I remind Senators it was agreed on the Order of Business that Members' contributions would be extended to 15 minutes and that the debate on this motion would not conclude tonight. Is that agreed? Agreed.
Laws of Libel and Defamation: Motion.
An Leas-Chathaoirleach
I move:
That Seanad Éireann calls upon the Government to indicate what changes, if any, it proposes to make to the laws of libel and defamation and to outline its policy and proposals on the question of ownership and control of the media.
I thank the Leader of the House for agreeing to change the nature of this debate. It takes place in a particular context. Its timing is not accidental. It would have been easy to choose a bland motion for this evening's Private Members' Business, but it is more important in the current climate that we examine the proposition that our libel laws, as at present constituted, hinder the pursuit of openness, protect the guilty and make the unearthing of scandal and wrongdoing much more difficult than it should be in a free and democratic society.
In a passionate article in today's Irish Independent the distinguished and fair minded journalist, Mr. James Downey, asserts this is so and lays the blame fairly and squarely at the feet of us politicians. He states we have failed to address the issues and to tackle reform and we have ignored the many proposals for reform from various bodies over the years. In an even more wide-ranging series of articles in the Irish Examiner in recent days much the same point was strongly made by, among others, Mr. Pat Brosnan and Mr. Carl Brophy, and I suppose most people would say they have a point.
The first question is whether in making their case they are telling the full story. If this debate is to make progress, we must begin by accepting the good faith of both sides. Not all opposition to radical change is based on fear or on personal interest. Much of it is based on an understandable desire to ensure age old civil liberties are not swept away, on a determination to ensure the worst excesses of media intrusion are not tolerated here and on a justified suspicion of the over-concentration of media ownership in very few hands and the scope for abuse that allows.
Opposition is also based on a reluctance and inability of the media to install an effective supervisory regime that would generate public confidence. It is also based on the fact that the media is not a homogeneous entity, that there are many agendas, not all of them open, that ethical standards within the media can and do vary and that in some cases standards can be very low.
These are real fears and those who want reform do not serve their case by ignoring them or regarding them as being ill-motivated or self-serving. It is in the nature of things that there should be tensions and a degree of mutual suspicion between politicians and media figures, be they journalists or media owners. The last thing that would benefit anybody would be a degree of cosiness or intimacy, but that does not mean each side cannot listen to the other in the interests of ensuring our public life is as open as possible.
It is a matter of regret that reform of the laws of libel and defamation has not been given the urgency it should have been given over the past decade. Immediate changes could and should be made to these laws. Not all the resistance to change is based on reaction, hatred or antagonism by politicians as some media figures would make out nor, in spite of much that has been said in recent times, is there a media crisis, certainly not in economic terms. The fundamentals of the media industry are sound.
The largest newspaper group, Independent News and Media, has become a world player, one of the most important media groups in the world. It deserves every credit for achieving that position and, rather than begrudging it, we should applaud its success, although whether there is a danger of its achieving undue dominance within the Irish market is a question we can address later. The second major group, The Irish Times Limited, may not have an international presence but it has an international reputation and, as far as can be judged, is economically sound, expanding and consolidating. The third group, the Irish Examiner, has poured large sums of money into improving its product, moving from being a regional to a national player and, by all accounts, doing so with some degree of success. The evening market is not expanding, but this is due more to social conditions than to factors related to the evening paper. There is no financial threat in this sector.
We have a thriving tabloid industry, some of it generic, some of it imported, but in economic terms all is profitable and competitive. We have never had more Sunday newspapers. With the exception of one, all seem to be profitable, some of them enormously so, others less but comfortable and none in any danger of collapse. By and large our provincial papers have adapted to change, some have fallen behind, but the majority are healthy and as influential as they have ever been.
I am talking largely about the print media, but it is important to make the point that, whatever else about our laws in this area, they do not appear to have damaged the economic strength and underpinning of the media industry. The media has been one of the great beneficiaries of the economic boom.
What then of the legal framework? Many journalists expressed the view that there is some sort of repressive legal regime here, that there is a legal climate which is hostile to honest investigative journalism. I would like to hear these views elaborated and developed further.
The freedom of the press is strongly embedded in our Constitution, our law and in many aspects of our culture. We may in the past have had a regime of official secrecy and secretiveness but, by and large, that has been broken down over the past number of years, particularly by the Freedom of Information Act which is far reaching and wide ranging, despite what some people in the media say. The Act is policed by an Information Commissioner whose philosophy leans on the side of openness and discovery. I could elaborate further on this issue but it is not central to the point of the debate.
Our lives have opened up in virtually every area and in the way public business is carried out. Society is more open than it was even a decade ago. We now also have the tribunals which have been doing their bit to unearth the less healthy aspects of public life.
The media enjoy strong economic underpinning and a strong constitutional position. Whether that position is strong enough is the point I wish to deal with. What are the specific issues of libel and defamation reform which are of principal concern to the media? Many of the points made by the National Newspapers Association of Ireland are well made. Elements of the law should and could be changed as a matter of urgency. For a start, there must be a speeding up of the libel litigation process. The period within which an action can be taken should be shortened and the process accelerated. Under the present system an individual might have to wait three or four years from the date of publication to the case coming to court. These delays are unacceptable.
I agree with the association that the judge in a defamation case should be able to give financial guidelines to a jury when deciding awards. If that happens, perhaps some of the large awards of recent years might not recur. However, there is no guarantee that this will be so. When juries were abolished in the insurance sector the level of awards did not drop. Nevertheless, judges should be in a position to give financial guidelines to juries even if it is no guarantee that awards will be smaller.
It is wrong that defendants in defamation actions cannot make a lodgement in court without admission of liability. That is archaic and unfair. Another matter which is of great importance to journalists who work under great pressure is the genuine mistake. Where an apology is offered, it should not be viewed as an admission of liability. Of course, there are apologies and apologies. If allegations are made on the front page in large capitals, the apology should have equal prominence and not be slipped into a corrections and clarifications column or behind the racing results. There should be some degree of parity between the charges made and the apologies. I have great sympathy where a genuine mistake is made by a journalist working under pressure, where there is a genuine desire on the part of the newspaper to amend and apologise but where it finds itself facing a libel charge which I believe to be unjustified.
There is also a need for the establishment of either a commissioner or ombudsman within the industry which is supported by the national newspapers, an independent entity which could resolve complaints speedily, fairly and at low cost. This is something upon which the newspapers have dragged their feet. They say it will only come with a proper reform of the libel laws but I believe it would, in current parlance, be a confidence boosting measure if the newspapers were seen to establish such a council or ombudsman.
These are the main changes sought by the National Newspapers Association of Ireland. It is a modest list and should not create huge problems. It should be acted upon. I suspect, however, that it is only the start. It would not go far towards satisfying more radical demands for change. Mr. Sam Smyth argued strongly in a recent article in the Irish Independent for a defence of qualified privilege, where persons in public life have to prove recklessness and/or malice before they would be entitled to compensation in a libel case. I would like to know more about the operation of such a system. How does one prove malice? I suspect it is not easy. How does one prove recklessness? In the US this practice means that anything can be said with impunity against a public figure. Such a proposal is wide open to abuse and I would like to hear Mr. Smyth elaborate on how it would work in practice.
A good question we could ask is whether these changes would have led more quickly and directly to unearthing the various scandals of recent years. That the media played a vital role is not in dispute. However, would the naming of people on the basis of suspicion or unsubstantiated allegation have moved the process on in a situation where hard evidence is the only tradeable currency? What of the enormous damage and hurt done to those named and shamed and subsequently found to be blameless?
Hear, hear.
What of the damage to their families and reputations, the mental torture and obloquy? I have heard names bandied about, names which would have been published in a more liberal regime. However, from what I know of these people, the charges would not find their way into any court, let alone survive five minutes scrutiny therein.
Before journalists respond by saying that it is part of the price paid for public life, part of the rough and tumble, in the interest of the greater good and so forth, it should be pointed out that we are dealing with people who have families, reputations and dearly won constitutional rights. In my experience, the most sensitive people I have dealt with, when it comes to reputations, are journalists. They react with shocked outrage if their bona fides is questioned. They expect universal acceptance of their good faith and integrity while reserving the right to lash out at those whom they believe, often on flimsy evidence, to have transgressed. What is involved is the balance of rights. The only overwhelming right is probably the safety of the people but if the protection of constitutional rights requires a certain amount of press restraint, it is a small price to pay in the overall context.
There is another problem with reforming the libel laws which few journalists will confront. Theirs is not a homogeneous profession. Standards vary. There are high and low ends of the market. Not all of the low material is tabloid nor vice versa. However, there is a segment of the media which is intrusive, abusive of privacy, unforgiving, vindictive and sensational. We are spared the worst excesses of, for example, the US or Britain, in part because of innate decency and restraint on the part of many journalists but also because of the fear of libel. There is no evidence that serious media people are prepared to address this problem. Most dismiss it as a triviality and an unfortunate fact of life that is not of their making or concern.
The reality is that within the media sector there are many agendas, many of them competing and not all of them open. By its nature, there is much in journalism that is individualistic, highly competitive and forever seeking to push back frontiers. We have benefited from the pushing back of frontiers, but when the frontiers become important personal rights and constitutional freedoms we must ask which right is more important. There also has not been any real discussion about the dangers of abuse on the part of the media. The history of newspapers and television in other countries offers many examples of abuse by over-powerful owners – the waging of personal vendettas and the use of media power as an arm of commercial interests or as a means of political favour.
Do we want a situation where political parties and politicians go, cap in hand, to powerful media figures or shrink from decisions for fear of offending their interests? Can we not accept that not all journalists are operating to the highest ethical standards and that some swim very close to the bottom of the pool? The law is the last line of protection both of the individual and politics against such abuse.
The debate on media reform would carry more credibility and weight if, in addition to seeking reforms which will alleviate and strengthen their position, media leaders and practitioners would acknowledge the validity of the worries about media excess and abuse. It is the biggest obstacle in the way of meaningful reform. These fears and reservations are not just the preserve of politicians. They are more widely shared among the general public than many in the media would like to admit.
It is important that this debate start, that much needed reforms be introduced as a matter of urgency and that the balance of rights which must characterise any relationship between the various estates – the Houses of Parliament and the so-called Fourth Estate – be addressed.
I formally second the motion but reserve my time to speak until after Senator O'Donovan.
I compliment Senator Manning on his very fair and balanced submission. I am quite sure that the subject is close to his heart. He spoke with both affection and great knowledge of it.
I welcome this timely debate. It is important that issues be debated. The Defamation Act, 1961, is not very old legislation because we still use the Offences Against the Persons Act, 1861, and other legislation. The 1961 Act is relatively new as legislation goes.
I concur with the view that we are dealing with a total conflict between two rights preserved in our Constitution. In the first instance we have the constitutional protection which guarantees that the good name of every citizen will be protected from unjust attack. On the other side of the coin, we have Article 40.6.1º which guarantees freedom of expression. These are important constitutional provisions which should be retained at all costs. A central ground that can accommodate both sides should be put in place.
I concur with Senator Manning's remarks when he said that he was worried that the ownership and control of the media may fall into very few hands. That is a major danger and is something this House should be concerned about.
In the past six years there has been much debate about the need to change the libel laws. I am cognisant of a huge lobby by the independent press that these laws should be changed. I concur on some of the issues they raise but I have great reservations about others. Most of our national newspapers, journalists, editors and sub-editors are decent people. However, I strongly believe there are a number of bad apples in journalism who debase and devalue the coverage of events.
In the past decade tabloid newspapers have come to Ireland. I concur with Senator Manning that not everything printed in tabloids is of a low nature or swims close to the bottom, but by and large they have resulted in a significant increase in the amount of money paid out in libel actions. Substantial libel actions against newspapers were rare until about 15 years ago. In the past 15 years huge claims have been made. In many instances the claims went through the court process and some were appealed. In most cases it was found that libel, slander and the defamation of a person's character had taken place.
The newspaper industry told us recently that it had paid out £10 billion in claims and that sum includes costs. That is an enormous sum. In this regard the newspapers cannot say, "Let the politicians, the legislators, change the law and this will all come right." It will not come right. One of the most important findings of the commission set up to look at the newspaper industry in 1996 was to suggest succinctly that an ombudsman or watchdog body for the press should be put in place. I accept that the newspapers are now saying the legislators should change the law first and then they will put that in place. In all of the recent publications, some of which I have read, no journalist adverts to that important issue. If there was an ombudsman or complaints body in place to deal with someone who published an article that was untrue, slanderous, libellous or defamatory, then one could have the right to access someone independent. The newspapers, television and radio have a monopoly and are in control but they have failed to grasp that nettle. It would be an important indication of good faith on their part if they recognised that they were not perfect. They are not perfect. They should agree to have an ombudsman who would deal with complaints.
The law, as it is currently framed since the 1961 Act, means that when a newspaper prints something that is untrue, whether by accident or design, the only redress available is to seek an apology and High Court writs are then issued. Some of those writs are necessary.
A very low, guttersnipe press has come here, admittedly it is a minority. I suggest there are certain journalists who can be categorised in some ways as "guttersnipe" and "cheap shot", going right down to editors and sub-editors. If these matters were redressed among themselves they would save a lot of money and reduce the number of claims.
With regard to the significant claims against newspapers, they claim they were innocent in most cases. I read an article in yesterday's Irish Examiner, formerly known as the Cork Examiner, that most of these journalists were innocent. Some of them may be innocent but there has been a lot of gross negligence in some of their reporting. Two newspapers had to print apologies to me. I never pursued these matters in a court of law because they were small matters.
That Senator was lucky they did because half of the time they will not.
On both occasions I knew the journalists. If they had rung me up and asked if I agreed with their article I could have told them that they were not telling the truth and not to print it. I could have cried halt but I was not given that opportunity. They took the third hand information from another source which was unreliable and then they apologised to me. In one instance, but for the fact that I am not a litigious person, I would have pursued the matter in court and been awarded compensation. Twelve years ago a Cork newspaper printed a front page headline which was absolutely untrue and brought my reputation into question. At the time I was a Senator and my family and I were alarmed by it. I got a front page apology but the damage had been done. That type of journalism was not innocent – it may not have been malicious but at the least it was mischievous. The source that perpetrated this had, at the minimum, mischievous intent.
The Irish Examiner journalist, Carl Brophy, used the headline, “The Irish press are the most persecuted and prosecuted press in Europe.” I disagree with the first adjective. With regard to the second adjective, a lot of it is due to their approach to journalism and reporting. If the Irish press got its own house in order, examined its conscience and if the National Union of Journalists put a framework in place, they would weed out, chastise and reprimand those who are guilty. In most instances the same few journalists are repeatedly negligent, mischievous and, in some instances, malicious and very careless when reporting. That type of reporting results in litigation and huge awards.
There is a large picture on the front of the newspaper, which is unfair, of Proinsias De Rossa getting an award of £300,000. As far as I am aware, that case went through the courts, through appeal and the award stood. The press suggested it is totally clear and that if politicians were to act the situation would be resolved. That is not correct. One of these journalists said that a few years ago 50% of the litigants before the highest courts in the land were politicians. That is an alarming suggestion.
I very much doubt it is true.
If it is true, politicians of all creeds must be wrong or, alternatively, the media see politicians as fodder. At the same time, they want our goodwill to change the legislation and to introduce a new defamation Act. Yet, they still destroy politicians lives willy-nilly and, sometimes, most unfairly.
I have no doubt that in the case of these awards great care was taken by the judge and jury in coming to a decision. The decisions were not taken lightly. One of the main defences of libel or slander is justification. When the cases went before the highest courts in the land, the newspapers concerned were unable to justify their actions and the matters printed. This is a serious indictment of them.
Since taking office, the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, has met the various organisations and media groups concerned and is seeking to put together a framework for change. Certain changes would be welcome.
I studied carefully the report of the Law Reform Commission and I agree with some of its points. Reference is made to the abolition of a distinction between libel and slander and a new definition of defamation. I would not have a difficulty with that. It would be wise and would make matters more concise and correlated. The report also makes reference to a provision whereby defendants in defamation actions might be allowed to make payments to court without an admission of liability. I do not have a problem with that. It is common in civil law, in negligence and tort cases, and it should be agreed.
The report also states that an apology is not to be construed as an admission of liability but in any defamation action it shall be lawful for a defendant to give in evidence of litigation or damage that he made or offered an apology to the plaintiff in respect of a complaint. I have mixed views on that. Why would newspapers print an apology unless, within 24 to 48 hours having got a solicitor's letter and a threat of a writ, it felt that perhaps it was wrong and should make an apology? I have no doubt that newspapers would not print either a headline apology or a subtle apology on the racing pages or near the death columns, unless they had reservations in that regard. A banner apology would not be printed unless there is a strong degree of neglect or liability. Therefore, I am not sure if that change should be made.
The report also refers to a provision for a defence against a claim for damages in cases where the plaintiff has not suffered any financial loss, that the defendant should exercise reasonable care prior to publication in attempting to ascertain the truth of the allegation. I do not have a difficulty with that. If a person has not suffered financial loss or serious damage to his reputation, I do not see why he should be awarded major damages. I found it interesting that the commission set up to examine the newspaper industry stated that in many instances where, say, in respect of politicians, something is printed innocently and not maliciously, there should be a method where one could apply ex parte to a court or an ombudsman to obtain a certificate of apology and a record that a mistake was made. Some errors made by newspapers are inoffensive. That is an interesting aspect which should be considered.
The Law Reform Commission's report also states that a provision should place the burden of proof on plaintiffs in defamation cases as in all other cases. I do not agree with that. The newspapers would be delighted with this and it is something they have highlighted. Articles are written by professional journalists and, if I am correct, articles are seen by sub-editors and some times major headlines would be seen by the editor. I do not see why the burden should be shifted. If one defames or slanders somebody and the matter is given a banner headline I do not think the onus should be on a person to prove his innocence. If I accused any of my Seanad colleagues of doing something alarming, that a Senator was drunk last night or that I saw him in compromising circumstances, it can be extremely difficult for him to prove his innocence. I would not go along with that suggestion.
The newspaper industry wants changes on guidance to a jury and I would not have a difficulty with that. It would not be wrong for a judge to advise the jury with certain directions. I am not happy with the suggestion, although the newspaper industry would be in favour of it, that juries should be abolished in actions of defamation and libel. I would be in favour of retaining the jury. As a practising lawyer, juries in most instances in Irish courts seem to be disappearing from decade to decade. Various courts are purely judge-driven but, back to the time of the Magna Carta, it was a fundamental principle that the ordinary citizen would have a say in the way justice was administered. By abolishing juries in such cases we would diminish their value in the legal system. That is a policy I would not support. I do not have a problem with certain directions being given to juries but I do not agree with abolishing them. In fairness, the Law Reform Commission did not see any strong sense in it either, but it might be simpler for the newspapers were that route taken.
This is not a simple matter to deal with and I have no doubt the Minister is doing his best. There are great conflicts of interest but in the past two or three days The Irish Times, the Irish Examiner and other papers, including the Sunday papers, have portrayed a notion that the politicians and legislators are dragging their feet. I would like to kill off that notion because it is untrue. Up to ten or 12 years ago, the notion of reforming our defamation laws was new. The Defamation Act, 1961, which I think came into effect in 1962, is not old legislation. There is room for reform and I would like see it. Unless the newspaper industry and other media have self-regulating measures and agree to the setting up of an ombudsman, there will not be new legislation on the Statute Book before this Government falls – probably in two years' time. They should look at themselves before accusing Members of the Oireachtas.
I compliment Senator Manning for tabling this motion. It is an important matter to examine and it is a significant opening shot in a debate which is fairly wide-ranging.
I would like to draw the visual attention of the House to the press gallery which is not decorated by one member of the press. This House and the other House are constantly lectured by journalists, who should know better, about there being only three, four, six or eight Members present in this House during an important debate. They know that Senators are following the debate on their monitors while doing the job for which they are paid by the taxpayers, yet they consistently lie and lie about politicians. Let us draw attention to the fact that we have an empty press gallery during this important debate. That says something about journalists' concerns about the questions we are discussing, even though the proprietors of the newspapers have beaten little tracks into Leinster House to lobby and cajole us and put a certain little element of threat into what they have to say.
It is important that we all state our interest and I will do so. I am honoured to be a politician. I regard it as a vocation. It is a considerable honour to be elected by the citizens of the State to represent their interests. The only time I was approached in a car park in the environs of this House by somebody bearing a brown envelope was when a Member of the other House wanted to write down the name of my insurance company as I had inadvertently scraped his car. I am in the clear there. I am also a journalist. I write a regular column in the Evening Herald and I quite enjoy doing it, although I find the deadline a little intimidating. I have in a sense a foot in both camps and my position is a little delicate as I am in the process of applying for membership of the National Union of Journalists. It will be interesting to see how my contribution colours my reception there. I will be watching carefully. I also think journalism is an honourable trade.
I recently mourned the death of a dear friend, a man of the highest calibre, Michael O'Toole, who wrote for the Irish Press, the Evening Press and the Independent Group. I do not take seriously the kind of squawking we get from the newspaper lobby on the subject of libel law. One of the reasons is that I have been consistently libelled myself. I do not see any reason we should accept the arguments put forward that people in public positions ought to accept a lower level of pain threshold when they are lied about in the newspapers. My position remains, if newspapers have the truth and can justify it, let them publish, publish and be damned, but have the courage to publish and take the consequences if it is subsequently determined in a court of law that they have traduced the reputations of decent people and printed lies.
Let us scotch this nonsense about qualified privilege. There was a classic example of that across the water when the former Taoiseach, Deputy Albert Reynolds, sued The Sunday Times whose proprietor is the notorious Mr. Rupert Murdoch. He won the libel action and he was awarded, first of all, no damages and then the judge improperly intervened to alert them to the fact that that decision could call the whole case into question and he was awarded the insulting damages of 1p. The Times Group fought that case to institute qualified privilege in British case law. An individual would have to prove malice against the vast machinery and enormous resources of wealth of newspaper empires. I would not accept that and I make no apology, even though I was, once again, misquoted and misrepresented by The Irish Times on this very point as a result of the Order of Business a few weeks ago when Senator Manning raised the question of libel. A person, apparently from the National Union of Journalists, wrote in rebuking me, misquoting what I said and saying it took place in the context of the recent libel debate in the Seanad. There was no libel debate – it was the Order of Business. I looked up what I said on the record and I stand over every syllable of it. I intend sending a copy of my contribution to the newspaper. I did not say newspapers should be punished and humiliated.
We should stand by the truth. We do not want to go down the English road or the American road. Does anybody here want a situation where because Rupert Murdoch, the nasty little Australian creature that he is, felt snubbed by the Royal Family, somebody listened in to a private telephone conversation between Prince Charles and Mrs. Camilla Parker-Bowles and it was published in The Sun? That should be a criminal offence. If it is not a criminal offence in this country, I hope the Houses of the Oireachtas will rapidly make it a criminal offence to listen in on a private telephone conversation and publish the details. The Sun got away with it for motives of personal spite on behalf of the owner of the newspaper.
The Sun and other newspapers have also libelled other people in the public eye. Elton John is gay. Does that give a newspaper the right to say he holds drug crazed parties where rent boys are provided? That is what the English newspapers said. Of course they lost. They had to pay £1 million but it was worth it because their circulation went up. Is that the road the newspaper proprietors of Ireland want us to go down? If it is, I would advise both Houses of the Oireachtas to very carefully observe that situation and make sure that does not happen.
It was recently stated in a newspaper that 50% of litigants in libel cases are politicians. I would love to see those figures. I believe it to be a lie. The courts are full of libel cases. We do not have enough politicians, mathematically speaking, to supply 50% of those involved. I do not believe they do. Nobody with knowledge of the courts would believe this is true. It is not. Some people, particularly newspapers, get stung when they lose a case. I am glad Deputy De Rossa won his case. He had great guts to take on the newspapers. It is very difficult for an individual to do so.
I take a particular interest in this matter because I have been at the receiving end many times. I have had, by and large, a pretty good run from the media in this country. Many of my friends are journalists. Whatever the newspapers and certain journalists say, many of them have privately agreed with me that newspapers should be prepared to print the truth and stand over it, and take their medicine if they print lies.
Senator Manning drew my attention to an article by James Downey, a very distinguished journalist. It worries me a bit. He points out that Mr. Dunlop was no mean hand at using the telephone to gag newspapers by a kind of pre-emptive strike in terms of issuing writs—
That matter is currently before a tribunal and we are not at liberty to discuss it.
I see. Various people have issued writs and threats etc. I do not believe there should be the possibility of pre-emptive strikes. We must speed up the process in the courts so that these matters can be properly determined early on. In a situation where the truth is known it should not be possible to gag the press. That is the one point I will concede. I was going to comment further but I have been gagged myself. I was going to make other comments on that. Let us be honest. I will put it in basic principle. We have been told that the publication of rumour will stop evil practice. That is nonsense. It is a matter of public record that people involved in this series of events have continued to this day, so that obviously does not work.
Mr. Downey goes on to say that politicians whose personal probity is not in question have declared themselves in favour of making the libel laws not easier but harsher and they thus display a shocking ignorance of the role of a free media. That is not the worst aspect, we are accused of undermining the most important democratic institutions and the reason is the hatred of the media by the politicians. That is a little exaggerated. His article goes on to state:
But if, at a time like this, the politicians refuse to give us civilised libel laws, the public will be entitled to draw their own conclusions. And their conclusions will be less favourable than those of the (far too tolerant) journalists. If the politicians do not act on the basis of democratic principle, they would be well advised to act on the basis of their own interests.
That is a rather curious paragraph and I suggest that the House might like to dissect it in more detail than I have time to do.
I would like to record some of my own experiences of newspapers. During the period when I had a row with the then Cathaoirleach, Deputy Seán Doherty, a very serious legal situation obtained and I was advised by my barrister, Mary Robinson, not to make a statement. I did not make any statement. I made no documents available but The Sunday Business Post obtained a 20 page document which I had drafted for my legal advisers. I did not give it to them, it had a limited circulation and they got hold of it. They published it and a photograph of me taken in the street with it, which gave every casual reader the impression that I had spoken to them and given them all this information. I had a very difficult conversation with Mrs. Robinson who eventually believed that I was not involved. The newspaper then printed an editorial, saying the only reason I took on Deputy Doherty in this House was because I wanted to get myself onto a trip to South America. It was not even possible for me to go on that trip for technical reasons – I could not have gone. Naturally, it did not publish an apology?
When I retired from Trinity College on health grounds, The Star and the Evening Herald printed articles with headlines implying that I was dying of AIDS. They said that I laughed off rumours that I was dying of AIDS after a serious illness and so on but, as the courts know, printing the denial of a rumour is tantamount to printing the rumour itself. The relevant case is Major v. The Spectator. The House will excuse the vulgarity of my language when I indicate that The Spectator ran a headline along the lines of “Major denies screwing the cook”. He was awarded £65,000 for it. The cook was badly advised not to sue because she would have made at least half a million on the same grounds because it was far more insulting from her point of view. Printing the denial of a rumour is tantamount to printing rumour.
Recently, I have had a dose from The Irish Times. First, Kevin Myers wrote a wonderful, coruscating article, impugning my capacities as a teacher, a human being and everything else. I replied to him and it was all jolly japes and fun but, of course, my letter was toned down, not for libel reasons but for reasons of supposed good taste.
Following that, the environment correspondent of The Irish Times wrote an article on the celebrated gates of North Great George's Street. I was quoted in every second paragraph and referred to in the paragraphs in which I was not quoted. I was never telephoned. I had no conversation with him. The illustration, which shows the gates with the headline indicating that we were closing the street off completely, was carefully cropped to give the impression that the gates stretched right across the street and there was no pedestrian access. That is an interesting journalistic standard.
This was followed by a letter from a correspondent in Foxrock, lecturing about the dangers of snobbery. From where I live in Dublin 1, that came as a certain irony. It impugned me on the basis of abusing taxpayers' money and abusing my position in this House. I telephoned the editor and, naturally, he was too busy to take the call. I asked my solicitors to write. There were about 14 grounds of libel and defamation and I was advised by senior counsel that I had been seriously and grossly defamed and libelled. All I sought was a retraction of this poisonous, untrue and lying statement, and an opportunity to reply. Did I receive them? I certainly did not.
All I own in life is my house – on which I have spent 25 years and which is now probably worth a considerable amount of money – the debt into which I fell in restoring it, a disability pension from Trinity College and my taxed income from this House. Does anyone think I could take on The Irish Times? Although I was advised I had a strong case, I was also advised there might be a difficulty because juries sometimes like to buck the trend. It would not have been too much for The Irish Times honourably to withdraw a lying allegation that damaged and offended me. I was not even asking for my costs. I certainly was not going to pursue it, although I might yet.
I have had sleepless nights previously when I took on the Goliaths of Irish society and I do not see why a newspaper that is looking for civilised treatment for itself should mete out treatment as I have had to one individual. If I, in my position in public life with my background and resources, tremor before the power of a newspaper, what about the little person who receives this kind of treatment? What about the politicians who are even considerably poorer than I am?
I have grave reservations about the motivations of newspapers in seeking to have even more lenient laws. There would be some matters I would consider. People should not be gagged, but we have pusillanimous journalists in this country, who are now all congratulating themselves about what they knew about this and that. They knew much more than they are indicating because I fed them with much information about the property situation in this city and damn few articles were published, because they said they were worried about this and that.
We should be grateful to Senator Manning for raising this important issue. I have declared my interest, I have a foot in both camps. I look forward to seeing whether I am to be punished now by my journalistic colleagues. I warn the House not to take the route which the neighbouring island has taken because that will lower the standards of public life. As a friend of mine, the playwright the late Denis Potter, speaking of Mr. Murdoch and all his works, said that he singlehandedly debased public discourse in Britain and used the newspapers to do it. We must not let this happen in this country.
I have an interest to declare as a director of Independent Newspapers and as a writer. I am carrying a brief for nobody and have discussed this matter with nobody. I have even preserved myself from the reflections of my colleague, James Downey, in today's newspapers. I am not quite sure what he said.
I was very pleased that Senator Manning raised this important issue today. I congratulate him on that and also on the carefully modulated way in which he presented the matter. We do not do either politics or journalism a service by turning this into a gladiatorial struggle between good and virtuous politicians on the one hand and wicked and conniving journalists on the other or that journalists should see all virtue on their side and wickedness on the other. It is far too serious for that. I would argue for the importance of a free and active press, which nobody is questioning, and for a strong press. Senator Manning made reference to the strength of some of the Irish newspaper groups but it is important that they are strong. There cannot be an effective press without organisations which have the resources, both of people and money, to mount the sorts of investigations that are needed.
We need to maintain an Irish media presence in an industry which is globalising rapidly and in which Irish-produced newspapers are increasingly a decreasing proportion of the newspapers circulated in this country daily. There is another reason to examine the libel laws and the conduct of newspapers generally, that is the speed with which the industry in changing. It is changing at a rate of knots in a way in which people in the industry scarcely understand. That is particularly true of the Internet and other modern media. We must examine the extent to which the law can cover libel on the Internet. Britain has just had its first case of Internet libel and I know at least one Northern Ireland politician who has issued a writ for libel because of something that appeared on the Internet.
There should be a trade off. Senator Manning talked about a balancing of rights. The public have a general right to know, particularly a right to know what their public representatives are doing and whether their actions live up to what they profess to be doing. The public, including public representatives, also have a right to privacy and protection. The libel laws have become onerous and counterproductive, not to the profitability of newspapers but to the freedom of journalists to get at the truth of difficult cases. Many of the recommendations which have been made would go a considerable way toward dealing with that.
It is ridiculous that a person can get £500,000 for a slight loss of reputation or a slur on his character whereas the family of someone wiped out in a horrible car accident might get £50,000. I agree with the Senators who argue for the continuation of libel cases being heard by juries but there are strong arguments for advising juries on guidelines on the amount of damage really suffered.
It is hard to withstand the argument that public figures, people who offer themselves for election, should be more durable than others and should have a slightly thicker skin; they should be more open to challenge. We do not have the absolute dedication to freedom of speech enshrined in the first amendment to the American Constitution and its interpretation, particularly in the The New York Times v. Sullivan case, but nevertheless there is a strong argument for greater ability to scrutinise the activities of public representatives in their capacity as public representatives. It has nothing to do with their private lives, their families or intrusion. I agree with Senator Norris that such things as phone tapping and the interception of private messages and the theft of private papers should remain a criminal offence.
The newspaper industry, for its part, needs to get its house in order. I have argued for a long time for the creation of a newspaper ombudsman either for each newspaper, as is the case with The Washington Post, or, as would be appropriate given the size of the market in Ireland, for all Irish newspapers. It should be possible for a newspaper to retract an honest mistake. People should realise the pressure under which newspapers are produced – the whole process is truncated into a few hours at most and people work under severe pressure. The job of an ombudsman should be to receive complaints from people about the way they or their subject were treated in the newspaper.
There should be a code of ethics for each newspaper. Again, The Washington Post is an outstanding example of such a practice. Its code of ethics is clearly printed and details the amount of verification required before a story can be printed.
Journalistic standards should be regulated, as standards should be in all professions. They can be influenced and assisted by a press commission. I have not seen the outcome but it is interesting that a case was announced in London today where journalists in a financial column had been promoting shares and then buying them. I am not suggesting anyone is doing that in Irish newspapers but it was an indication that a press commission could deal with such matters.
Like Senator Manning, I ask for an open and dispassionate debate about this extremely important issue. We should remind ourselves that all right is not on one side or the other. It is not healthy or beneficial for society if journalists feel that they are unnecessarily muzzled and restrained from doing the job good which reputable journalists want to do or, on the other hand, if politicians feel they are being put upon. We should try to find the best balance.
I regret I cannot hope to match the scintillating nature of Senator Norris's experience of the libel laws but I have had two experiences as a writer and as a citizen. As a writer, I published a book with a very obscure reference which did not even mention a name, I was talking generically about a class of people. One person said that there were very few of that class and he could be identified. The case never came to court but it cost me nearly all the royalties of the book to withstand the charge. On the other occasion, I felt that not only was I libelled but I was exposed to considerable personal and familial danger by a reference to something with which I was involved. I found that I could not get a retraction from the newspaper and I could not take a case against it. Libel cases are for people with deep pockets. It is one law for the rich and another for those with less. The people who suffer are those who cannot take cases.
We should examine methods other than the rigours of litigation and the courts to deal with libel. Part of the problem is that this is a self-regulating industry and profession. Self-regu lation does not work that well in any profession. It needs to be backed up by legislation. There should be a press commission and we should move quickly to establish one. We must particularly develop an approach to the media, communication and libel which can deal with the explosion of electronic media and the changes taking place in the industry.
I thank Senator Manning for raising the matter and hope the debate can continue.
I have no interest to declare. I have been briefed by nobody, hence I am probably badly briefed. I have no axe to grind other than to say a few words in the interests of freedom and fair play. I compliment my colleague, Senator Manning, on tabling the motion and allowing the House to discuss this important matter. I listened with interest to much of his contribution on the monitor. I admired his even-handed, fair and balanced approach which has been the pattern of speakers here. The purpose of tabling the motion was to obtain an update from the Government of its intentions. In that regard I welcome the Minister to the House and look forward to hearing an outline of his views and what he might have in mind by way of reforming legislation.
There is no doubt that the media, particularly the print media, is very powerful. With power comes great responsibility. What we are seeking to achieve is balance. I listened with great interest to my learned, distinguished colleague, Senator Hayes. I was delighted to hear from him about a newspaper which has a code of ethics. Perhaps there is room for such a code to be widely introduced and proper standards of verification in regard to stories to be laid down.
We live in an age of openness, transparency and accountability – the new god, to quote other speakers. I have no objection whatsoever to that provided there is balance. I have no doubt some reform of the laws of libel and defamation are due and for that reason I compliment Senator Manning on this initiative.
It is good that our newspapers are by and large successful. The Independent Group, of which Senator Hayes is a director, is extremely powerful and an international force. The Irish Times and the Irish Examiner are highly successful daily newspapers. We have suffered somewhat from the tabloid invasion from across the water. There is always the danger of an element of dumping where they are concerned. They are not subject to the laws of the land here and there are probably some difficulties inherent in that. I have no doubt the Minister will address that issue. As Senator Manning said, our provincial papers are doing well and we welcome that.
I was surprised to read that an eminent lawyer, when speaking here recently, said that the right way to reform media law in Ireland would be to bring test cases to the European Court of Human Rights and by that means to force politicians to make changes. I find that somewhat repugnant. I would like to think we could move by agreement among ourselves. That is why we have all welcomed this debate. Reference has been made to moneys in court and apologies without admission of guilt.
A recent High Court decision was interesting in that in future a defendant in a defamation action can admit some of the innuendoes alleged against him or her and lodge moneys in court in respect of them. I was delighted to read that report in which Mr. Justice Peter Kelly said a 1991 Law Reform Commission report had said there appeared to be no obvious reason a defendant in a defamation case could only lodge moneys if there was an admission of liability when defendants in other actions could make payments into court without any such admission. The judge noted there had been a failure to act on the commission's recommendation that the rules of court be amended so a defendant in a defamation action could make a payment without admitting liability. He had to act on the law as it stood.
Mr. Justice Kelly gave judgment in an action by Norbrook Laboratories Limited against SmithKline Beecham (Ireland) Limited. SmithKline sought directions on whether a payment into court regarding some but not all the plaintiff's allegations of defamation would be a valid payment. The action arose out of a letter allegedly sent by the defendant to members of the veterinary profession which was allegedly designed to, and did, disparage one of Norbrook's products. Defence counsel had advised that as far as the allegations of defamation were concerned a lodgment should only be made in relation to some meanings of the alleged defamation. Mr. Justice Kelly said the defendant wished to admit certain of the innuendoes and to make a lodgment regarding these. However, it wanted to maintain its defence regarding others. Granting the application, the judge directed that a payment into court by the defendant was valid provided the notice of the lodgment specified the particular allegations for which payment was being made. That is an interesting case and one which, perhaps, the Minister could take further in amending law.
On the question of apologies without admission of guilt, several speakers referred to this matter. A newspaper, inadvertently, can make a mistake. Genuine mistakes can be made. In such instances – this would obviate the need for law – newspapers often are not inclined to apologise. They should be much more willing and ready to apologise. It would be good practice if, when apologising, they were to give it more prominence than their original error. This would build up goodwill and trust in society in regard to our newspapers.
On the question of an ombudsman within the industry, I was pleased to read that Mr. Louis O'Neill of The Irish Times said: “The current state of the law dictates that the only course open to persons who feel aggrieved by a published article is legal action.” An individual may be happy to receive an apology, but media organisations cannot publicly apologise without an admission of liability. I believe they can where they accept they are wrong. This would avoid getting into difficulties. Mr. O'Neill said:
The case must go to court and can take up to three years before it will be heard. Evidently this is not in the public's interest.
The newspapers could adopt a much better approach in regard to this matter. He also stated:
The popular notion that the press only gets sued when it gets things wrong is far from the truth. [That may be so.] It is possible to expose a grave wrong and still lose extraordinary sums in damages. In addition, the Irish media often suffer undeservedly in terms of public opinion for the sins of their British and American counterparts. This can result in juries setting astronomical penalties.
The director of the National Newspapers of Ireland, Mr. Frank Cullen, said: "Recognising the need for an independent complaints mechanism, NNI had agreed to finance the appointment of an independent Ombudsman to investigate complaints of breaches of press standards." That is welcome and I have no doubt the Minister will build on it in so far as there is goodwill there. Mr. Seamus Dooley of the National Union of Journalists said: "If we wish to avoid another generation of tribunals into official corruption, reporters must be allowed to do their job without fear of swingeing and unmerited financial penalties."
The matter has got to a stage where it must be addressed by everybody in political life. Freedom of expression and good investigative journalism are extremely important to us all. Equally, we value and pride ourselves on the constitutional protection regarding the right to one's good name which is offered to every citizen. As we are aware, sadly, there are bad apples in every barrel, but in dealing with this matter one must ensure balance. There is goodwill and I ask the Minister to outline the extent of the reform which I suspect could be introduced by agreement. This is the way we should proceed and I look forward to hearing the Minister's views on the matter.
I regret that I was not in a position to be present for Senator Manning's contribution. However, I look forward to reading it as soon as it becomes available. I compliment Senator Manning on initiating this timely discussion. It is particularly important that this debate should take place at this critical juncture in public life in Ireland.
There appears to be a love-hate relationship between politicians and the media. However, we should not allow that to colour our capacity to examine our libel laws as they were framed generations ago and whether they are serving the greater good of the country at this time. As legislators, we should have the capacity to examine our laws and consider whether they serve the greater good, bearing in mind the needs of democracy. The retention of a free and independent press is the cornerstone of any democracy. Anything which dilutes or diminishes the independence or freedom of the press at any time should be examined periodically.
In 1995 the Law Reform Commission published a report on the reform of the libel laws. It pointed out at that time that our libel laws were archaic and it dealt with their genesis at another time in another jurisdiction. It also pointed out the need to reform the laws. My party believes that the libel laws should be reformed. We believed it on 20 February 1995 when the current Attorney General, who was then a Deputy in Opposition, acting on behalf of the Progressive Democrats, introduced a Private Members' Bill and argued for reform of the libel laws. He put forward a cogent argument and clear principles on which he believed modern, workable, fair and free laws should be framed in the context of the times in which we are now living. My party believed then that the libel laws should be reformed and it believes it now.
It was a great pity the Bill did not proceed to Committee Stage and was not pursued by the rainbow Government. It was said then that more time was needed to study the provisions of the Progressive Democrats Bill and that the matter would be revisited in nine months. However, two and a half years later, when the rainbow Government went out of office, the Bill had not been revisited. In addition, the legislation which the then Minister promised in response to the Private Members' Bill had not been introduced by that Government. This was a pity and time has been lost as a result.
Nevertheless, events which have emerged in the meantime underline the need to revisit the issue now and to seek to put in place laws which serve the best interests of society. Much of what is now emerging at the Flood tribunal was well known when it happened. The argument can be sustained that because of our libel laws, journalists and others in the media were prevented from exposing events which are now coming to light. If they had been exposed then and action taken against the perpetrators of the misdemeanours, who are now being revealed on a daily basis, consider what the country would have been saved not only in terms of the cost of tribunals, whose workings I support, but the public's view of politicians.
It is not in the best interests of democracy that the electorate now inevitably has a jaundiced view of its politicians. If action could have been taken by journalists to expose the carry on of people who allegedly took bribes to enable certain decisions to be taken at local government level seven or eight years ago, consider what the country would have been spared. It can be argued that politicians and public officials at local or national level were able to carry on the culture of corruption, safe in the knowledge that the press was not in a position to put a stop to their gallop. If that argument can be sustained, there is a strong argument for changing our libel laws.
However, I do not believe that the media is entirely innocent. More could have been done, even within the restrictions of the current libel laws. For example, when Dr. Garret FitzGerald accused Mr. Charlie Haughey of having a flawed pedigree, the press rounded on Dr. Fitzgerald. Very few sought to probe or ask questions arising from that statement. In fairness, the only journalist I can recall ever asking Mr. Haughey about the source of his wealth was Vincent Browne.
Acting Chairman
It is unfair to name people who are not here to defend themselves.
I suppose it is, but I did it anyway.
Acting Chairman
I ask the Senator not to name people.
Unfortunately, I must be like the press. I should not have done it but I am trying to make the point that more than the libel laws need to be examined. There was a certain sluggishness on the part of certain people at that time. My belief is that the libel laws should be reformed, but I also believe that every right carries a corresponding responsibility. If the libel laws are reformed, we must seek to put in place a greater sense of responsibility in terms of the media.
I detect a drift towards "tabloidisation" among the media. There is a tendency in this day of intense competition between different newspapers to go for lurid stories, to print and be damned. This is unacceptable. In the context of reform of the libel laws, we must also put in place strong laws which will protect the privacy of individuals. This argument was put forward in the Law Reform Commission's report in June 1998. I agree with the argument in the report that every citizen should be given legally enforceable rights to protect themselves from abuse of media power. That is important and we should not lose sight of it.
It is a shortfall that there is no libel law to protect the dead. Families of dead persons can be deeply wounded when journalists print anything they wish after someone dies, without fear of redress. That is wrong. I had an encounter recently with a journalist – I cannot mention names as I must behave myself – who writes for a newspaper which is published in the city I represent, because of the scurrilous things he wrote about the late Jack Lynch which could not be proven from any record on which neither I nor academic or professional historians I know or politicians with whom I have contact could lay our hands. This man is writing a book and because he believes it will not sell well on the Christmas market unless it has some lurid details, he took it upon himself to write unsustainable things about a former Taoiseach. He was able to do so with impunity because of the nature of our libel laws. That is wrong and it is something which should be examined. If we are to change our libel laws we must take into account the rights of the dead and their bereaved families to protect their reputation. The libel laws should be reformed to protect the privacy of citizens.
There is a voyeuristic tendency in the press to use cameras in churches to photograph family members who are grieving as a result of personal family tragedies. Not only is this offensive but it is not decent or sensitive. We cannot prevent this from happening by introducing laws but we must establish a press council and a press ombudsman, as advocated by Senator Maurice Hayes. We must put in place a code of conduct which will prevent this from happening.
I was aggrieved recently to see cameras lurking in the hedges waiting to photograph the wife of a judge who had to resign his position because circumstances required it, as she tried to take her little children from the house and put them into the car to take them to school. This meant that the following day the children's classmates were able to tell them they saw their mother on television putting them into the car and that their father was a bad man. That is how children interpret such a situation. That is appalling and outrageous.
The people in the print media who ask us to reform the libel laws – they are pushing an open door when they talk to me – should look at their own standards of behaviour. They need a press council with a proper code of ethics and an internal system to ensure that such behaviour is not permitted.
We saw recently where an unfortunate human being, a mother's son for whom life had dealt a bad hand of cards, was described as "the beast". That was lower than low. Such language is steadily creeping into our newspapers. It is outrageous that human beings are described in terms of animals by some people who defend animal rights yet who have little respect for human beings who get into trouble for one reason or other and who have mothers, fathers, sisters and brothers.
The libel laws should be reformed and rational discussion should take place here and in the other House so that we reach a consensus on the best law to enact to serve the greater good of the community. We should also enact a law to protect the privacy of citizens. We should require the press to put in place a press council and a code of conduct to prevent the worst excesses I have described from being repeated in the future.
The motion deals with two distinct topics and I should at the outset make it clear that my direct responsibility relates only to that aspect of the motion which concerns the laws of libel and defamation. Matters touching upon the ownership and control of the newspaper industry are the responsibility of the Minister for Enterprise, Trade and Employment and I have undertaken to indicate to the House her views on the subject matter of the motion in so far as it concerns her. In my intervention, I shall endeavour to be as comprehensive as possible in relation to all the matters which have so far been raised in this debate and to anticipate some which may yet be raised. Senators should be assured that all points of substance made during this evening's proceedings have been and will be listened to and the differing perspectives offered will feed into the overall process of policy formulation.
I appreciate that Senator Manning has given us the opportunity to discuss a number of issues which touch upon the role the media plays in society. As members of that society, it is in all our interests that there is a proper understanding of that role. A vibrant and functioning media is an essential element in any democracy. However, that democracy in turn has the right to demand a high level of responsibility from its media, particularly where the reputations of individual citizens may be at stake.
The law of defamation in its civil guise represents the attempt of society to reconcile the competing interests which are undeniably present here. All of us cherish our right to our good name, on the one hand, and will defend that right resolutely against anything which seeks to encroach upon it. Similarly, there are few of us here who would willingly compromise that right to privacy which we believe is our entitlement in a fair and civilised society. At the same time, the right to freedom of expression is equally one which a civilised society should value and hold dear. Not surprisingly, therefore, given the complexity of this matter, one's perspective on this topic is inevitably coloured by the particular interest one happens to represent or be inclined towards.
For example, many individuals will give greater emphasis to personal reputation and take the view that this should be the dominant right worthy of protection. Many of those who are active in the world of the media may feel that freedom of expression should be highlighted to a greater extent. The Government, and ultimately the Legislature must strive to take an overview and, through its laws, must strike a balance which will bring the competing interests into harmony which is capable of attracting a broad range of public support.
I am sure Senators will understand that I cannot indicate in any concrete way what changes, if any, it is proposed to make in the laws of libel and defamation. A decision on these matters is the prerogative of Government and until such time as a legislative proposal has been presented for the consideration of the Government I can only speak in broad terms.
Defamation both in law and practice is a civil matter and, therefore, I propose to make only the briefest of comments on the subject of criminal libel since this is only a small part of that area of the law which impacts most directly upon the media. There have been only a handful of criminal libel cases since the foundation of the State and it is noteworthy that the Law Reform Commission report on this matter considered in some detail whether a criminal offence of libel should be retained. Ultimately, the commission's recommendations included the abolition of the common law offences of seditious and obscene libel. However, it recognised that some forms of behaviour are so despicable and unacceptable that they should be subject to criminal sanctions in exceptional cases and this was reflected in the recommendation that the crime of defamatory libel be retained, albeit in a more confined form. Examination of the Law Reform Commission's report on criminal libel and, if appropriate, the bringing forward of legislative proposals will be finalised in due course having regard to other work commitments and priorities.
When we speak about the civil law of defamation we are not speaking of a single legislative text which prescribes the answers which inevitably follow when incidents arise. The law is never that simple and, in the case of defamation law, it is even less so. Regard must be had to the constitutional rights which exist and which are fundamental to our legal system. Statute law exists as represented by the Defamation Act, 1961, and the influence of the common law is also very strong in this area. The influence of the European Convention on Human Rights is also present and legislation to incorporate the provisions of that convention in Irish law is being prepared. More than most areas of the law, defamation law is one where each case is unique and where an examination is required of both motive and circumstance. This situation is unlikely to change regardless of whether a more comprehensive statutory regime is put in place.
There are those who will argue that much of the work has already been done to ensure a modern defamation code is put in place, and I would be the last to decry the considerable amount of research and analysis which has been done and which will undoubtedly be a shaping force for future legislative proposals. The work of both the Law Reform Commission and the Commission on the Newspaper Industry is to be commended. I am also conscious of the research work commissioned by the newspaper industry. I am aware of the immediate concerns that industry has in this area and, in meetings with representatives of both the National Newspapers of Ireland and the Provincial Newspapers Association of Ireland, I was able to demonstrate the extent of that awareness.
Drawing on their own experiences, I am sure Senators will appreciate that the task of drafting legislation is one which requires a deal of skill and more than a sufficiency of time. The work of my Department is such that it inevitably involves a substantial input into the legislative process. One third of the Government's legislative programme emanates from my Department. As Senators will be aware, priorities in this respect are constantly evolving and, inevitably, some matters will be advanced at a faster rate than others. In the specific case of reform of the law of defamation, a degree of work has been done by my Department on a scheme of a Bill. However, I am not in a position at this stage, given the evolving priorities to which I have just referred, to indicate to the House when I will bring proposals before Government for its consideration.
I indicated earlier that it would be inappropriate for me to go into detail at this time about the content of any proposal which I might bring before Government. However, Senators will be aware that, with regard to defamation law in particular, a number of specific proposals have been advanced by the Law Reform Commission – over 50 in number – and it may be useful if I refer to some of those proposals, albeit in a general way. Some of the Law Reform Commission proposals are essentially aimed at removing minor anomalies in defamation law which largely reflect the fact that this law derives from disparate sources and has evolved, not always in the most coherent way, over a considerable period. Recommendations dealing with abolishing the distinction between libel and slander and providing for a statutory definition of defamation would fall into this category, as would any consequential adjustments to the Statute of Limitations with regard to the time within which a defamation action would have to be taken.
Other recommendations have as their focus the intention, which I would endorse, of moving the emphasis away from damages as the sole remedy in defamation actions in certain circumstances and on to other more appropriate remedies which would meet the concerns of plaintiffs who wish to vindicate their reputations in a speedy and public manner. An entirely new form of proceedings has been proposed which would allow a person within one year of the date of publication of an allegedly defamatory statement to seek a declaratory judgment that the statement objected to was both false and defamatory. No damages could be awarded in this kind of action. Furthermore, the menu of options available to a court would be broadened so that, even in a case where a plaintiff was actively to seek damages, new remedies in the form of correction orders and declaratory orders would also be available. The general thrust of these proposals seems to me to be unimpeachable. There will be times when a defamatory statement is so injurious of an individual's reputation that damages would be merited, but there will also be times when this is not so much the case.
Linked in with this new focus on remedies other than damages are proposals directed towards removing any bar which there might be to the speedy issuing of an apology because of fears that an offer of an apology might subsequently be construed as an admission of liability. This is a sensible proposal and one with which few people could quarrel. There is another proposal, which I know would be welcomed by the media in general, which concerns amending a provision in the rules of the superior courts so that a defendant in a defamation action, as in other civil actions, may make payment into court without admission of liability. I have indicated that this is a measure which I may be willing to espouse.
The amount of damages which can be awarded in a defamation action is also a vexed issue and, again, the Law Reform Commission report includes recommendations which may be useful in this context. Statutory guidance for the courts concerning the factors to be taken into account when making an award of damages is recommended, as is a rebalancing of the respective roles of judge and jury when it comes to determining the amount of damages which should be given.
One area of defamation law which has given rise to particular controversy is that which is generally referred to as the presumption of falsity. In broad terms, once a plaintiff shows that a statement complained of is defamatory, the law presumes that the statement in question is false and, where a defendant raises the defence of justification, the burden of proof is on that defendant to establish the truth of the relevant statement. It is a measure of the difficulty which attaches to this matter that the Law Reform Commission was divided as to whether any change in the law should be recommended. This is undoubtedly a vexed issue. I am not persuaded by the force of the arguments which seek a change in this area of the law. It is one thing for a plaintiff to deny that a statement is true, as would be the norm in most defamation actions. However, it is another thing for him or her to have to prove that it is not. Any such adjustment in the law could act to the disadvantage of individual plaintiffs and could effect an inappropriate shift in the power balance which exists between the media and more vulnerable citizens.
In concluding this part of my intervention, there are two issues to which I would like to refer briefly. It has been argued that defamation law in this country is overly oppressive and that it acts to curtail investigative reporting in a way which is inimical to our democratic tradition. This is a point of view which I find difficult to accept. Defamation law is there to act as a protection but it is not a straitjacket, and I wonder whether in some instances there has been a reluctance to test the extent to which defamation law will permit that more robust style of reporting which some would argue is inhibited under our current laws. The law can never offer the media complete protection in this area, nor should it. The fact that defamation cases can be lost is not always indicative of the fact that the law is deficient. Sometimes it may be indicative of the fact that a case deserved to be lost.
The second issue to which I would like to refer concerns the recommendation contained in the report of the Commission on the Newspaper Industry that the newspaper industry at large should appoint a person to act as ombudsman and should fund that person in the carrying out of their functions. I am aware that the newspaper industry has evolved various mechanisms to deal with, among other matters, readers' legitimate complaints, and its efforts in this regard are to be welcomed. I am also aware that a link has sometimes been established between the industry's willingness to move further on this matter and progress with changes in defamation law. This link can be overstated. I can see no reason more work could not be done now to pave the way for a self-regulatory regime. Such a system would bolster the confidence of the community at large in the industry and that in itself is surely a laudable objective.
Regarding the second aspect of the motion concerning ownership and control of the media, the principal mechanism whereby ownership and control of the media as well as other sectors in the economy are regulated is the Mergers and Take-Overs (Control) Acts, 1978 to 1996. Under these Acts all proposed mergers and takeovers over a certain size must be notified to the Tánaiste and Minister for Enterprise, Trade and Employment. The thresholds for undertakings are £20 million in turnover or £10 million in gross assets. If the undertakings are below that size, the Act does not apply and undertakings can merge or take over each other without the sanction of the Minister. However, because of its special nature, the newspaper industry has not been subject to such thresholds in Irish merger law.
As far back as 1979 the then Minister for Industry and Commerce signed the Mergers, Take-Overs and Monopolies (Newspapers) Order, 1979. The newspaper order of 1979 disregarded the threshold levels so that any takeover or merger involving a newspaper would be covered by the Act and thus would come under scrutiny. The procedure for merger and takeover control is that the parties notify the Minister of the proposed merger or takeover. The Minister has powers to seek further information from the parties within the statutory timeframe. The Minister can then decide to either allow the merger or takeover to proceed or can refer it to the Competition Authority for in-depth investigation. The Competition Authority states its opinion as to whether the proposed merger or takeover would be likely to prevent or restrict competition or restrain trade and whether it would be likely to operate against the common good. The Minister, having considered the Competition Authority report, may prohibit the proposed merger or takeover absolutely or may permit it on conditions. In either case the Minister acts by way of order which must be laid before each House of the Oireachtas.
Newspapers, as already indicated, have been given a special status under the relevant legislation. This is because newspapers have always been regarded as an essential part of our cultural and democratic system. The freedom to read accurate accounts of political, economic and social events has long been regarded as a matter of right and a free press goes to the heart of any democratic society. It is the nature of a free press that many diverse voices can gain acceptance and thus prosper. However, notwithstanding the particular role which newspapers play in our society, they must be subject to competition law and this issue has absorbed a lot of attention over the past few years.
In more recent years newspapers have attracted the attention of the public through the workings of the Commission on the Newspaper Industry which published its report in June 1996 and which was established by the Tánaiste's predecessor. The commission was headed by Mr. Justice Thomas A. Finlay and the context of the establishment of the commission was the demise of The Irish Press titles and the then generally increasing competition being faced by the newspaper industry itself. The terms of reference given to the commission were wide and far-ranging, covering competition, press freedom, the competitiveness of the industry etc.
A review group was asked to advise the Tánaiste on how best to implement the newspapers recommendations into law. The first thing the review group considered was the reference in recommendation 1(a) to UK titles. The reference to the newspaper titles of a specific member state of the European Union appeared to the review group to have the appearance of targeting those titles, which could be a breach of EU law. The review group, therefore, changed this recommendation and omitted the reference to UK titles.
Having considered the three recommendations of the commission, the review group has recommended that the Mergers and Take-Overs (Control) Acts, 1978 to 1996, be amended to incorporate the criteria identified by the commission and that these criteria should be considered by the Minister when deciding whether to allow a merger or takeover involving newspapers to proceed. It should be noted that the motion before the House refers to the media and the review group has incorporated the term in its recommendations. However, the term is not defined. When the review group examined this area it first thought that the term could be defined by way of a statutory instrument. However, a recent court case appears to have put a question mark over the possibility of using secondary legislation to define this important issue. Primary legislation may be required to define what is a constantly changing phenomenon. We are all aware of media such as books, radio, television and newspapers. However, our era has produced new media such as the lnternet, CD-ROMs and computerised information services. While these newer media are not complete substitutes they replicate many of the features of the more traditional media. Therefore, any law attempting to define the media must be capable of adapting to a sector which seems to expand exponentially every few years.
I have outlined some of the factors which the Tánaiste has stated she will be considering over the coming months when deciding on what further action to take on the newspaper and other recommendations of the Competition and Mergers Review Group. The Tánaiste intends to revert to Government in due course with legislative changes when she has completed her consideration of this matter. I express my appreciation to Senators for providing the opportunity to exchange views on this important matter. Given the subject matter of the motion, I trust we can look forward to some interesting headlines.
I thank the Minister for rushing in order to allow me to contribute. I appreciate that. I remind the House that on the Order of Business I asked the Leader to draw the attention of the Minister for Justice, Equality and Law Reform to my concern regarding our archaic laws and cyber-crime. I quoted the leader of a law reform group in the Philippines who said yesterday that archaic laws are no match for modern crime. One law we need to amend urgently is the law relating to cyber-crime and I urge the Minister to do something about that.
However, we are talking about libel laws. If people in the Philippines are embarrassed by their lack of modern legislation dealing with cyber-terrorism, we should be embarrassed by our lack of libel legislation. Our libel laws are based on the 1961 Act, which I understand is almost a copy of the UK Act of 1952. The Minister said he is willing to espouse many of the proposals made by the Law Reform Commission in 1991, when Justice Keane put forward, to the best of my knowledge, 59 different proposals. That was 1991; what have we been doing? Foot-dragging is a mild term to use for what has happened. Those proposals were made by the Law Reform Commission in 1991, which was the last century. We are now in the 21st century and we have done nothing about this. I know efforts were made in 1994 and 1996, but the Minister has been in power for almost three years and this cannot wait any longer. Foot-dragging is not too strong a word for this.
The Government published its latest legislative programme yesterday and the promised defamation Bill is No. 65 out of 66 on the C list, which is the list of Bills whose heads have not yet been passed by the Government and which have not, therefore, reached the bottom of the queue for drafting. Publication of the defamation Bill is not expected, on the Government's admission, before the end of the year. If that is not foot-dragging, it certainly shows a lack of urgency or political will to bring the matter forward. That lack of urgency is a test of the sincerity in much of the rhetoric we are hearing about rebuilding confidence in the political process. A key to rebuilding that public confidence is to be as open and transparent as we can. We should be looking for ways to open up the political process and remove barriers to transparency that remain.
At present the burden is on the political process to prove itself to the people. Given the revelations now coming thick and fast – we heard some of them tonight – the public is right to be suspicious about any attempt to hold back information of any kind. The public is entitled to see reluctance to update the laws of libel and defamation as a last ditch effort to hold onto a culture of secrecy. I do not believe the Minister is doing that, but that is the image that will be given if we drag our feet any longer. There are 66 Bills proposed and this is No. 65 on the list. It is clearly not high on the Minister's list of priorities. The events of the past few weeks mean it should be not just high on the list of priorities but at the very top.
I tie the libel and defamation issue to the political process because it is closely tied to political matters. Most of the people who sue in Ireland are politicians. Again and again we hear how journalists and newspapers have been gagged by the threat of libel laws, either through direct threats from those affected or by advice from the media's legal advisers. We are told that some of the revelations now being made at the Flood Tribunal could have been in the public domain a lot earlier had it not been for the threat, actual or feared, of libel actions.
This is not to say the media always get things right or that there is no need for balancing the public's right to know with a person's right to his or her reputation. There will always be grey areas here. There will always be grounds for dispute. However, we have tilted the playing field too far in favour of keeping things secret and too little in favour of disclosure. We have changed laws. We have a Freedom of Information Act, which has helped a great deal in one regard, but we have not even taken the first tentative steps. We are still relying on a 1961 Act which is based, almost word for word, on the British Act of 1952.
Neither is it true that those in the media have always given the best example in regard to dealing fairly with the people they use in their copy. Senator Quill referred earlier to the invasion of privacy but libel and defamation are concerned with a person's reputation, not with a person's privacy, and in dealing with people's privacy the media is showing less and less respect for the rights and the feelings of individuals. Senator Quill highlighted some instances which were quite horrific, and we have recognised that, but the media is being governed increasingly by what sells newspapers. I think in particular of the growing practice of intruding on people's private grief about which there does not appear to be any rules or, more importantly, any restrictions.
Although these considerations are important in themselves and deserve to be examined for their own merits, they should not be used as red herrings to divert attention from the central issue. The central issue is that we have archaic laws that have to be changed. The Minister recognises that. In 1991, the Law Reform Commission recommended 59 changes in this area, yet the Minister has placed this issue at number 65 on a list of 66 actions that have to be taken. Clearly, they will not be taken this year. I was delighted to hear the Minister say he is willing to espouse many of these measures. I realise he has so much to do it is difficult to get everything done, but I urge him to rethink the question of placing this issue so far down the list.
I was not aware of the proposals that were made by Mr. Justice Keane in 1991 until I undertook an investigation. The Minister touched on one or two of those earlier. I was not aware of the question of an apology. Years ago, if somebody fell in one of our supermarkets I would immediately go to the hospital to visit the person and see how they were. I was told I should not have done that because it is almost an admission of liability, but I did not care. It appears that occurs in law here. One cannot apologise without it being taken as an admission of liability. The Minister touched on that and he said he is willing to espouse it. Let us do something about that because many of these problems could be solved with an apology – it is not necessarily a question of cost – and be kept out of the courts.
Another aspect which the Minister touched on, and I was not aware of this either, is that payments by a defendant cannot be made into court without an admission of liability. It is interesting that this particular aspect was abolished in the United Kingdom in 1933 and abolished in Northern Ireland in 1936. I had not realised they have different laws in regard to that. We should not always copy the British but if the law that we inherited from them was changed back in 1933 and if we are examining it now for the first time in 2000, surely it is time we did something about it.
By internationally recognised standards, and our commitments under international agreements, our laws on libel and defamation are out of date. That alone would be reason enough to change them urgently but we have an even more urgent reason. For as long as we as a nation continue to drag our feet on this issue, we deepen people's cynicism about our sincerity in wishing to make public life more open and transparent and in wishing to be more answerable to the citizenry. We have to take action now. We have put matters on the long finger for too long and, on that basis, we must move this legislation to the top five on the Minster's list.
Debate adjourned.
When is it proposed to sit again?
Tomorrow morning at 10.30.