Defamation Bill 2006: Committee Stage (Resumed).

Question again proposed: "That section 15, as amended, stand part of the Bill."

Mr. M. McDowell

Senator Norris is seeking a new provision requiring people, where they plead what used to be justification, to set out the facts upon which they will rely with regard to such justification. I will look at that between now and Report Stage. I believe it is already covered by rules of court but I could be wrong, and I do not know if it is necessary to put it into primary legislation.

On Senator Jim Walsh's point, I am aware that some people do or do not have absolute privilege in respect of statements made in committee. From memory, the Constitution confers absolute privilege on Members of the Houses of the Oireachtas in respect of statements they make, but non-Members are in a slightly different situation. I will look at the matter and see if we need to tidy it up.

I am aware that the legislation dealing with the privilege of people testifying before committees means such people are dealt with on a sub-constitutional basis, if I can use that phrase. As I understand it, both Houses have now enacted Standing Orders which give people the right to contradict defamatory statements made about them in either House. That is to some extent a countermeasure to the absolute privilege conferred by the Constitution.

Mr. J. Walsh

I thank the Minister for agreeing to consider the issue. I was unaware that Members affected by defamatory remarks could contradict them. There is a time lapse and the concern would be that an initial publication could be very damaging or injurious to the affected person. Perhaps the Minister could consider the matter to see if action could be taken. I would appreciate it.

Dr. M. Hayes

Related to Senator Jim Walsh's point, perhaps if the Minister could insert a phrase such as "and not subsequently corrected or withdrawn by that Member", it might cover it. The publication is in good faith once it comes, but if there is a retraction or correction in good faith, it should be taken account of as well.

Question put and agreed to.

SECTION 16.

Acting Chairman

Amendments Nos. 6 to 8, inclusive, are related and will be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 6:

In page 14, subsection (6), line 8, to delete "social duty." and substitute "social duty;".

Mr. M. McDowell

Amendment No. 6 to section 16 and amendment No. 7 to section 18 are technical drafting amendments. Amendment No. 8 to section 18, which provides for the defence of honest opinion, ensures that the reference in that section to section 16 on the defence of qualified privilege should be in accordance with all of section 16 and not limited to subsection 16(2).

Mr. Norris

I am opposing section 18 because the notion of honest opinion seems to be a libeller's charter, as it was known for some time. One must be careful about allowing someone to put something in a newspaper because he or she believes it to be true when it is untrue. It would not be fair, particularly when combined with the extraordinary distinction drawn later in the Bill, implicitly if not clearly stated, between public figures and ordinary citizens. This follows an American judgment some years ago. It is not enough that people believe something is right. They should be required to prove the sting of the libel to prove they are right.

Could the Minister return subsection 18(3)(a) to the draftspeople and ask them to draft it in comprehensible English? It states:

Where a defendant pleads the defence of honest opinion and the opinion concerned is based on allegations of fact to which subsection (2)(b)(i) applies, that defence shall fail unless the defendant proves the truth of those allegations, but the defence shall not fail by reason only of the defendant’s failing to prove the truth of all of those allegations if the opinion is honest opinion having regard to the allegations of fact the truth of which is proved.

How in the name of God could an ordinary person or a qualified lawyer understand this collection of gobbledegook? If I read that in a Trinity essay, I would fail the student. It is a collection of suspended clauses and deferred premises. It is ghastly. Perhaps some of my brighter colleagues know what the subsection refers to, but I lost the principal clause by the time I was half way through.

Could the draftspeople insert an occasional full stop as a courtesy to the weary reader and to break up the sentence? It would give one an opportunity to know what the law is about. Good law is understandable by the citizen and does not require a legal Einstein to know what is happening. I am not blaming the current draftspeople because I have a feeling this wording was lifted from the 19th century and stuck into the Bill. When we lift these archaic paragraphs, they should be expressed in plain English.

Mr. M. McDowell

I was about to point out that Senator Norris's arcane views on the law of libel and on freedom of expression would jar in the minds of most people from north America, but I will not say that now. I wonder about the situation in the Czech Republic, but I will not speculate.

Subsection 18(3)(a) is based on the terms of section 23 of the 1961 Act.

Mr. Norris

I thought so.

Mr. M. McDowell

It states:

In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved, if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.

Perhaps this would be a better wording. I will examine the matter to determine——

Mr. Norris

It is obscure.

Mr. M. McDowell

——whether the old version is better than the new one.

Mr. Norris

Perhaps it is the way the Minister read it, but I could follow what he said while I could not understand the proposed subsection.

Mr. M. McDowell

I was quoting the older section. The new subsection may be phrased less eloquently.

Regarding the law in respect of fair comment and the defence of honest opinion, juries often believed that while someone held an opinion, it was not a fair one. They misunderstood the nature of the law. That juries needed to decide whether something was an honest view rather than a fair one needed to be hammered home to them constantly. The issue of fairness did not arise. "Fair comment" was a bad label for a defence.

If one makes a defamatory comment by reference to facts that are not in contest or can be proven to be true, holding it as an honest opinion is a full defence. It is an important part of freedom of speech. For example, if I said that because Senator Norris did A, B and C, he is unsuitable to be a lecturer in Trinity College Dublin or a Member of the Oireachtas and that he is a total disgrace and a dishonest man, my opinions would be based on facts. If people can refer my opinion to facts in respect of which I am in a position to prove or that are accepted as true, my statement is an expression of opinion.

Opinion does not defame. That I have a clearly identifiable opinion of someone does not damage that person because people are entitled to say that it is only an opinion. It is not a slander or a libeller's charter to distinguish between statements of fact that are false and honest judgments arrived at by people. If we were to trim down this measure, we would make a serious mistake.

The concept of fair comment is often misunderstood by juries and, once, by a non-jury Circuit Court regarding a case in which I was involved. There was an overriding feeling on the part of the juries and the judge to ask whether something was a fair opinion to have of someone, but that is not the current law. One does not need to be fair. If one is honest, one can be intemperate and prejudiced. For example, someone in The Sunday Tribune recently wrote the opinion that I should be arrested. I do not know why, as I did not read the article after reading the headline, but it was published. It was a view of the world, but as long as the person did not write something false about me, he or she is entitled to that opinion.

Mr. Cummins

Was it fair comment?

Mr. M. McDowell

It was an expression of opinion.

Mr. Norris

What if the person wrote that the Minister should be arrested for driving his car while drunk?

Mr. M. McDowell

That would have been a different matter. The writer could have stated that the facts of a particular case warranted my arrest, but it looked like a statement of opinion rather than a statement of fact that I had done something unlawful. I tend to take these matters with a grain of salt.

It is important to have a system of law in which people's honest opinions are statable when they are based on facts. People's judgments on the consequences of matters that are proven or accepted to be true are only judgments. I accept that a commentator in the media gets much more currency for his or her judgments than someone who has to read some of this rubbish on occasions, and sit on a barstool and give opinions to three or four people who might or might not listen. I agree that sometimes the media are in a far more powerful position to express their opinions than an ordinary individual. Even accepting that, we must accept the proposition that honest opinion on the basis of facts, proven or accepted, should be the subject of a defence. We do not want to change the law fundamentally to make it less restrictive in this manner. I do not believe it is a defamers' charter to leave the law substantially as it is in that regard.

Mr. Norris

I thank the Minister for his clarification. My objection is to the idea that at the time of the publication statement, the defendant believed in the truth of opinion or, where the defendant is not the author of the opinion but believed the author believed it to be true. However, I see that is subject to subsection (3), and that is the one I had difficulty with because I do not believe it is sufficiently clear. Nonetheless, the Minister makes a reasonable case as regards opinion based on clear fact. That makes it somewhat less obnoxious, even to me. Perhaps the Minister might look again at redrafting subsection (3), however.

Dr. M. Hayes

I agree with Senator Norris about the clumsiness of paragraph (a) and I believe the Minister should revise his opinion of Victorian drafters. They were much better and clearer than what we are getting now. Surely the point of concern is covered by subsection (2)(b)(i) and (ii). That clarifies the position reasonably well in the way the Minister is doing.

Mr. J. Walsh

I shall deal with section 18 when we get to it. On amendment No. 8, I did not catch the reason given earlier for deleting "in accordance with section 16(2)”. What effect does that have on the interpretation by the courts of qualified privilege? I should have thought section 16(2) gave some clarity as regards how that might be interpreted. I wonder about its implications, which are not immediately obvious to me. The original referred to an opinion based on allegations of fact in which the defence of qualified privilege in accordance with section 16(2) would apply. In effect, qualified privilege is being qualified by section 16(2). Now we have removed that reference to section 16(2) and I wonder that the import of that will be.

Mr. M. McDowell

Section 16(2) is the general defence of qualified privilege. This is to deal with situations where somebody says something which is factually untrue such as "You are a thief" or words to that effect. However, if the person thought on the occasion that he or she said the words that the man in question was a thief, that is an occasion of qualified privilege and as such is a defence. For example if one says to a garda one is urging to arrest another individual "This man is a thief — he's just stolen my car", then regardless of the fact that he is not a thief, that is an occasion of qualified privilege as long as one did not act maliciously by being reckless as regards whether the assertion was true, or knew it was false. One may see somebody outside one's house getting into one's car, call a garda and say, "This man has just tried to steal my car" when the reality is that he had found the keys and was just checking out whom they belonged to and is wholly innocent. The fact one has totally misjudged the situation and made a defamatory statement to the garda to the effect that the man is a thief is the subject of qualified privilege because one honestly believed it was true. One had a reason to say it at the time to the garda in that one had an interest in communicating the message and the garda had an interest in receiving the information. That is what qualified privilege is concerned with.

Honest opinion, however, is a different concept here. Whereas the same test of malice applies in both, honest opinion is a statement of opinion based on facts which are either proved or accepted. In section 19 there is an interesting test as to what is opinion and what is not, in cases that are, effectively, a mixed bag of opinion and fact. I recall on one occasion a journalist writing about a judge's sentencing decision and the comments he made in the context of it, where he said: "What kind of judicial idiocy is this?" A question arose in the High Court as to whether the assertion that it was judicial idiocy amounted to a statement of opinion or fact. I will not go into the case but I remember it vividly because I was involved in it.

Section 19 is designed to set out rules for distinguishing between statements of opinion and fact. The extent to which something may be capable of being proved is one of the issues one must bear in mind. The extent to which a statement was made in circumstances in which it was likely to have been reasonably understood as a statement of opinion rather than a statement of conviction and allegation of fact, is a second. The words used in a statement and the extent to which they were subject to a qualification or disclaimer or accompanied by cautionary words must be considered.

If one said Senator Norris or whoever was totally disreputable and unfit to be a Member of the Houses of the Oireachtas——

Mr. Norris

Hear, hear.

Mr. M. McDowell

——and put in the phrase, "in my opinion", that would clearly have to be taken into the equation in deciding whether this was an occasion for pleading the defence of honest opinion. Those three rules are set out there to guide the court. If I just said, "Senator A is wholly disreputable and should not be a Member of the Houses of the Oireachtas", out of the blue, without any factual background for the statement, that would be defamatory. However, if I said this half way through his or her performance in a particular debate or whatever, then people would say it was obviously said having regard to the circumstances. If I added, "in my opinion", that would bring the statement further across the line into the realm of opinion. If one is trying to distinguish between opinion and fact, for instance, how could one prove somebody is unsuitable to be a Member of the Houses of the Oireachtas? Could one argue that there were worse or better Members elected, or that the individual in question is not the worst, the best or whatever? Those types of things are mixed issues. However, the defence of honest opinion is designed to be one in which the factual basis of the defamatory opinion is either understood or proven. Either it is accepted there were facts which could give rise to one's honest opinion or else one can prove the facts that gave rise to it.

Mr. Norris

Perhaps the Minister might like to christen this the "Joan Rivers defence", because he may have heard, as I have, the advertisements on radio for her forthcoming show, where she worries about defamation. She is calling the show "Allegedly" and after every defamatory comment she makes about her neighbour she says, "...allegedly, allegedly". Perhaps the "Joan Rivers defence" might be the new name for the Minister's section here.

Dr. M. Hayes

I must declare an interest and as a writer in newspapers, thank the Minister for free legal aid and advice and for an invaluable exposition of the difference between one and the other.

Amendment agreed to.

Section 16, as amended, agreed to.

SECTION 17.

Question proposed: "That section 17 stand part of the Bill."

Mr. Norris

I take it this is a codification of existing practices and that there is nothing vitally new or significant in it, or is there?

Mr. M. McDowell

This is a statement of the law relating to malice. It is based on the Law Reform Commission's recommendations.

Ms Tuffy

Will the Minister clarify the meaning and purpose of subsection (1)(c)?

Mr. M. McDowell

The concept in the provision is that if the statement in question has no connection with the purpose of the defence, which is to allow people express honest opinions on the basis of facts, the plaintiff can prove that the defence of qualified privilege is being dragged into the defence in a circumstance where it is purely technical and should not substantially avail a defamatory statement. That is the purpose of paragraph (c).

Ms Tuffy

When I read that sentence I was not sure what it meant and I immediately thought that perhaps it meant the purpose of the defendant's defence, whereas the reference to defence is meant in more general terms.

Mr. M. McDowell

It is not the defendant's defence; it is the statutory defence.

Ms Tuffy

I appreciate that, but I consider the paragraph to be a little unclear. However, I do not have an alternative.

Mr. Norris

With what section are we dealing? It states section 17 on the monitor. Is that correct?

Acting Chairman

Yes, we are now dealing with that section.

Question put and agreed to.

SECTION 18.

Government amendment No. 7:

In page 14, subsection (1), line 37, to delete "Act" and substitute "section".

Acting Chairman

This is a technical drafting amendment already discussed with amendment No. 6.

Amendment agreed to.

Government amendment No. 8:

In page 15, subsection (2)(b)(ii)(II), lines 14 and 15, to delete “in accordance with section 16(2)”.

Acting Chairman

This is a technical drafting amendment already discussed with amendment No. 6.

Amendment agreed to.

Question proposed: "That section 18, as amended, stand part of the Bill."

Mr. J. Walsh

We have had a good debate on this point. Senator Norris raised issues about the amendments that pertain to the section and the Minister gave an outline of honest opinion. From the point of view of mounting a defence, given that the legislation will obviously be interpreted by the courts, the entitlements of the plaintiff and the defendant will be tested in this respect.

Section 18(2)(a) states: “[Where] the defendant believed in the truth of the opinion or, where the defendant is not the author of the opinion, believed that the author believed it to be true”. How can the court establish that as a fact rather than it being simply used as a defence? If an editor or reporter states under oath that what he or she wrote was his or her honest opinion at the time, it appears it would be difficult for that to be tested by a defendant.

I have a query about section 18(3)(a) which probably is somewhat related. Senator Norris referred to the convoluted language in it and I understand the Minister said he will examine if it can be simplified. The Minister may correct me on this, but in regard to the affidavit that must be presented at the start of a case by the plaintiff and the replying affidavit that must be presented by the defendant, it strikes me that in the case of the plaintiff, the person who is being allegedly defamed, there will be a clear-cut identification of that individual. In the case of the defendant, the article in question might have been written by a reporter. In whose name will the affidavit be presented? Will it be the defendant, the reporter or somebody else within the organisation concerned? If a defence of honest opinion is being claimed, that should be clearly stated in the affidavit by all the parties involved to ensure that if it is tested and found during the case that the defence of honest opinion is not upheld and that the opinion is not held honestly, there would be repercussions.

This comes back to the thrust of ensuring that the legislation is balanced to ensure that the defendant has certain rights under it as well. From my reading of the section, it appears as if this defence may not be supported other than during the case. It would strengthen the issues involved and it may even strengthen the settlement of cases before they ever go through the court process, which is cumbersome and expensive, if it were made a requirement that such a claim in a case would have to be stated in a sworn affidavit at the outset.

Mr. Norris

Section 18(2)(a) states “where the defendant is not the author of the opinion, believed that the author believed it to be true”. If a person says Joe Bloggs in the Evening Herald said something with which he or she completely agrees but which turns out to be defamatory, is that the type of example contemplated in the provision? Perhaps the Minister could give the House an example of a situation in which somebody makes a defamatory statement relying on an opinion of somebody else? I take it that it is a question of agreement with a statement being made by some other party.

With regard to the question of honest opinion and fair comment, it is probably difficult sometimes to prove that it is not a fair comment or honest opinion. There was a case some years ago, which the Minister may remember, where a journalist with Senator Maurice Hayes's group of newspapers wrote an article in the aftermath of a situation in which a District Court judge had been very snotty about the use of mobile phones in court and gave a long diatribe from the Bench about it.

Subsequently, another judge had a telephone on the Bench which rang and the journalist wrote an article exposing this, mocking and ridiculing it and holding the Judiciary up to contempt over this issue, suggesting that its members were not practising what they preached. However, the judge had a good reason for having the telephone because there was no working telephone installation in the court and he was awaiting information which was germane to the hearing of the case. It was in the professional discharge of his duty that the telephone rang. It was able to be proved subsequently that the journalist knew the situation because he had read the original article, and as a result, the defence failed. Perhaps the Minister remembers that case. I presume this provision would operate in the same way, namely, if it could be demonstrated that a journalist manipulated the facts while knowing there was a good reason for what appeared to the public to be a kind of contradiction.

Dr. M. Hayes

He should have turned it into a play.

Mr. M. McDowell

I do not want to get dragged into a retrospective evaluation of that kind of litigation except to say that I have a strong view that, irrespective of whether a judge or a witness had a mobile telephone in court, it is not a matter of huge consequence. We are all very prissy on this subject. It is a passing thing. Five years ago, people wrote letters to the editors of newspapers claiming that they were outraged that others were walking the streets talking into mobile phones. I presume Senator Norris was one of those cranks and went around accusing——

Mr. Norris

Say that outside this House.

Dr. M. Hayes

I still am one of them.

Mr. M. McDowell

People got very offended by overhearing a conversation on a mobile phone, but were not offended by hearing the conversation of two people walking down the street. They thought it was very rude to have a mobile phone conversation on a bus or a train. Mores change and while leaving a mobile phone switched on in court is slightly irritating, it is not a capital offence and should not be dealt with as a contempt. It is prissy to get too worried about it. It is also irritating when someone's mobile phone rings on Committee Stage of Bills in this House, but it is not worth getting up in a heap about. The dignity of the courts would be affected if everybody wantonly disregarded the instruction to turn off mobile phones. However, the dignity of a court is not such that it must be protected by punishing people who, in good faith, forget to turn off their mobile phones. It happens to us all. I am carrying a mobile phone as I speak, but it has not interrupted us yet.

Where the defendant is the person who published the statement and wrote it, the section is fairly simple. However, where the defendant is The Irish Times Limited or Independent News and Media and the article in question has been written by Senator Norris about the Polish President or the Pope, it is not a matter for the newspaper editor to say that he believes that the Senator’s opinion is correct, or that he shares his opinion. It is a matter for him to say that he believes it is the Senator’s honest opinion and that he is not writing it maliciously. That is a fair standard. If the Senator wants to make a very critical onslaught on somebody based on agreed facts, the editor of the newspaper should not be required to prove the state of his mind. The editor should be entitled to say he believes the Senator believed this was an honest opinion. It would put an impossible onus on editors if they had to share the opinion or else prove what went on in someone else’s head, who might not even be available as a witness. One could publish a syndicated article and be in desperate trouble if the author of the article lived in Australia. The article could manifestly be an opinion, but the editor could not prove the state of mind of the author.

The verifying affidavit provided in section 7 deals with assertions or allegations of fact. I am subject to correction, but I do not think one would have to put in an affidavit dealing with questions of honesty of opinion.

Mr. J. Walsh

On that point, the issue is how it is interpreted. I can see the distinction and the Minister has clearly defined the difference between statements of fact and honest opinion. However, in my mind, there is not an established and definite mark between honest opinion and issues relating to facts that could be held as honest opinion. Are there any cross-references that can be made in that area? I am being critical of this in defence of people who are defamed in a system where the legal costs are very significant and who are putting a lot at risk, something which is not the case with defendants, which are often corporations with very significant resources. Equally, many of the newspapers and the vast majority of our reporters and publications are responsible and report very responsibly. However, there is a small number that go in the opposite direction, often driven by the profit motive and an increase in circulation. There is evidence of this happening in Britain and people within the media have acknowledged that there can be a race to the bottom in terms of standards.

Much pejorative terminology is used in newspapers about "disgraced" individuals, but it is a matter of opinion whether a person is disgraced or not. That can be damaging to someone's reputation. There should be a clear distinction between something that one can challenge as an untrue statement and an opinion that can be damaging. The casual reader of a newspaper may not make a fine distinction between what is fact and what is opinion. We need to have some safeguards in that area, but I do not know how to do it. There should be a threshold that must be crossed to illustrate the distinction to the court.

In claiming the defence of honest opinion, one can sometimes see the prejudice running through the reporting. The old adage that the pen is mightier than the sword is very true. I have concerns for people, who may not be popular with the media, being vilified purely for the sake of vilification, rather than having to put up with a genuine expression of honest opinion. I do not know what can be done, but I would like to see the Bill strengthened so that there is a strong test for defendants to prove honest opinion. I do not detect that from the section or from other parts of the Bill. Perhaps nothing can be done, but I would like to put my concerns on the record.

Question put and agreed to.

SECTION 19.

Question proposed: "That section 19 stand part of the Bill."

Mr. J. Walsh

Section 19 deals with distinguishing fact and opinion. Sometimes a newspaper can express an opinion in the heading, so that is very clear. There has been a trend to inject an opinion into reporting. It is rare nowadays to read pure reporting of facts. We may be copying the trend that is found in the British media, but when one goes to other countries, there seems to be a much finer definition between the reporting of issues and opinions expressed in articles inside the newspapers. Here, things are something of a mishmash. I have concerns in that regard. We seem to be putting our faith in certain sections that standards will be maintained and, perhaps, improved.

Legislation should defend the right of newspapers to be an important component of democracy and society by allowing them free speech. On the other hand, we must balance this right with the right of individuals not to be damaged through reporting. We must not put a hurdle in the way that will prevent them from getting correction for a defamation or injury done to them. We must be mindful of that. I am conscious the newspapers are in favour of this section; I have not heard any opposition to it. The people who might be the victims in this area do not have a voice and that is a concern.

Dr. M. Hayes

I have to agree with Senator Walsh. Not every newspaper person thinks it is a good thing that fact and opinion are mixed to the extent they are. I belong to the C.P. Scott school that facts are sacred but comment is free. It is important to ensure that comment remains free in this area. There have been slippages in journalistic standards, not only in Ireland, but generally and it has become increasingly difficult to distinguish between facts enunciated and comments put or side notes. However, the section is adequate to allow the courts distinguish between these and, to borrow a phrase, teach people manners.

Mr. M. McDowell

I must agree with Senators Walsh and Hayes. The section does not just deal with basic standards of truthfulness and professionalism, which, unfortunately are sometimes lacking in media coverage of events. There is a low standard set in some areas, which I must deprecate.

I remember coming to the House once and deciding, in order to promote the use of Irish, that I would deliver a Second Stage speech in Irish. I also provided the speech, in English, to each Member. The following Friday, I was contacted by a reporter from The Sunday Tribune and was asked why I had made the speech in Irish and whether I had an ulterior motive. I replied there was no ulterior motive and that I had circulated the speech in English. Although the newspaper people knew that, on Sunday they wrote an article implying I had an ulterior motive and deliberately concealed the fact I had circulated my speech in English.

The clear message of the article was that I was up to no good using the Irish language and that there was something suspicious about my action. The one fact deliberately concealed in the newspaper report was that I had circulated a translation to every Member. This was done to prop up a story that was fundamentally untrue, that I had an underhand motive in speaking in Irish and was trying to conceal from the public what I was doing.

This kind of fundamental departure from decent standards of plain, intellectual honesty are to be deeply regretted. This case is just one that stuck in my mind because of the deliberate excision of a fact from the story, which the newspaper knew about two days before publishing the story. However, it decided the story would be better and more coherent and impressive if the truth was suppressed.

I agree with Senator Walsh that we cannot, in defamation law, set standards for the whole of the media. However, there are some areas of journalism where people feel free to suppress facts. I agree with Senator Hayes, facts are sacred but comment is free. If The Sunday Tribune had stated on its front page that day that I had circulated my speech in both languages, the story would have looked absurd and would not have merited one column inch. This is the kind of thing one must put up with.

Standards vary internationally. On one occasion I spoke to a journalist from The New York Times where internal standards are impressive compared to many newspapers of which I have some knowledge. If one of its journalists is found to be inaccurate or unfair, the editor requires a written statement from the said journalist setting out why a particular fact drawn to his attention was left out of the story. There is internal accountability in the office to keep up the high standard of the newspaper. I doubt that happens much in Ireland.

Dr. M. Hayes

Some journalists get a Pulitzer prize for such stories.

Mr. M. McDowell

That is true. If someone is willing to lie in depth and be inventive about it, he can get away with murder.

Mr. J. Walsh

I remember the incident mentioned by the Minister and was here when the Minister delivered his speech as Gaeilge. He was commended by all sides for taking the opportunity to use the Irish language, which should be used more often. I also saw the subsequent newspaper article. The article illustrates a certain prejudice, by either the paper or the reporter.

That was not an isolated incident. Many times people have opinions and use the press to promote those opinions. They are entitled to do so but that opinion may sometimes be defamatory or damage somebody. If that happens, there is nothing in the Bill to deal with that or to correct or give consolation to the person damaged or injured by those opinions. It is in that regard that we are going too far.

I remember attending a conference in Belfield which was initiated by the Minister on the area of defamation and privacy. I found it interesting and, if I recall correctly, the NUJ spokesman stated there was a lowering of standards. A person from our neighbouring island who was present said standards there had demonstrably been reduced over a considerable length of time. How can we impose standards on the recalcitrant elements of the media if this legislation makes it almost prohibitive for anybody to pursue a case on defamation? I have serious concerns in this regard.

I accept there is a need to modernise the legislation in this area. However, we should distinguish between allegations of fact and opinion and I agree with what Senator Maurice Hayes said in that regard. Can we not get to a stage where we provide for statements of fact in reporting so that we will get reporting of the facts? If somebody wants to give an opinion, let it be in another article, but let it be known that it is an opinion and let them be free to do that. Where both fact and opinion are mixed, stories are not generally in the interest of getting the truth to the public, which should be the primary objective of newspapers.

Dr. M. Hayes

Ba chóir dom labhairt as Gaeilge chun deireadh a chur leis an díospóireacht seo. It might be helpful if we remember that later we will discuss a press council and a code of practice. Codes of practice are capable of and include provisions which cover the matter of concern to Senator Walsh. I would think that is the section to deal with this concern.

Mr. Norris

The Press Council is a rather weak body. It is not independent and is financed by those whom it is supposed to police. Senator Maurice Hayes ought not think people will be fooled by that. I certainly am not, even though its head is the former Provost of Trinity College. Every time there is a problem in another profession this is a group that calls for independence. Independence suits for everybody else, but not for the newspapers which finance the council. I am not gulled by that rubbish.

I agree with Senator Jim Walsh's point about the impact of the British media which, by and large, is a disgrace. It is worrying because market forces operate and our own newspapers' standards are being driven down by their low standards. For that reason, it is highly regrettable that over the past two mornings the news programme on Radio Éireann between 7 o'clock and 9 o'clock has led with meretricious stories from the tabloids, which are British not even Irish. Even The Sun has been given prominence in the past couple of days by RTE.

I greatly regret I was not here when the Minister made the speech in Irish to which he referred because I would have enjoyed listening to his pronunciation.

Mr. M. McDowell

Senator Norris might not have.

Mr. Norris

I am sure he has the blas mar tá Gaeilge flúirseach aige. Access by the majority of the public to the ideas contained in his speech would be through the broadcast media and issuing a text to the House does not make those ideas available in English to the wider public. That is only a minor point but it must be taken into account as well. I did not read the article and I did not hear the speech. I am commenting, not on that aspect but on the principle. It is not a full defence for the Minister to state that he issued a speech to the Members present in the House. The speech was in Irish, would be recorded in Irish and would be printed in Irish.

Mr. Cummins

I was here for the Minister's speech in Irish. When asked to comment whether I thought there was an ulterior motive, I stated that the text in English was available to the Members. I thought that would be the end of it, but obviously it was not.

Question put and agreed to.

SECTION 20.

Question proposed: "That section 20 stand part of the Bill."

Ms Tuffy

Does subsection (3), "An offer to make amends shall not be made after the delivery of the defence in the defamation action concerned.", preclude the defendant in the middle of the case, after making his or her defence which could include an offer to make amends, from reaching a settlement with the plaintiff?

Mr. J. Walsh

Senator Tuffy's question was one I wished to raise also. Would the Minister also outline in his reply the distinction between this and making a lodgement under section 27, about which I have certain misgivings? Does this arise, as Senator Tuffy suggested, where the case is proceeding, a party decides that he or she wishes to make a settlement, and an approach is made, generally through the lawyers, by which a settlement is agreed?

I note also that in this section — distinguished from section 27 by this — an offer to make amends means an offer to make a suitable correction of the statement and to publish that correction and apology. These essential components of this offer to make amends do not seem to apply in the latter section, but I suppose we will come to that later.

Mr. M. McDowell

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.

Ms Tuffy

I am not sure it is clear in the section that an offer to make amends applies so restrictively, but I accept the Minister's point in that regard. Could subsection (3) have stated instead that it will not be a defence to make an offer of amends after the delivery of the defence?

Mr. M. McDowell

I apologise for forgetting to deal with that issue. Subsection (3) is designed to state that this is only available to a defendant at the very beginning. One cannot submit a defence stating that this is not defamatory, it is true or it did not refer to the plaintiff, and then decide to consider pulling the rug from under the plaintiff. At a late stage in the proceedings when a person has set out the defence, he or she cannot then go back to the offer to make amends. However, it does not prevent a person from settling an action or from compromising an action on terms.

Ms Tuffy

Would that include doing something along the lines of making amends as part of a settlement?

Mr. M. McDowell

Yes. One could do all of these things by way of a settlement of an action.

Ms Tuffy

That is not clear from the way it is phrased.

Mr. M. McDowell

I suppose Senator Tuffy is correct in that sense, but the purpose is that this is a formal procedure which one must invoke before submitting one's defence. One cannot submit one's defence and afterwards state one is taking a totally different approach to the case, such that one will invoke the defence of an offer to make amends. It does not stop one doing all the things one could do to make amends in substance but it would not be considered an offer or give rise to the defence.

Mr. Cummins

Section 20(5)(b) states: “...to publish that correction and apology in such manner as is reasonable and practicable in the circumstances”. Where a defamatory statement is made on the front page of a newspaper, must the apology not be accorded the same prominence as the original article rather than placing it in a corner of page 4, for example? Are these the circumstances to which the subsection refers?

Mr. M. McDowell

It is implied that the apology cannot be placed in the "Lost and Found" column or in the small advertisements at the back of the paper.

Mr. Norris

I welcome the Minister's response because he has satisfactorily answered a question I had intended to ask. It has been very often the case that, where a headline blackguarded an individual, the apology was not accorded due prominence. Let us not beat around the bush, this is what newspapers do as a matter of course. I therefore regard the provision as a corrective and the attention of editors should be drawn to the fact that they are required, under law, to give due prominence to their apologies. It is not their practice to do so at present.

Dr. M. Hayes

I agree that libellous comment on a front page should be corrected on the front page and not among the small advertisements or the stop press. The formulation in the legislation is acceptable in the sense that it seeks proportion. It might actually dispose of concerns I have over another section. As section 20 stands, I am satisfied with it.

Mr. Norris

Is the section enforceable? Supposing Senator Maurice Hayes is the subject of significant libel on the front page of a newspaper and the consequent apology is made in the Minister's favourite language, Irish, underneath the advertisement for homes for stray dogs, for example——

Dr. M. Hayes

Or under planning applications.

Mr. Norris

Exactly. Although the Bill states an apology should be made in a reasonable way, how can an offended citizen argue the manner in which it is made to him or her is unfair and that it should be printed on the front page? Is there machinery whereby the citizen can have such recourse?

Mr. M. McDowell

One must read sections 20 and 21 together. Section 21 states:

If an offer to make amends under section 20 is accepted the following provisions shall apply:

(a) if the parties agree as to the measures that should be taken by the person who made the offer to ensure compliance by him or her with the terms of the offer, the High Court or, where a defamation action has already been brought, the court in which it was brought may, upon the application of the person to whom the offer was made, direct the party who made the offer to take those measures;

(b) if the parties do not so agree, the person who made the offer may, with the leave of the High Court or, where a defamation action has already been brought, the court in which it was brought, make a correction and apology by means of a statement before the court in such terms as may be approved by the court and give an undertaking as to the manner of their publication;

(c) if the parties do not agree as to the damages or costs that should be paid by the person who made the offer, those matters shall be determined by the High Court or, where a defamation action has already been brought, the court in which it was brought, and the court shall for those purposes have all such powers as it would have if it were determining damages or costs in a defamation action... .

One must examine both sections together to see what happens if there is agreement or disagreement.

Question put and agreed to.

Section 21 agreed to.

SECTION 22.

Ms Tuffy

I move amendment No. 9:

In page 18, between lines 8 and 9, to insert the following subsection:

"(2) The court may regard an apology as effecting a substantial mitigation of damage if, but only if, it is made within 14 days of complaint being made in respect of the utterance to which the apology relates, and if the defendant's proposals for publication of the apology are reasonable.".

Subsection 1, as it stands, allows an apology to mitigate damage but the amendment is to encourage early apologies. We suggest that apologies made only within 14 days should be regarded as effecting substantial mitigation of damage. Late apologies could effect some mitigation, but not substantial mitigation.

The term "apology" is not defined in the Act. Should it be?

Mr. M. McDowell

I do not know. It is like trying to define an elephant — one just knows what it is. Similarly, one knows whether an apology is an apology. A definition of an elephant might not get one very far.

The section is purely in respect of the mitigation of damage. It requires that it be done either before the bringing of the action or as soon as is practicable thereafter in circumstances where the action was commenced before there was an opportunity to make or offer an apology. I do not know whether the 14-days rule would be practical in most cases. The matter probably should be decided by reference to the circumstances of publication. For instance, if a book with defamatory material were published, 14 days might seem an irrelevance, but it might seem like an age to a person defamed by a newspaper.

Section 22(3) states:

In a defamation action, an apology made by or on behalf of a defendant in respect of a statement to which the action relates—

(a) does not constitute an express or implied admission of liability by that defendant, and

(b) is not relevant to the determination of liability in the action.

This is a new provision. The policy behind this section is to encourage newspapers to apologise rather than argue that doing so is putting their heads in a noose and kicking the lever in respect of liability.

Mr. Norris

That is a nonsense.

Mr. M. McDowell

I do not believe so because there are occasions on which a newspaper will admit certain circumstances look bad. For example, a newspaper may say it did not mean to treat Senator Norris very unfairly and wants to apologise to him therefor. It might also say, however, that it does not want to throw away all its defences if it gets into a legal brawl. The philosophy behind the provision, therefore, is that if a newspaper's instinct is to apologise, it should be allowed to do so. Thus, the matter would not be in the hands of lawyers who would state an apology constituted an admission that the offended party was defamed.

The provision is to try to encourage newspapers to be generous in their approach. I agree with Senator Norris on newspapers. It has been almost universally my experience that newspapers are ungenerous on the question of apologies and always seek to minimise their extent or effect, as if apologising were extracting teeth from them. This is an unwise policy on their part.

When I was a member of the Council of King's Inns, The Irish Times published an article stating I had attacked King’s Inns and said it represented bad value. I was horrified because I felt all the judges and barristers would think I had become cracked and was vindictive and disloyal to an institution of which I was a member. The truth was that Senator Derek McDowell had made the remarks. I kicked up quite a fuss and stated the matter would not proceed any further if the newspaper apologised the following day. However, obtaining the apology was very difficult because the newspaper wanted to apologise to Senator Derek McDowell for confusing him with me. I stated I would sue the newspaper if it did so. It would not admit that it got the story wrong. Rather, it wanted to fudge and confuse the issue to suggest anybody could make the mistake that was made. Rather than apologising to me, it wanted to bring Senator Derek McDowell into the apology by nefarious means so as to make it all a joke. It was not a joke for me at the time.

Mr. Cummins

To reinforce what the Minister is saying, 14 days may not be the right duration. It is too late to leave it until an action is commenced because the apology should have been made as soon as the newspaper realised it was wrong to print the allegation. It should not certainly wait until as soon as "practicable thereafter, in circumstances where the action was commenced".

Ms Tuffy

While I accept what the Minister said with regard to the definition, does "apology" mean a written apology? An apology could be also made personally. I would think a newspaper should make a written apology.

Mr. M. McDowell

Generally speaking, the apology would be written, although it might be broadcast in the case of broadcast media.

Mr. J. Walsh

Reference should be made to an apology being timely and prominent. The Minister is correct with regard to the begrudging nature of many of the apologies which appear in newspapers. They are often late and small, and printed in a little read part of the newspaper, whereas they should be in a prominent position. The more time that passes before a defamatory article is corrected, the more damage it can do to an individual's reputation. There should be an onus on a newspaper to correct reports immediately on becoming aware they are untrue. It should be stitched into the legislation that the apology is printed on the same page as the offending article. To be honest, I would prefer all apologies to be printed on the front page because there is nothing in this legislation to deal with serial offenders. Newspapers which repeatedly go to the wire in terms of defamatory articles will be treated in the same way on a case-by-case basis as a newspaper which offends for the first time. That is wrong because sanctions are provided in all other legislation for repeat or serial transgressions.

I welcome the provision that apologies are not admissible in civil proceedings as evidence of liability as a significant and justified move in the favour of the press industry. Given that provision, however, there should be no reservations on the part of newspapers about taking a generous approach to issuing apologies. I hope the Minister will consider a reference to timely and prominent apologies, although I am not sure about imposing a 14-day deadline. If the Bill required apologies to be printed on the front page, the deterrent effect on circulation would give newspapers an incentive to adhere to the code of practice to which Senator Maurice referred. We need to stiffen the legislation to ensure compliance with proper standards and codes of ethics.

Dr. M. Hayes

Much can be said for the spirit of the amendment, and perhaps the Minister will consider it. Senators appear to agree that, as well as being appropriate and proportionate, apologies should be timely.

Mr. M. McDowell

I acknowledge the arguments made by Senators and think the term "timely and conspicuous" might address the issue.

Ms Tuffy

I appreciate the support shown by Members and withdraw the amendment.

Amendment, by leave, withdrawn.

Acting Chairman (Mr. Daly)

Amendments Nos. 10 and 11 are cognate and may be discussed together, by agreement. Is that agreed? Agreed.

Mr. Norris

I move amendment No. 10:

In page 18, subsection (3)(a), line 15, after "not" to insert "automatically".

The issue of apologies and their effects is troubling. The Minister has substantially weakened the interest of the ordinary citizen. I disagree that an apology would not constitute an express or implied admission of liability. It is plain common sense that it would constitute an admission and such is the interpretation in every other area of law. If I were involved in a traffic accident and apologised to the other party, that could be introduced as evidence of an admission. In plain, clear logic, it is nothing other than an admission if I apologised for making a mistake or for committing libel, and the Bill is incorrect to state that such an apology does not constitute an express or implied admission. It is like Alice in Wonderland to claim that saying one was wrong does not constitute an admission. The ordinary citizen’s common sense should be respected. I made my amendment weaker than I originally intended by including the word “automatically”, and the least the Minister can do is accept it because, otherwise, the Bill revolts common sense.

Subsection (4) is an outrage. While I do not know about the Minister, are we totally crazy as politicians to say newspapers can introduce evidence of an apology in mitigation but the claimant cannot? It is the most extraordinary proposal I have ever come across and it totally skews the balance between newspapers and the individual. By acknowledging an error and printing an apology, a newspaper can mitigate a serious libel from its point of view, even though it is not an admission of liability or admissible in court. On what planet do we live? The Minister should not think my sentiments on the matter are not shared because many of his Cabinet colleagues have told me in the privacy of the Members' bar that they feel the same way. They have thanked God that somebody has the balls to raise the issue because, although they would love to raise it themselves, they cannot do so. Few in this House, other than Members with interests in the newspaper industry, do not feel exactly the same. I can assure the Minister that the citizens of Ireland share my sentiments. What is being done here revolts reason and outrages logic, and I ask the Minister to accept at a minimum that an apology does not automatically constitute an express or limited admission.

The Minister should delete subsection (4). We are always hearing about level playing fields, yet a business organisation with enormous financial resources and insurance coverage can libel Seán and Moira citizen and then can apologise without admitting liability and introduce that apology in court as mitigation. How does the apology mitigate anything? The newspaper can introduce such an apology but the unfortunate individual is not allowed to do so. On what planet do Members live? I would like to hear other Members' opinions in this regard because, further on, it is stated that people in public life should be subject to less protection.

The Government has given in and has sold the pass under pressure from the newspapers. This happens each time there is a general election. It is not simply Fianna Fáil and the Progressive Democrats who do this; Fine Gael did so five years ago. They are all at it and the turkeys will vote for Christmas as long as they get a gob-full of good publicity before the general election.

Mr. J. Walsh

It is difficult to argue against Senator Norris's logic in this regard. While I do not disagree with his comments, the present situation, whereby newspapers feel justifiably constrained from issuing apologies because of the inherent danger of subsequent court cases, raises a dilemma. Subject to what the Minister will say in this regard, the intention of this provision is to allow newspapers that know they have made an error to proceed freely and publish an apology without it being part of a settlement with the injured party. There is a certain logic to this. This should be accompanied by the existence of an independent body, such as an independent press council, that could underpin the apology by awarding some compensation to the individual in question. However, this is missing from the equation.

Mr. Norris

There will not be an independent press council.

Mr. J. Walsh

I know.

Mr. Norris

Does the Senator agree with the inclusion of the word, "automatically"?

Mr. J. Walsh

Yes. However I would have difficulties in removing section 22(4). Its removal would mark a return to the status quo. In other words, newspapers would not publish an apology because of the inherent risk of a case that they would obviously lose as a consequence.

Mr. Norris

In that case, they should not be allowed to use it as mitigation either. They cannot have it all on one side.

Mr. J. Walsh

Most people would be satisfied by an apology. There may also be a need to combine an element of compensation with it, which is missing at present. The establishment of an independent body that could adjudicate in a reasonable manner without all the attendant exorbitant legal costs, as does, for example, the Personal Injuries Assessment Board, would be something of substance. It would allow an ordinary citizen to make a complaint and have redress in a satisfactory way without putting his or her livelihood and that of his or her family at risk.

This should be done and perhaps Members will have a debate on this issue on reaching the provisions pertaining to a press council. In this case, the removal of section 22(4) would be of some concern to me because it affords individuals an opportunity for an apology. In many instances, those who are so offended do not have the resources to take on the might of what are now major corporations. There is a benefit to the citizen that I am loath to strike out. However, I do not have difficulty with the Senator's amendment regarding the word, "automatically". It does not affect section 22(4) which is the most beneficial provision from the perspective of a defamed person.

Dr. M. Hayes

I had thought the purpose of this provision was to enable people to avoid litigation if they did not want to enter into it and that people who might be satisfied with an apology could receive one. However, if people wanted to go on to litigate thereafter, consequently both sides would start from scratch as though, in a sense, the apology had not been given. There has always been a difficulty in that newspapers were either reluctant to, could not or were advised not to make an apology and have dragged people in.

I experienced a case of this nature myself. A couple of years ago, a morning newspaper, which was neither the Irish Independent nor The Irish Examiner, carried an article suggesting that, in pieces I had written about Northern Ireland, I was acting as a spokesman for the Irish Government, thereby destroying my independence. I knew and respected the young man who wrote the article and all I wanted was to get straight to the point and get him to state this was wrong and no more. Although we eventually reached this point, to do so we were almost obliged to ignore lawyers on both sides.

It is in both the public interest and in the interests of those who simply want their names cleared quickly or who want what was in error cleared quickly and disposed of with an apology.

Mr. Norris

Such people are not compelled to sue. They are not obliged to continue with their actions.

Dr. M. Hayes

I am unsure whether including the word, "automatically" makes any difference from the point of view of drafting or interpretation. However, the general tenor of this provision should make things easier. If people subsequently want to go on to litigation, nothing will prevent them. The decks are cleared.

Mr. Cummins

Senator Norris has made some valid points in this regard. It probably tilts the balance too greatly in favour of the newspapers. All Members want fair play for the ordinary Joe Soap who is defamed. I have no problem with the amendments tabled by Senator Norris that include the word, "automatically" although I am unsure whether that will make much difference in interpretation. However, Senator Norris made it clear that if Members are to prevent people from continuing with litigation, we should not be seen to be acting against the ordinary citizen. He or she may not have sufficient money to fight a case.

I take Senator Maurice Hayes's point that this provision pertains to those for whom an apology would suffice. While all would be well in such a case, they should have the opportunity to proceed with litigation. I do not consider the issue of evidence of apology to be correct. More thought should be put into it before Members proceed in this regard.

Dr. Mansergh

At the risk of annoying some of my learned friends, legislators should encourage a culture of apology. By apology, I mean a proper and full apology. I accept this may not always mitigate the harm done, in which case further litigation is possible. It is right that apologies can be made without strict admissions of legal liability. It would be desirable for Members to try to cut down on libel litigation and for newspapers, without putting their resources at risk, to be encouraged to make proper and full apologies.

While I will not go into details, the Minister will be aware that, a couple of years ago, I was seriously libelled in respect of actions that, in practice, I did not take as an adviser back in 1998. Although I was prepared to go to law, if necessary, after I had made my protest, the newspaper concerned published a letter of mine that stated the allegation made was untrue and the reasons it was untrue in order that people could judge for themselves adequately. Thereafter, I had no interest in pursuing the case any further and am glad to note the libel has not been repeated by any source.

Mr. M. McDowell

Senator Norris is entitled to his strong conviction but he should not attribute motives to those who proposed to amend the law, which are venal or corrupt. In 1991 the Law Reform Commission, which at the time was chaired by Mr. Justice Ronan Keane, published a report on defamation law. On page 10 of that report it is stated:

We referred in our Consultation Paper to the representations we had received on this subject. It appeared that, although s17 of the Defamation Act 1961 enables a defendant to give evidence in mitigation of damages as to the making or offering of an apology, the section is frequently not availed of by defendants because of a concern that an apology will be regarded as an admission of liability. We provisionally recommended that s17 should be replaced by a new provision making it clear that an apology to the plaintiff is not to be construed as an admission of liability. This proposal was generally welcomed.

The report then sets out a recommendation. In 1991, therefore, the Law Reform Commission, which had absolutely no snivelling or leg-licking motivation regarding the media——

Mr. Norris

I am not sure I used those phrases but I am grateful for the Minister's suggestions, as they will come in handy later.

Mr. M. McDowell

Regardless of the electoral cycle involved, the Law Reform Commission, which was established by the Oireachtas, took the view that the all duck or no dinner aspect to an apology was an inhibiting factor that drove people to litigation and stopped them from acting decently because they put their heads in nooses when they did. I agree with Senators Mansergh and Maurice Hayes that we would like people to behave in a sensible way. If newspaper editors think they have been excessive in what they have said or if they think one of their columnists has been unfair, for example, they should be able to apologise without lawyers immediately saying the liability issue is out of the way and the newspaper's bank accounts should be opened in order that they can bring their shovels and barrows to see how much they can get away with, which is the other side of the equation.

The purpose of the provision is to create a circumstance in which defendants can write to litigants about apologies without all the time thinking they are putting their heads in a noose and kicking the lever on the liability issue. Ordinary people would be better served if newspapers felt they could safely apologise without handing a blank cheque to the litigant whose lawyers can fill in how much he or she will take on foot of an apology. The more full the apology, if it is taken as an admission of liability, the greater the amount that should accompany it in damages. If the newspaper states, for example, "We deeply regret that Senator Hayes's personal feelings have been hurt in this way and we profoundly apologise to him and acknowledge the hurt we have done to him", the decimal point will move a few points to the right. That is the attitude in some cases.

I agree, on a common sense basis, that to apologise is to admit that one has done something wrong by definition. The policy of the statute is to encourage people to acknowledge an error. However, if an individual makes an apology and he or she can forget about defending the case, checking the facts, qualified privilege and so on because it is open season for the lawyers, inevitably, newspaper editors and owners will say it is not worth it. They will ascertain whether the individual is serious about the case but they cannot hand him or her a blank cheque and ask him or her to fill it in. That is the underlying philosophy.

I fully accept Senator Norris's comment that on one level to say one is sorry is to concede an element of fault, for example, where following a car accident the man or woman in the offending car got out and said "I am terribly sorry", and it was relied on in court. The insurance companies always said——

Mr. Norris

The people were in shock.

Mr. M. McDowell

No, they said they were the servant or agent for the purpose of driving the car because it was a vicarious liability implied by statute. However, they were not authorised to comment on who was to blame and it was not an admission made by the defendant. For example, in the case of an accident if a driver hops out of a bus and says he is sorry, that does not mean CIE has made an admission that it was to blame. However, there are artificialities in all of this but the question is what we are trying to achieve. Are we trying to achieve a position where people deal with each other realistically and decently?

The Law Reform Commission identified this as a problem 16 years ago and this is not being done as an act of abasement by electorally nervous politicians to the media nor is it a case of turkeys voting for Christmas. I would be much happier, if I were defamed, to receive an apology rather than making a trip to the Four Courts and putting massive legal expenses on the hazard one way or the other of obtaining a little decency from a newspaper.

Mr. Norris

I accept it is better to cut down on litigation and so on. I am glad the Minister has conceded there is an artificiality about this issue. Persons who are satisfied with an apology will not continue the action further, which is correct.

Mr. M. McDowell

Unless their lawyers say, "You have an open goal now. You can kick the ball in as many times as you like".

Mr. Norris

Is the Minister imputing impure motives to his own profession? I am so shocked I can hardly stand up. Somebody who wants only an apology will be satisfied with that.

The concept of apologies being viewed as a mitigating factor in settlements for damages has been introduced. Nothing in the legislation inhibits apologies. My amendment is weak, as it states, "does not automatically constitute". However, will the Minister consider its inclusion?

With regard to the Law Reform Commission, I am delighted the Minister is so enthusiastic about its report because he has not invested in law all of its recommendations. He is a bit of an á la carte person where the commission’s reports are concerned. He picks and chooses, which is fair enough. However, when the debate resumes I will point out other areas in which equally strong recommendations were made by the commission but the Minister chose not to take them on board. I share the Minister’s high regard for Mr. Justice Ronan Keane but because he said something in a report 16 years ago in circumstances that have been changed by earlier sections in the legislation is not an overwhelming argument, although it must be taken into consideration.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.

Seanad Éireann debate - Wednesday, 28 Feb 2007