I move: "That the Bill be now read a Second Time."
The Irish law of defamation, in large measure, has been adopted from the British system without much examination as to whether it is suitable to our needs or whether, in the unique conditions that obtain in Ireland, we should have taken over the law of defamation as we found it at the time we gained our independence and applied it without much consideration as to its content or social effects and without radical reform. Although there was in 1961 a Defamation Act which was designed to bring into Irish law many of the changes that had taken place in the English law of defamation, there has not been at any time, until relatively recently, a critical examination of the law of defamation and a critical examination at a political level of the interaction between, on the one hand, the principle of freedom of speech and, on the other, the principle that the individual's reputation is a valuable thing worthy of legal protection.
In that context the Progressive Democrats, in 1989, included in the Programme for Government a commitment that the Government would seek to amend the law of defamation. What we had in mind at that time was to alter the balance between freedom of speech on the one hand and protection of the individual's reputation on the other with a general view to making more liberal and more free the role of the media in Irish society.
We appreciate that as far as the nature of society is concerned, we are dealing with profound matters and that it is not something in which it is possible to come to a simplistic viewpoint without being conscious of the effect that changes in this area can have on the whole complexion and ethos of a democratic society. By the same token there are very many models in the world from which to chose.
One, the American model, is not particularly balanced in my view and in the view of many people in this country. The Supreme Court and the courts generally, in a series of decisions, have regarded the freedom of speech imperative set out in the American Constitution as being so far-reaching as to lay low in many respects protections which many of us would regard as natural and proper in a society that respects the individual. It is notable that in America it is almost impossible in matters of public controversy to libel anybody. In the celebrated Westmoreland case, the American system was shown to be one in which the capacity of an individual to vindicate his good name was put to one side and devalued compared with the capacity of a journalist to put his or her point of view.
Obviously expressions of opinion and a free investigative press are values which most people favour in any democracy, and they do come into conflict with the need to protect the privacy, the dignity and the reputation of the individual.The balance that is struck between those two conflicting principles — and they are conflicting principles in many ways — is set out in any society in its law relating to defamation.
Most of us here would recoil from the French system just as much as from the American system under which people are criminally prosecuted for defamation and punished by the courts for saying things of others which are untrue, where in Ireland there would be no remedy, or only a civil remedy in damages, because there was nothing defamatory about the statement, incorrect though it might be. Most of us here would regard it as unacceptable that the criminal law should be used to impose manners on people as to how they use their right of freedom of speech and freedom of expression.
So, between the civil law system which permits criminal and civil punishment, effectively, of abuses of freedom of speech and the American system which, in matters of public controversy at any rate, virtually gives no guarantee to anybody of any protection of their reputation, there is a huge area of open space in which it is possible to draw lines and to establish balances which are radically different, one from another. The Progressive Democrats believe that the time has come for the Irish State to address the inter-relationship of freedom of expression and the need to protect the character and good name of the citizen in a new and fundamental way and to look to our own experience as a democratic society with a view to establishing in our own minds where the proper balance lies.
We are not doing this as an exercise isolated from reality because this House has had the benefit of a considerable amount of learned comment on these precise issues. In January 1989 the Law Reform Commission initiated a review of the law relating to defamation and produced, first, a discussion document and, more recently, a report on the issue of defamation law and made some proposals in it which are crying out for implementation. It made other proposals on which even the members of the commission itself were divided, and still other proposals on which they were unanimous but about which many people outside the Law Reform Commission had some reservations, to put it no stronger than that.
The first and most major proposal that the commission came up with was to abolish the previous distinction between libel and slander and have a civil wrong of defamation. That is a thing which most people who have ever practised in the area of defamation law would regard as rational and sensible, even though it is possible to see why, in terms of social policy, the spoken word should be differentiated from the written or broadcast word in terms of the damage it could do and the reasonableness of providing remedies for the abuse of freedom of speech in a spoken form compared with the other form. Nonetheless the grounds for distinguishing between libel and slander, and the lines of distinction between the two torts is not defensible on a rational basis and seems, in all good common sense, to be one on which there should be reform and a single civil wrong of defamation.
Second, the Law Reform Commission proposed — I believe most people in this House believe it is a valid criticism of the existing law — that, in addition to a right of action for damages for damage done to your character by way of defamation, there should be a right of action to have statements made about you declared wrong by way of judicial process in a summary way, a declaratory judgement as an alternative to an action in damages. I believe most people will think that is a sensible proposal. Third, the Law Reform Commission proposed to codify the existing defences to actions for defamation and to set out a definition of defamation which was clear and easily understood. The proposals in this Bill in respect of the definition of defamation and the defences to an action for defamation are largely based on the proposals made by the Law Reform Commission.
The Law Reform Commission came up with some interesting proposals on extending the protection of defamation to prevent defamation of recently deceased persons and to vest in their next-of-kin a right to right the record by a judicial process. On reflection, that point of view is more fraught with difficulty than with possibilities for useful actions in courts. At present it is possible to defame the dead with absolute immunity from action, but with a few lamentable exceptions there has not been any rash of publications of a defamatory kind concerning the dead. The social evil that the Law Reform Commission identified as a reason for extending defamation to people who are dead is probably not sufficient to warrant a departure of that kind.
One of the most commonly asserted criticisms of the present law of defamation is that it is unduly harsh upon the print and broadcast media in this country. There is undoubtedly a perception in the media that they feel themselves to be operating under a heavy onus of a legal kind with which they find it difficult to comply while being genuinely investigative and courageous in the way they handle issues. In my view, the balance tends to favour the individual at the expense of society's right to know or right to have issues raised and nowhere is that clearer than in the sphere of politics and public affairs generally.The second last Taoiseach, Charles J. Haughey, was reputed never to threaten to litigate with any newspapers which wrote about him whereas the last Taoiseach, Deputy Albert Reynolds, had a different approach. I do not intend to offer any criticism except to say there is no clear tradition in Irish politics of allowing comment about you of an unrestricted kind in the press.
Mr. Justice Hugh O'Flaherty, a judge of the Supreme Court, advanced the view last weekend that there is something untoward and unfree about a society in which politicians regularly can resort to actions in libel as their remedy against the media. I believe the media is somewhat supine when threatend by politicians. There are very few politicians who could afford a photo famine — nobody can force a newspaper to mention anybody with regularity. If politicans, or even a Taoiseach, trigger happy with litigation of this kind, was told by the newspapers collectively to cop himself on and not to be taking them for £40,000 this week and £80,000 next week, making substantial sums of money by threatening them with libel suits, or face the consequences of a photo famine. I think few politicians would proceed with such a course of action or such habitual resort to the law of libel.