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

The following motion was moved by Deputy Michael McDowell on Tuesday, 14 February, 1995:
That the Bill be now read a Second Time.
Debate resumed on the following amendment:
To delete "now" and to add at the end of the motion "this day nine months".
— (Minister for Equality and Law Reform.)

I wish to share my time with Deputy Ferris.

Letting in the light on issues of public importance, opening our public affairs to intense scrutiny and letting the public know what is happening are all very important as are accuracy, fairness and balance. I am happy to have an intense beam of light shine on all issues of public importance. Like most people in this House, I also want to ensure that people do not have their good names tarnished by inaccurate and defamatory reporting and that their right to privacy is respected.

Reforming the law on defamation, desirable though that may be, will not have the effect of ensuring that media reports are accurate, much less fair or balanced. It would be a mistake to consider that law reform is the answer to all the problems in that area. Properly considered reform can certainly help and my colleague, the Minister for Equality and Law Reform, Deputy Taylor, is committed to introducing considered reforms. While welcoming many aspects of this Bill, the Minister has already dealt with the proposals about which he has reservations. I want first to address more general issues on journalistic standards and privacy.

Defamation does not only arise in the mass media. However, it is where most problems arise. Legislation is one way, but not the only one, of trying to ensure that people retain the right to their good name. Another way of ensuring this is by a general raising of journalistic standards which is best done by voluntary adherence to the best professional standards.I am not talking about restricting any of the media in its investigation of stories, political and otherwise, but about reporting facts, verifying reports before going to print and ensuring that unsubstantiated allegations do not get into print. Good journalists already adhere to these principles. Speedy correction of defamatory or inaccurate material is desirable but it should not remove the need to be utterly vigilant about accuracy in the first place.

Not all inaccurate material is defamatory.The mass media should be just as careful about general inaccuracy as it is about defamation. General inaccuracy may not be punished by court awards but it may, and should be, punished by consumer sanction.

Another general issue which arises is the question of invasion of privacy. Here we are talking about stories which may or may not be accurate or defamatory but which really go beyond legitimate public interests. This is a particularly difficult area to address either by legislation or by voluntary codes. Fortunately in Ireland, invasion of privacy has not yet reached the epidemic proportions of other countries. However, before it does, we should discuss what constitutes intrusive questioning, where the lines should be drawn between public and private interests and how we can ensure that standards do not fall.

Most of the provisions of Deputy McDowell's Bill are concerned with the civil law of defamation. This obviously is the kernel of any debate on defamation.However, other provisions in the Bill are primarily the responsibility of the Minister for Justice and it is to those aspects of the Bill that I now turn. Section 37 abolishes the common law offences of seditious libel and obscene libel, in line with the recommendations of the Law Reform Commission. The commission was of the view that the historical circumstances which gave rise to the need for a crime of seditious libel had long since disappeared and the offence was not one which was expected to occur often in a relatively settled society. With regard to obscene libel, the offence has been rarely prosecuted in modern times, which would suggest that in practice, it is virtually obsolete. In addition, the commission considers that other legislation exists which punishes adequately the sort of activities which essentially constitute such offences.

It is noteworthy, though perhaps understandable, that Deputy McDowell's Bill does not deal with the matter of blasphemous libel. The Law Reform Commission report, in discussing this form of libel, concluded that there was no place for an offence of blasphemous libel in a society which respects freedom of speech. The problem of taking on board the commission's recommendation in regard to this form of libel is that there are constitutional considerations which impinge on it by virtue of Article 40, which states in part that the publication or utterance of blasphemous matter is an offence which will be punishable in accordance with law. The Defamation Act, 1961, prescribes penalties for the offence and also confers powers of search and seizure in respect of it. In view of the constitutional implications, it is not surprising that this Bill chooses not to deal with it and while in principle, the constitutional provision which I have mentioned may need to be addressed, in reality it is hardly a priority.

The remaining sections of Part III are concerned with defamatory libel. The Law Reform Commission recommended that the common law offence of defamatory libel should be retained, although in a more confined form. While the offence is prosecuted only very rarely today, the commission was of the view that its abolition would deprive the criminal law of a potentially valuable weapon. There is a view, supported by newspaper publishers, that a reformed civil law of defamation would provide a citizen with all the protection they need against defamatory statements.

I commend Deputy McDowell on his contribution and the effort which he has put into this Bill. While the Government is not in a position to support it, we will be bringing before the House our own proposals which will address the issues raised in this debate by the Deputy. I hope that we will address it in a fair and balanced way because important issues of public interest arise here. I congratulate the Deputy on the work he has done in this area.

I wish to share my time with Deputy Kitt.

Sharing time is permissible in this debate.

I am glad of the opportunity to speak on this Bill. I congratulate Deputy McDowell for bringing it forward and perhaps achieving to a certain extent some sort of acceptance from the Government; we will have to wait to see how much of it will be incorporated.Obviously, I do not agree with all the Bill's provisions, it would be unfair to expect everyone to agree with everything that might be contained in any legislation. Nevertheless, it has served to create a healthy and necessary debate on the laws as they relate to defamation.

I agree with the changes suggested in the law as it stands on slander and libel. This is a sensible provision and should be supported as it appears to be based on a sort of purely historical convention which has made the law in this area more complex than is perhaps necessary.That is also probably the case across the ambit of our legislation.

Section 43 of the Bill interests me and I agree with it. If it has been incorporated in legislation it might have prevented an unnecessary recent court case in Dublin involving an English journalist. The section 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.

We all realise that a good journalist must have his or her confidential sources in order to get to the truth in any investigation they may be pursuing. In an instance like that I believe it is unreasonable to expect a journalist to reveal that source. Obviously it would be a major blow to investigative journalism if that was the case. I am also reminded that in such situations certain privileges are bestowed on some professional people dealing with the general public. Confidentiality exists in the doctor/patient relationship, the solicitor/client relationship, a bank dealing with customers and our own profession between Deputies and their constituents.I often say to some of my constituents when they are worried about the confidentiality that I treat the clinic as if it were a confessional and I will not reveal any information they disclose.It should be the same in this instance.

One aspect of the Bill about which I am not happy relates to a provision which has been omitted. I am referring to the recommendation of the Law Reform Commission which stated that:

There should be a new cause of action in respect of dafamatory statements made about a person who was dead at the time of publication. At present no actions may be maintained in defamation in respect of injury to the reputation of a person who was dead at the time of publication.

I believe that when the initial consultation paper was published most of the criticism attaching to this proposal came from the national newspapers and RTE. They were mainly concerned that historians would be deprived of valuable material if such a provision were included. If the media has material on a particular person why not publish it while that person is alive? Waiting until a person has died would seem to suggest that they were unsure of their facts in the first place or could not stand over any allegations they might make. I have always thought that historians should record facts, not fiction.

One has to decide what is paramount: the legitimate claim of the media to comment about the deceased or the legitimate claim of the deceased's family to maintain his or her good reputation. I believe the latter consideration has to be of prime importance and accordingly, I would hope this improvement can be made to the Bill on Committee Stage. I realise that if such a provision were to be included and also allowed for damages to be claimed, perhaps we could be inundated with spurious cases clogging up the court system. Therefore it would be more prudent to deny damages in such cases which would mean that only genuine cases for defamation of character would be brought to the courts. Furthermore, any such action could only be instituted by a close family member, which could easily be defined at a later date, or by the executor of a will.

A colleague mentioned incidents where various statements were made about two clerics after they died. There was little the families could do in either instance to rescue the good name of their deceased relative. Such an occurrence would be remote to me and most other Members because we would not know either of these people. However, perhaps we should think of a close relative of our own and try to imagine how we would feel if he or she were the subject of derogatory comment in the media after their death. It is only when we consider a case close to home that we realise the implications of not being able to rescue someone's reputation. I certainly would want to have this avenue of approach open to me, not seek damages but with the best intentions.Any genuine or reasonable person would be satisfied to clear their relative's name and would not want monetary gain. A certain privacy has to be allowed to people even in death.

I would like to refer to the Irish law on privacy and its state of relative uncertainty. If there is a general right to privacy under the Irish law it stems from the Constitution. There is no such right in common law. To the extent that the right of privacy exists it is one of the unspecified personal rights under Article 40.3.1º. The first steps toward the general right of privacy were taken by Mageev. Attorney General. I do not intend to go into the details of that case but it was found that the ambit of the right of privacy went beyond merely marital relations. In Norris v. Attorney General the plaintiff sought to build on the Magee decision to find a more generalised right of privacy. Again I do not wish to go into details of the case but from the various judgments it appears that the Supreme Court accepted that a wider right to privacy is recognised by the Constitution. There were subsequent Supreme Court cases concerning infringements on the right of privacy but in general it can be concluded that Supreme Court jurisprudence privacy in Irish law is both recent and sparse. The right to privacy in Irish law is, as yet, undeveloped and in the absence of legislation will develop only in such detail and coherence as particular cases will require.

Section 9 of the Bill also gives some cause for concern. I have always been of the opinion that the burden of proof was the responsibility of the person making the allegation and not the person it was made against.

However, it seems to be suggested now that the plaintiff in a defamation action must prove certain matters. The burden of proof is shifting. This is a radical proposal and needs to be teased out at greater length when this Bill is next discussed. Under the present law once the plaintiff has shown the matter complained of to be defamatory, the law presumes the statement to be false thus the burden of proof is on the defendant to establish the truth of the statement if he raised the defence of justification. It appears we could be moving away from the present convention where one is innocent until proven guilty to one of being guilty until proven innocent. It is obvious that if this provision were to be introduced it would be easier for the media to succeed in cases where they might be unable to prove to the satisfaction of the court that what they have published is true. Luckily, we have a very responsible media in Ireland at present. As it stands, I do not have a problem with this section. However, this statute may be in force for a considerable period and we cannot say how responsible the media may be in future. Society appears to be taking a more liberal turn which means that perhaps the provision needs to be inserted now to cover possible future eventualities.

The original consultation paper published by the Law Reform Commission in relation to the civil law of defamation provisionally recommended that the presumption of falsity existing under the present law should be retained. In their final report on this subject they stated they were now satisfied that the reasons given initially for retaining the presumption of falsity were somewhat facile. I notice that some of the written submissions sent to the Law Reform Commission came from the print and telecommunications media. This may have coloured their thinking. While the purpose of inviting submissions is to get a broad range of views, it seems strange they would now say that the reasons for coming up with their original recommendations were facile. I am not suggesting that I disagree with what is contained in the Bill but it definitely requires further scrutiny. It is a good idea that the Minister has suggested it would be some time before Committee Stage is taken. This would give time for more reflection on this important topic.

Section 26 is also a cause for concern. I agree with our Justice spokesperson, Deputy O'Donoghue, who also expressed reservations with what is attempted here. The Law Reform Commission's consultation paper pointed out that, under the existing law, the central remedy for defamation was the power to award damages and this has significantly influenced the way in which the law operated. Elsewhere in that paper they spoke about the merits of other remedies which would, it was hoped, reduce, to some extent, the central role of damages with beneficial results. At the same time it was recognised that damages would continue to play some role in defamation cases and the commission recommended further examination of possible reforms that might be introduced regarding the manner in which the damages were assessed.

At the outset there was reference to concerns expressed by the media and publishers that the general level of damages was unjustifiably high. In this connection it was pointed out that awards generally were significantly lower than in England but at the same time it accepted that there might be some basis for the frequently expressed anxiety that they were too often out of proportion to the seriousness of the libel and, coupled with the high level of costs in defamation litigation, had a markedly inhibiting effect on the publication of material of public interest. A number of possible alterations in the law were examined which might help to ensure that damages would be reasonably proportionate to the injuries suffered.

The Law Reform Commission considered in detail one of the most frequently suggested changes in the law, that is, the modification, or even the abolition, of the role of juries in defamation actions. However, at the end of the day they concluded that juries should be retained in such actions but that the damages should be assesed by the judge. The commission suggested that a statutory provision should set out the factors to be considered in the assessment of damages, whether the jury was to play a role in this matter. These included circulation of the libel, matters relevant to the plaintiff's reputation, the state of mind of the defendant and the durable or other nature of publication, irrespective of whether the plaintiff sues in respect of the whole or part of the publication. There was some comment about the inclusion of the state of mind of the defendant as a factor. However, the report concluded that the state of mind of the defendant should be retained as one of the factors to be taken into account, which finds agreement with me.

The view was also expressed in the consultation paper that one of the factors listed should include the plaintiff's reputation. It was pointed out that while a general rule is that a defendant may lead evidence of the plaintiff's bad reputation in order to mitigate damages, it has been laid down in case law that only evidence of general bad reputation could be admitted. The defendant would not be entitled to lead evidence of particular acts of misconduct of the plaintiff even though these may show he deserved a bad reputation.

The section provides that no damages, other than damages for financial loss, will be awarded in a case where the defendant exercises reasonable care before publication to ascertain the truth of an allegation of fact. What is "reasonable case"? There does not appear to be any guidance as to what that means. This lack of clarity leaves section 26 open to certain abuse.

I hope we will have a chance on Committee Stage to consider further some of the points I have raised. At this stage, I would like to hand over to my colleague.

I am sorry, there is a slight switch. By mutual agreement, I now call Deputy Helen Keogh.

One thing we have seen in the debate so far on which there is general agreement is that the law of defamation is long overdue amendment. It is incredible, as was pointed out last week by my colleague, Deputy Michael McDowell, that we are still relying on a system which has its origin in the British legal system and, despite the proposals that were made by the Law Reform Commission, no real changes have been made to examine the principle of freedom of speech on the one hand and the right of protection for an individual's reputation on the other.

It could be said that freedom of speech has not always been very highly regarded everywhere, but freedom of speech and freedom of expression are linchpins of democracy. There are countless examples; anybody who has been a member of Amnesty International could point to what can happen when essential freedoms are denied or severely limited. It is in that context, and the desire to ensure a balance between freedom of speech and the protection of the individual, that the Progressive Democrats are presenting this Bill in the name of Deputy Michael McDowell.

I was a little nonplussed by the rather negative response by the Minister for Equality and Law Reform last week which is in contrast to what has been said in the debate since. I realise there is some difficulty about the lack of notice in terms of the Bill but as we pointed out that night, the Minister has the benefit of programme managers and advisers to help him.

Not to mention the Law Reform Commission.

The Minister knows all about the Law Reform Commission. Let us take a look at our Bill. As the lawyers among us will probably attest, it is very desirable that a simple statutory definition of defamation be put in place which will state clearly the ingredients of the tort in modern phraseology. The Defamation Act, 1961 — I am no lawyer so I cannot claim to be an expert on this — does not define the two torts of libel, the statements in permanent form and slander, that is, oral statements, which make up defamation. In the absence of a statutory definition, the legal definition of libel and slander has had to be gleaned from various judicial dictas in cases over the years.

The distinction between libel and slander is confusing, it is unnecessary and it can lead to anomalous and unjust results in practice and it is outmoded in the light of the development of many new forms of communication as many speakers have said. This Bill abolishes the distinction between libel and slander and creates a new cause of action called "defamation" and it sets out a statutory definition of "defamation". I believe it will greatly clarify and simplify the law which I find incredibly confusing.

In considering remedies for defamation, the purpose of suing for defamation should be borne in mind. A person who has been defamed goes to court in order to repair his or her damaged reputation and to vindicate the right to a good name. It is hard to see how an award of damages can achieve this. It can take years for proceedings brought in the Circuit Court and the High Court to come to trial and by the time a case is brought to trial, the damage to an individual's reputation may well have become firmly entrenched. In addition, going to court years after the defamation took place may only cause matters that have been forgotten to be dredged up and ventilated leading to a plaintiff being ridiculed. I believe there is a certain case in point in a recent defamation action brought by a certain Fine Gael Minister which has attracted the attentions ofThe Phoenix magazine.

But while the State is obliged to vindicate the good name of citizens, the principal way in which this is done — the defamation action — may in many cases, and particularly in deserving ones, fail to do so. If a plaintiff's constitutional right to a good name is to be truly vindicated, what is needed is a speedy, effective and cheap mechanism which will enable the plaintiff to get meaningful redress.

The Bill 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 on summary application to the court. The only remedy in such a case will be a declaratory order clearing his or her name plus the costs. The Bill also gives the court the power to direct the defamer to publish a correction of the matter and no general damages may be awarded. I think this remedy will do much to assist plaintiffs to vindicate their constitutional right to a good name in a meaningful way while at the same time reducing the value of awards in defamation cases, although some people might not be too keen on that, as we know.

Under the present law, once a plaintiff has proved that the words he complains of are defamatory the court must presume them to be false. The burden is placed on the defendant to prove that they are true if he wishes to plead the defence of justification. This is a major problem for media defendants and, perhaps, adds to the unduly restrictive nature of the freedom of the press here. Since the sources of information are often reluctant to give evidence in court, it may be difficult for a media defendant to prove the statement true. Even if they have privately established that it is true, the presumption of falsity is regarded by many as a major impediment to freedom of speech.

In addition, a position where a plaintiff is not required to prove each ingredient of his case is at variance with the rest of the law of torts. The core of defamation law is that a defamatory statement is a statement is both defamatory and untrue. The current position, whereby the plaintiff is not required to prove an essential ingredient of the tort, is illogical. There is no public interest in penalising the authors of true statements so this Bill proposes that a plaintiff be required to prove that the statement of which he or she complains is false.

By the way, Sir, I forgot to mention at the outset that I am sharing my time——

The Deputy is due to conclude at 7.37 p.m. and she has seven minutes remaining.

I will share the last few minutes with Deputy Kitt, if I may.

There are various elements to this Bill that have been alluded to: the issues of providing guidance to a court and making awards of damages, the provisions clarifying the role of judge and jury, the provisions providing a right of action in certain circumstances where a group or class of persons is defamed and the provisions which deal with the situation of distributors and printers of defamatory matter.

We have also alluded to the crime of libel. The Bill implements the recommendations of the Law Reform Commission in relation to the crime of libel by setting out in statutory form the ingredients of the offence and by abolishing the crimes of seditious and obscene libel.

The contempt of court aspect of the Bill was initiated on foot of the O'Keeffe case. It provides limited protection for journalists who refuse to disclose the sources of their information in court. The judge may only order disclosure where it is necessary in the interests of justice or national security or to prevent disorder or crime. The journalist may only be prosecuted for contempt in circumstances where the disclosure was necessary in those interests. That is an interesting and pertinent addition to the Bill.

The Bill sets out to address the issues suggested by the Law Reform Commission.It is a complex and difficult matter and therefore it would be of great benefit if this Bill was allowed proceed to Committee Stage. I am not sure from what we have heard from the Government side how this procedure will operate. I hope it is not the intention of the Government to put the Bill into some sort of legislative limbo in order to divert attention for nine months. We should have it on the record that we are prepared to address this nine months to the day after this debate.

It is essential that we tackle the law of defamation. We are living in very different times. This is a more sophisticated society where there is an expectation, at least as far as quality newspapers and some radio and television programmes are concerned, that the media will be seekers after truth. They should be allowed the means to ensure that can happen.

There is no doubt that the media here believes that at times they are operating under a legal onus. They feel an inhibition because they have to comply with a legal system which does not encourage them to be courageous and outspoken. Unfortunately the law is an inhibiting factor and I hope acceptance of this Bill, perhaps in an amended form, will serve to improve the situation in a satisfactory manner.

I welcome the introduction of this Bill and wish to express my appreciation for the work of the Law Reform Commission on defamation law. I thank Deputy McDowell for introducing it. All one has to do is read the Constitution to understand how difficult it is to get the right balance between freedom of speech and the value of the individual's reputation. Article 40.3 states:

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.

It further states that:

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.

Article 46 guarantees, subject to public order and morality, certain rights to include the rights of citizens to express freely their convictions and opinions subject to certain limitations. There lies the challenge. Deputy McDowell in this Bill is making an effort to do that.

I agree with colleagues who said that a free investigative press should be part and parcel of any democracy. When Minister of State at the Department of Foreign Affairs I visited countries where this did not exist. We should not deceive ourselves by thinking that freeing up the press legally will bring about true openness in our society.

The opening up of Dáil procedures and the way we do our business, introducing real Dáil reform and having Ministers answer questions directly — we heard much about this when we were on the Government side and certainly have not been impressed by changes to date — informing the public on Government and European policies and permitting more press freedom would lead to a truly more open society. Sadly, on Dáil reform and the way the Government conducts its business, we have not seen much to enlighten us after all that was promised when Government members were in Opposition.

It is within our capacity to get the balance right. We have the yardstick of experience in other countries, and the United States and France have been mentioned by other speakers. We also have the proposals by the Law Reform Commission. I accept the Minister's word that he needs some time but maybe not as long as he suggests. I agree that these are complex issues and I suppose we have to take his word that he will report back in nine months or so.

A number of elements of this Bill could be dealt with immediately. First, the Bill proposes to abolish the distinction between libel and slander, a straightforward proposal and I believe that should be done. We should have a civil wrong of defamation. Second, I support the proposal that no liability should attach to printers and publishers. Provision is rightly made in the Bill that publishers can be liable if they publish material intentionally, knowing it to be defamatory. Again, with modern technology, it is understandable that this provision is in the Bill.

The Bill recommends that new cause of action be introduced in respect of defamatory statements made about persons who are dead at the time of publication.My colleague, Deputy Kenneally, has ably dealt with this. In recent times we have seen a free-for-all in the media about people who have passed away. There should be restrictions on who can bring such an action and the period of time in which it can be brought. I welcome the proposals to deal with this matter because there is nothing relations can do in many cases to right a wrong printed about a dead relative.

The key element of the Bill is shifting the responsibility from the defendant to the plaintiff in defamation cases. The Minister has given his views on this. At present it is a matter for the defendant to prove that a defamatory statement is true. I am aware that the Law Reform Commission was divided on its recommendation concerning this issue. A majority believed that the plaintiff should be obliged to prove the false nature of the defamatory statement. A minority took a different view, protecting the individual's right not to have to prove his or her innocence. I have some support for Deputy McDowell on this issue. We are dealing with civil law. The Bill would lead to the law taking a neutral stance and, as in all other areas of tort law, would compel the plaintiff to prove all the ingredients of the tort he is alleging.

I support the establishment of a press council, a proposal I put forward many years ago. Such a body is in the interest of the individual and the media because it is generally accepted that we have high standards of journalism here. The Minister of State, Deputy Burton referred to defamation of a general nature that takes place. We have all had experience of that in the past.

Going to court is expensive for everybody concerned — the individual and the press — and it is therefore sensible to establish a press council where the individual or the press could sort out their difficulties. This happens in other aspects of life including marital breakdown.It is always a practical proposal to have an interim system of reconciliation.A press council would be an appropriate means of recourse for the complainant and for the press. I commend Deputy McDowell for bringing this Bill before the House.

Democracy is ill-served by illusions. For far too long we have cherished the pleasant illusion that Ireland is a bastion of freedom of expression. Yet, freedom of expression can hardly flourish when individuals who feel aggrieved, including in the past Members of this House, can scatter libel writs around at will or where a journalist can be cited for contempt for refusing to reveal her sources.

I am delighted that the Minister, Deputy Taylor, intends addressing these and other issues which have been raised by Deputy McDowell's Bill. However, I ask the Government not to stop there. Our law on civil defamation is just one part of an antiquated body of legislation which militates against freedom of expression at every turn. In this regard I urge the Minister for Justice to review our outdated censorship laws which have not kept pace with other legislation.

At present books mentioning or advocating contraception can be banned despite the fact that contraception has long since been legalised in this jurisdiction.Freedom of information hinges on access yet, in 1995, Irish citizens are denied access to the works of authors ranging from Bertrand Russell to Upton Sinclair because their works are deemed to be indecent or obscene or because they "advocate the unnatural prevention of conception" according to section 16 (5) of the Censorship of Publications Act, 1946.

Information, Irish style, means that a renowned company employing over 300 people in well paid employment manufacturing contraceptives has its own publication entitledYour Oral Contraceptive banned in this country. So politically sensitive was the opening of this factory that many politicians were notable by their absence and the official opening had to be carried out by an ambassador to Ireland. Freedom of information, Irish style, means that Old Moore's Almanac was banned in 1951 and 1964 as it was deemed to be unfit for adult consumption. Irish readers are not considered mature enough to read H.G. Wells. The Work, Wealth and Happiness of Mankind. Freedom of information, Irish style, means that while we can watch “Taggart” or “Hill Street Blues” on our television screens, we may not read detective stories published in the 1950s. Freedom of information, Irish style, means that some of Simone de Beauvoir's books are taboo as we near the end of the 20th century.

It is clear that the Bill before us adresses only one, albeit important, aspect of freedom — access and diversity of information. Diversity of information is as important as access, yet Ireland has the highest concentration of print media in individual private ownership in the European Union. During the past few years, a growing print media monopoly has combined, together with foreign penetration, either to squeeze out or absorb the smaller players. Successive Governments have added insult to injury by levying a punitive VAT rate on the print media which must be deemed to be a tax on information. Newspapers are further crippled by insurance premia which I hope will be considerably reduced following much needed reform of the defamation laws.

Information, especially printed information, is an expensive commodity in Ireland. If one buys a morning paper, an evening paper and only one Sunday paper it costs approximately £8 per week. Is it any wonder that English newspapers are making increasing inroads into the Irish market? Indeed, "English" is perhaps a misnomer in this context because print monopolies are transnational and even transcontinental. An Australian publisher owns media companies in the United Kingdom and the United States and an Irish publisher is expanding into South Africa. The big players are fighting it out on the world stage, sacrificing diversity and national identity in the process.

Paradoxically, the much vaunted information superhighway is being accompanied by a growing lack of accessible printed information and opinion. It is surely no coincidence that, according to figures released yesterday, three out of 1,223 young people surveyed by the National Youth Council could name a local MEP and only 9 per cent could name a local Deputy. Obviously the print media cannot shoulder all the blame for declining civic and political awareness and questions must all be asked of the independent local radio stations which, although increasing their market share — according to figures released today, 50 per cent of all listeners tune into their local radio station on a daily basis — are clearly not providing sufficient news and current affairs content.

It is clear, however, that the political and news content of the Irish media and, in particular, the investigative aspect has been seriously hampered by our libel laws which have undoubtedly caused journalists, editors and publishers to recoil from dealing with sensitive issues for fear of being held liable for defamation. In this regard, I particularly welcome the fact that under Deputy McDowell's Bill distributors would be immune from defamation action. Their current liability is a hangover from the days when defamation laws were used as an instrument of political repression. Reform in this area is long overdue.

A comprehensive reform of the civil law on defamation will go some way towards reasserting journalistic independence and redressing the balance in favour of the smaller independent players and in that regard I welcome the Bill. I wish the Progressive Democrats had pushed more urgently for such reform when they were in Government.

The Law Reform Commission's recommendations on the civil law of defamation were published in 1991 and, like so many other reports, rested undisturbed on Government shelves for four years until they were unearthed by Deputy McDowell in a welcome flurry of Opposition activity.

I have not been appointed yet.

I wish to concentrate on one aspect of the Bill which is of particular concern to Democratic Left, namely section 21, which provides for qualified privilege in certain media reports of public interest, and section 41 which enshrines the principle that refusal to disclose the source of published information should not be construed as contempt of court except in certain circumstances.

A free press demands the journalists are free to carry out their work without being hindered either by the State, institutions or individuals. Yet, during the past few months two journalists have been subjected to unprecedented harassment as a direct result of their work. Veronica Guerin was shot in her own home as a direct result of her attempt to expose some of the seamier aspects of Dublin gangland. Until the case against her collapsed, there was a real danger that Susan O'Keeffe would be the only individual prosecuted as a result of the beef tribunal. In a litany of shame, that was perhaps the most shameful aspect of the beef tribunal and I am delighted Deputy McDowell has addressed this in this Bill.

I regret, however, that Deputy McDowell neglected to make provision in the Bill for a course of action in regard to the defamation of the dead. Many Members of the House will recall the unprecedented spate of media muckraking following the death of Fr. Michael Cleary. Under the present law, a dead man or woman is fair game for every prurient hack out to make a fast buck at the expense of those who can no longer defend themselves. I hope the Government will address this matter and strike a sensible balance between the reputations of the dead and the right of serious journalists, historians and biographers to engage in well founded speculation.

The whole issue of freedom of expression challenges us to find an acceptable middle ground between private and public interest and it is a challenge which I hope will be met during the lifetime of this Government with the important legislation the Minister intends to introduce. I compliment the Progressive Democrats on the Bill and I await with keen interest the publication of the Government's Bill.

I should have said at the outset that I wished to share my time with Deputy McGrath.

I thank Deputy Byrne for sharing his time with me. I compliment Deputy McDowell and his party for bringing forward the Bill and giving us an opportunity to express our views on the defamation legislation in force.

I have two main concerns about any defamation legislation. The right of every citizen to his or her good name must always be a prime concern and, where that good name is defamed, its restoration must be generously and expeditiously undertaken by the defendant responsible for impugning it. I am also concerned about upholding the constitutional right of free speech, which is an important guarantee to every citizen and to every medium of communication, provided that freedom is responsibly used.

It is generally accepted that current defamation legislation fails to serve both these interests in many areas. It is a duty of the Legislature to remedy these defects. Because society has moved so quickly and, in some cases, so radically, particularly in the past decade, new attitudes and reactions demand that the law keep pace with such developments so that we can reasonably say we, in this House, are playing our part to ensure, as far as possible, that there is justice and fair play for all.

A citizen who is defamed is not always given the right to have the libel corrected and accompanied by an appropriate apology. It may take years before he or she will have an opportunity to have the wrong put right through the courts and in the meantime a grave injustice has been perpertrated and allowed to continue in the public mind. A coach and four is being driven through the very desirable principle to have the defamation corrected as expediously as possible and the legislation is being used to hinder that desirable objective. It is not always the fault of the media concerned.

The media has a responsibility to be accountable for its approach and presentation in the context of the stories it publishes, particularly with sensitive issues where the lives of citizens conducting their affairs in a responsible manner may be shattered as result of something published in the newspaper. I hope the type of journalism portrayed in some overseas tabloid newspaper which are sold here will not become a role model for articles and reports published by Irish newspapers and that every newspaper will have a proper code of conduct, to which it adheres with the utmost responsibility.

While many people have a genuine reason for claiming to be defamed, unfortunately, as in every other sector, a growing number are very much into what has become known as the "compo cult". They have little or no interest in a published apology but are in the business of obtaining substantial sums in settlement from relatively small circulation local newspapers throughout the country which are afraid to risk allowing the matter to go to court because of the legal costs involved even in small decrees for which they have no insurance. While my main concern is for the citizen who is defamed, maliciously, irresponsibly or accidentally by reason of typographical error I am concerned also about what is happening to regional weekly newspapers with circulations averaging between 7,500 and 15,000 copies per week. I am concerned also about how the law inhibits local radio stations. Local newspapers give very good employment which up to now has been relatively secure. However in recent years profits have dropped by half and advertising has contracted alarmingly, because of escalating costs over which they have no control and too many sources drawing from the advertising cake. Many have small printing operations attached which are also experiencing the winds of change and falling profits.

The provincial press are recognised as responsible publications and the local press in rural areas is regarded as an ongoing basis of recording history in every locality. Until ten years ago these newspapers would rarely have been the subject of defamation claims. That has all changed in spite of well trained newspaper staff, and regular updating and training in journalistic matters, including libel. During the past few years approximately 30 provincial newspapers would have paid out £2 million in settlement of defamation claims, the major portion in legal costs. That might seem relatively low in terms of national newspapers who may individually budget for this amount annually but for the average local weekly newspaper, barely managing to keep on the right side of viability, it is very serious. A daily newspaper may survive ongoing losses over a number of years and several defamation judgments of a substantial nature but no weekly newspaper could survive a few years' losses and a substantial defamation judgment with accompanying costs in the economic climate of the industry. History has proven this to be the case and there is fear and grave concern in the ranks of the regional newspapers.I am aware that in a number of instances where errors that might be considered minor, meriting a simple clarification, correction and apology arise, local newspapers have been placed in the position — while being anxious to publish generous and prominent correction — where they are impeded by very carefully constructed correction demands and the apology committing them to high settlement which are impossible for them to publish.

We are experiencing the influence of daily and Sunday tabloid newspapers prepared to pay out large sums of money in defamation judgments in settlements for sinister and sensational stories that substantially increase sales. One can visualise such publication deliberately setting out to print some such story and regard the subsequent cost in libel payments as good value for the increased sales.

We have to realise that there may be cases of irresponsibility but as a rural Deputy I want to ensure that fair play is accorded to the people whom I represent, the genuine citizen who has been defamed and groups such as provincial newspapers with a good record of public service reportage and a vital help to the local community. I want to ensure that local newspapers which have been an integral and responsible part of local communities for over 100 years continue to play their essential role without fear of closure because of faulty legislation.I want to ensure that the staff continues to enjoy secure employment. I understand that the Provincial Newspapers' Association has made a submission to the Minister for Equality and Law Reform and that its representatives met him today and had a good discourse.

I have no difficulty with most of the issues being discussed or the main thrust of the Law Reform Commission recommendations but I need to hear the full argument of the Law Reform Commission on the issue of the proposed change from the burden of proof on the defendant to the plaintiff in defamation legislation. I am very concerned about such a change. I am aware of the need to address the areas of corrections and apologies, that apologies should not be regarded as an admission of liability and that payment in the courts should be allowed and not taken as an admission of liability. I also want to see the circulation of newspapers taken into account so that a small local newspaper spreading a defamation among the 10,000 circulation should have to pay proportionately less than a paper with a circulation of 250,000. There has to be a definition of "defamation" and I understand that has to be carefully done to conform to the European Convention on Human Rights on the question of restrictions of freedom of speech. There should also be a distinction between malicious and accidental defamation due to a typographical error and a limited period within which action can be taken. In some cases several years elapse after publication. The provision for a defence of reasonable care would seem acceptable.

One of the main problem areas for local newspapers is court reporting and I have been informed that because of difficulties some local newspapers have stopped reporting on local court cases. This is a very serious matter because it is important that the public is informed of trends in crime and how the court deals with them. We must also have justice that is seen to be done and the Department of Justice may have an input in this regard. A lay person visiting the District or Circuit Court around the country would get the distinct impression of a huddle of people at the front of the courtroom deciding what is happening and making the important decisions, no one else hears what is going on. The provincial press has a difficulty in printing what happens in the courtroom and this has led to many court cases. This needs to be sorted out.

I commend the Minister for Equality and Law Reform for agreeing to bring forward legislation as soon as possible.

This is a very difficult subject to deal with in a short time. The lay person often confuses the two aspects of defamation, the printed and spoken word. Maintaining a balance is the answer to this problem. In the early parts of this century people spoke freely in a derogatory way about different races. Fascism was rife throughout Europe. If people were completely free to say what they liked in a political arena would we witness the rise of fascism again? It is important to take into account the important aspects of control which are needed in the context of the written and spoken word to protect society from the movements which sprang up during the 30s and 40s. We know that in the United Kingdom — we saw evidence of this in Lansdowne Road — people abuse certain rights and we know the controls necessary to protect society from their actions. In a democracy such as ours it is difficult to give complete freedom to the media and at the same time expect inaccuracies to be corrected to the satisfaction of the injured party. Sometimes people have sought redress but it can prove difficult to obtain. It is difficult to frame controls which might be applied because they could be interpreted as interfering with democracy and the freedom of speech. It is a daunting task to try to strike a balance between these two aspects of the problem.

The Bill addresses some of these issues. The debate must elaborate on the points contained in the Bill and on the proposals in the report of the Law Reform Commission. We must examine the issue in greater detail.

As regards court cases the Judiciary has a totally different function from ours, they interpret the law as written. They use it today in a way which is unacceptable. We must ensure that the legislation we enact is perfect. When we pass legislation we must take into account the comments of those who say it is insufficient to deal with the problems they face. There is a responsibility on reporters to ensure the information they publish is correct. In most cases the Irish media has been fair and diligent. There is the question of the policy and ownership of newspapers and how that affects those in the media and the pressures that can be exercised by newspaper owners in influencing people on how to deal with information. How do we control the press while giving them freedom at the same time? How do we enact legislation while at the same time protecting people's rights? How do we prosecute people for infringing laws while enabling them to operate within the freedoms offered by a democracy?

People come on air on local radio stations and say what they like. We must address this issue and see if injured parties have the right of redress. Modern media is complicated and capable of disseminating information in the widest possible fashion. It is virtually impossible to retrieve information and correct it.

The protections we put in place must strike a balance in an even-handed way and protect the rights of the individual, which in many cases are forgotten, in the general principle of freedom of expression. Sometimes at public meetings people are incited to hatred of certain sections of the community. We must be careful not to cut across areas of defamation while allowing people to express their opinions freely. The democratic process would be weakened if people were not allowed to express themselves. In council chambers elected representatives have a right to say what they feel but they must bear in mind that what they say could affect a person's welfare, livelihood or good name. We must also consider the possibility of whether students have a right to address subjects in a classroom setting while protecting their sources of information. That might lead to difficulties. These are complex problems which I would like to see addressed.

I congratulate the Progressive Democrats for bringing the Bill forward and enabling the debate to take place but this is not the time to proceed further without a more detailed examination of the subject. The Minister should bring his proposals before the Dáil. I look forward to the combined wisdom of the Progressive Democrats, the Government and other agencies bringing forward the best possible legislation to ensure freedom of speech and control in the areas I mentioned.

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——

I hesitate to interrupt the Deputy but I would be grateful if she would move that the debate be adjourned.

Debate adjourned.