Dáil Éireann debate -
Tuesday, 14 Feb 1995

Vol. 449 No. 1

Private Members' Business. - Defamation Bill, 1995: Second Stage.

Mr. M. McDowell

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.

Minister for Equality and Law Reform (Mr. Taylor)

The Deputy is getting on to blackmail now.

Mr. M. McDowell

The Irish media in recent times were weak minded when confronted with a pattern of writs. They should have said: "Go ahead but do not bother hiring Bunny Carr Communications or polishing up your scripts because in a free society we cannot be forced to print your material and if you do not play by decent rules, nothing can force us to pretend everything is all right in our relationship with you". Had that been done it might have brought some people to their senses.

I believe there are occasions when the media has hounded people — again I do not want to get into individual examples — and in that context there must be a balanced protection for people in public life from campaigning journalism vindictive and vicious in its tone. Some politicians in this House might query whether it was fair that some newspapers every Sunday for weeks on end always had a new angle criticising or invading some aspect of their political career with a view to damaging them and for which they had virtually no redress. In that context I believe we must have a different balance.

The rights of the media in Irish society are recognised in the Constitution as being important for the purpose of educating public opinion. That may sound an arch way of putting it, but I would say they are very important in liberal democracy to act as a check on the abuse of power. This House is not sufficient by itself to do that, neither is the judicial nor the criminal system. We need a free, vibrant, strong, self-confident media. We need people in the media who are investigative, courageous and truth seekers, who are sometimes fearless in their pursuit of the truth.

I find — and I do not want this to be taken wrongly — that we do not have a very strong tradition of investigative journalism. On RTE, for instance, we do not have the sharp edged or hard hitting programmes they have in Britain which has identical libel laws. Programmes such as "World in Action" have done more to expose Irish issues than have Irish programmes. I am not just talking about the beef industry but issues such as the Dublin and Monaghan bombings. Foreign broadcasting companies have been more investigative, fearless and courageous in investigating these issues than native institutions.

The same applies to newspapers. British newspapers working under the same system are more challenging and investigative than Irish newspapers. I do not think it is due to the moral character of Irish newspaper journalists or editors but rather English newspapers are that much more powerful and robust economically that they can afford to take the odd tumble in the libel courts whereas Irish newspapers cannot afford to do so.

Without naming individual newspapers, virtually no weekly provincial newspaper could defend a serious libel action unless it was extremely sure of its ground. The same applies to many national newspapers which appear from time to time to be more or less financially debilitated. The same applies to RTE. In a small society with limited revenue, it does not see how it could embark on a libel case which would cost not much more than a libel case in the Old Bailey but which would have dramatically different results in terms of proportionate outcomes for the balance sheet of a broad casting body such as the BBC when compared to RTE.

We should have a different balance and the media deserve a considerable degree of support from our legal system in dealing with matters of public interest and controversy. If the balance is to be struck differently it must be as a result of a careful, cold and rational judgement of where exactly it should be struck and how much or how little it is reasonable to do in terms of changing the onus of proof and procedures in order to protect the media.

This Bill deals with most of the major recomendations of the Law Reform Commission regarding these matters. It proposes that the onus of proof in defamation proceedings should be cast on the plaintiff as is the case in other forms of litigation. In other words, if you say you have been accused of robbing a bank the very least you must do is go into the witness box and say in a credible way: "I did not rob a bank". It is amazing that under our system a plaintiff can sit in the bowels of the court and not give evidence in a case in which strong charges are made against him but simply require the media in question to prove that the article was, in essence, true.

I draw a distinction between the private lives of ordinary individuals and matters of public concern. It is wrong to expose the private individual to the necessity of coming to court and prove that a report was malicious, but it is not wrong to require a private individual to at least expose themselves to cross-examination if they want to claim damages on the basis that their reputation was damaged by a particular article or publication. They should at least go into the witness box and give prima facie evidence that what was said about them was false. No one gets compensation for a broken leg, physical damage, false imprisonment or malicious prosecution by sitting in the court and allowing the defendant to make the running. I do not see anything wrong in principle with establishing that the onus of proof must be discharged by the plaintiff. I am not simply saying that a defendant must prove everything or else be decreed for libel.

I apologise to the House for the fact that Members did not have more time to consider the Bill. I also apologise for a number of errors which arose during the course of my drafting the Bill and for which I am responsible. In section 21 two separate principles are conflated and will require to be sorted out if the Bill goes further.

In section 21 (2) the purpose of the defence established in respect of certain reports — I did not mean to confine it to reports set out in the Schedule as subsection (1) appears to do — was to give to print and broadcast journalists a defence where the matter published concerns a matter of legitimate public concern, where the matter published was intended by the publisher and its author to be published for the public benefit, where the publisher and the author took every reasonable care to establish the truth of the matter published and to avoid defaming the plaintiff and that the publisher and author bona fide believed on reasonable grounds that the matter published was true.

Perhaps other Members have different criteria for establishing a defence of comment and statement of fact on matters of public importance but it seems to me that investigative journalism needs that underpinning. If it is a matter of legitimate public concern, if the article is genuinely motivated out of concern for the public good, if every reasonable care is taken in the preparation of the article to establish its truth and avoid defaming the plaintiff and the publisher and the author bona fide believed that the matter published was true, the balance of public good in terms of the right of freedom of speech and a free and courageous media is best served by conferring a defence on people who publish such matters. It would not be a licence to query everyone's private behaviour because it would be restricted by its terms to matters of public interest. That provision ought to be taken on board and made part of the law relating to the freedom of the press and the right of those who are defamed to vindicate their good name.

In section 26 I included a recommendation made by the majority of the Law Reform Commission though, I must confess, with some misgiving. It is to the effect that the court should not make an award of general damages where the defendant establishes to the satisfaction of the court that before publication of the matter complained of he or she exercised reasonable care in attempting to ascertain the truth of the allegation of fact. It seems to me that some of the misgivings expressed by the minority of the Law Reform Commission on that issue have considerable weight. Rather than run away from the issue, it struck me it was best to include it in the Bill so that it would be raised before the House and a definite judgment made between the majority and minority position in the Law Reform Commission. The issue could be properly debated were the Bill to proceed to Committee Stage.

I want to deal with the question of procedure. The Law Reform Commission had particular recommendations to make in relation to procedure for trying defamation cases and suggested originally that juries should be present in both the Circuit and High Courts but that the function of deciding damages, both general and punitive, where they arose, should be reserved for the judge. I believe that emanates from the concern of newspapers that, in defamation cases, juries seemed to believe that very large sums, which the newspapers in particular and the broadcast media considered unreasonable, ought to be handed down in cases where there has been defamation. I believe it was in an effort to secure downward pressure on jury awards that the newspapers — in particular the national newspapers — advocated the abolition of jury trial of the issue of damages in its entirety. I believe it was, as a part response to that, that the Law Reform Commission suggested the judge should carry out that function.

I do not carry any particular professional baggage in this matter since I supported the abolition of juries in personal injuries claims. I thought it was unreasonable to get 12 people together, at great cost and inconvenience to them, to decide relatively simple matters of fact, for example, whether somebody had sounded their horn before having emerged from a laneway and the like. But, in contrast, I do believe in the retention of juries in serious defamation cases and it would be a retrograde step if senior politicians, senior church men, even judges, came to have their reputations decided by a single member of the Judiciary sitting alone in a court. That would be unfortunate and an abdication of what I believe to be one of the best features of jury trial now in operation in civil matters, that is that nobody can suggest that there were wrong motives on the part of the jurors, that personal prejudice decided the matter and, generally speaking, that everyone accepts without question the decision of a jury on a criminal and a civil matter.

The tendency of the Judiciary to support the establishment, be it the police establishment, the political establishment or whatever, is well known. Therefore, it would be foolish to expect the Judiciary to perform as manifestly independently as juries can, and do, on issues of grave political or moral controversy, or whatever. In that context I contend it is right to keep a place for jury trial. But, within that context, it does not make sense to have a jury decide there should be punitive damages awarded, but to tell a High Court judge — who probably does not share their view at all, and possibly radically disagrees with them — that he should fix the damages the jury has just stated should be awarded. The proposal in the Bill to require the judge to give guidance and direction to the jury as to reasonable levels of damages and the principle of awarding damages, to allow either party in the proceedings to address a jury — where the matter is dealt with by a judge sitting alone, on the question of how much damages would be reasonable — is a sensible compromise between the two points of view which have given rise to proposed different treatments of this issue.

As the Law Reform Commission suggested, the Bill also deals with the issue of criminal defamation, though it does not deal with the issue of blasphemy. The reason blasphemy was omitted was because it is required by the Constitution to be an offence and, in this Bill, we did not want to get into all of the area of what is blasphemy for one religious minority, what is not for another, and left that to one side to be dealt with on another day.

In Part IV, the Bill also provides for the issue of contempt of court and protection of published information. I note that in recent months, the Fianna Fáil Party and the Progressive Democrats, have proposed reforms of the law to afford the Irish media the same or even better protection than obtains in the case of the English media under the Contempt of Court Act, 1980, a limited right to protect the confidentiality of sources. In that context I find it remarkable that a Member of this House, by virtue of recent decisions, has the right to withhold from a court the source of his or her information but a journalist has no such right not even tempered by the obligation of the court to do justice to the parties. It has always struck me that if one wanted to give an Irish journalist now, in this new regime, some information which was untraceable, all one had to do was ring up one's local Dáil Deputy, give him or her that information for onward transmission to the media, when one would create an impenetrable wall of secrecy around where the information first came from. In its own way, that shows there is a need, as the two Opposition parties in this House have identified, for a reform of the law to protect journalists' interests from unnecessary requirements that they should disclose their sources when others in society, with a very similar function, are afforded the immense protection which Members of this House have discovered in recent years, they enjoy in these matters, through court actions.

Doubtless this Bill could do with improvement. It represents a genuine effort to address the issue and is based largely on what was suggested by the Law Reform Commission. Doubtless its provisions are open to criticism. Perhaps there are Members here who profoundly disagree with its provisions — without declaring any State secrets, I think there are some members of my party who would be uneasy with some of its provisions — on the basis that perhaps it tilts the balance too much in favour of the media. Undoubtedly a new balance must be struck but that will not be done unless this Legislature embarks on the very responsible, complex task of examining the issues involved, arriving at a new view as to whether the existing law of libel we inherited from the British is appropriate to a liberal, republican society; whether we should not look to other jurisdictions worldwide to ascertain how that balance can best be struck.

Reforming the law of defamation is not a panacea for all the media's problems.We live in a society in which, like battery hens, many people in the media like to be fed with information, a society within which there is a highly sophisticated support apparatus for politicians to reduce every speech to a written form, to put a spin on this or that; there are people whose profession it is to act as consultant speech writers for the great and mighty in our society. Indeed we have journalists — perhaps because they have learned the hard way — who have found it easier to be given information than to ferret it out, who have found it easier to avoid many controversies rather than ferret out further controversies. Here I am not being critical of the Irish media or Irish journalists I fully understand the milieu within which they all operate.

I fully understand, as well as any other Member of this House, the pressures on them, the way in which public comment here is organised. But I do say it is my profound belief that our society is not sufficiently open and liberal in relation to the balance it has struck between people's right to express their opinions and the right of the media to develop opinion and articulate criticism of the political and social establishment. We have struck the wrong balance. The time has come when we must stop prevaricating, begin the process of recasting our law in relation to that delicate balance between free speech and the reputation and dignity of the individual in a way consonant with a society which is self-confident and trusts its judgment on how that balance should be struck.

I understand the Government wants time to consider these matters and I do not grudge it that because as pointed out earlier today it has a heavy legislative programme. If time is required to consider this and reach a worthwhile judgment on it, I am in favour of a reasonable length of time being taken. However, the issue cannot be postponed much longer. In acquiescing to the request for further time, study and reflection, I appreciate the gesture of the Government in not indicating an immediate desire to shoot down this Bill on the basis that it may introduce its own proposals, but I understand the Minister will outline the middle course to the House.

This should prove to be the year in which all parties in this House face up to the issues set out in the report of the Law Reform Commission and 1996 should definitely see the passage of a defamation Bill which fundamentally changes Ireland's law on defamation.

Minister for Equality and Law Reform (Mr. Taylor)

I move amendment No. 1:

To delete "now" and to add at the end of the motion "this day nine months".

The Government favours some reform of the law on defamation. However, we will not be in a position to deal with this subject in the immediate future. For this reason, it has been decided to take the procedural step reflected in the amendment on the supplemenary Order Paper.

We are taking this approach for four reasons. The first is a question of priorities.With the inevitably limited resources available to me in my Department, I can neither bring forward legislation on every subject, nor provide the very considerable examination and servicing required for Private Members Bills on very subject. I have decided to prioritise important social reforms mainly in the family law area. However, I hope to deal with the subject of defamation within an appropriate reasonable timescale.

The second reason for our approach is that I am not in a position to say that I agree with all of the central proposals in the Bill, and quite frankly I doubt that I could accept all of them. In particular, the proposal to reverse the burden of proof comes to mind in this regard, a matter to which I will return later.

A further and related reason is the fact that the law on defamation raises complex legal and constitutional issues. The competing rights to a good name, to privacy and to freedom of expression have to be viewed not only from the standpoint of the Constitution, but also from the point of view of international human rights law, in particular under the European Convention on Human Rights. We must make sure that we get the approach right.

This inevitably involves a degree of detailed legal analysis by the Government and in particular by the Attorney General. The Government has already asked the Attorney General to examine a number of matters relevant to the task in hand. However, I am firmly convinced that there is a real need to take the necessary time required to examine the matter in an appropriate degree of depth.

I am surprised by the speed at which proposals for reform can leap-frog to the top of the Progressive Democrats' agenda. In July 1989, when the Progressive Democrats were entering Government, the Fianna Fáil-Progressive Democrat Programme for Government stated that "new laws ... changing the libel laws ... will be introduced". Deputy McDowell's Bill presumably fulfils that promise of six years ago, but unfortunately he did not motivate his party to introduce any legislation on the subject during the period when they actually held office.

Mr. M. McDowell

We did not have a Minister for Justice.

Mr. Taylor

Because in their three and a half long years in power no such legislation was introduced by the Progressive Democrats Party.

I will not dwell on the fact that we have just been treated to a trenchant speech from a Progressive Democrats' spokesperson in defence of a Bill which made its first appearance on the Order Paper of this House only this very morning.

Mr. M. McDowell

That was not a trenchant speech, the Minister should hear me make a trenchant speech.

Mr. Taylor

Opposition parties, particularly the Progressive Democrats, make much of the fact that they require two weeks notice of the introduction of Government Bills to enable them to do preparatory work and examine them before they allow them to be taken in the House.

Ms Keogh

We do not have a programme manager.

Mr. M. McDowell

The Minister had the text of my Bill.

Mr. Taylor

What is sauce for the goose should be sauce for the gander.

Ms Keogh

Give us a few programme managers.

Mr. Taylor

When the Progressive Democrats bring forward Bills they should ensure that adequate notice of them is given to all sides of the House. Deputy McDowell duly apologised for the lack of notice in his statement and I have no hesitation in accepting his apology. I ask that on future occasions the House be treated with somewhat more courtesy and adequate notice be given.

Mr. M. McDowell

Does the Minister acknowledge that he had the text of the Bill since last Friday?

Mr. Taylor

I did not get it until Monday.

A final reason for our approach is that we take a realistic view of the effects of reform. Deputies should not run away with themselves in painting a picture of the new dawn of enlightenment, openness and journalistic immunity from suit which this Progressive Democrat Bill would usher in. Some of these reform proposals may have a value, but it should not be exaggerated. I do not think for example that abolishing the distinction between libel and slander will do very much for the journalistic community. Nor do I believe that the option of a declaratory remedy, useful though it may be, will necessarily deter vast numbers of plaintiffs from seeking damages. All I ask is that the House approach the question of reform with a sense of proportion, rather than with wild claims about laying the foundation of a new era of investigative journalism.

I would now like to turn in greater detail to the Bill and the reasons we wish to postpone its detailed consideration at this time. The Defamation Bill before the House deals with three separate areas of the law — civil defamation, criminal defamation and contempt of court — and each of these areas has been the subject of a separate examination by the Law Reform Commission. As Minister with responsibility for civil law reform, I propose to confine my comments to the first area only, that of civil defamation. My colleague, the Minister for Justice, Deputy Owen will deal with the criminal aspects of the Bill.

This area of the law is complex. It involves striking a balance between the competing interests of freedom of expression, on the one hand, and the citizen's right to his or her good name and privacy on the other. It draws on influences derived from the common law, from statute, including the Defamation Act, 1961, and from the fundamental rights enshrined in our Constitution.In consequence, any reform of the civl law on defamation will not be an easy task, nor is it one which can be accomplished with excessive speed.

I have noted with interest the comments of Deputy McDowell regarding the views of some members of his party on the complexities of the law in this area. I look forward to hearing their contributions and their reservations on this subject in due course.

Miss Quill

Is it the Minister's opinion that the task should be undertaken? Is he committed to——

An Leas-Cheann Comhairle

Let us hear the Minister without interruption.

Mr. Taylor

The Deputy should have a little patience seeing that her party promised the legislation before going into Government six years ago. If the Deputy has patience for another 15 or 20 minutes she will have her answer.

Miss Quill

I am searching through the speech.

Mr. Taylor

The Deputy will find it. If the Deputy was listening she would have heard my proposal regarding the Bill. In their examination of the civil law of defamation, the Law Reform Commission examined the constitutional background against which any reform of this area should be considered. Three provisions in the Constitution are of particular relevance. Article 40.3.2º relates to the protection of the citizen's good name, Article 40.6.1º guarantees freedom of expression and Article 40.3.1º is the basis for the unenumerated right of freedom to communicate. The commission concluded that these provisions leave a wide discretion to the Oireachtas in determining how best the good name of the citizen might be protected and vindicated by a properly framed, and I emphasise, properly framed, law of defamation and that it is for the Oireachtas to reconcile the competing rights to which I have referred earlier in accordance with the common good.

Undoubtedly, the Law Reform Commission's recommendations are intended to form the basis for that necessary reconciliation of competing rights. Excellent and all as those recommendations may be, I am not, unlike Deputy McDowell, in a position to accept them at face value and dress them up in the form of a fully thought-out legislative proposal. If I were merely to regurgitate the Law Reform Commission recommendations, without first giving them proper scrutiny, I would be failing in my duty to the Oireachtas, the Government and, ultimately, the public and I am not prepared to do that. Doing the job in that way is a luxury that falls to the Opposition but the responsibilities of Government apply otherwise.

The Bill draws heavily on the recommendations contained in the Law Reform Commission's Report on the Civil Law of Defamation. That report embodied a large number of recommendations for change in this area under 59 separate headings. The National Newspapers of Ireland — a group which has some interest in this matter — has also made proposals for change which, despite some points of difference, are substantially in accordance with the Law Reform Commission's recommendations.

If I were in a position to deal critically and in detail with each and every provision contained in this Bill, I would have little excuse for not bringing forward legislative proposals of my own. As I have made clear, I am not in such a position. Therefore, I intend to confine my remarks to the broad principles which the Bill seeks to enunciate, and I stress that my comments are entirely without prejudice to further decisions which I may take in relation to the subject.

Section 5 proposes to abolish the distinction between libel and slander. In principle, I think that this may be desirable.Commentators have pointed out that the distinction between libel and slander, and between slander actionable per se, and slander actionable on proof of special damage only, is largely the product of historical accident, rather than of rational development in the law. However, whether or not the particular definition of defamation proposed in section 6 is the one to follow is something on which I must reserve my position.

There is a very important change in the law proposed in section 9, which reflects recommendation 14.3(6) of the Law Reform Commission's report. As indicated in the explanatory memorandum to the Bill, this would be a particularly far-reaching change. As the law stands, a plaintiff must show that the statement complained of is defamatory, but he or she is not obliged to prove that the statement is false, since the law presumes the falsity of defamatory statements. The burden is thus on the defendant in a defamation action to establish the truth of the statement if the defence of justification is raised.

In their consultation paper, the Law Reform Commission provisionally recommended that this presumption of falsity should be retained. In their final report, a majority of the commission expressed support for its abolition, but a minority continued to argue in favour of its retention. From the majority perspective, it is in principle unsatisfactory that a plaintiff should not be obliged to prove all the essential ingredients of the wrong alleged, including its untruth. Furthermore, under the present law, it is felt that some defendants, particularly media defendants, may find it difficult to establish the truth of their statements in court, even when they have good reason for believing them to be true. For example, withnesses may be unavailable to testify or may be reluctant to do so. That would be the perspective from the point of view of the media.

On the other hand, the minority would contend that a situation in which the plaintiff would be required in effect to prove his or her innocence would be inconsistent with the spirit of the constitutional requirement that the State vindicate the good name of every citizen in the case of injustice done.

Clearly, the purpose of the law of defamation is not to protect citizens from defamatory statements which are true, but from those which are untrue. At the same time, it is not too much to ask that a defendant should be capable of substantiating the defamatory statements which he or she is alleged to have made. I would have to confess that I am not disposed towards this proposal and, at this stage, I would not be happy to accept the premise contained in the Progressive Democrats' Bill.

Turning to the question of the remedies which might be available in defamation actions, I have to say that the present situation, where the principal remedy is one of damages, is not entirely satisfactory. Certainly I am aware that there is a general feeling among the media, and booksellers in particular, that the current level of damages is too high. This problem can be addressed on two levels. First, we need to look more closely at the situation where damages might be the appropriate remedy and the matters which might inform the granting of such a remedy. Secondly, we need to examine the possibilities for alternative remedies so that damages will not be the sole focus in defamation actions.

I believe that a clear statutory statement concerning the circumstances in which an award of general damages may be appropriate, along the lines contained in section 27 of the Bill, would be desirable. It may also be desirable to highlight clearly the circumstances in which an award of punitive damages may be appropriate. In the context of damage awards generally, it may be useful to state clearly that the tendering of an apology should not be construed per se as an admission of liability, and may be considered in mitigation of damages. In general, the basic aim of reform in this area should be to secure proportionality between the damages granted and the nature of the injury sustained.

I note that, under section 27, the assessment of damages in defamation cases would still be a matter for a jury. Some would favour the abolition of juries in defamation actions which would put these cases on a par with personal injury actions. Others, such as the Law Reform Commission, incline to the view that there is value in having a group of lay people, rather than a judge, decide whether the words at issue are capable of bearing a defamatory meaning, but that the essential function of assessing damages should be transferred to a judge. Logically, if this view were adhered to, it could involve the restoration of juries in defamation cases in the Circuit Court also. This question will have to be carefully considered.

Reflecting the Law Reform Commission report, the Bill proposes a number of alternative remedies — applications for declaratory judgments in lieu of damages, declaratory orders and correction orders. Statutory clarification as to when it is appropriate to grant an interlocutory injunction restraining publication of allegedly defamatory matter is also proposed. I believe that these proposals merit examination. I would certainly be disposed to exploring the options for such alternative remedies.

Tangential to the issue of damages is a matter which is contained in section 12 of the Bill, which deals with the anomaly which arises in defamation law whereby a defendant in a defamation action may make a payment into court only if liability is admitted in the defence. In other tort actions, such as personal injury actions, for example, a defendant may make a payment into court irrespective of whether or not liability is admitted or denied although it must be stated whether liability is admitted or denied. I accept that this exception to the usual rule regarding lodgments in court merits examination.

It is interesting that this exception has existed down the ages in respect of libel and slander laws. I do not know what its origin was or how this exception arose. Perhaps it may have come into the law of libel and slander for a very good reason. The fact that it is there cannot have arisen by mere accident; there must have been some good reason for it. It has existed for time immemorial.

Mr. M. McDowell

That is a very conservative view of the law.

Mr. Taylor

Before dealing with the matter I would be interested to ascertain its genesis. We should at least know that before we wave it away. As far as I know, it is the only exception to the normal rule that a lodgment in court may be made either with or without an admission of liability. The fact that it is there makes one wonder about it. When we discuss this matter further in detail we should perhaps try to ascertain the reasons for it. It seems rather illogical to me but we should check its origins a little more carefully in the first instance.

In regard to the defences which arise in a defamation action, the principal ones at the moment would be privilege, justification and fair comment. It is now appropriate that the occasions on which absolute and qualified privilege apply should be re-examined. It is also clear that the defence of fair comment has become unnecessarily complex. Its rationale is to protect freedom of expression on matters of public interest, but it is no longer clear that it is succeeding in this aim. The Law Reform Commission proposal for a rejuvenated defence of comment based on fact, reflected in section 22 of the Defamation Bill, may offer the basis of a solution to difficulties which have emerged in this area and, in this regard, it would obviously be useful to distinguish between fact and comment as is done in section 23 of the Bill. However, it will be very difficult to achieve the right balance here and the matter obviously requires very detailed scrutiny. For now I reserve my position on it.

Section 24 of the Bill provides that the defence of justification be renamed the defence of truth so that it would be a defence in a claim in defamation for a defendant to allege and prove that the defamatory matter published concerning the plaintiff was in substance true or was not in substance materially different from the truth. In principle, I would be sympathetically disposed to introducing such a change.

The Bill also provides for other matters which it would be necessary to include in any Bill which purports to deal comprehensively with defamation. These include addressing the position of corporate bodies, providing a clear statement of the law as it affects printers and distributors and providing for a single limitation period for defamation actions.

I note that there is one matter on which the Defamation Bill differs from the Law Reform Commission report — Deputy McDowell referred to it — and that is the area of defamation of the dead. The Law Reform Commission has recommended that a new cause of action be introduced in respect of defamatory statements made about persons dead at the time of publication. This would be subject to restrictions as to who could bring such an action and to the period of time within which it could be brought. The remedies available would be confined to declaratory orders and injunctions. The explanatory memorandum to the Bill indicates that such a provision possibly could inhibit the recording and discussion of recent history. I would welcome the views of Deputies on this matter before making up my mind on it.

The Bill provides that in defamation matters jurisdiction be exercised only by the High Court and the Circuit Court. I have always been a strong advocate of increasing the jurisdiction of the District Court. When we come to later stages of the Bill I will consider the question of the jurisdiction of the District Court. It might be appropriate to have such jurisdiction in certain cases, but that is a matter we will consider later and I would be interested to hear Deputies' views.

Deputy McDowell referred to comments made over the weekend by Mr. Justice Hugh O'Flaherty. I will not comment to a great extent on what he said except to say that I disagree with the comments he made on the position of politicians and the taking of libel actions. He seemed to suggest that the good name of a politician should be regarded on a different basis from the good name of any other citizen. If that was the purport of what he said — that is what he seemed to say — I take the strongest exception to it.

Mr. M. McDowell

The Minister is getting controversial.

An Leas-Cheann Comhairle

I would ask the Minister to conclude as his time is exhausted.

Miss Quill

Just when he was getting interesting.

Mr. Taylor

The good name of politicians is as important as the good name of any other citizens.

The comments I have made concern broad principle only. I appreciate the motives of those who brought forward this Bill, particularly in so far as the provisons relevant to the law of civil defamation are concerned. The debate which will ensue will be helpful in assisting the formulation of precise legislative proposals within my Department.

Mr. O'Donoghue

The Bill is a genuine effort to change defamation law and is welcome to that extent. It is fair to say that the laws on the Statue Book or the common law appears to be arcane. Having said that, it is important to ask Deputies to think of the plight of an individual who has lost everything and is all alone in the world. If that individual is fortunate enough to have his or her health then the only other thing which he or she possesses is his or her good name. The good name of an individual should never be lightly taken away. Under no circumstances should we have a liberal regime which would allow that to happen without the necessary safeguards being in place to allow for redress which, in the final analysis, is often the only punishment an individual can inflict on a multinational company.

The right of an individual to his or her good name is one of the most fundamental and important rights protected by the 1937 Constitution. That this right is protected is a clear indication that those who drafted the Constitution regarded the good name of an individual as of fundamental importance. Under Article 40.3.1º the State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.Article 40.3.2º states:

The State shall, in particular by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

I do not think any Member of this House or any member of the general public would say this provision should be deleted from the Constitution.

It is sometimes argued, perhaps correctly, that this constitutional provision is in conflict with Article 40.6.1º under which the State guarantees liberty to exercise certain rights, including the right of citizens to express freely their convictions and opinions. It is extremely interesting to look at some recent case law in connection with that provision. Interestingly, in the case of Norris versus the Attorney General, Supreme Court 1983, the Chief Justice, Mr. Justice Higgins, held that even if the right to freedom of expression existed it was not absolute. In the case of Blake and Madigan versus the Attorney General, Mr. Justice Costello held that the newly formed right was qualified; it had to yield to common law and statute in the interests of the common good, public order and morality.

It is sometimes forgotten that freedom of expression is not limited by Article 40.3 of the Constitution, the Defamation Act, 1961, and common law only. It is also limited in other ways. Article 40.6 only guarantees the right of citizens to express freely their convictions and opinions subject to public order and morality. It is important to remind the House that the same Article goes on to state:

The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, [which no doubt was more prominent in 1937 than it is today] while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.

I mention these extremely important provisions in order to illustrate the seriousness with which the Constitution dealt with the protection of an individual's right to his or her good name on the one hand and the right to communicate or freedom of expression on the other. To say the least of it, this is one of the most difficult scales in the measurement of justice.

The Bill seeks to update and improve the law on defamation. The next question is whether it achieves that objective. It also seeks to seriously alter the balance which ought to exist between the rights of the media and those of the individual. Obviously it relies heavily on the Law Reform Commission report on the civil law of defamation which was published in December 1991. The Law Reform Commission was careful to point out that reasonable people would accept that in a democratic society the right of a citizen to his or her good name and the right to freedom of expression should be protected to the maximum degree. In this sense, the Law Reform Commission was merely echoing the sentiments of the 1937 Constitution by stressing that both rights, and not one more than the other, needed to be protected.

Having recognised that, it is interesting to note that the Law Reform Commission went on to point out — this more than anything else must indicate the enormity of the problem in balancing the scale between the rights of the individual on the one hand and the right of the media to express an opinion and communicate on the other — that in some areas one right must inevitably yield to the other. When all is said and done and everything has been examined in detail, one has to accept that this is inevitable in the final analysis no matter how perfect the new law purports to be. The crucial question this House has to address tonight and in the coming months is how best can the correct balance be achieved. This is a difficult but not intractable problem.

Many of the recommendations of the Law Reform Commission, and many of the provisions of this Bill, are without question both helpful and uncontroversial.The proposal to abolish the distinction between libel and slander is an interesting one. In general I accept the argument that the distinction is historical and has made the law unnecessarily more complex than it need be. I therefore support the provision.

The provision in the Bill which provides that plaintiffs would be required to prove that allegedly defamatory material is false is without doubt a more radical proposal. The Law Reform Commission, as Deputy McDowell correctly pointed out, came down in favour of removing the presumption of falsity. The commission argues that a plaintiff in such cases can issue proceedings for defamation in respect of perfectly truthful statements in the knowledge that he does not have to face evidence and cross-examination. It did not think that it is either just or in the public interest that defendants should be affected in settling such cases by the existence of an artificial presumption of law at variance with the facts. It further suggests that the law of defamation should protect a citizen from defamatory statements which are untrue and not from those which are true, as the Minister pointed out.

While the aforementioned arguments are very well made the lifting of the presumption of falsity could place a plaintiff in a difficult position. For example, he would be obliged to prove that matter which is both false and defamatory is untruthful. The argument could be made that this would be not only unhelpful to the plaintiff but also unfair. In summary, the question might be posed as to why a plaintiff should have to prove an untruth when he was not responsible for its publication in the first instance and when the defendant was so responsible. This is a matter which requires further detailed scrutiny and discussion.

The Bill proposes that publishers of defamatory material should not be liable to pay general damages where reasonable care was exercised. Section 26 states:

Without prejudice to the provisions of section 21 the court shall not make an award of general damages where the defendant establishes to the satisfaction of the court that before publication of the matter complained of he or she exercised reasonable care in attempting to ascertain the truth of the allegation of fact.

I am deeply concerned about this provision.This section would prevent a court from making an award of general damages where the defendant establishes that reasonable care was taken in attempting to ascertain the truth of the particular allegation of fact. My concern is based on the absence of any guideline as to what constitutes "reasonable care". Does it involve publication based on one source only? Does it require confirmation from a second or subsequent source? Does it require that the disputed fact be put to the person whose reputation has been impugned by the article or broadcast? For instance, could a court come to the conclusion that reasonable care had been taken where a journalist was to claim that the information had come from a usually reliable source in circumstances in which the journalist also claimed privilege in respect of the identity of the source?

It must be remembered that section 43 of the Bill, with which I am in agreement, provides that "no court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which that person is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime". A journalist would be able to say in court that they had been given the information by a reliable source, that they will not name the person or pay any general damages. This would not be acceptable.

As it stands, section 26 of the Bill would be open to serious abuse. It would permit the unscrupulous to publish without being damned in the knowledge that the section has the potential to embroil an unsuspecting plaintiff in an ongoing debate on journalistic ethics. If reasonable care is to be determined by the journalist on the Clapham omnibus, can we presume that the worst excesses of the British tabloid press are to attract no general damages on the grounds that other journalists and their editors might give evidence to the effect that in their experience the steps taken were reasonable? In cases of alleged medical negligence, for example, evidence is given by doctors as to what are reasonable practices. Negligence can be found only in circumstances in which no other practitioner of like experience and ability would have behaved in that fashion. Is that the test that the proposers of this Bill would have us employ? Is it right that a plaintiff should qualify for general damages only if no other journalist is prepared to say that the steps taken to ascertain the truth of the allegation of fact were reasonable? The section is an unwarranted attack on the right of any person to vindicate their good name and reputation.

Truth is always a good defence to an action for damages for defamation. This section asks us to exclude damages for falsehood on the basis of undefined "reasonable care". In so far as it seeks to strike a balance between individual reputation and institutional freedom of expression it comes down on the side of the institutions.

Other sections also cause concern. The same anti-individual bias can be found in section 28 which deals with punitive damages. This section seeks to place barriers in the way of a plaintiff obtaining punitive damages in respect of a damaging falsehood. It would place an almost immovable obstacle on the road to punitive damages by requiring that a plaintiff establish that the defendant knew of the falsity of the defamatory matter or that he was recklessly indifferent as to its falsity.

Again, conspicuously, no guidance is given as to how this section should be interpreted. There is no guidance as to whether "reckless indifference" is intended to refer to subjective or objective recklessness. A requirement of subjective recklessness would mean an effective abolition of punitive damages as it is notoriously difficult to prove in the absence of an admission by the defendant. The wording of the section would require the plaintiff to establish reckless indifference as to falsity. Recklessness requires that a defendant advert to the possibility of the falsity and then decide to run the risk — it does not cover situations where no thought is given to the possibility of the matter being false by its author.

A similar anti-individual bias can be seen in the provisions of sections 6 and 8 which would force a plaintiff to choose between a summary and, therefore, a speedy declaratory action in lieu of damages or a full scale action for damages.It would unfairly force a plaintiff who feels, and in all probability is, entitled to damages to forego those damages or else face cross-examination as to why he did not choose to clear his reputation at an early stage. This needs to be amended to provide for a summary procedure which would permit damages to be assessed at a later date. This would permit a person who had been defamed to clear his reputation at an early stage and seek damages, if appropriate, thereafter.

Sometimes the publication of untrue matter does not injure a person's reputation but can cause considerable distress to an individual and his or her family.I am in favour of the courts having a power to review any published matter with a view to redressing wrong. This need not occur solely on an application for damages. Section 8, which provides for a declaratory order, should also apply in respect of the publication of untruthful and distressing material which does not or might not go as far as causing damage to a person's reputation.Serious consideration should be given to the creation of a new statutory tort which would permit courts to rectify the publication of untruths which have caused distress.

The right of every person to protect and vindicate their own good name and reputation is a fundamental one which must be protected. Any legislation which seeks to regulate or limit the law relating to defamation must have, as its primary objective, the protection of the good name of every citizen.

Debate adjourned.