Defamation Bill 2006 [Seanad]: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Prior to the adjournment of the debate I was reminiscing about the damage caused by a lie and how reparation can be made. It is no harm to ponder this for a moment. If grievous and permanent damage is done by a publication to a person's character, to what extent can this damage be addressed by an apology? There is a thinking in some quarters of the media that an apology should be sufficient to address any hurt or damage done, but I do not accept that. If the damage is of a permanent nature and seriously undermines or takes the character of the person or group concerned, it is immaterial what apology is made as the damage cannot be repaired. If permanent damage is done, there is no way restitution can be made, notwithstanding access to such in the courts.

It would be better to carefully think and research before putting into print that which is of a dubious nature. As we all know, such things do not normally find their way into print unless they have been carefully researched and double checked by legal experts. This in no way reduces the possible negative impact on the victim. We spoke previously about various people who have been affected.

Previous speakers referred to the Press Council and I spoke about the right of the media to publish. The obligation on the media with regard to publishing information they feel is in the public interest must be weighed against the possible damage to the person involved who might become a victim if the information is incorrect. A situation is developing whereby a print and be damned attitude is unfolding. This is justified by some commentators as the proper route to follow on the basis that it best serves the public interest. I do not accept that either. It is a question of balance.

Care and responsibility should be had at all times for the need to make at least a reasonable attempt to print or disclose what is factual. I had this dispute with my erstwhile colleague, the Independent Government backbencher, prior to the adjournment of the debate. I have witnessed the reputation of many people being totally and absolutely unnecessarily damaged over the years without any reparation, which is deplorable. However, activities that took place would not have happened if the media had been able to disclose them. The argument was a newspaper could not go to print because of the danger of being brought to book in the courts.

The Press Council should be a useful mechanism for self-policing but I am not sure to what extent it can be independent, to what extent media outlets are independent generally or to what extent they are influenced by one another. For example, does it follow that if a media outlet decides to go in a doubtful direction, all the others will follow? The lowest then becomes the common denominator, which is very dangerous. I question the independence of media outlets. Ireland is a small country with a small population where everybody knows everybody else. I wonder whether all media outlets are independent. Are they all influenced by one another? Are they all controlled or directed by the editorial opinion of one outlet?

There are examples of newspapers that come from the same stable and that are in the control of the same trainer having similar opinions on controversial issues, which is worrying. Impartiality and the need to head in the right direction and make a fair decision do not necessarily follow in such an environment, which could be damaging. I could have sued various media outlets over the years, as could the Leas-Cheann Comhairle. The theory was because it was printed, an article had authenticity. What a lot of arrogance. If an article is printed, that does not necessarily make it true. There is an obligation when a story is published, which could have damaging consequences for an individual or family, to verify it and to ensure it contains some semblance of truth. If it is not possible to do so, the media outlet concerned should take a second look at itself and ask what purpose it is serving. Is it merely to sell the brand or to compete with a tabloid? What other purpose does it serve? On the law of averages, Members, who are in a similar position by virtue of the privilege accorded to us by the House and in the courts, should have regard for putting the truth on the record. We should not depart from that, otherwise we demean and lower the standards set for us.

I was watching television years ago as a journalist speculated in a way that was not helpful to a series of people. I rang him and asked where he obtained his information. He said it was printed in the press. I said that was remarkable and I asked him whether he checked what happened to those who printed it. He replied he had not, which is amazing. The moral of the story is it is still incumbent on those in the business of making, breaking and publishing news to verify the information and to establish whether it provides a sound basis for the conclusion they have reached. If it does, they can proceed to publish.

I refer to a libel case currently before the courts involving a self-confessed criminal who was awarded almost €1 million for being defamed in the press. The case is on appeal and I cannot comment further but that is extraordinary. It will do no harm to ponder these issues as we contemplate the legislation. I hope the standards imposed by the Bill will be fair and honest. I hope they will not deprive the public of information that is in their interest or extend beyond the reach of the individual the right to his or her protection under the law.

I am glad to contribute to the debate. I would like to acknowledge the presence in the Gallery of the ladies and gentlemen from the Grangegeeth Fianna Fáil cumann. They are interested in the debate and in the tour of the House and they are welcome.

It is not in order to refer to the Gallery but I perfectly understand.

It is quite understandable.

I apologise but I am only a new Deputy and I will have leeway for a few years.

The defamation law, formerly the law of libel and slander, is old and goes back in the mists of time to the common law. It is appropriate that the Legislature updates it to take account of modern practices and to balance the interests of the media and publishers with the interests of the private citizen and those who are being reported on. I am glad the distinction between libel and slander will be abolished under the legislation and it will be merged into the tort of defamation.

People knew what libel and slander were but it is difficult to sue for slander because one has to get over an additional hurdle and demonstrate special damage and a personal loss to oneself, except in a number of interesting cases. If a person is slandered about a criminal offence or suffering from a contagious or infectious disease or about one's business or if a woman is slandered about her chastity, he or she does not have to demonstrate a personal loss to himself or herself. These ancient exceptions, which resulted from cases in the British courts over the centuries, have no place in modern society. I am glad the tort of defamation does not require proof of special damage or loss and one can sue whether someone says something about one or prints it in a newspaper without demonstrating loss to oneself other than the loss of reputation, which is difficult to define financially. That is a welcome provision and many law students will be glad of this. This is often a trick question in legal examinations, which serves no purpose to wider society.

New procedures will be introduced in the legislation, including the verifying affidavit. A mechanism is provided under section 7 whereby both the plaintiff and the defendant are obliged to verify the particulars of any pleadings they make in the course of a court case. That is a welcome move, which follows from legislation such as the Personal Injuries Assessment Board Act 2003. If cases are taken in court under this Act, similar affidavits are required. It is important that the plaintiff or the defendant backs up what he or she says by swearing an affidavit and section 7 provides that it is an offence to make a false or misleading affidavit in any material respect.

There a number of anomalies in the previous law on libel and slander. One could have multiple court cases against multiple publications. If one was allegedly libelled by a raft of newspapers, one could sue them all, probably sue the printers and possibly sue the distributors. I have just been told that I must take the entire slot so I will do so to the best of my ability.

The Deputy has 16 minutes left.

I might talk a little bit about Grangegeeth if I run out of steam on this. One would have a raft of legal cases and could get damages from each one. Section 10 will provide for a general rule, which is a sensible one, that only one cause of action will lie in respect of multiple publication. The Bill allows a person to bring, with the consent of the court, actions in respect of multiple publications in certain circumstances.

I have slight concerns about section 11. I look forward to discussing this Bill in the Oireachtas Select Committee on Justice, Equality, Defence and Women's Rights, of which I am a member. This is a very good committee and we will miss its former Chairman, Deputy Peter Power, who has been promoted to a junior Ministry. When we discuss this Bill, we will address section 11, which allows a body corporate, such as a company or even a Minister, who is a body corporate, to bring a defamation action, regardless of whether the company has suffered financial loss from the alleged defamation. Companies must have rights to sue for defamation where their reputation has been damaged but we cannot have multinationals bullying members of the public like a certain multinational did in the McLibel case, which was a bit heavy-handed.

I have seen cases in my constituency involving a legal issue or row where a writ for slander or libel, which is really there to silence people, is issued. I am concerned about the proposals for body corporates. Perhaps there should be some restriction on companies bringing libel actions. There should be some restriction on people bringing actions which are just used to silence people and which are not really part of the main dispute. At the same time, a body corporate needs to be able to defend itself and can incur huge losses if lies are printed about it.

It is very important to remember that, by virtue of the Constitution and this Bill, anything we say in this Chamber cannot be taken up in any court proceedings, be they libel, slander, tribunals or cross-examination. I know that the court action brought by Deputy Bertie Ahern in respect of this has been successful in the High Court, which I very much welcome. We can say what we like in here without being worried about being sued for libel or slander but it is a heavy responsibility on us. The Standing Orders of the House provide some regulation in respect of that but it is an internal regulation of the House and is not something for which we can be answerable before the courts.

Traditionally, there were a number of defences to libel and slander, what we will now call defamation. One of them was known as the defence of justification. This Bill will rename it truth, which it always was. The justification simply meant that something was true so if one said something about someone, one went to court and said that it was true. Of course, one had to prove that it was true. If one did this, there was no case for defamation. It is very sensible that the law of justification, as it was called, is kept but is renamed the truth, which is what it is. Justification is an obsolete word if it ever meant truth.

Section 15 deals with absolute privilege. This is where there are circumstances where one can say what one likes without the person concerned having any recourse. Utterances in this House are the subject of absolute privilege. This is guaranteed by the Constitution but is also reiterated in this legislation. Members of the European Parliament have the same privilege, as do members of Dáil committees, although we are often reminded that witnesses coming before the committees do not have the same absolute privilege as members. A judge has absolute privilege in performing his functions in court. That is to be welcomed, is sensible and does not need explanation.

The Bill goes on to mention statements made in tribunals. They have absolute privilege but, again, it is incumbent on tribunals to be aware, as they are, of their responsibilities to regulate their use of absolute privilege. That is to be welcomed. An example would be a coroner who has absolute privilege in the course of his verdict or inquiries during an inquest. Absolute privilege will remain. There is no action for defamation; a person can say what they like. It is in the public interest and the public good that a judge or Member of the Oireachtas does not have to worry about being sued.

Section 16 gives a statutory basis for qualified privilege. As far as I know, this is a new provision that was developed under court decisions over many years. Qualified privilege means that one has privilege to say something but it is not absolute and can be withdrawn in certain cases. Generally speaking, this covers people who have a duty to receive information. If one reports something to the gardaí in good faith, qualified privilege applies. One cannot be sued for it unless, under the old law, one did it with malice, which is different from doing it maliciously. One did it with malice, as legally defined. One could not be sued because it is in the public interest that this be done and that people would go to the gardaí before they would think of being sued for reporting a crime or on someone who they believed had done some wrong. The person receiving the information has a duty to receive it, but the person giving it must have an interest in doing so. That is the double requirement. This qualified privilege, where one has a defence to libel and slander and cannot be sued in certain circumstances, is removed if one knew at the time that it was not true. Traditionally, the phrase was that one did it with malice.

The Bill goes on to set out in section 17 the different requirements. The fact that they are being set out is welcome. The word "malice" was badly defined and many people did not necessarily know exactly what it meant. It is welcome that the Minister has set out exactly what is required. The plaintiff must prove that the defendant did not believe the statement was true; that the defendant acted out of bad faith, spite, ill will or improper motive; or that the statement bore no relation to the purpose of the defence and so on. It is good that this has been set out very clearly because often these things can be the subject of considerable debate in court. This only adds to legal costs and court actions and makes things less likely to be settled when the law is not set out clearly. It is welcome that this be done.

A very important provision is section 20 which will allow an offer to make amends. This allows a person who has published a statement that is alleged to be defamatory of another person to make an offer to make amends. This must be in writing, must state what it is and must state what it is talking about, namely, whether the person is retracting the entire statement or is only talking about part of it. An offer to make amends includes things like making a correction, issuing an apology and paying damages and legal costs, if necessary. That is very important because it encourages people to settle these cases where a newspaper has made a genuine mistake and does not want to go down the road of court action. Under current legislation, a plaintiff, someone who has been the victim of defamation, might feel it more worth their while to go to court and not settle if they feel that a jury would be beneficial to them. We know that juries, who are only used in libel and slander cases in the High Court, are very unpredictable. Sometimes they can give massive amounts of money because they value the damage done to the victim, while at other times they can give a decision that makes one wonder how they came to that decision.

Decisions on defamation in the High Court are solely the preserve of a jury. They are some of the few cases left where a jury makes a decision in a civil case.

In the Circuit Court there is no jury and the decision is made by the judge. The threshold in the Circuit Court, generally, is approximately €38,000. That has been increased for defamation cases to €50,000, which is a nice round figure. This provision may encourage more people to go to the Circuit Court rather than the High Court where, hopefully, the cases can be dealt with expeditiously. However, there are some Circuit Courts in the country where there is an enormous backlog of cases, which is not the fault of the judges. In those circumstances, people might not want to go to the Circuit Court because they could be waiting for some years and might opt instead to have their cases heard in the High Court, which may be quicker.

The Bill introduces welcome reform to the area of defamation. Members on all sides of the House will support anything that makes the law less complicated. This legislation has already been examined in the Seanad and will be scrutinised by the Select Committee on Justice, Equality, Defence and Women's Rights. The old offences of criminal libel, seditious libel and obscene libel are abolished. I do not believe they have been used in this country for some time although I recall that Ms Mary Whitehouse tried to bring prosecutions for such offences in England over certain publications. If those provisions are not being used by the Director of Public Prosecutions in day-to-day practice and do not relate to modern-day living, it is as well that they are abolished. There is no point in having offences listed on the Statute Book that are not used as it makes a mockery of the law.

The limitation period for the initiation of a case is being reduced, which I welcome. Currently the limitation is six years for libel and three years for slander, and this is to be reduced to one year, although in certain cases the court can allow for a longer period. Shorter limitation periods are the way forward. Certainly a victim must be given sufficient time to decide whether to take a case but the old six-year limitation period was too long. A plaintiff could bring proceedings against a defendant five years and ten months after the event, making fair proceedings very difficult. A period of one year is reasonable. Of course, in any defamation action, it was always deemed to be a bad mark against a plaintiff if he or she did not take the action quickly. A judge or jury, in those circumstances, would ask what the plaintiff was doing in the intervening period and wonder why he or she was not worried about his or her reputation or good name.

I welcome this Bill, which is one of many items on the desk of the new Minister for Justice, Equality and Law Reform. I hope that the Dáil and the Select Committee on Justice, Equality, Defence and Women's Rights works through the Bill as quickly as possible so we can get it on to the Statute Book. The Bill will reduce costs to the court system, to plaintiffs and defendants. It will also allow the media some more leeway through the creation of a new defence of honest opinion. This will give newspapers and the media generally a little more freedom, but that carries with it a responsibility which they must exercise judiciously. They must report the news and their opinions, with which we have no problem, but they must respect people's right to their good name and that of their family. The media have a lot to gain from this Bill in terms of more freedom and less worry but they must give something in return. If they continue to do their job properly, we will continue to support them.

I am glad to have the opportunity to speak on this long-awaited Bill. The Bill has had a very rocky gestation, going back more than 15 years, for reasons that are well known to the Minister. The arrangements that it now facilitates deserve the opportunity to be monitored in practice to determine how they work out.

The Bill before the House is decoupled from the privacy Bill, which had been threatened by the last Government. It settles for an independent press council and press ombudsman, guided by a standard code of practice. However, the recent resignation of Mr. John Horgan from the Press Council, which was referred to during the debate, probably gives some pause for reflection in terms of whether what we have really agreed is an independent press council as distinct from a self-regulating press council. Mr. John Horgan, who is not to be confused with the imminent occupant of the position of Press Ombudsman, is a distinguished former chairman of the Labour Court. Presumably, it is the particular skills and experience gained in that role that caused him to be on the Press Council in the first place. The remarks he has made in public raise some interesting questions and if I have time, I will return to them later.

I am bound to say that for the Labour Party, the overriding consideration must be the imperative of a press that is free to inquire, report and comment, subject only to the best values of journalism. Freedom of expression is not something that should be in the gift of politicians. At the same time, however, I agree with the observations of Baroness Onora O'Neill that much of what purports to be journalism is no such thing and seems intended simply to make or increase profits for media owners. Members on all sides of the House will understand what she means by those remarks.

In terms of the decision of the previous Government to link this Bill inextricably with the privacy Bill, it appears from a sequence of recent cases in the privacy area that a new jurisprudence is emerging. Perhaps, as legislators, we ought to be prepared to leave that issue to the courts.

The question traced by almost everyone I have heard speak to the Bill so far goes back over the emergence of this Bill over such a long period, with the main formative influence being the report of the Law Reform Commission. Obviously the issues involved are sensitive and important for our society. Undoubtedly, opinion has been divided within and outside the House and indeed within the Government. Having regard to that backdrop it is something of an achievement to now have before the House a Bill which after such prolonged argument and consultation has attracted a substantial measure of support from all sides.

I do not think anybody disputes the fact that the law as it stands is deficient in a number of respects and that we lag behind best practice. There are widely varying views about the complex issues that are involved in reforming the law. It is interesting to read the programme for Government for 2002 and see the very wary commitment given therein by the parties comprising that Government where they made very plain that the commitment to reform the defamation law was in the context of an accompanying Privacy Bill. The impression given was that that was very carefully framed, that only the simultaneous implementation of a Privacy Bill would bring at least some Ministers on board in terms of the refurbishment of the defamation law. Indeed — and this has never been contradicted — some Ministers only came on board on the basis that there would be an accompanying Privacy Bill put to the House. In all fairness, it is probably the case that this view was shared in wider circles than just the Ministers around the Cabinet table who said "No" to the then Minister, Mr. McDowell, when he sought to reform the defamation laws. This was a view which had some sympathy among other of our colleagues here and outside the House. I was struck by the fact that when the new Minister for Justice, Equality and Law Reform, introduced this Bill, he went out of his way, it seemed to me, to say that he, "wanted the House to note the fact that the Privacy Bill remains on the Seanad Order Paper, having been approved by the Cabinet." When the Minister comes into the House he will have the opportunity to correct me if I am wrong but the only inference to be taken from this is that the Government reserves the right to revive the Privacy Bill and if it is dissatisfied with the performance of the arrangements put in place by this legislation, to bring that Bill before the House. To some extent, we are in the territory of "suck it and see" with the Bill before us now.

I acknowledge that whereas privacy and defamation are indeed connected, they are not the same thing. For example, the broadcast media is governed by its own legislation which places an onus on the broadcasting media to ensure that the privacy of the individual citizen is not unfairly intruded upon. The Constitution gives a right to freedom of expression and, although unenumerated, a right to privacy on the other hand. It must be conceded that in general, Irish newspapers have not aped the worst excesses of the kind of intrusive coverage of personal lives one sees across the water. This is not to say there have not been ominous straws in the wind in recent times in Ireland, motivated, it is alleged, by commercial competition, whereby the tradition of Irish newspapers is coming under challenge.

There have been some notorious lapses of taste and gross intrusions into the private lives of citizens. I presume these were considerations in the minds of those Ministers who dissented from the then Minister's Bill. The overriding consideration must be the imperative of a press free to inquire, report and comment, subject only to the best values of journalism. My colleague in the other House, Senator Alex White, wrote recently, "Freedom of expression is not something that should be in the gift of politicians" and this is something we must accept.

I raised earlier the public remarks of John Horgan, former member of the Press Council of Ireland, which gave rise to the question in my head about whether we have now opted for a system of self-regulation, as distinct from independent regulation. It is interesting that this debate started out on the basis of the demand for a statutory press council. The more one examines this proposal, the more I think the correct judgment has been made. It is worth waiting to see how the proposals enabled by this legislation work out in practice. There is a danger that if there were statutory powers the Government of the day, any Government, may be minded on occasion to unreasonably intervene and to give direction. We have embarked on this system. A majority of members of the Press Council of Ireland seem to me to be selected by the industry itself and I wonder if this is a good idea. When we are engaged in the argument about independence versus self-regulation, it would be easier to persuade us of the independence of the regulation if it was clear that a majority had not been selected by the industry.

I look forward to hearing the Minister's response to the arguments in his summing up. I would like to hear the Minister's view on the arguments advanced by John Horgan which he spells out in what seems to be a temperated and considered piece in The Irish Times at the weekend. He argues that if we really are to have openness and transparency then the council should be prepared to publish dissenting judgments. I would like to hear the Minister address that issue. As Mr. Horgan put it, there is no point in holding up the facade of unanimity if there are minority views. Why should they not go into the public domain as well?

Let us take the famous controversy a couple of years ago of the publication of cartoons, deemed to be offensive to the Muslim community. If they were published in this country and if there was a Muslim member of the Press Council, can it reasonably be said there was a unanimous view of the press council to uphold the publication of those cartoons? In all probability the Muslim member might reasonably be expected to object. Is there any reason we should not know of that objection? Is it purely institutional protection that causes the Press Council to want to present the image of unanimity? I think that is a reasonable question, and I do not think it would diminish the Press Council in any way. Rather, it would enhance it. I say that against a background of the only case I know of which concerned a Member of the House. In that instance the Press Council did function. It did its job and the newspaper concerned published, with similar prominence, the apology even though one might argue that, strictly speaking until this legislation was enacted, it was not necessary for it to do so. I acknowledge that fact. Given that we are all required to observe the first national language, as they say tús maith, leath na hoibhre. We can reasonably say that about the decision in that case.

Put simply, the first reason the new Defamation Bill is needed is that the law as it stands is too complex and too cumbersome. Obviously, there are other major reasons for reform because there are certain aspects of the current law that are open to criticism on the grounds of failure to comply with international law and constitutional requirements. There is no doubt that cases are expensive and time consuming. Given the cost involved, they are way beyond the reach of ordinary citizens. For participants on both sides, the stakes committed to are enormous.

I draw attention to a couple of items in the Bill that I would like to see addressed and on which I would like to hear the Minister's views. Unlike most areas of civil litigation, defamation law remains dominated by the pleading process and the exchange of written argument between the parties prior to oral hearing. The process is meant to clarify and narrow down the points at issue. In a defamation case, pleading becomes a trap for the unwary. Cases can be won or lost on pleading points. This is all the more reason for the lawyers involved to charge heftier fees than usual.

The first purpose of reforming legislation, therefore, should be to ensure that more cases are heard and decided on their merits relatively expeditiously in the most convenient and appropriate venue and at a comparatively affordable price. Two disappointing features of the Bill require examination. First, we should use the opportunity to abolish any and every rule of law or practice in respect of the taxation of costs in defamation actions that provide for the taxation of legal fees in such actions at a rate higher than the rate prevailing in actions in tort generally. At present, as a general rule and without considering the complexity of the particular case, costs in defamation actions are taxed far more than the rate applicable to any other civil action.

Second, the Civil Legal Aid Act 1995 lists designated matters in respect of which legal aid may not be granted by the Legal Aid Board. That Act was based on the pre-existing legal aid scheme. The refusal to cover defamation was based on the prim notion that suing for defamation like polo and fox-hunting is an esoteric and expensive pursuit to be contemplated only by those who can afford the cost and that it was far from the libel courts that the poor were reared. That attitude is completely at variance with the constitutional obligation of the State to vindicate the good name of the citizen. Given the constitutional status of the right to one's good name, this exclusion is unjustifiable and this restriction should be deleted. There are more than enough safeguards in the Act to ensure the Legal Aid Board is not required to fund frivolous or spurious actions.

I wish to share time with Deputy Margaret Conlon.

Is that agreed? Agreed.

In discussing the Defamation Bill, the role of the media and of writers in the week that we mourn the passing of Nuala O'Faolain, it is appropriate that we take time out to pay tribute to her and to her writings which would never have attracted the need for this Bill. Her writings were a model for all journalists, being incisive and challenging. Her last outlet in the media, her interview with Marian Finucane some weeks ago, is one that has impacted on the consciousness of Irish people. Were all people to attain the standards of Nuala O'Faolain this Bill would not be needed.

That said, the Bill is welcome. In this culture of mass media which seems to grow bigger every day and lose its borders through the Internet and so many other means, the Bill is necessary. Its key features are appropriate because they level the playing field for both sides.

I note that under the provisions of the Bill an offer of an apology no longer means an immediate admission of liability which is appropriate. If a paper gets a story wrong, it can offer an apology and publish one without leaving itself open to a weakened defence later in the process. That plaintiffs and defendants need sworn affidavits to be examined in the courts is welcome. These will enable everybody to see what is the issue and where the problems arise. This will allow a proper case to be heard and, hopefully, avoid a lengthy legal process which only adds to the expense.

There is also the issue of fair and reasonable publication on a matter of public interest. That is a new defamation defence in Irish law. That defence is fair and welcome and may remedy the potential difficulties being created by the provision of the body corporate in granting the powers of the body corporate on defamation. There is a danger, as Deputy Thomas Byrne outlined, that this could be abused. The matter of fair and reasonable publication on a matter of public interest could evolve into weakening the worst aspects of the body corporate because there is no doubt that large companies and large organisations resort to the legal process and would do so, if this provision opened up to them, in an attempt to quell opposition to plans of developments, plans of growth or opposition to any concerns about product. This new defence is welcome in that area.

The creation of the Press Council and the press ombudsman is a welcome development. We have all had Professor John Horgan with us in our parliamentary parties earlier in the year. He is on the road doing the work he needs to do. It is important that his office be resourced properly so as to sell its message around the country. It needs to be on the road and in people's faces. It needs to outline to people its responsibilities in order that people can engage with the ombudsman in the event of being slighted unfairly. The press ombudsman needs to have a similar presence at various events and gatherings as the Health and Safety Authority and other bodies with a function in protecting personal rights. I also expect Professor Horgan will be given a budget similar in size to the budgets available to these organisations.

I hope the apparent difficulties regarding the Press Council are resolved as soon as possible. I refer specifically to the former Minister's remarks on the occasion of the launch of the Press Council to the effect that sceptics were being served by doubts surrounding the council's independence. I hope immediate measures are taken to address this issue.

The media have evolved significantly in the five years it has taken to bring the legislation before the House. Whereas Ireland has been rather cosseted by a high standard of national and local media, other countries have experienced the development of a mass media market governed by the motto "publish and be damned" and the rule that if a story sells it should be published. As Deputy Rabbitte stated, this approach in which business principles dominate journalism is beginning to creep in here.

A number of speakers referred to a case taken against a newspaper by a Member of the House. As Deputy Rabbitte noted, the newspaper in question acknowledged its error when it lost the case. Nevertheless, the defence it submitted for the error, namely, that it was within its rights to take the action it did because the individual concerned was a public figure, was breathtaking. This defence was published in the findings of the case. A line is crossed when a person who is gravely ill cannot come home to the comfort of his family without having to worry that people are lurking outside his house to try to take a photograph with a view to selling it to a publication. No one deserves this treatment and it is awful that regulations must be introduced to protect citizens from it. This case shows a deterioration in decency and a lack of respect for the person.

Journalists are subject to immense pressure from accountants employed in media organisations. The measure of journalism no longer appears to be awards or other forms of recognition but the number of newspapers sold. Advertising is king and the advertiser rules. Newspapers advertising their product emphasise how many ABC 1 or ABC 2 readers they have and their value to advertisers in terms of product sales. Unfortunately, the standard of writing appears to be secondary to the ability to attract the right kind of reader with the right kind of money who, in turn, will attract the right kind of advertiser. It is unfortunate the media is moving in this direction, although we are fortunate to have journalists who are willing to resist this culture. The Bill sets out to support and maintain high standards.

The emphasis of the body corporate provision must be on fair play and free speech. I echo Senator Alex White's comments in this regard. Decisions by large institutions of all types to engage in new projects, whether an economic programme, a planning proposal or the development of a new product, always invite opposition. In a democracy such institutions must not be able to revert to legislation to try to weaken such opposition. People have a right and duty to stand up for what they believe is right and the new provision should neither assist nor prevent them from performing this duty.

The tidying up aspect of the legislation is welcome. I note Deputy Byrne, a relatively recent graduate from law school, had a book of torts with him when he spoke. As a result of this legislation, solicitors around the country will be scurrying to consult their textbooks because the Bill tidies up so many old offences and defences and makes the law relevant to the current media market.

The legislation is welcome given the changes in the media environment since 2003. The growth of the Internet and multinational media groups and the emergence of competing newspapers within a newspaper stable delivering different messages to suit different audiences makes it difficult to understand and manage this sector. The Bill is well-meaning and appropriate and I wish it every success.

I am grateful for an opportunity to speak to this Bill and thank Deputy Dara Calleary for sharing time.

While many changes have been introduced in the area of defamation law since the enactment of the 1961 Act, substantial reform of the law on defamation is long overdue. The large number of new forms of media and on-line activity creates potential for an increase in the number of cases of defamation. Further modernisation of this area of law is needed to take into account the jurisprudence of the European Court of Human Rights and courts of law in this jurisdiction.

The main features of the Bill I propose to highlight include the novel provision requiring a plaintiff and defendant to submit a sworn affidavit showing the veracity of their statements and positions. Furthermore, the requirement that they make themselves available for cross-examination will allow the cut and thrust of argument to show the strength of each party's stance.

Many people in public life, including me, have had their good name and character impugned. Public figures and private citizens may fall victim to this problem. Everyone is entitled to a private life. There are no excuses for journalists to go beyond the bounds of their profession to secure a scoop or headline. The Bill provides that if someone is proven to have defamed a person, an apology must be given the same or similar prominence as the original statement. I welcome this innovative measure. How many times have we seen an article on the front page of a newspaper, complete with sensational headlines, in which a person's character was defamed? In many cases, a subsequent apology appears weeks later in the middle of the newspaper in such small print and under such a minute headline that it is virtually unrecognisable and frequently overlooked. This practice is unfair to the victim.

Although the independent Press Council was officially launched on 9 January 2008, it requires the enactment of this legislation to function fully. The code of practice for the print media is also in place. The new body will need to be reviewed and its performance and operation subject to constant monitoring. I am concerned that certain sections of the press and other forms of media have not registered with the Press Council. It is necessary that they do so to prevent the emergence of myriad systems to deal with grievances because this would dilute the efficacy of the Press Council.

I recognise the need to have a free press. For this reason, the inclusion in the Bill of a new defence of "fair and reasonable publication on a matter of public interest" is a welcome step. Journalists digging, investigating and probing have discovered many worthwhile stories over the years. However, it is imperative that all journalists work to the highest professional and ethical standards, engage at all times in accurate reporting and do not base stories on anecdotal evidence and sensational headlines.

A further element I welcome is the merging of libel and slander into the tort of defamation. Slander, as Deputy Thomas Byrne, a solicitor, said, is very tough to prove with extra hurdles put in place. Many people are afraid to take a case when a defamatory remark is made against their character for fear of even further damage or the media highlighting the defamatory remark. No one would want further attention drawn to himself or herself. When a court case is taken and an award is made, it goes some way to remedy the damage and alleviate the hurt caused. However, the damage has already been done and the hurt has already been caused to the individual and his or her family. A person's good name and character is a priceless asset in the workplace and publicly. I hope journalists will exercise greater care to ensure fewer such cases are necessary.

Younger people are now possible victims of this new tort of defamation. We hear horror stories of young people being bullied and possibly defamed on social interactive websites such as Bebo and Facebook. The electronic age is well and truly here to stay. We must be able to tackle these new media if they step outside the bounds of what is acceptable because we must be able to protect all our citizens. I mention young, impressionable teenagers. Unfortunately in the past, this type of defamation and bullying has led to disastrous and sometimes fatal consequences.

It is also important the print media do not ghettoise certain areas in which hardworking, honest people live. Often people are labelled. Although they try to portray themselves in a positive light through positive and progressive actions, this is often lost to the media.

Certain newspapers and radio and television programmes seem to like nothing better than bad news and sensational headlines. Sensational headlines sell newspapers and there is huge pressure on journalists to get the big scoop and the big story and to print the big headline because that means more customers and, ultimately, more revenue. There is a need to exercise more caution because the truth must always be to the fore and the defence of truth will always succeed.

The area about which I am greatly concerned is the libelling of the dead, which shows a complete lack of respect. There was always a tradition in this country of respecting our dead. Colleagues mentioned the disgusting coverage of the late Liam Lawlor's death, that of Princess Diana and more recent tragedies. The media were insensitive and extremely hurtful to the families who were subjected to the coverage and comments while they were mourning the death of a loved one and trying to cope with their untimely passing.

I welcome this much needed Bill. Reform is certainly needed and for the many reputable journalists who write honourably and deal only with facts, we must ensure that high standard is maintained. We must also ensure all our citizens are protected in a media market which is constantly changing.

I wish to share time with Deputy Jim O'Keeffe.

It is good to have the opportunity to speak on the Defamation Bill 2006 but before I do so, I join Deputy Dara Calleary in sympathising with the family of the late Nuala O'Faolain. She was an exceptionally talented journalist and the way she dealt with her illness and went on the airwaves helped many people. I visited somebody in my consistency around the time she spoke about her illness and it had an immense effect. When talking about journalists and the media, we should remember her great courage and the way she accepted her fate in life.

Before speaking on issues pertaining to defamation, I ask for clarification for which we, on this side of the House, have been pushing. It is on record for some time that the Minister, Deputy Dermot Ahern, is in favour of introducing the Privacy Bill in tandem with this Defamation Bill. However, it seems the former Minister, Deputy Brian Lenihan, was against the idea, as was our party spokesperson on justice, Deputy Charles Flanagan, since we believe the Press Council and the Press Ombudsman together with the Defamation Bill should be given a chance before revisiting the question of privacy legislation. Will the Minister clear up this grey area as to whether we should expect the Privacy Bill to be linked to this one in order that it is not necessary to either hold up this long awaited Bill or rush through the Privacy Bill before the Press Council has had sufficient time to deal with this? As Deputies, it is our job to highlight legislation which may quickly become out of date. If the Privacy Bill was pushed through before the Press Council could give adequate input, it would be a waste of time and taxpayers' money.

There are some provisions in the Bill which mean real improvement to Irish law and which I would like to discuss. The Minister said the Bill puts on a statutory basis a new defence of fair and reasonable publications on a matter of public interest and that this new defence is designed to facilitate responsible journalism, that it is not a charter to engage in casual defamation or character assassination and that it is not a licence for sloppy or vindictive practices by journalists or editors. He said it will be for the courts to decide what credence to give to an editor or a journalist who tries to cloak himself or herself in such a defence without proper regard for this purpose. This seems very positive and I hope the technicalities are sufficiently considered in order that there are no loopholes in the Bill, as often happens in legislation. It is important we tease that out.

Section 7 provides that plaintiffs and defendants in a defamation action will be required to submit a sworn affidavit verifying assertions and allegations and to make themselves available for cross-examination. It will be an offence for a person to make a statement in an affidavit which is false or misleading in any material respect. This is an important and necessary development. The situation until now whereby defamation could be claimed without an affidavit from a person bringing the case was ridiculous. This is very important to prevent nuisance cases. The affidavit would also be useful in considering damages.

I also welcome the development that an offer of an apology will not be construed as an admission of liability. The current legal situation prevents the giving of a speedy apology which, in some cases, could result in a decision not to take court action. Preventing unnecessary court action saves everybody money and means that the courts are free to consider cases of greater impact and importance. That an apology may be offered placating somebody and stopping him or her taking a case is very beneficial.

Section 26, which allows a plaintiff to apply for declaratory orders in lieu of damages, is intended to offer a speedy means of redress where a plaintiff only wants it acknowledged that defamation took place. This is an important clause because people often feel aggrieved or offended by defamation and reputations can be damaged by insults, character assassinations or unfounded rumours reported as fact. Many of those who are defamed are in the public eye and may be more motivated by a desire to clear their name than by monetary compensation. In that regard, I welcome the provision for a speedy resolution through an acceptance of the falseness of a defamation without wasting the courts' time on financial aspects.

In regard to my earlier point on clarifying the different opinions of the current Minister, Deputy Dermot Ahern, and his predecessor, the Minister, Deputy Brian Lenihan, I commend the Press Council on its efforts to establish itself and improve the ordinary person's understanding of Ireland's print and broadcast media.

The need for fairness has been addressed in regard to newspapers. In a fiercely competitive market, newspapers face significant pressure to retain their share. We should salute the many good journalists and editors of small and large newspapers for the responsibilities they carry to tell the facts. Too often, we read stories that are not completely accurate but the punter believes what he or she reads in the newspaper. I have often been told ridiculous stories which are taken as gospel truth because they were reported in newspapers. The media have a huge responsibility in that regard and should be helped in every possible way.

Newspapers are also facing pressure from electronic media, which allow us to download stories from every part of the world to our laptops and BlackBerries. However, a well-written newspaper article remains the best way of learning about world events.

Does VAT continue to be imposed on newspapers? In my local authority in Tipperary, the removal of VAT on newspapers was strongly advocated. That should be considered because newspapers have become expensive for ordinary people and, if they are to be able to purchase several different publications, they should be made as cheap as possible.

I am delighted to welcome this Bill, although it has been a long time in the making. When I was a law student, the Defamation Act 1961 was regarded as modern legislation and a significant improvement on the previous arrangement but that Act has clearly become very creaky at its edges. As far back as 17 years ago, aspirations for change were expressed in the 1991 Law Reform Commission report. Given that we have not rushed the matter, it is not before time that legislation has been brought before the House. A number of aspects have been teased out in the meantime and we now have a package which I am happy to support.

This is a serious issue because freedom of expression is one of the most fundamental rights in a democracy. Our freedom of expression is confirmed in Article 40.6.1° of the Constitution, which guarantees liberty for the exercise of certain rights, including the rights of citizens to freely express their convictions and opinions and, by analogy, freedom of the press. There have been many developments at international level since the Constitution was enacted. Article 19 of the Universal Declaration on Human Rights contains high sounding phrases on the freedom of expression, but these are aspirational rather than justiciable. Similarly, the International Covenant on Civil and Political Rights contains purely aspirational language. We are discussing, therefore, the need to introduce justiciable measures that achieve the correct balance between freedom of expression for the media and the protection of the individual. No right is absolute because a balance is required to prevent abuse. The European Convention on Human Rights dates from 1950 but was only incorporated in domestic law four years ago under Article 10 of the Constitution.

I have been involved with the Joint Committee on the Constitution in its examination of Article 40. Various bodies have made submissions and we hope to issue a report on whether changes should be made to the article within the next eight weeks. Constitutional change is a slow process, however, and regardless of the recommendations of our report, it will take time to reflect them in the Constitution. The existing article, even though expressed in archaic language, has been adequate as a constitutional base. However, our domestic law is, quite frankly, a mess and in clear need of reform.

Particularly in the aftermath of court judgments awarding significant sums of money in libel cases, calls for reform tend to surface stridently in the media. The starting point for me, however, is the aggrieved individual. The current arrangement for aggrieved individuals under domestic law is not satisfactory. If an individual has a genuine case, he or she must take on the might of one of the newspaper empires. It is worse than David against Goliath; it is like a snail confronting Goliath. One would need to be as rich as Croesus to take on some of these newspapers but very few people are in that position. In addition, it can take up to six years before a case is disposed of. That is entirely unsatisfactory from the point of view of Seán and Mary citizen or any other resident of this country.

With justification, the media have on occasion raised the flag of reform. Some of the defects in the current legislation are crazy. It defies belief that a newspaper which wants to issue an apology is unable to do so because it would thereby expose its bank balance to an action. That is the most outrageous example, along with the prohibition on a lodgement in court. There was a range of other issues where the media, rightly, were entitled to say this situation was entirely unfair and wrong, even if they were looking at it from a particular perspective.

The other aspect of our domestic law that often struck me as crazy was the question of the amounts of awards. It was a lottery. There was the ludicrous situation not long ago when a large award in a major case was appealed to the Supreme Court which sent it back to the High Court on the basis that it was excessive. When the case was reheard, an award three times the original amount was made. Without commenting on the merits of that case, it shows the crazy outcomes that can be achieved when the courts have no facility to clearly specify guidelines on amounts of awards.

The basic constitutional structure is being examined and that work will take place in its own time. That is not where the focus of urgency must be but on our domestic law where three issues became connected over time, namely, reform of the defamation laws, the question of a Press Council or Ombudsman and the question of privacy. I have been convinced for a long time of the need to reform our defamation laws. I am all in favour of a change and recognise the need to establish a Press Council and Press Ombudsman. However, I have reservations on the question of rushing any change in our privacy laws. It is not urgent and I am not sure it is necessary. Let us make the changes in our defamation laws and continue with the work started on the Press Council and Press Ombudsman and put aside any changes in the privacy laws. The essential point is getting the balance between preserving the democratic right to freedom of expression and ensuring any restrictions are not overly restrictive or open to abuse by any person or organisation, including the State.

I am speaking in general terms. I very much support the Bill, although I have no time to go into detail. Some teasing out and tweaking needs to be done on Committee Stage. I am delighted with the operation of the Press Council and that the Press Ombudsman, a respected former Member of this House, has already taken a lead. I am very pleased with his decision on a complaint made by or on behalf of a senior respected Member of this House. I urge the Government to accept that this is not the time to push ahead with changes in the privacy laws. In the light of the European convention and the cases heard before the European Court, including the Princess Caroline of Monaco case, there are adequate protections. Let us not decide now. The Government should put the issue aside, review the situation in five years and see how the system is operating. Meanwhile let us go ahead. God speed the work on the Defamation Bill and that of the Press Council and Press Ombudsman. We will have a good package that will serve the country well for a number of years to come.

Is cúis áthais dom é an seans seo a bheith agam cuidiú leis an díospóireacht seo ar Chéim a Dó de An Bille um Chlúmhilleadh 2006. Tréaslaím leis an iar-Aire, An Teachta Brian Ó Luineacháin, leis an Aire nua, An Teachta Diarmuid Ó hEachthairn as an jab atá déanta agus atá á dhéanamh acu. Molaim freisin na hoifigigh atá ag comhoibriú leo chun an Bille seo a chur faoi bhráid Pharlaimint na tíre. Tá an Seanad críochnaithe leis an díospóireacht ar an Bhille seo agus táimid anois á phlé chun cothrom na féinne a thabhairt do ghach éinne, idir dhaoine aonra agus chomhlachtaí cumarsáide, eagarthóirí, iriseoirí agus éinne eile a bhfuil baint acu leis na meáin.

Tá dualgas orainn go léir féachaint chuige go mbeidh cothrom na féinne ar fáil i gcónaí. Tá dualgas orainn freisin, mar pholaiteoirí, labhairt go cruinn beacht aon uair a bhíonn óráid á dhéanamh againn, cibé an sa Teach nó taobh amuigh den Teach atá muid ag labhairt. Tá an dualgas sin ar cheannairí polaitiúla, ceannairí áitiúla agus ceannairí náisiúnta ar fud na tíre.

I congratulate the Minister of State, Deputy Haughey, on his reappointment, with all his colleagues, and wish them well. I congratulate the incoming Taoiseach and the new Government and wish them well also.

We are gathered to consider as colleagues the very important Defamation Bill 2006 which has had a very long gestation period. It is a long Bill of 36 pages with six Parts and two Schedules. In normal standards it would be a medium-sized Bill that has been in gestation for a long time. There has been a huge amount of consultation and a great demand for the Bill over many years. There has been a reluctance — "resentment" is not the word — among the media that we should go down this road to introduce laws to ensure a balance of equity and fairness prevails for all citizens, whether private, public or corporate, in the media industry.

We all have serious responsibilities. We are guaranteed freedom of expression under the Constitution which gives us a responsibility in that what we say should be factual, truthful and focused. Since I joined this House 26 years ago, there has been a major change in the number of publications available each day and week and their sources not just on this island, but elsewhere. We have a mass media market and a discerning consumer base, which the media investors see as an opportunity on which to capitalise. They also have to compete with each other and the international broadcasting media to assert their position and hold onto a certain segment of the market to maintain a viable operation.

I read the Bill with some interest and have listened to the debate and observed what people have said. This is a very balanced document. It seeks to take account of our archaic laws, modernise our legislation, give protection and an opportunity for correction to media people, editors, journalists and directors, in that if a person's character has been assaulted or otherwise, the media body has a right to apologise without an admission of liability. In the Bill we have been very open in finding a balance that gives an opportunity to those who may have offended to correct the matter. That is as it should be. As the legislation proceeds and as people have rights, they can exercise those rights in the courts. That is important.

The freedom and pluralism of the media are also respected in the Lisbon treaty and particularly the Charter of Fundamental Rights. On that basis the Bill is timely. It is also timely as a result of the Press Ombudsman and Press Council being established on 1 January. On the Lisbon treaty, it is important that the freedom and pluralism of the media are respected. We have a market of 500 million people across the European Union. As a politician in this House, I am obliged to consume at least 18 media operations every week when one takes into account the daily newspapers available here, the weekly newspapers that Deputy Burke and I must observe locally and the Sunday newspapers that often tax us after church services. We have to purchase them to see how things are going. We have to consult all these organs for other reasons to ensure we are in touch with our constituents in all kinds of life events.

The media have a significant role to play and with that role comes serious responsibilities. If, when I entered politics in this House 26 years ago, a humble backbencher like myself gave a speech of reasonable magnitude and veracity containing good ideas, often the Deputy could find himself or herself on the front page of a national newspaper. No matter what speech one makes today one will hardly find oneself on any page of a newspaper. The entire scene has changed. We have moved to a more sensational type of reportage than the de facto reportage of the sincere contributions of Members of Parliament. That is a pity.

As far as I am concerned, we operate here with a collective constitutional capacity to serve our people. We operate here with collective commitment and collective wisdom to do what is best for our country and to implement the best laws possible on behalf of our people. Nobody has a monopoly on wisdom. It is consensual debate that leads to consensual conclusions that eventually will create the best legislative process that will modernise our country and its statutes and ensure we can go forward together serving our people and maintaining a balance in society between that which is right for society and that which is correct within the laws of the land as implemented by the Legislature of which we all are proud to be Members. There is a serious balance in that regard.

There is also a serious responsibility, not just on us as politicians, to have our utterances focused and factual in this House. Speaking of that, given our responsibilities as Members of Parliament and the ethics to which we must adhere which we ourselves have legislated for, in the current debate on the Lisbon treaty there are posters on poles around this country giving misleading direction and impacting on our citizens as if the proposals thereon were facts when they are fiction. There is no name of any organisation on them. There is no indication of who printed them. There is no indication of who they represent. This is a matter which we, as legislators, must focus on and we must ensure as we change the laws for ourselves, for our people and for the media that report on the day-to-day happenings of this island and in the world, those who we serve and those that we work for and with, whether they co-operate with us or not, have the right of expression, but with that right of expression comes a commensurate responsibility and the information that they purvey to people should at all times be factual rather than fiction or misleading. It is a pity in the modern world that intelligent, educated, sophisticated people in this island stoop to such practices on a serious matter so important to our country.

I warmly welcome the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, to the House and I wish him well in his new office. I am pleased with the changes he proposes here. I pay tribute to him and his officials, as well as to his immediate predecessor, the Minister, Deputy Brian Lenihan, who did significant work in this area and who held considerable consultation pertaining to the Bill before us.

We have a serious responsibility to modernise our laws. We saw a similar situation arise in the past with the insurance industry, where people could submit claims three, four or five years after an accident when much medical and legal documentation was built up on a file and a major case could be sustained. Large claims were submitted and honoured, and mostly these were agreed on the steps of a court and recorded in the court without being heard there at all. We had to change all that by modernising the laws.

I am delighted that such major change is contained in this Bill. In the past one had up to six years to make a claim for damages and the Bill provides for a minimum of a year and a maximum of two years, which is as it should be. If people are not able to make up their minds in the space of a year, the court will decide within the second year whether the matter is grave enough to allow, as proposed in this Bill, a case to be considered outside the 12 month period. That is a balanced and fair provision. I commend the sensible, practical proposals in the Bill in this regard.

Like my colleagues and the Minister, I welcome the establishment of the Press Council and the Press Ombudsman. These developments are important and not before their time. I read with interest the statement made by the then Minister, Deputy Brian Lenihan, at the launch of the Press Council that he felt the rules, regulations and impositions on its members were, perhaps to say the least, light. This legislation is certainly lifting that lightness and making a stronger legal mechanism available to citizens and anybody who feels they have been badly treated.

We have reached a new level in this country where McCarthyism seems to be very much in vogue in the media. Some people are guilty by association with certain people, certain situations and certain occasions. That is a pity.

In addition, we have reached a position where there is significant invasion of privacy. The new Taoiseach has made a special appeal in that field and I echo that. Particularly as public representatives, we all are public figures. We go before the people and are elected by the people. We understand the ramifications of public office and public service, and we are totally committed. I can confidently state I have never met a politician in any party, elected to this House or outside this House in another chamber or fora, who was not committed and, indeed, who was not imbued with an enthusiasm of service to their people. We all are driven by service to our country, love of nation and service to our people. When one takes our position into account, given that we go before the people, who are the adjudicators and the arbiters of whether we enter the public arena and whether we stay in the public arena when we ask them to give a validation on our position, it is important our families are treated as private citizens. The family in Irish history, in Irish tradition and in the Irish value system is a strong unit.

The basis of the success and the fabric of our society has been woven by our commitment to family, to tradition and to that close value system. It is unfair that one should be exposed just because the person is a politician's wife or husband, son or daughter, brother or sister, niece or nephew, or uncle or aunt. That should not be alluded to in situations where such persons find themselves in the public arena in their own right. There should be no reason whatever to exploit the fact that these are linked to political persons. It is unfair. It is something that has happened far too often of late.

I am pleased too that in the Bill the Minister has allowed judges in court to give a direction to juries in particular situations. That is an important provision. We have eminent judges. They are protected within the Constitution. We, as parliamentarians, have a clear role. The Executive has a clear role under the Constitution. The Judiciary has a separate role under the Constitution. I am pleased with the proposal within the Bill that juries can get direction from the eminent judges of the day.

I commend the Minister, Deputy Dermot Ahern, who this week, after coming into office, approved the removal of the upper age limit for jury service. There are senior citizens who have given significant service to this country. Many of them are mentally and physically fit. They all are committed to the country but many, in particular after retirement, want to make a special and unique contribution to the evolution and progress of our nation. It is important that their expertise, experience and wise counsel is available to the Judiciary and the courts of our land, particularly in the jury system. These eminent citizens, who have gone through life experiences as parents, as leaders in society, as workers who have built up a nation, or as heads of families or within families or in other vocations or careers, who have certain expertise and knowledge and who are able to make an assessment of how the country has evolved and what is good for society at a time, can bring a balance of their own youthful experiences, mature adult experiences, working experiences and retired experiences in a calm fashion to ensuring conclusions in law fair to all sides are reached. I commend the Minister on having lifted the age limit on jury service, allowing people over 65 to serve on a jury if they so wish.

We live in times of instant communication via the mass media. These are big challenges for society. We have a responsibility to make sure that there is a balance within society and that consumerism and mass media communication do not direct the pace of a nation or erode the values of our country. It is important that we ensure that the laws we enact, the decisions we take and the utterances we make are relevant, factual and focused. We have a responsibility to maintain that balance in society and to take into account the speed of modern telecommunications and their impact on all members of society, be they young children, elderly people or anyone in between.

I recently listened to a debate on the future of the communications industry, especially the written media. It is predicted that over the next 25 years there will be a major reduction in the amount of printed newspapers. With the explosion in modern communications, we may be able to get all information on our iPod or mobile phone and we will not have to read newspapers. That will be a sad day. Newspapers embody the old adage of verbum scriptum stat, or the written word remains. It is important to recognise this when debating the Bill, and it is also important for media organs to recognise that the written word remains. Once written, it stays. If an individual has been damaged by that written word, then there is a serious responsibility to ensure that the perpetrator of that unfounded or unsubstantiated allegation rectifies it by way of an immediate apology.

Tá nóiméad amháin fágtha agat.

That is disappointing, to say the least. I was just getting my second wind.

It is said that in future there may be only one main newspaper on the island of Ireland. That would be a sad day. Whether it is in politics, sports, business or media, it is important that competition exists. Competition is good for everybody. It provides balance and results in new opportunities and fresh dimensions. It would be sad if we were to lose responsible newspapers that have served our country with such distinction.

I wish the Minister every success in office. I commend him and his officials on the work that is being done. I am pleased with what is proposed in this Bill. I hope that the new office of the Press Ombudsman can discharge its obligations in a solid, transparent and sustainable fashion. I commend it on its recent decision. I also commend all those people who made a contribution to ensure that this vital Bill is being enacted. I salute everybody involved and I wish the Bill a rapid passage through Dáil Éireann.

Before dealing with this Bill, I would like to refer to an Adjournment item from a fortnight ago, in which it seems that something I mentioned identified an individual that I did not name. In the interests of fair play, I must say that it was never intended that any individual person should have been identified by the comments on that occasion.

I welcome the Minister to the House and I wish him well in his difficult new portfolio. I welcome the opportunity to contribute to debate on this Bill in some small way. The law on libel needs to be updated. We are all conscious of the need for freedom of the press. There has been fantastic investigative work done in the past, despite the restrictions that exist under current legislation, by various journalists in the print and other media. Were it not for the great endeavours of those journalists, there would be many issues that would not have entered the public domain. Hopefully, this Bill will allow for a continuation of important, investigative journalism, but also an expansion of that aspect of it.

It is vital that we emphasise at all times the importance of a free press and of fair comment in the public interest. People are entitled to their good name and to balanced reporting. It is also important that people cannot hide behind the law where there is obvious wrongdoing. This Bill must take on board the issue of privacy in tandem with that. We all know of situations where individuals have suffered severe repercussions from statements in the press. There have been many instances of unfair comment. The former Minister, Máire Geoghegan-Quinn, felt that it was necessary to resign as a result of comments that were very intrusive on her family. Such a case should not arise again.

Sports people such as Paul McGrath literally served time in hell enduring elements of the press. The hurler DJ Carey suffered similarly. I remember reading the press reports on aspects of his life that were terribly unfair to him and those connected to him. If this Bill is to change the outdated 1961 legislation, it is important that instances such as these do not occur.

Section 18 updates the defence of fair comment, which becomes the defence of honest opinion. This is an important section which affords the press an important defence against allegations of defamation. It states: "It shall be a defence (to be known, and in this Act referred to, as the "defence of honest opinion") to a defamation action for the defendant to prove that, in the case of a statement consisting of an opinion, the opinion was honestly held".

Section 24 goes further and provides for a defence of fair and reasonable publication on a matter of public importance. On the face of it, it sounds reasonable but it gives the press qualified privilege in printing false information and stories not based on fact. It states:

Subject to subsection (4), it shall be a defence (to be known, and in this section referred to, as "the defence of fair and reasonable publication") to a defamation action for the defendant to prove that the statement in respect of which the action was brought was published—

(a) in good faith, and

(b) in the course of, or for the purposes of, the discussion of a subject of public importance, the discussion of which was for the public benefit, and in all the circumstances of the case, it was fair and reasonable to publish the statement.

(2) For the purposes of this section, the court shall, in determining whether it was fair and reasonable to publish the statement concerned, take into account such matters as the court considers relevant, including any or all of the following:

(a) the extent to which the statement concerned refers to the performance by the person of his or her public functions;

(b) the seriousness of any allegations made in the statement;

(c) the context and content (including the language used) of the statement;

Those are two sections that must be dealt with because they give licence to the press that it has not had and they need amendment or modification. I am not satisfied that the Press Council, together with the Press Ombudsman, has sufficient power to ensure the licence is not abused. Since sanctions are not provided for, they will not be as great a deterrent as an award of damages in court. In introducing the new defence we are adopting the law that decided the Reynolds v. Times Newspapers Limited and Jameel and others v. Wall Street Journal Europe cases in which there was a split decision. These legal principles are under examination by the Supreme Court in Ireland and it may be preferable to await the outcome of that case before jumping in with crude amendments to this legislation. We may have no confidence that newspapers will not adopt this provision as cover for their existing practices.

There is a constitutional right to freedom of expression and it is important to have a free press in any democracy. It was stated in Dun & Bradstreet Inc v. Greenmoss Builders in the United States that there was no constitutional value in the false statement of fact. It is important that the Minister take this point on board and provide safeguards in the public interest. The Press Ombudsman and the Press Council were established since the beginning of the year and everyone in Ireland has access to an independent press complaints mechanism that is quick, fair and free. These words are important from the experiences with which we are familiar in years past. The new complaints mechanism is designed to ensure the freedom of the press is never abused and the public interest is always served. There are many principles of independent press regulation all over the world. The objectives of the Press Council and the Press Ombudsman are to provide the public with an independent forum to resolve complaints about the press quickly, fairly and free of charge and to maintain the highest standards of journalism and journalistic ethics.

Competitiveness in the media world, including between journalists in a competitive profession, leads to elements of the media making outrageous comments. As the stories roll, one would imagine that the comments were more outrageous in order to gain commercially. The media see it as a need for sales of a journal. Ireland has benefited from the high professional standards of journalism in the main. During the years, inside and outside the House, we have honoured many of the great Irish journalists. Long may this continue. However, if there is an outside influence that dictates standards and requirements, resulting in deterioration of those standards, the profession of journalism will be the loser. That would be a pity for the many fine individuals who have graced the position of journalist in this House and the other aspects of journalism dealt with in Irish newspapers.

Deputy Treacy referred to the importance of having more than one voice. In certain instances in the past editors or owners dictated the slant on various issues. Some were unfair to individual politicians, Ministers or parties. So be it but where there is an element of unfairness recognised by the public and the best interests of the public have not been represented, we hope this Bill will give an opportunity to an individual — whether the individual concerned or an outsider — to refer the matter to the Press Council and the Press Ombudsman for decision. The importance of the Bill lies in there being a quick and fair response. It is important that we see those principles reflected in the objectives of the Press Council and the Press Ombudsman. We must have confidence in the 13 members who will make up the Press Council. The council must be seen to be at all times fair in addressing the difficulties that arise.

The first principle is truth and accuracy in information. Very often, there are elements of inaccuracy in reporting and we do not get the whole truth. It is important significant inaccuracies and misleading statements in reports and distortion of pictures in articles published are corrected promptly with due prominence. In the past, apologies from the print media or on television or radio have not been given due prominence. While apologies are these days given prominence, in the past they were often small, one or two-line paragraphs in an isolated part of the newspaper not necessarily within the news section. The Bill provides that, when appropriate, a retention, apology, clarification, explanation or response shall be published promptly and with due prominence.

The next principle is distinguishing fact from comment. Comment, conjecture, rumour or unconfirmed reports shall not be reported as if they were fact. However, newspapers and periodicals are entitled to advocate strongly their own views on topics. We have had many examples of this in the past month or two in respect of tragic cases of one kind or another. The reporting of comment, conjecture, rumour or unconfirmed reports can have serious consequences. In a particular case that comes to mind, reckless reporting by the media led to the death of a person. It was sensationalism carried too far.

I mentioned that newspapers must strive at all times to be fair and honest. Privacy is a personal right under the Irish Constitution and the European Convention on Human Rights as incorporated into Irish law. I outlined at the outset an example of the invasion of privacy and the consequences it had for one of our colleagues. This should not be allowed to happen. It is hoped that many of the provisions in current legislation will be deleted following enactment of this Bill. It is important we support the Bill and, where necessary, amend it in the interests of fairness.

Ba mhaith liom comhghairdeas a dhéanamh leis an tAire Dlí agus Cirt, Comhionannais agus Athchóirithe Dlí, Deputy Dermot Ahern. Tá mé cinnte go ndéanfaidh sé jab sár mhaith san oifig sin.

I take this opportunity to wish Deputy Dermot Ahern every success in his new post as Minister for Justice, Equality and Law Reform. I have no doubt that, being a solicitor, he has a tremendous knowledge of the law and will be an outstanding success in the position. Like Deputy Noel Treacy, I too congratulate the Minister on the removal of the upper age limit for jury service, which was long overdue. The Minister can take satisfaction from that announcement.

I welcome reform of the 1961 Act which, like other speakers, I believe is long overdue. The main purpose of the Bill is to introduce a modern statutory framework to deal with defamation law and to replace antiquated legislation. Another purpose is to provide a victim of defamation with a better sense of his or her rights under the law. The new forms of remedy for those seeking speedy redress when they have been defamed are to be welcomed.

The proposed law will also assist publishers in avoiding making or printing defamatory statements. Following a long gestation period, during which time the Bill was widely discussed by the Law Reform Commission, many worthwhile provisions have been incorporated into the legislation. The right to free speech is important. Equally, the right to free press is important. However, there are caveats and I hope these issues can be addressed in the Bill.

I welcome the fact that plaintiffs and defendants in a defamation action must submit sworn affidavits verifying their assertions and allegations and must make themselves available for cross-examination. I do not believe the previous situation worked whereby statements could be made and it would take years for them to be addressed either through the courts or by way of apology. I welcome section 7 which deals with this aspect.

In many cases an apology can assist in avoiding court action. The insistence that in giving an apology the same prominence be afforded to it as was given to the original defamation statement will help to defuse many grievances. Not construing this as an admission of liability is essential from the publishing perspective. Section 22 deals with that aspect. I welcome also the fact that a defendant in defamation proceedings may, in future, lodge a sum of money into court. This has worked particularly well in other court cases and will, I believe, assist in reducing the number of court cases. It will allow plaintiffs a better understanding of where their case may be going.

Section 24 deals with publications using the "matter of public interest" as a defence. While I accept fair and reasonable comment is fine, there have been slippages in this regard by certain publications in recent years. I refer in this regard to overseas publications and, in particular, British publications whose banner headlines have resulted in court actions. It goes without saying that everyone is entitled to their good name. In this respect, the Press Council and Press Ombudsman are welcome developments.

I believe that publishers who have membership of the Press Council will adhere to its code of practice, which is essential. However, we must ensure that publications which do not become members of the Press Council adopt the same attitude and fairness, particularly when it comes to legal defence.

Section 38 deals with the limit on Circuit Court cases and it is particularly welcome that the sum has increased from €38,000 to €58,000. This will help to reduce the number of High Court actions and the trauma suffered by defendants and their families through involvement in long High Court cases. It will also bring about a reduction in fees.

The amalgamation of the torts of libel and slander into a single defamation Bill is welcome. My colleague, Deputy Thomas Byrne, alluded to the fact that proving slander is particularly difficult in court. I am sure we have all heard of instances of people alleging slander but not being able to prove it in court. As other speakers stated, one's good name is important and bringing the torts together in one Bill is welcome.

I wish to comment on what I term "insensitive" headlines and stories in publications. Often, these stories deal with deceased people. As many speakers stated, dead people cannot speak for themselves. Reference was made to the late Liam Lawlor, who was a Member of this House. Immediately after he was killed, a story was written about the circumstances of his death which was totally without foundation. If the story were true, I feel printing it after his burial would have been appropriate. However, it was written without any regard to the man's spouse and family.

Grieving families have enough difficulties without having to read banner headlines in the newspapers, particularly when they are untrue. If they do contain the truth, the story will still be good in a weeks' time when the person has been interred and given a normal Christian burial. More and more we see during the immediate period after death reporters delving in and seeking a story.

We understand the competition in the business and that each reporter is competing with his or her colleagues within a publication and that publications also compete with each other. It is all about selling newspapers and numbers for advertising purposes. However, where families are involved, a moral obligation exists for editors to ensure the headlines do not make it any worse for grieving families and to tone down what their reporters may write.

A recent tragedy in Wexford involved a father allegedly killing his wife and children. Prior to the burials taking place, journalists delved into theories on how and when the deaths occurred. Families have the right to grieve and bury their dead without having to deal with this. In this case, one journalist tried to piece together what had happened, suggesting the young son had not been suffocated in the bedroom but had incurred a shotgun injury. This was completely untrue. Two families were involved and going through a major grieving process. It was particularly bad that either family had to read this material.

Of course editors want stories, and this was a major story. Whatever we can do within the Bill with regard to the legalities is one thing. However, on the moral issue, I make a plea to editors to be more responsible. Through a connection, I am aware of the trauma caused to one of the families involved. It was extremely difficult for the family to grieve while reading theories of how the deaths occurred.

The recent story involving a GAA man in Waterford was valid in terms of events prior to his death. However, a couple of hours after he took his own life, gory details were published. This man had a son and other family members. The story would not have been any less valid a day after his burial. I find it extremely sad that our newspaper publishers would resort to printing the story before the man was buried. We always felt the British tabloids went for banner headlines and speakers mentioned Princess Diana and others. This is their style. I thought we had honourable traditions in Ireland and I appeal to publishers to reflect on this and to follow up on stories later.

Deputy Ulick Burke raised the matter of the Kilkenny hurler, DJ Carey. It is no business of the press if his marriage split up. It happens to many people. My second problem with the story was its timing. The story was released on the morning of the All-Ireland final, when DJ Carey was captain of Kilkenny. Fortunately for him, he led his team to victory. If the story was a good story, it would have held until the Monday or Tuesday. To print it on the morning of the match, when the man was going out to play the most important game of his career, was an outrageous invasion of the privacy of a sportsman respected the length and breadth of Ireland who had given so much to his county, club and the game of hurling.

I do not know why the story had to appear that morning. I do not believe the publication sold any more papers because DJ Carey was on the front page. The story would have been equally good on the following Sunday if the publication felt it would increase its sales figures. We, the Irish people, should try to get this message across. Everyone wants to read good stories and obtain the inside information. The timing of stories is particularly important.

In another case, the son of a man convicted of murder ten or 12 years ago appeared in a publication because a story evolved about the potential release of the prisoner. The son was a child when the conviction took place. What association did he have with the conviction? It is absolutely outrageous that this young person was subjected to whatever by his classmates in college because he was the son of a convicted person. I cannot understand how editors can stand over this. I accept newspapers compete against each other and they want to increase their ABC readership to secure advertising and so on. When politicians are the subject of negative stories, why must newspapers go after their spouses and children, who are not involved?

I have a friend who works as a photographer for a British tabloid. On one occasion, a high profile individual was the subject of a media story and he was told to camp outside his house and to get pictures no matter what. This meant he had to approach the windows of the house snapping in the hope he would get a picture. It did not make a difference if the subject's spouse or children were in it because the newspaper wanted a picture. Freedom of the press has gone too far. The newspaper was entitled to take pictures of the individual at the centre of the story, but why should his family members be dragged in? Why should the newspaper invade his home? Why should the photographer be encouraged by his employers to go up to windows taking photographs in a version of pot luck to see what he could get? If that is not an invasion of privacy, I do not know what is. Irish journalism needs to return to standards of basic fairness. Reporters should do their work professionally without invading privacy.

I refer to coverage of tribunals. Many of those who are the subject of their proceedings are deceased. I have read headlines in the newspapers, one of which concerned a Fine Gael councillor who was allegedly offered £250,000. This was not proven but the man was found guilty by the media. No consideration was given to the fact that the tribunal had not issued findings regarding him or others, yet his family had to endure significant publicity because of the allegation. I met the man's son who said his mother's life was not worth living. She could not leave the house because of the alleged shame. Let us have good journalism with decent standards.

Ba mhaith liom comhghairdeas a ghabháil leis an tAire as an phost nua atá aige agus tá súil agam go n-éireoidh go maith linn ag an gcoiste agus nach mbeidh raic eadrainn go ró-mhinic. Ba mhaith liom freisin mo bhuíochas a ghabháil as an deis déileála leis an reachtaíocht thábhachtach seo. Tá súil agam nach mbeidh raic eadrainn faoi, ach tá sé thar am don athrú seo. In ainneoin an méid a bheidh á rá agam amach anseo, measaim gur reachtaíocht mhaith atá ann. Táimid ag déileáil anseo le hábhair thábhachtacha, clúmhilleadh agus ionsaithe ó na meáin ar dhaoine thar na blianta. Táimid ag feitheamh leis an reachtaíocht seo le fada agus, mar sin, déanfaidh mé iarracht moltaí dearfacha a chur chun cinn a bheidh muid in ann a phlé ar Chéim an Choiste.

Irish media markets may appear to be highly competitive because consumers have a daily choice of not only domestic newspaper titles and radio and television stations, but also British, American and other international outlets in every town, village and city. However, the vast array of choice we have cannot hide the fact that control of these media outlets is in the hands of a few people and that number is reducing. New media start ups do not emerge very often because they need hundreds of millions to bankroll them if they are to have any success on entering the market.

Domestic media outlets, whether they are local newspapers or radio stations or Internet sites, have never been more valuable and sought after. They are increasingly owned by a small cabal of media conglomerates. Key players in the domestic market include the Independent News and Media group, Communicorp and Liberty Global. INM owns the Irish Independent, Sunday Independent, Evening Herald, 50% of the Irish Daily Star, Sunday World, Star on Sunday, Sunday Tribune, Herald AM and a number of local newspapers. The company’s 50% ownership with the British Express newspaper company gives it a stranglehold with Easons on the distribution of newspapers and magazines in Dublin.

Communicorp is one of Denis O'Brien's significant media and telecommunications vehicles. In Ireland, the company owns Newstalk, Today FM, 98 FM, Spin FM, a substantial share of Spin South West and, in 2007, it spent €200 million on Today FM, Highland Radio and FM104. The latter two stations have since been sold because the Broadcasting Commission of Ireland would not allow Mr. O'Brien to own another music station in Dublin. He also recently became a substantial shareholder in the INM group. Liberty Global is a large conglomerate and the parent company of UPC, which has a monopoly on cable television services through its ownership of NTL and Chorus, which serve more than 500,000 homes. It is dangerous for so few to control so many media outlets and this does nothing to reflect the diversity of views, interests and cultures in Ireland today.

However, the role of these media must be examined. A number of media have been blatantly misused by their owners to pursue vehemently an anti-republican agenda, making carefully phrased and frequently groundless allegations against Sinn Féin elected representatives, including myself, and supporters without any substantiation. To date, no effective mechanism has been provided to hold the media to account for this. They can act in the comforting knowledge that the cost of seeking justice through the courts is prohibitively expensive for ordinary people. In addition, in the case of elected representatives, who have been put in office by the voting public and who are dedicated to representing their constituents as they have been mandated to, the media are all too aware that the risk of bankruptcy, which would prohibit representatives from holding public office, is too great to take. It is a risk we should not have to take.

Sinn Féin believes, as stated in our 2002 election manifesto, that the operation of the media should be as much in the public domain and under as much public scrutiny as the media demand of other bodies and institutions. Self-regulation alone does not work. No industry or profession should be left to regulate itself. Some would say that the media is distinct from other sectors in that its role is crucial to the functioning of democracy, which is correct, but so too are the roles of the Judiciary and the legal profession, both of which must not be left to regulate themselves.

A Press Council was established last year, along with a Press Ombudsman. We welcomed it at the time but said that it did not go far enough. The Defamation Bill 2006 provides for statutory recognition of this body. The Bill as drafted merely provides for the recognition of a press council and the entire system is entirely voluntary on the part of the media. The minimum standard for composition of a recognisable press council contained in the Bill is also flawed, allowing for five directors representing the interests of media owners but only one representing the interests of journalists. The concept is based on the flawed British model, which has failed to stem declining standards of journalism and media publications in Great Britain. One member of the Press Council, the former chairman of the Labour Court, Professor John Horgan, has already resigned from his position citing the refusal of the council to publish dissenting judgments as his reason. Its refusal will diminish public confidence in the system in its infancy and confirm concerns that the media cannot be left to regulate itself.

In our view, the Press Council should have statutory powers and mandatory media membership. It should establish and enforce a code of standards. Such a code should also have regard for the needs of small publishers, not just large conglomerates. Its decisions should have binding effect. It should be composed of seven independent public interest directors, three directors representing the interests of media owners and three directors representing the interests of journalists. Large media groups should be prohibited from having more than one director each and composition should also ensure the representation of the various media types. This council should be required to publish annual reports covering important topics such as the findings of the complaints procedure, balance in reporting and coverage or other matters as directed by the Minister or the Oireachtas, as is the case with various other ombudspersons.

Níl gach rud sa Bhille seo go dona, in ainneoin an liosta fada atá luaite agam agus na héilimh a rinne mé maidir leis an chomhairle agus na meáin. Mar a dúirt mé cheana, cuirim fáilte roimh an Bille agus roimh an deis déileáil leis. Tá súil agam go mbeidh muid in ann déileáil ar Chéim an Choiste leis na gnéithe dearfacha de chomh maith leis na gnéithe diúltacha de. Tá an reachtaíocht atá againn fé láthair dírithe i bhfábhar siúd atá in ann cásanna a thógaint i gcoinne na meáin. Ní cóir go mbeadh an reachtaíocht go hiomlán ar an dtaobh sin. Tá cosaint sa reachtaíocht nua do na meáin, cosaint ar mhaithe leo féin nuair a fhoilsítear scéalta ina bhfuil spéis ag an bpobal.

Among other things, the proposed new legislation provides the press with a broad new public interest defence against defamation claims, namely, a defence of "fair and reasonable publication on a matter of public importance". Generally, this new defence would introduce a better balance between the protection of press freedoms and the rights of individuals. In addition, on the side of individual rights, the new law would be "actionable without proof of special damage". "Special damages" are damages that are capable of substantially exact calculation, that is, loss of earnings, medical expenses, etc. In the current situation, special damages must be proved to successfully take a slander case. However, in reality, the impact on a person who has been publicly defamed may not be financial at all. Such persons should not be excluded from seeking a remedy so this provision enhances access to justice.

A "member of a class of persons affected" will now be able to take a case where the defamatory statement could reasonably be understood to refer to the member concerned. This is important to overcome defamation through tactical reporting. For example, an article that switches from sentence to sentence between an individual's name and an organisation's name clearly has the effect of defaming the individual in the mind of the reader without technically doing so under the current law. Under the new legislation, the chance of legal recourse in such situations will be increased, which is why I welcome this change in the legislation. It closes a loophole which journalists have used to associate people in articles where no association is proven or where no association exists.

In addition, an offer of an apology will not be construed later by the court as an admission of liability. Currently, newspapers will usually not apologise even when they know they are in the wrong for fear it will be legally prejudicial. However, sometimes an apology is the most appropriate remedy and even more appropriate than payment of damages. This provision should open the way for the more frequent use of public apologies. On this aspect, I hope that it will not be a begrudging public apology and that any time an apology is extracted from the newspaper or media outlet, it will not buried down in the corner on page 20 or broadcast in the middle of the night when nobody is listening. The apology should be given the same prominence as the article that defamed the person in question.

Finally and significantly, this legislation provides for statutory recognition of the Press Council to regulate the industry. However, as I have already indicated, there is much room for improvement. While the Bill in general is supportable, it also contains crucial shortfalls, some of which I will outline. I have already hinted at one shortfall, na costais toirmiscithe cás a ghlacadh or the prohibitive costs of making a claim. Ní bheidh iad siúd, ar a déantar clúmhilleadh in ann cheartas níos éasca a fháil. Ní gheobhaidh ionadaí tofa cúnamh dlí, nó aon chosaint, i gcoinne féimheachta, mar a luaigh mé cheana. Tá cosc orthu siúd atá féimheach bheith ina noifigigh phoiblí. Dá bhrí sin, beidh na daoine atá tofa go dtí an Teach seo, an Seanad no aon oifig phoiblí i mbaol má dhéanann siad iarracht cás clúmhilleadh a thógaint i gcoinne na meáin. Mar a léirigh mé cheana, tá go leor airgid ag na gnóthaí ollmhóra sin. Tá go leor airgid taobh thiar de na meáin. Measaim go bhfuil teip sa Bhille os rud é nach leagann sé amach córas inar féidir le daoine ar a ndéantar clúmhilleadh teacht ar leigheas nó cúnamh dhleathach.

The defence of truth under section 14 is flawed. Where some of the words are lies but some are true, "if the words not proved to be true do not materially injure the plaintiff's reputation", the publisher still gets away with it. Due to the fact that it may still be difficult to prove the material damage done to one's reputation, this provision as drafted still allows the publication of statements that are false without remedy.

The "defence of qualified privilege" under section 17 protects people relaying incorrect information as long as it is relayed in good faith to a person with a legitimate interest in receiving it, namely, making a child protection report to the gardaí or a social worker. The Law Reform Commission has recommended that this defence be limited by some objective criteria. We need to look at what these objective criteria are and how we introduce them into the Bill as it progresses through the Houses. For example, they should also require that a reasonable person would have believed the recipient to have an interest or duty to receive the information.

To avail of the new defence of fair and reasonable publication, the defendant must only prove that "at the time of publication he or she believed the statement to be true". This defence, as drafted, is wholly subjective and, therefore, should also be qualified to provide that in the eyes of a reasonable person, it could also be believed to be true. In addition, despite claims to the contrary, this defence is not dependent on compliance with Press Council or equivalent standards.

Hearsay evidence can also limit damages. Under section 29, those adjudicating damages will have regard to unlimited evidence concerning the reputation of the plaintiff which, in civil courts, can also include hearsay. This provides for a framework of discrimination and will deter many people who have a legitimate defamation claim from taking action. That issue must be addressed.

Sinn Féin fully supports the right to information and freedom of the press as basic cornerstones of our democracy. We are opposed to censorship, media monopoly and abuse of the press by vested interests through the publication of biased or false information on individuals and groups. In keeping with this, we believe that the media industry should be fairly regulated and be accountable in the public interest, much as the media already demands of others.

I wish to give an extremely qualified welcome to the Bill and indicate my party's intention to propose amendments to it on Committee Stage. Measaim go bhfuil gá le Bille níos foirfe. Déileálann an Bille seo le ceisteanna tábhachtacha agus beidh orainn teacht ar ais chucu ar na Céimeanna eile ionas go mbeidh muid ábalta déanamh cinnte de go mbeidh deis ag na daoine ar a ndéantar clúmhilleadh cás a thógaint agus an clú sin a fháil ar ais, fiú má déanadh an clúmhilleadh sin le nó gan mailís. Is gá go dtuigfidh na meáin go bhfuil dualgais orthu chomh maith ó thaobh na saoirsí atá acu, gan mí-úsáid a bhaint astu. Tá dualgais orthu freisin, de thairbhe na saoirsí daonlathacha sin, an fhírinne a chur i gcló gan clúmhilleadh a dhéanamh nó gan clú duine ar bith a scrios d'aonghnó. Aon uair a milltear clú an duine d'aonghnó, tá sé deacair an clú a tharrtháil arís. Ní leor leithscéal gearr i gcúinne leathanaigh sa pháipéar, ná ní leor cás clúmhillte a bhuachaint. Go minic, i ndiaidh an chlúmhillte teipeann ar shláinte an duine agus ar a ghnó. Go minic freisin tógann sé tamall fada le teacht slán uaidh. Molaim an Bille agus tá súil agam go mbeidh Bille níos foirfe againn amach anseo nuair a bheidh muid críochnaithe leis sa Teach seo.

I wish to share time with Deputy Mattie McGrath.

I congratulate the new Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, who will continue the excellent high standards that he has brought to the other portfolios he has held. I wish him, his officials and the Garda Síochána every success in their work on behalf of the people. I have every confidence that the Minister will do himself, his constituents and the people proud.

This Bill provides for the reform of the law relating to defamation and will replace the current legislation which dates back to 1961. It is important because it concerns the very essence of a democracy, namely, the right to freely communicate facts, opinions and comment. Any change in this area must be carefully thought through in all its implications. We cannot afford to get this wrong which is why the formulation and implementation of this Bill has been such a long and detailed process.

The need for reform was set out in the programme for Government and, since then, the Bill has been subject to a great deal of reflection and consultation. In that context, I congratulate the former Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, who engaged in a lengthy and thorough debate and consultation with our colleagues in Seanad Éireann. This consultation has resulted in some further improvements to the Bill, upon which I will expand later. The contribution of the former Minister, Deputy Brian Lenihan, was acknowledged by all sides of the House, most particularly by Senators Joe O'Toole and Eugene Regan.

The Bill takes into consideration recent case law and is designed to simplify the law of libel for the media and those taking legal actions. There are many positive provisions in the Bill which I fully support. At present, newspapers and print publications are reluctant to apologise even when they have made genuine errors as to do so could expose them to legal proceedings. This, in turn, can lead protracted court cases which can impose enormous costs, particularly for people eager to restore their good name. The Bill will do much to clear up what is, at present, a very grey area.

The Bill will mark the start of a move towards a system based on conciliation. This change will strengthen the hand of the Press Ombudsman and Press Council in dealing with complaints against journalists and editors. The new defence of fair and reasonable publication on a matter of public interest, rather than public importance, is aimed at bringing greater clarity to the law. The term "public interest" is well understood in case law and hopefully this will clear up any ambiguity.

The issue of what "public interest" means was raised on Committee Stage in the context of the death of the late Mr. Liam Lawlor — may he rest in peace. The coverage of Liam's death was particularly hurtful to his family in what was already a terrible time for them. The coverage of death, including by suicide, is a particularly sensitive area. The Press Council has an opportunity to step in and determine what is fair and reasonable. This function is best left to the Press Council, rather than going down the legislative route. That said, I was concerned at some of the media coverage of the recent horrific tragedy in Wexford. Some of the reporting must have caused further suffering to the broken families and friends left behind. In similar circumstances in the United Kingdom, a system is in place whereby only one photographer attends the funeral and photographs are then pooled. I do not see why such a system could not operate here.

It is vital that the Press Ombudsman and the Press Council have the full support of publishers, editors and journalists. It is also vital that those who make complaints, be they public figures or otherwise, feel free to do so without fear of recrimination or of being singled out by the media. The Bill will encourage journalists, who often work under time pressures and tight deadlines, to be more aware of the need for fair and accurate journalism. In this regard, I congratulate all members of the print media who have signed up.

Freedom of the press is essential to our democracy but it cannot be completely unfettered. The establishment of the Press Council, along with the passing of the Defamation Bill, will ensure that the traditional high standards of Irish journalism will hold firm in the new globalised media market.

Speaking in the Seanad, the former Minister for Justice, Equality and Law Reform said he had recently indicated to the Press Ombudsman his wish for the Press Council to address as a priority the breach by newspapers of the fundamental Irish custom of respect for the dead, especially on the occasion of a funeral. We have a great respect for the dead, especially at the sad time of funerals. This respect must be maintained.

The Minister was responding to concerns expressed by Fianna Fáil Senators Jim Walsh and Denis O'Donovan about the impact on the family of the late Deputy Liam Lawlor of reports published in the immediate aftermath of his death in a car crash. The matter was raised on Committee Stage of the Defamation Bill. The Minister said there were difficulties about dealing with the issue in this legislation but that it was a matter on which action would need to be taken. He was anxious to give the Press Council an opportunity to plug the black hole. However, he also said that if the Press Council could not demonstrate a capacity to do so and legislators could not address in the Bill the issue of defamation of a deceased person at the time of his or her funeral, he would return to the issue when dealing with the Privacy Bill. He stated it was an issue which he was not prepared to let pass any further. He said the new defence of fair and reasonable publication on a matter of public interest rather than public importance was aimed at bringing greater clarity to the law. The term "public interest" was well understood and well established in case law and also reflected recent developments before the courts when Mr. Justice Peter Charlton had made reference to it. Others are concerned that the change will enable a defence of defamation to be mounted with a very low standard of proof. The view was expressed that it was necessary to have a definition of "public interest" included in the Bill. The media will be entitled to lodge a sum of money in court without an admission of liability.

Another important change in the law is the creation of an offence of fair and reasonable publication on a matter of public interest. One of the principles accepted by the Minister during the course of the debate in the Seanad was that an apology by the media would have to be given the same prominence as the original offending article. The Bill was described in the Seanad as a progressive measure. We all hope it will lead to better relationships between the press and the people.

The concept of the Press Council is to give the public a faster and cheaper avenue to resolving grievances with newspapers than that provided by the courts. The aim of the council should be to encourage newspapers to resolve all complaints internally in the first instance. Most newspapers and magazines are well equipped to do this. I hope complaints can be resolved within six weeks once the system is fully operational. Only in cases where complainants and publishers fail to reach agreement will the Press Ombudsman or the Press Council impose any sanctions. Bereavement is one issue on which it is hoped newspapers will show more sensitivity.

I commend the Bill to the House. The majority of journalists are decent, honourable, reliable, sensible and fair-minded. My brother is a journalist, as is my nephew and sister-in-law. I take the opportunity to commend the Longford Leader, the Longford News and Shannonside radio for their excellent coverage which is fair and impartial at all times. I was told one time that the only bad publicity was an obituary but I do not believe that any more.

I congratulate the new Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, and wish him, his wife and family and all his officials the very best for the future. His is a difficult role. I compliment the former Minister, Deputy Brian Lenihan, on the role he played in the Department and his far-seeing developments.

The reform of our defamation laws has been long in the making but is to be welcomed, even though overdue. The setting up of the Press Council and the Office of the Press Ombudsman was the work of the former Minister, Mr. Michael McDowell. It is no easy task to reach agreement among all the elements of the media industry to the code of conduct and complaints mechanism. Credit for this considerable achievement is due to the Irish press industry steering committee which brought together the representatives of the national and regional newspapers, as well as the UK newspapers with Irish editions and the periodical publishers.

The role of the Press Ombudsman and the Press Council is to ensure newspapers and magazines abide by a code of practice agreed with the support of all major newspaper and magazine publishers and the National Union of Journalists. The concept is to give the public a faster and cheaper avenue to resolving grievances with newspapers than the courts provide. We all know that going to court should be a last resort and can be very time consuming and an arduous and lengthy process. I would like to see newspapers resolve all complaints internally in the first instance and most papers and magazines are well equipped to do this. It is hoped complaints will be resolved within six weeks once the system is fully operational. Only in cases where complainants and publishers fail to reach an agreement between themselves will the Press Ombudsman or the Press Council impose any sanctions.

A section of the proposed Defamation Bill will allow newspapers to apologise where they have made genuine errors. Fear of litigation if an apology is offered can be an impediment. Any publication that offers an apology to a third party may find itself open to legal proceedings if this is a case of defamation or if untruths are told about a person or an organisation. This has long resulted in a reluctance on the part of newspapers to apologise, even when they recognise that an error has been made. This is a grey area. Some have reservations and concerns about media intrusion and this is not exclusive to those of us involved in politics. However, the former Minister, Deputy Brian Lenihan, was emphatic that if the media failed to show respect for the right to privacy as specified in their own code of practice, the Government would proceed rapidly with its privacy legislation. This is to be welcomed as a further measure to strengthen this new provision.

The Bill underpins the activities of the Press Council and the Press Ombudsman and removes the liability previously associated with an apology. This change will strengthen the hand of the Press Ombudsman and the Press Council when dealing with complaints against journalists and editors. There is a new defence of fair and reasonable publication on a matter of public interest. This is an important development in terms of the ability of the media to investigate and report on matters of public interest. This is to be welcomed and the media are to be thanked. We owe them a great debt for their investigations. They bring us the news and report on what is happening.

Also of importance is the ability of the media to investigate themselves in cases involving wrong-doing. This is not an easy defence to plead and not for use in trivial circumstances. Many are sceptical about libel law reform as they fear that any action taken against the media will result in the media exacting their revenge such as making them a target for further negative stories or publicity. This would certainly be the view of many in public life. The world of journalism must be open to public scrutiny. The code of ethics sets out clear guidelines which must have the full support of all the stakeholders — publishers, editors and journalists. The establishment of the Press Council code of practice and the Defamation Bill uphold the principle of a free press but also urge journalists to be fair, accurate and truthful and to respect the right of all individuals, including public figures, to a private life.

Bereavement is an area where we hope newspapers could show more sensitivity. In regard to recent and ongoing events, I appeal to all organs of the media to exercise restraint. There was a recent tragedy in Wexford and earlier this year in my community a horrific murder was committed in a rural parish. Communities in those areas are not able to deal with the intrusion. It is bad enough to suffer the trauma of a terrible deed and senseless act and to try to come to terms with it while comforting the grieving families without the intrusion of the media who have a scrum in the community for photographs and background evidence of the family. That is unacceptable.

If a person is convicted of a crime and gets a custodial sentence which he serves, he pays his debt to society. Hopefully, he will have been rehabilitated while in prison. When that person is released, he is a free person.

In the recent case in Wexford, nobody could have any facts in regard to what happened. Yet journalists came on radio and television and tried to piece together the last desperate acts that may have taken place in that household and put a picture to a tragic story. That is deplorable and must be condemned out of hand. Nobody could or should be expected to condone that.

Where a person seeks legal redress following an apology, which I had to do and got it, the cost of defamation litigation is over priced. It is almost impossible to obtain the relevant apology because of the costs incurred by the injured party and, if successful, by the newspapers who have to print an apology. That is unfair also.

I call the Minister but remind him that I have to conclude the debate at a minute to seven.

I thank all the Members who have contributed to the debate. As in the Seanad, Members on all sides have strong views on this issue. I have listened to a number of speakers since coming into the House but I kept a close eye on the debate from my office. It is clear that many Deputies have personal issues in regard to the law of defamation. I have taken account of their contributions and will bear them in mind on Committee Stage.

I have noted particularly the views expressed by Deputies in defence of fair and reasonable publication on a matter of public interest, as set out in section 24. I share many of the misgivings expressed in regard to what constitutes the public interest. However, our courts and those in the UK and their decisions in this area have evolved a new type of defence in respect of matters of public interest whose discussions would be of benefit to the public. Deputies should be aware that this defence will be a difficult one to plead successfully. It is clear that it will not be available for trivial issues, often manifested in some of our print media. The provisions of section 24 seek to put a statutory framework on the jurisprudence that is being developed.

Deputies mentioned the operation of the Press Council. As my predecessor mentioned, it is a light model of regulation and is just up and running. The House will wish to give it some time to reach an effective level of operation. Deputies will appreciate that it would be inappropriate of me to comment on the recent resignation of a member of the Press Council. He made his position clear in a newspaper article, which I read with some interest. Deputy Rabbitte asked how many members were on the Press Council. There are 13 members — seven are independent public interest directors, five represent owners and publishers and one represents journalists. In effect, it has an independent lay majority. In connection with what Professor John Horgan had to say in his article, Deputy Rabbitte asked what should be our attitude. It is important that we allow the Press Council to establish its own practices and procedures. It is not for us to be prescriptive in regard to how it should lay down its operating procedures. Others may have a view on that issue. We should err on the side of caution when it comes to intervening.

Many Deputies asked for clarity in regard to the Privacy Bill which is on the Order Paper. I am happy to provide that clarity. Deputies should bear in mind that the Privacy Bill creates no new law, rather it puts a statutory framework on the existing constitutional right to privacy and it has regard to the rights provided under the European Convention on Human Rights. In so doing, it incorporates the developing jurisprudence in regard to the appropriate protection of privacy in our courts, the UK courts and the European Court of Human Rights in Strasbourg. The Privacy Bill seeks to inhabit the space between, on the one hand, the Data Protection Acts and, on the other, the necessary and appropriate provisions in regard to security and crime issues.

The focus of the Privacy Bill is not as some commentators and Members seem to think all about possible violations of privacy by the media and nothing else. This simply is not so. The Bill deals with a range of situations where the privacy of a person might be violated and which would not involve the media at all. Many of the complaints my Department receives in this regard involve actions by individual citizens against each other. I am sure other Members receive similar complaints from time to time.

The Privacy Bill provides innovatively, and for the first time in Irish law, for the protection of a person's right to control the exploitation of their own image for commercial purposes. This has been in the news recently in regard to sports persons and others. The privacy provision in the Press Council's code of practice will help if its members are willing to subscribe to the standards set down to prevent excesses by the media and to avoid unnecessary court actions.

The law in respect of defamation and privacy is dynamic. It changes its features constantly. We need to keep under review all developments of the law.

The time has expired.

Only a short passage remains. Perhaps with the consent of the House I could finish; otherwise, I would have to leave it over to tomorrow.

We must be mindful of the constitutional right to one's good name and must ensure that mechanisms for protecting and vindicating citizen's rights are effective. This means we must continuously subject to review all statutory mechanisms for protecting and vindicating those rights. We have a duty to uphold those principles.

I am somewhat surprised at the position expressed by some Fine Gael and Labour Deputies. They seem to show little regard for the existing right of privacy of citizens and the balance between competing rights. Do they suggest or advocate that violations of privacy be privileged in most if not all cases, rather than seek to provide the appropriate balance instead? There is no threat, as Deputy Flanagan and others might assert, to investigative journalism that rightly seeks to hold Government, institutions of the State, business and other organisations up to scrutiny. The opposite is the case.

The Defamation Bill 2006 respects and provides the necessary balance between the competing rights of freedom of expression and of the respect for one's good name and reputation. I intend to advance the Defamation Bill. In view of the fact that the issue of privacy may affect individual members of the public, my Department will continue to take into account developments in this area of the law in our courts and elsewhere and views expressed by interested parties and the public on the details of that Privacy Bill. We will examine suggestions and consider drafting appropriate amendments. I appreciate Deputies' contributions and will bear them in mind during the preparations for Committee Stage.

Question put and agreed to.