Many contributors focused on the need to balance rights and many aspects of legislation require a balancing of conflicting rights. Some of the more difficult legislation promised by the last Government has not been introduced because of the difficulty and fear of balancing and bringing two rights together.
The fear of libel is almost worse than the libel itself. It has been instrumental in stifling investigative journalism. Newspaper copy is swept as if for mines by libel lawyers such is the fear of the stray word which might impugn the reputation of an individual and give rise to a claim for damages. One journalist referred to "a filter of fear" through which all copy must go. The fear of libel has seriously infringed the right of the media to cover and publish matters of public interest.
There has been much discussion on the constitutional rights that come into play when we discuss freedom of speech. The Progressive Democrats, particularly Deputy Michael McDowell who presented this Bill, believe that reputations can be protected without arbitrarily preventing or unduly restricting responsible, investigate journalism.The constitutional rights that come into play are the right to a good name, to freedom of expression and to communicate. If there is a right to communicate, this implies not only freedom to impart one's views but also the freedom to receive, hear or read the views of others.
As we debate this Bill we must be mindful that this State is currently in breach of a decision or order of the European Court of Human Rights on the right of Irish women to receive certain information, a matter which has been long-fingered by successive Governments. I hope the Government will move in the near future to remove that injustice. It appears absurd that clinics can be threatened with eviction because they possess literature giving information about services legally available to Irish women overseas.
The right to hold opinions and to express them derives directly from our nature as human beings. The right to hold opinions and communicate them in an area of human life that should and must remain as free from legal and State interference as possible. As Members of the Oireachtas, we are afforded the unique privilege of immunity from civil liability for libel, a very important facility. That enables us to raise issues of public importance without a threat hanging over us of being sued for merely mentioning the name of an individual, of a company, or an alleged corruption which we believe should be exposed in the public interest.
Therefore, the inquiring role of the Dáil is very much dependent on the right of its Members to be immune from libel. Far from supporting the contention, as many people have alleged in the past, that Members of this House have abused their privilege, by making allegations which infringe on the right of the good reputation of another person outside this House, it is my belief that Members have been too timid in using that privilege. It is a very unique, important tool in democracy that this House be the channel through which matters of public controversy, which may allege corruption and is of public interest, can be properly raised by Members without fear of libel. A Government which is not examined or scrutinised by its citizens becomes a tyranny.Governments which are not questioned, whose actions pass without examination, can become abusive of power and unaccountable to their electorates.Crimes not exposed publicly go unavenged; abuses which are not discovered and exposed become entrenched. Therefore, democracy cannot survive without freedom of speech and of expression.
The House will recall when Members made allegations of impropriety and irregularity within the beef processing industry there were cries to the effect that they were abusing the privilege of the House, indeed accused of national sabotage. We must remember that not all allegations are untrue, some turn out to be true. That is why it is very important that this facility of Members to make statements based on information given them must be protected, particularly by each Member of this House, from any diminution of freedom.
Likewise, there is the matter of the freedom of the press which has a vital role to play in informing the public on the accountability of Government, on the activities of all politicians, including Members of the Opposition. The media has a crucial role to play in informing citizens and providing a forum for a free exchange of opinions. The press represents the principal means by which citizens are kept informed of the activities of Government, of everything that takes place in their name in this House, and within Government. Accordingly, the media must not be impeded in its function of informing the public. This right of the media to cover matters of public interest has been unduly restricted.
There is a constitutional right to a good name, one which is particularly significant within the area of defamation law. Those of us in public life, perhaps, are more aware than most about how important is one's reputation, how fragile it can be. For example, we have witnessed in England how insignificant details of peoples' private lives can be seized on by the media, inflated, served up to the public in a manner that is totally destructive of one's reputation, even though the particular matter at issue may in no way reflect on that person's integrity, fitness or suitability for public office. An example of this occurred recently when it was reported in the British press that Cherie Booth, a barrister and the wife of the Labour Leader there, Mr. Tony Blair, had been involved in prosecuting poll tax defaulters, which made the front pages of the broadsheet media, carrying lengthy reports quoted from her submissions to the court. However, they failed to give any prominence to the fact that the so-called "cab rank rule" meant that Ms Booth was under a professional obligation to take on those cases and could have been reprimanded by her professional body had she refused to do so. In this instance, Ms Booth's professional activities, which were totally private, separate and personal, carried on by her in an impartial and professional manner which had nothing whatsoever to do with her husband's political life, were used by the media as a means of heaping ridicule on the Labour Leader, Mr. Blair.
Therefore, I understand and can perceive why there were considerable concerns expressed by several Members, including the Minister, that any relaxation of the defamation laws here might lead to a sort of media open season, that standards in our media would plummet to the same depths of the tabloids in the neighbouring state. This fear of tabloidism is legitimate, something with which I have sympathy, but there is need for a press council and also for us to consider privacy laws. There is the need, perhaps on Committee Stage, to examine the overall area of privacy, with an amendment being tabled to deal with this aspect in order to protect the individual's privacy.
It is worth noting in this case that the defamation laws obtaining in England are exactly the same as ours. The fact is that under existing law anything may be printed about anyone, no matter how scurrilous, no matter how scandalous, no matter how it may expose the person to ridicule, so long as it is true. Potentially, no area of private life is closed to the attentions of the press if the press chooses to go down that road. This is as true now as it will be if this Bill is accepted and enacted. The way to protect citizen's legitimate interests, in protecting the integrity of their private lives, would be to take a fresh look at the overall area of privacy. When the Law Reform Commission issued its consultation paper on the law of defamation it had the following to say:
There is an overlap between the law on privacy and the law on defamation....An essential difference between the two causes of action is that a true statement of fact is not actionable in defamation, whereas a true statement of fact could be actionable under privacy law, For example, if it is correctly stated of a man in 1989 that he was convicted of a criminal offence in 1933, this is not actionable in defamation because truth is a defence. However, the person might argue that because he has since turned over a new leaf and led a life as a model citizen, it is an invasion of his privacy to rake up old slurs upon his reputation.
The commission went on to say that the whole issue of privacy was one which should be addressed separately from that of defamation, the former being a very wide issue encompassing issues going far beyond those involved in defamation law. Any new legislation on privacy must deal with such issues as secret surveillance, telephone tapping, interception of communications, privacy of computer data and the like.
It has been established in our law that there is a right to privacy, established in the case ofMcGee versus the Attorney General in which Mr. Justice Budd said in the High Court:
...it is scarcely to be doubted in our society that the right to privacy is universally recognised and accepted with possibly the rarest exceptions, and that the matter of marital relationships must rank as one of the most important of matters in the realm of privacy.
That right was expanded on further in the case ofNorris versus the Attorney General when Mr. Justice Henchy, in a dissenting judgment, said:
There are many other aspects of this right of privacy, some yet to be given judicial recognition.... they would all appear to fall within a secluded area of activity or non-activity which may be claimed as necessary for the expression of an individual personality, for purposes not always moral or commendable, but meriting recognition....
Everybody will agree also that there is a right to a sphere of privacy, to have a life which should not be open to unwelcome intrusion by the State or anyone else, including the media. In the United States of America I think they refer to this right as the right to be let alone. It may well be that this right to be let alone is one deserving of legislative protection which, if enshrined in the Constitution may mean there is an obligation on us to embody it in legislation. I do not believe the right to privacy may be satisfactorily dealt with in this Bill, but we should consider it.
Regarding public interest, it should be noted that many of the provisions in this Bill will only be of assistance to a defendant where he or she can show that a publication concerned a matter of public benefit or of legitimate public interest. Rare cases may arise where a false and defamatory statement might be made, with malice, about somebody's private life, perhaps concerning his or her private relationship. In such cases the plaintiff would be obliged to prove that the statement was untrue, thus requiring him or her to give evidence in open court on personal and private matters.That area should be properly dealt with and scrutinised on Committee Stage.
Fear of a libel claim is endemic among members of the press. It may stop people reporting child abuse. In the past many people, who have had legitimate suspicions about the activities of certain people, have been afraid to report them or inform others about them for fear of a libel claim. Such fear has had dangerous consequences for the protection of children. As recommended in the report of the Kilkenny incest case and other documents on child sex abuse, mandatory reporting is vital if people are to report freely what they consider to be legitimate allegations of child sexual abuse to protect children. Fear of libel has meant that people have continued to have access to children even when real doubts exist about a child's safety. Fear of a libel claim has caused social workers, doctors and teachers who have had suspicions of child sex abuse not to report them.
Defamation law has become a means whereby people, who have been the subject of a trivial error, take action, not so much to repair their reputation as to secure a financial windfall. Somebody recently said that a person can receive more for an insult to his or her reputation by the print media than from losing an eye in a personal injuries claim. There has been an unhealthy appetite for sending out civil bills when a person's name appears in a questionable way in the media. Fear of libel has led to a climate of secrecy in which newspapers are afraid to publish matters of legitimate public interest which are widely known to be true. Responsible investigative journalism is being prevented from carrying out its more important role, that of acting as a watchdog on democracy and a guarantor of high standards in public life.
This is a reforming Bill. It seeks to bring into the public arena and debate in this House an area acknowledged to be fraught with difficulties. The Bill Deputy McDowell has drafted is a courageous one and I congratulate him on it. It consolidates, modernises and greatly simplifies the law of defamation. It will greatly assist legitimate and careful journalists to do their job properly without fear of being subject to ill-founded suits by aggrieved litigants. Newspaper editors can be instructed, under threat of being sent to jail, not to publish the fact that they have been gagged by an injunction. There is a real need to reform the law in this area and we cannot wait too long for such liberation of our press.
Much criticism of the Bill has centred on the fact that it gives too many freedoms and too much latitude to journalists at the expense of the reputations of private citizens. However, an examination of the Bill will reveal that careful attention has been given to the right of the citizen to his or her good name and the vindication of it.
One of the most important provisions in the Bill is that for the first time it provides a remedy which is custom made to address the needs of persons whose good names have been impugned. Experience has shown that the existing remedy, proceedings in the Circuit Court or High Court for libel or slander, does very little to assist people who have been defamed. A person who has been defamed goes to court in order to repair his or her damaged reputaion. If a plaintiff is to have any real redress, it is absolutely essential that he or she should have speedy access to justice to stop the defamer in his tracks and to ensure that the damage caused by the defamatory statement is limited, contained and nipped in the bud. As in many other fields, justice delayed is justice denied.
At present there is such a backlog of cases in the Circuit Court and High Court that it can take literally years for proceedings to come to trial. This means that by the time an action is heard the damage to an individual's reputation may have become entrenched and accepted by the public. The plaintiff may have had to suffer years of hatred, ridicule and contempt in the eyes of his or her peers and the public. Serious libel claims can do real damage and ruin lives. There is no attempt in the Bill to diminish the fact of serious libel. Going to court years after the defamation took place may cause matters that have been forgotten to be dredged up again and result in the person being "re-libelled" as it were. Although there are no statistics on the matter, I imagine many plaintiffs with a good cause of action may decide not to sue, prefering to grit their teeth and get on with their lives rather than go through harrowing years of stress waiting for their court actions to be heard.
If a plaintiff's constitutional right to his or her good name is to be truly vindicated in a way that addresses the substance of the offence committed against the plaintiff, a speedy effective and cheap mechanism must enable the plaintiff to get true redress. In line with the Law Reform Commission's proposals, the Bll proposes the creation of a new form of action, the declaratory action, which will enable persons who believe their reputations to have been damaged to restore their reputations swiftly by way of summary applications to court. The only remedy in such a case will be at the declaratory order clearing the plaintiffs' name plus payment of his or her costs. The Bill also gives the court the power to direct the defamer to publish a correction of the matter. No general damages may be awarded, although the defendant will have to pay for any financial loss a plaintiff incurs as a result of the defamatory statement. That is a fair recompense for a plaintiff who has been defamed and offers him or her quick course of action.
This remedy will do much to assist plaintiffs vindicate their constitutional right to a good name in a meaningful way and address the wrong done to them. The punishment would fit the crime. Some people bemoan the loss of general damages, but I believe that is the loss of a windfall to which people have become accustomed and has no basis in justice.
Another far-reaching measure in the Bill is the reversal of the burden of proof. This proposal has led to a certain amount of unfavourable comment. Under existing law, once the plaintiff has shown that the matter of which he or she complains isprima facie defamatory, he or she does not have to go on to prove the next essential ingredient of the tort — that it is false. The law presumes that it is false and that it is up to the defendant either to show it is true, a concept known as the defence of justification, or that some other defence applies, such as fair comment or privilege.
The question of whether the burden of proof should be reversed so as to place the entire burden of proof on the plaintiff, as is the norm in every other type of case, was one which caused the Law Reform Commission particular difficulty.As mentioned, it considered, in its consultation paper, all the arguments for and against the retention of the presumption of falsity and recommended provisionally that the presumption that exists in our law should be retained. However, having further considered the issue it changed its view and its December 1991 report states: "...the publication of the matter which is both defamatory of the plaintiff and untruthful is the core of the tort of defamation...it is illogical and anomalous that the plaintiff should be relieved of the burden of proving one of the essential ingredients of the action". In arriving at that conclusion the commission was not unanimous and took the unusual step of publishing a dissenting opinion. Accordingly, I am not surprised that many conflicting views have been expressed in the House about this radical proposal to change the burden of proof. However, it is one of the most important proposals in the Bill. The presumption of falsity is a major problem for media defendants. Their sources of information are often reluctant to give evidence in court and so it may be difficult for a media defendant to prove in public a statement is true, even if he or she has privately established it is true. A plaintiff may issue proceedings in respect of statements which are true knowing the defendant will be unable to prove the truth of the allegation. In other words it would be very difficult to prove that somebody——