Incidentally, this replicates section 21 of the 1961 Act, where it is called unintentional defamation. The purpose of this procedure is to allow a person who has unintentionally defamed somebody to make amends. It is rarely used.
The kernel of it is evident in section 21(2) of the Bill, which states:
Subject to subsection (3), it shall be a defence to a defamation action for a person to prove that he or she made an offer to make amends under section 20 and that it was not accepted, unless the plaintiff proves that the defendant knew or ought reasonably to have known at the time of making the statement to which the offer relates that-
(a) it referred to the plaintiff or was likely to be understood as referring to the plaintiff, and
(b) it was false and defamatory of the plaintiff.
If the plaintiff proves that the defendant knew that, then the entire matter is inoperable. This would deal with situations, which have arisen from time to time, where a person writing a fictional book or an article in a magazine, for instance, would select a name such as Jim Walsh from New Ross and place Senator Jim Walsh into a context where many would say that it was he when it might just be that the author selected a name for the purpose of making a point.
There is no traction at all in this defence if the person knows that first, it was likely to refer to the plaintiff and, second, that on the face of it was false and defamatory. It is fair enough if, in the course of a television film, a person selected Senator Jim Walsh of New Ross and stated subsequently that he or she did not know that there was a Senator Jim Walsh, but that defence would not avail the person at all unless he or she establishes that he or she was totally innocent and merely picked the name out of the telephone book one afternoon.
It is a fairly narrow provision and it has rarely been used in the courts. One might even argue that it could be got rid of, only for the fact that it is part of the current law and I would be loath to take away something for a totally innocent defamation. For example, supposing a photograph of a person accused of murderer coming out of court appeared and somehow the reporter opened the wrong page of the spiral notebook and put down a name, or got the name completely confused, or could not read his or her own handwriting, and said it was James McNamara when it was James Moriarty, that could be a totally unintentional defamation of James McNamara because the accused might have had a hood over his head and it could be an innocent mistake. In such circumstances, an offer to make amends would be available.