Dáil Éireann debate -
Thursday, 11 May 2000

Vol. 519 No. 1

Adjournment Debate. - Defamation Legislation.

Mr. Gormley

In recent days and weeks we have witnessed a scramble by the establishment parties to introduce legislation which will restore public confidence in the political process. The Green Party was the first political party to call for a ban on corporate donations to political parties. This idea, however, was contemptuously dismissed by other parties until a few weeks ago when there was a sudden conversion to our view. I welcome that conversion. However, without the Dunlop revelations it would not have come about.

It is opportune, in light of the revelations, to look at what people had to say at the time. My colleague, Deputy Sargent, was sent a £100 cheque which he waved in front of the other county councillors in the chamber of Dublin County Council, asking if any of them had received a similar cheque. He was told by the councillors to watch himself and that if he did not phrase his remarks carefully, he would be sued for libel.

His colleague, Councillor Burton, was not so lucky. She made a public statement that the public was entitled to know from each and every councillor what campaign contributions, hospitality and assistance, direct or indirect, they or their parties had received from developers, landowners, associated builders and their agents. She was sued for libel by no fewer than 42 of her colleagues. Solicitors acting on their behalf insisted there were no grounds to suggest bribery or corruption in Dublin County Council and they called on her to apologise and retract her allegations. We now know something different. The solicitors referred to the distress and embarrassment caused to the councillors, their families, friends and associates, and sought an affirmation that they had "always dealt with rezoning applications with the utmost integrity and having regard only to appropriate planning criteria". There is a stench of hypocrisy from those words.

The media have an important role in maintaining a functioning democracy. I do not claim they are wholly responsible for exposing the corruption. Great credit must go to Michael Smith and Mr. Mac Eochaidh who put the original advertisement through the Newry solicitors. The stories published since then by Frank McDonald and Mark Brennock, who were the first to allude to the brown paper bag that is now part of public mythology, also played an important role.

I accept the concerns of many people about giving greater freedom to the media. Greater freedom should also mean greater responsibility and accountability. These concerns can be dealt with in a comprehensive Bill by including the necessary safeguards. If a story is untrue, and there is no doubt that an untrue or malicious story can cause great distress to a person and their family, an immediate retraction and apology should be required. It ought to be given the same prominence as the original story. That ought to be sufficient redress.

We also need to examine the important issues of monopoly positions held by media moguls and the privacy laws. This can be done. However, there is now an urgent need to free journalists from the shackles of our restrictive libel laws. The Attorney General is already facing questions from the UN as a result of our restrictive practices in this regard.

A number of issues were addressed by the Minister last night. However, the report of the Law Reform Commission makes sensible suggestions. The situation where there were £10 billion in claims over the last 15 years is intolerable in a democracy. The libel laws must be changed quickly.

Mr. Jacob

I compliment Deputy Gormley on raising this matter. I am replying to this debate on behalf of the Minister for Justice, Equality and Law Reform who is unable to be present.

The arguments which blame our current defamation law for the perceived inability of the media to report fully and openly on matters which are of legitimate public interest are not wholly convincing. Undeniably, the media have a significant role to play in informing public opinion and, as legislators, we also have a role to play with regard to ensuring that the dissemination of information is encouraged to the greatest extent possible. However, at the same time, we must be conscious that, as in other areas of activity, the law must occasionally intervene to ensure that there is fairness and balance. In modern society, information is power and power, regardless of in whose hands it may be, must be regulated by the law to which, as citizens of this State, we are all subject.

Nowhere perhaps is the delicate balance that has to be maintained between the media and society more in evidence than in the area of defamation law. This area of the law is complex and it is influenced by a variety of sources. Its purpose is both to protect and vindicate as far as possible the right of the individual to his or her good name while at the same time having due regard to the right of freedom of expression of others. Neither existing law, nor any possible new law, can ignore the need to balance these rights, both of which are expressly guaranteed by the Constitution.

The right to privacy must be weighed against the right to freedom of the press. In this context, it is noteworthy that the Commission on the Newspaper Industry concluded, inter alia, that neither of these constitutional rights is superior to the other but co-exist and must be balanced in their relationship. That is a view which many of us here would share.

Any legislation which aims to modernise the law in this area must have added value. It must also have regard to the broad range of interests which it serves. In this context, defamation law is not solely for the benefit of the media although sometimes, when one listens to certain discussions, one might think this was the case. Certainly, one function of defamation law is to ensure that the media can fulfil their role without being subject to excessive restraint. However, defamation law is also there to protect the citizen and a citizen is not always a person of wealth and position. Reputation matters to all of us and we rely upon the law to come to our assistance when that reputation is unjustly attacked.

It is noteworthy that some of the criticisms which have been made about the defamation law centre on the fact that the law does not recognise any special defence which could be used by the media when it is a politician or other public figure who is allegedly defamed. This situation is not unique to Ireland. Change in this area did not form part of the Law Reform Commission recommendations and many would be of the opinion that it is invidious to draw distinctions between different categories of plaintiff. All plaintiffs, be they public or private individuals, have a right to equal treatment when it comes to defamation proceedings.

Deputies will be aware that proposals for changes in the law on defamation were included in the report of the Law Reform Commission, The Civil Law of Defamation, published in December 1991. The commission's report contained more than 50 recommendations and the overwhelming majority of those recommendations are perhaps less radical in tenor than some in the media might suggest. Certainly, they do not offer a licence to print without taking due care and without engaging in the normal checking process which, for most of us in our daily lives, is an intrinsic part of the way in which we carry on business. However, taken as a whole, it cannot be denied that the recommendations put forward by the commission would, if implemented, result in a more modern code of defamation law.

A Defamation Bill is included in the Government's legislation programme. It is one of many Bills for which the Minister for Justice, Equality and Law Reform has responsibility. I understand some work on developing a scheme of a Bill has been done within the Minister's Department but that it is not possible at this time to state when proposals will be brought before Government for its consideration.