Great Britain and the word that misled Deputy Declan Costello was the word "Dominions" in the Second Schedule, where it is used in an entirely different context. There is no doubt about that.

The background to this is reciprocity and the House will agree that in these matters reciprocity is a very important aspect. It would be desirable that on as many fronts as possible we would have reciprocity with the British but the fact is that in their Defamation Act of 1952 they did not extend these rights to this country. In regard to newspapers, the privileges in their 1952 Act are restricted to British newspapers and, in so far as broadcasting stations are concerned, the privileges are restricted to broadcasting stations in Great Britain.

From the point of view of reciprocity it is important that we should do the same as they have done in relation to our own circumstances. Accordingly when we came to decide on the particular provisions we decided that as a principle we would extend protection only to Irish newspapers and only to our Irish broadcasting station. I think that is perfectly defensible and logical. There may come a time when we can say to the British: "Very well. Let us have reciprocity in this. We shall extend our law to your newspapers and your broadcasting stations on condition that you extend it to ours." That would be a matter for negotiation and something outside my particular province. I am concerned only with being consistent. We decided that the privileges in this Bill should extend only to Irish newspapers and to Irish broadcasting stations.

On looking at the situation we came to what I think the House will agree is a reasonable solution. We decided that Northern newspapers because of their particular position and so on, should qualify for the same privileges as we were affording to our own newspapers in this part of the country. Deputy McGilligan is now saying to us in effect: "You should do the same for Northern broadcasting stations." My answer is "No," because there is all the difference in the world between newspapers and broadcasting stations. In this respect, the Northern broadcasting stations, such as they are, are nothing more than extensions of British stations and we would, in effect, be nibbling at the principle with regard to reciprocity if we extended these privileges to Northern broadcasting stations.

I think you should have extended the thing to Northern Ireland and not worry about the associations of the broadcasting stations in Northern Ireland. Probably the Parliamentary Secretary is technically correct in saying that the B.B.C. from Northern Ireland is merely an offshoot of the B.B.C. in Britain. In fact it is something more, because it is located in and directed at Northern Ireland. Of independent television, that is even more true because it is describing itself as U.T.V. and is very largely oriented to the listening public in Northern Ireland.

I think we have been very solicitous in trying not to accept that Northern Ireland is part of Great Britain. I do not think we do accept it. I do not think I ever have and I do not think the B.B.C. ought to be allowed to make us accept it. I do not care what installations they plant in Northern Ireland, it does not alter the fact that Northern Ireland is part of Ireland and the admirable gentleman or lady who talks from U.T.V. or B.B.C. from Ulster, are Irish of the Irish, and could not appear anywhere else but in Ireland.

An old warrior appeared recently on a symposium up there who was raving against the Taoiseach here, wrapping the Union Jack round himself and saying he was going to follow Great Britain into the Common Market, and all this in the broadest Belfast accent. There he was, looking like Colonel Blimp but looking like nothing else except a glorious obscurantist Orangeman from Northern Ireland, one of our very own who could not have been produced in any other country in the world. Therefore, even though we find the B.B.C. broadcasting from Northern Ireland, or U.T.V., they are broadcasting from Ireland and they ought so to be deemed. You can imagine the frenzy of our old friend who was wrapping the Union Jack around himself——

I understand he is a retired civil servant.

Is he? Well, he is an admirable old gentleman. He was as Irish as Lord Craigavon the more British he became. I could not say more and I think we would be much better employed in saying: "I do not care what you plant in Northern Ireland, Northern Ireland still remains Northern Ireland; if Castro were to set up a broadcasting station in Northern Ireland, it is still Northern Ireland." I think the Parliamentary Secretary is right in saying that in matters of reciprocity we should treat Northern Ireland as part of Ireland. I think the mistake the Parliamentary Secretary is making is this: he says if we extend the privilege to broadcasting in Northern Ireland we are glibly extending the reciprocity to the B.B.C. in Britain. I think that is a mistake.

We state that there shall be an identity of law in respect of all our people in the Thirty-two counties of Ireland without regard to nationality, whether they are visitors or native born. For the first time it appears to me that we are making a distinction; we are saying that because people associated with this are from somewhere else we are not prepared to admit that they are in Northern Ireland.

It is a very technical thing and reasonable man that I am, I shall accept the amendment.

So a surface Party can be effective at times.

Amendment agreed to.

I move amendment No. 3:

In page 7, line 7, after "privileged" to add "absolutely."

I want to put in the word "absolutely" after the word "privileged" or before it. I put down this amendment to clear up certain confusion that occurred on the Committee Stage. I should not like the Dáil reports to be read by anyone with any legal qualifications whatever, to have the report of the 26th of July appearing as if it represented the views of this House. I asked one time whether this word used in Section 14 meant absolute privilege or qualified privilege and I was told it meant absolute privilege. Then a discussion went on contained in columns 1981-82. At the bottom of column 1980 the Parliamentary Secretary said: "I said when the word ‘privilege' is used without qualification. Where could you get a clearer qualification than the wording here?" This is on a different section. Then he went on to say: "If a thing is absolutely privileged unless you prove it is made with malice it is no longer absolute privilege but qualified privilege." I said: "You do not have any consideration of malice arising in connection with absolute privilege" and I was told, "You have one situation privileged which is absolute privilege. If a thing is absolutely privileged unless you prove it is made with malice, it is no longer absolute privilege but qualified privilege." May I say that that is nonsense? There is no question of malice arising out of an absolute privilege. The Parliamentary Secretary said: "These reports are absolutely privileged unless malice can be proved." At that point I again said nonsense.

Again in column 1892 the Parliamentary Secretary said "The situation is that these things are absolutely privileged unless malice can be proved." On page 1983 he said: "All I am saying is that these particular things are absolutely privileged until malice is proved. Then they are no longer absolutely privileged."

Now that is a terrible confusion. I thought I might be confused and I have hurriedly scrawled down definitions of some of the recognised text books on this matter. Gatly on libel dealing with occasions of absolute privilege says——

Not a very good book.

Granted. "No action will lie from words published on any one of these occasions even if the plaintiff prove that the defendant published them with full knowledge of the falsity and with an intention of injuring the plaintiff." There could not be anything better than that. Odgers puts it this way:

Absolutely privileged occasions:

All actions in respect of words spoken thereon are absolutely forbidden even though it be alleged that the words were spoken falsely, knowingly and with express malice.

Frazer, on libel and slander, says:

Privileged occasions are of two kinds.

On the first occasion of absolute privilege he says:

No action lies however untrue and malicious the statements may have been.

Finally, the Simonds Edition of Halsbury, in Volume 24, says:

If the occasion of the publication is one of absolute privilege the statement also is absolutely privileged and no action for defamation, either for libel or slander, lies, whether the defendant was actuated by malice or not.

Major de Valera

The Deputy has often availed of that privilege.

There is a short statement in the very well-known Underhill's Law of Torts:

No action lies for a statement made upon an occasion which is absolutely privileged although made maliciously.

Then there is a quotation from a case in which a famous gentleman called Bottomley was involved:

The privilege ... is to be exempt from all inquiry as to malice.

There is also the situation as laid down in most of these textbooks that if there is a suggestion of defamation of any type, libel or slander, and if it is so alleged in a Statement of Claim that although the occasion was an absolutely privileged one, the word was spoken or the matter was written maliciously, one can get that out as being a pleading that will not be permitted.

It is clear that if there is an occasion of absolute privilege you just cannot consider malice. Even if malice was proved up to the hilt, it does not make any distinction.

I want to have that recorded lest it should be thought that we were giving in on 26th July to what the Parliamentary Secretary said. He was confused about the matter and I want to clear up the confusion. I think the word "absolutely" should be put in here because there are occasions where the word "privileged" is used followed by "unless the publication is proved to be made with malice". That cannot be an occasion of absolute privilege. That is only qualified privilege which malice does not destroy. I am told that anywhere the word "privileged" is used but not described it means absolute privilege. It does not mean it in Section 24 which says "shall be privileged" and the rest of the sentence goes on to lay down a provision with regard to malice, which clearly shows it extends to an occasion of qualified privilege.

First of all, I think a lot of the confusion here has arisen over a phrase which I used in a very particular and restricted context on Committee Stage. This Bill sets out in the Second Schedule two different classes of statements. In the one case the matters referred to are privileged without any explanation or apology or anything of that sort, provided there is no malice. In the other case the matters referred to are privileged subject to explanation or contradiction. Of course, the proviso with regard to malice applies to both parts of the Schedule—the First and Second Parts.

Excuse me. Did you say the proviso with regard to malice applies to both the First and Second Parts of the Schedule?

Yes; it covers both. It is a general provision in Section 24 in fact. For convenience, in order to try to make the thing clear, I used the phrase "absolutely privileged". I used that in connection with Part I of the Second Schedule. In other words, I meant privileged without explanation or contradiction as distinct from the matters in Part II which are privileged subject to explanation or contradiction. I think at the time in the House I explained that it was in that restricted non-technical sense and merely to distinguish between the two Parts of the Schedule that I was using this word "absolutely".

May I interrupt the Parliamentary Secretary by asking are not the several instances set out in Part I of the Second Schedule all instances of absolute privilege?

Provided there is no malice. There is privilege unless there is malice.

I am suggesting to the Parliamentary Secretary that, in fact, the six instances here set out are cases of absolute privilege in which the question of malice does not arise.

That is not so. It can be defeated with malice but there is this difference between that and Part II——

Is the Parliamentary Secretary certain?

If they are published maliciously there is no privilege but there is this difference between that and the Second Part that there is no duty on the publisher in regard to the matter in the First Part to publish an explanation or contradiction if asked to do so, but there is in relation to the matters in Part II. It was in that sense I used the word "absolutely"—that non-technical sense—merely to distinguish between these two Parts of the Schedule. So, I maintain my use of the word was perfectly in order because I explained at the time the sense in which I was using it. I think there can be no argument about it that "privileged" means absolutely privileged. In the Constitution, for instance, Article 15, 12 reads as follows:

All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged.

We all, I am sure, accept that, in the sense Deputy McGilligan is using the phrase "absolutely privileged". Utterances in this House are absolutely privileged but the Constitution simply uses the word "privileged". That is an excellent precedent for the Bill. When we want to connote the idea of absolute privilege we merely use the word "privileged" as it is not necessary to append the word "absolute".

I just want to call attention to one direct phrase used by the Parliamentary Secretary. It is completely wrong and it should be accepted as wrong. It is at column 1981:

If a thing is absolutely privileged, unless you prove it is made with malice, it is no longer absolute privilege but qualified privilege.

That is nonsense. That is completely against the law.

What is that?

The phrase "If a thing is absolutely privileged, unless you prove it is made with malice it is no longer absolute privilege but qualified privilege." That is all wrong.

Will you please accept that I meant that in relation to the First Part of the Schedule and my "absolutely" there referred to matters being privileged without explanation or contradiction having to be published if called for? I did not use the word in any other sense.

I want to correct the impression that must be given by those words.

If you will not accept a reasonable explanation, I can do nothing about it.

At column 1981 the Parliamentary Secretary says: "It would be absolute privilege unless malice is proved." You cannot prove malice. You are exempt from inquiry.

Major de Valera

The Parliamentary Secretary has explained he used the word "absolutely" in a general term here. We are not a technical court and you are playing with the word he has employed. He has already explained. Will you get another word than "absolutely" to convey the idea he had there?

I know what the Deputy is trying to say. The Parliamentary Secretary was wrong but he will not admit it. He was completely wrong.

What are you trying to do? Are you trying to improve the Bill or to embarrass me?

Major de Valera

This is quibbling about a word, not a debate.

Tell him to have a bit of sense.

Major de Valera

The Deputy would have a good point if it were in the Bill. He is quibbling about a word which is not in the Bill.

The Deputy is trying to give a lecture which he should hold for University College, Dublin.

Amendment put and declared lost.

I move amendment No. 3a:

On page 9, line 17, after the word "State" to insert the words "or in Northern Ireland".

As a result of my acceptance of Deputy McGilligan's amendment earlier, it would be only logical to have those words inserted.

Amendment put and agreed to.

I move amendment No. 4:

In page 11, line 17, after "State" to insert "or in Northern Ireland."

Amendment agreed to.
Question proposed: "That the Bill, as amended, be received for final consideration."

Before we receive the Bill for final consideration, I should like to refer to Part I of the Schedule which reads as follows:

A fair and accurate report of any proceedings in public of a house of any legislature (including subordinate or federal legislatures) of any foreign sovereign State or any body which is part of such legislature or any body duly appointed by or under the legislature or executive of such State to hold a public inquiry on a matter of public importance.

Does this apply to the Six Counties or can we describe the Six Counties as "any foreign sovereign State"?

I am not prepared to pronounce on that but if the Deputy reads the paragraph fully he will see it includes "subordinate or federal legislatures".

A subordinate or federal legislature of what?

I am not prepared to say.

Does it cover Northern Ireland?

It appears then that a report of the proceedings of the Stormont Government should be privileged.

Yes, of course.

Question put and agreed to.
Question "that the Bill do now pass" put and agreed to.