Amendments Nos. 10 and 11 may be discussed together by agreement. Does anyone wish to speak on those amendments?
Defamation Bill 2006: Committee Stage (Resumed).
Senator Norris felt strongly about this amendment, which seeks to insert the word "automatically". He had some concerns in this regard on which he might well want to elucidate himself, rather than me doing it. Both amendments are more or less connected.
With the indulgence of the House, I would like to await the Minister of State's reply before commenting.
I expected a long contribution from Senator Norris.
The Minister of State should not tempt providence because he might well get one, even though my lungs are not what they were last week.
The reputations of Senator Jim Walsh and Senator Norris precede them on this issue. I propose to deal with amendments Nos. 10 and 11 together. The amendments proposed by Senator Norris do not provide for any additional clarification of the provision. I am advised by the Parliamentary Counsel that the proposed wording would not be normal in drafting legislation and might have the effect of damaging the meaning. Therefore, the amendments are being opposed.
The intention of the amendment was to allow for the proposed insertion of the word "automatically" as a possibility after the word "not" in subsection (3)(a) which, as drafted, states: “does not constitute an express or implied admission of liability by that defendant, and”. That means that it cannot constitute an implied admission. However, when one says that it “does not automatically” do so, it would leave open the possibility that in certain circumstances it could.
The point I was making on the last occasion — and I did have some degree of moral support, at least, from Senator Jim Walsh — was that the net effect of the Bill is to skew the balance against the individual in favour of the newspaper proprietors who have very large vested interests in this area. I cannot accept the notion that it is not normal drafting. There was a wonderful example of normal drafting the last day. God almighty and His entire family could not understand section 18(3)(a) which was such a collection of nonsense that the Minister agreed to have it redrafted. I will not accept guff referring to normal drafting because it does not exist.
All that is sought on both sides of the House is drafting that is clear, simple and defends the rights of citizens. Inserting the word "automatically" provides an avenue of approach whereby a plaintiff may be given a level playing field. I remind the House that when this legislation goes through, one will be able to tell any number of lies about a citizen and follow them with an apology that must automatically be taken in mitigation of the effect, consequences and damages that accrue subsequent to an action for libel. The apology will be a valuable weapon in the hands of the press and, if this is how the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Fahey, wants it, then that is fine but he is simultaneously removing that weapon from the ordinary citizen. He is asking the court to pretend the apology never took place and I suggest that such apologies made by newspapers are worthless and are only made to save money. I accept that it would be improper to restrict the freedom of the press excessively and impede investigative journalism, but I also feel it is wrong to hinder the individual plaintiff as this legislation will.
I apologise for being briefly absent from the House. I passed through the ante chamber, did not hear a whisper of McDowell and thought I should follow the Leader's instructions.
The Senator should refer to Minister McDowell.
I beg his pardon, the grand panjandrum himself, Minister McDowell, TD and Tánaiste.
There is a Minister of State in the House.
He is a distinguished Minister of State, a decent man, and I know him well but I thought, since I could not see Minister McDowell, I would do as the Leader says and read what Mr. Fintan O'Toole said in his column in The Irish Times on this subject and the subject of investigative journalism.
I do not think we should discuss what Mr. Fintan O'Toole said. We should discuss what Senator Norris has to say.
I think any restriction on the discussion of the opinions of Mr. Fintan O'Toole would only be for the greater sanity and welfare of the people. On that jocular note, I will listen to the Minister of State if he has anything more to say.
As a director of Independent Newspapers and writer, I have an interest to declare in this matter, and I make such declarations ritually. We have focused on this issue each day we have discussed the Bill and I can only conclude that the intention is not to make progress on Committee Stage. I agree with the Minister that the purpose of this section was to encourage newspapers to offer apologies and, in doing so, to satisfy those people who find them acceptable. This would keep many cases from the courts that would have otherwise have been there, and people not satisfied with an apology could still go to the courts.
I share many of Senator Norris's views on the inelegance of the drafting of Bills that come before us but I think adding the word "automatically" in this case would define it out of existence.
I did not receive a satisfactory response to a point I raised on the previous occasion the Bill was debated. Section 22(1) states: "In a defamation action the defendant may give evidence, in mitigation of damage, that he or she made or offered an apology to the plaintiff...". Why is a distinction drawn between the words "made" and "offered" in this context? The legislation does not make provision for a press organ to unilaterally publish an apology when it knows it is wrong. Why should the words "or offered" be included? The section contains a dichotomy.
The reason Senators are painstakingly examining the sections is that we have strong reservations about many of the Bill's provisions. In addition, the purpose of the House is to examine legislation. The Minister has kindly agreed to consider a number of points raised in the House.
Section 22(3) states that in a defamation action, an apology made by or on behalf of a defendant in respect of a statement to which the action relates does not constitute an express or implied admission of liability by that defendant and is not relevant to the determination of liability in the action. This means the plaintiff will not secure advantage by giving evidence in court that he or she has received an apology. The defendant, on the other hand, may, "in mitigation of damage", give evidence that he or she has made or offered an apology to the plaintiff. This is an unfair and inequitable provision which must be addressed to achieve balance.
As Senator Norris stated, if an apology can be cited in support of a case, it should be open to both the plaintiff and defendant to do so. It is logical to provide that publications should not fear that making an apology will result in a subsequent legal case being conceded. However, if the defendant can use an apology in mitigation of damage, it should not follow that the plaintiff should be deprived of an opportunity to raise the apology in support of his or her case. If a publication has done damage to a person's reputation, damages should flow.
I am impressed by Senator Walsh's contribution which was fair, measured and reasonable. I also have a degree of sympathy with Senator Maurice Hayes's comments because I understand that one does not want to have blood in the water, in other words, the fact that an apology is given means that people who might not otherwise take an action sniff blood and decide that, having received an apology, they can go for the publication in question. It is a matter of striking a balance. The problem, however, is that the section lacks balance and favours one side.
While I understand the concerns of Senator Maurice Hayes and, like everybody else, want good investigative journalism, I do not want the apology to be used as an excuse. I will retain my amendments in order that I may resubmit them on Report Stage. Will the Minister of Stage ask officials to examine the section to ascertain if the lack of balance, about which all Senators have some reservations, can be addressed? In such circumstances, I would not be vexatious in pushing my amendments. It is not a matter of personal vanity on my part to have my name on an amendment which is accepted.
I accept that the Minister controls the Whip and that the reality of political life is that Members on that side will have to do as they are told and will be dragooned through the lobbies. There is clearly a belief on all sides of the House that there is a lack of balance in this regard. It is incumbent on the Minister to ask his officials to consider whether it is possible to introduce an extra degree of balance.
Amendments Nos. 13 and 14 are technical alternatives to amendment No. 12. All three amendments may be taken together. Is that agreed? Agreed.
I move amendment No. 12:
In page 18, lines 26 to 36, to delete subsection (1) and substitute the following:
"24.—(1) Subject to subsection (4), it shall be a defence (to be known, and in this section referred to, as “the defence of fair and reasonable publication”) to a defamation action for the defendant to prove that the statement in respect of which the action was brought was published in good faith and in all the circumstances of the case, it was fair and reasonable to publish the statement.”.
I tabled this amendment on the basis of my belief that newspapers may have too many hoops to jump through in proving fair and reasonable publication. An article published in good faith should be viewed by the court as not being malicious, and this should be sufficient to proceed with the defence of reasonable publication.
I am tempted to withdraw this amendment, however, in view of recent examples of untruthful newspaper allegations made against certain persons. On today's Order of Business, Members referred to articles published in recent days on the death of a young man in Lucan. These reports contained several untruths, including the claim that he was known to the Garda. Given that we have been discussing this Bill for some time, I had expected apologies to appear prominently in the newspapers that printed these lies. We saw on the television a grieving mother forced to defend the good name of her son. The newspapers in question printed what can be only described as rubbish. These allegations have hurt the victim's family, as they would any decent and right-thinking person. This is only one example but it is typical of the problem that exists.
Some weeks ago, I spoke on the Order of Business about the media treatment endured by the manager of the Irish soccer team in the wake of the victory in San Marino. One newspaper article the following Sunday suggested he should buy petrol and pour it over himself. This is gutter journalism and it must be stamped out. The sooner we have a press council with teeth the better. As I said, I had hoped today's editions of the relevant newspapers would include apologies for the untruths they published about the gentleman who died. This was a man who worked for charity. It is harrowing for his mother and extended family that such articles should be published.
I am interested to hear what the Minister of State has to say about my amendment but I propose to withdraw it in light of these latest events.
I agree with much of what Senator Cummins said. My understanding, although I may be wrong, is that we are attempting to introduce a new concept into Irish law. It is a concept that is highlighted by the infamous Reynolds case in which a former Taoiseach was libelled and pilloried by a trashy rag owned by that despicable man, Rupert Murdoch. It is astonishing that we should introduce something like this trailing after these types of judgments. A judgment in the United States some years ago in the case of Sullivan v. The New York Times was based on a first amendment argument. The net impact of this has been to introduce negative advertising whereby people can say whatever they like about their opponents in election campaigns and can pay people to lie on public television and get away with it. Is that what we want?
Mr. George Galloway can be an awkward customer and sometimes plays to a low gallery, something I am sure no Member would accuse me of doing. On the other hand, he was well able for the Senate of the United States when he went there and blazedly told the truth. The truth is something to which The Daily Telegraph is a complete stranger. That paper repeatedly published lies about Mr. Galloway and tried to rely on the justification of fair comment. It lost its case, however. Are these the standards we wish to import into Irish law?
My amendment No. 14 proposes to delete paragraph (a) of subsection (1). This provision is a squalid piece of work. I ask Members, my fellow turkeys, to note that subsection 2 (a) refers to the “extent to which the statement concerned refers to the performance by the person of his or her public functions”. This provision purports to do something I maintain is unconstitutional because it creates two ranks of citizens. On the one hand, there is the ordinary Joe Soap who has never lifted a hand to serve his community or do anything of a public nature. It seems such persons are entitled to a higher degree of protection than somebody who enters public office in an attempt to do some good.
As politicians, we are saying here that there should be a weaker test of truth in what newspapers and other media sources write about us than there is in regard to ordinary citizens. Why is this the case? What is the caratage of truth? Should it not be an absolute standard? Is a lie somehow lesser if it relates to a Deputy, councillor, Senator or Minister rather to an ordinary citizen? I do not understand the logic of that.
I understand that newspapers must pursue matters of public importance. Above all, however, is the question of truth. My standard can be summed up as "Print the truth or pay the price". In 1909 or thereabouts, a contemporary of James Joyce, Arthur Cleary, observed that a nation which takes an English paper for its Sunday lunch will one day find a change in its Friday menu. I should explain for younger people that at that time, Roman Catholic people who were citizens of this State were required not to eat fish. What Mr. Cleary meant by this observation was that if one allows one's ethos to be overwhelmed by the standards of the British tabloid press, one will find one's entire ethical context changed. I do not say this in any racist way. I am proud of the fact that my father is English. I am not anti-English but I deplore and despise the standards of the British press.
Under Article 40 of the Constitution, the State guarantees to secure the good name of every citizen and, by its actions, to vindicate that good name. The Constitution does not provide that this will be done for Mrs. Olivia Boylan in Sallynoggin but not for Senator Maurice Cummins, because he is a Senator, nor for the Minister for Justice, Equality and Law Reform, Deputy Michael McDowell, because he had the cheek to put himself forward for election. We would want to be very careful before we vote through a Bill that states that if somebody is in public life there is a weaker test of truth to be applied in what is written about them, and I do not give a tuppenny damn if I attract the further ire of Fintan O'Toole for expressing this view in Seanad Éireann. Much as I am interested in Mr. O'Toole's commentary, he always goes on about the freedom of the press. I have every freedom to express these opinions in defence of what I see as proper and decent standards in this House. That is at least as much part of the freedom of expression in a democracy as is the freedom to print lies about politicians.
I remind Members, if any of them are in the slightest doubt, that politicians are routinely held up to contempt and ridicule by commentators. Only last night I was listening to Vincent Browne, whom I usually enjoy, but I had to switch off the programme because he was posing loaded questions, barracking people, interrupting them and groaning and sighing all over the place. It was the most ridiculous performance. He did not give people a chance to speak. He was holding them up to ridicule because they were politicians, and here we are again allowing a lesser standard of truth and decency to be applied simply because we are politicians.
We have been let down by some members of this profession who appear to have sold themselves out, especially over planning, for pathetic amounts of money but I still hold that this is an honourable profession where honourable and decent people work hard in the interests of the community. If there are rotten eggs we should go after them, sort them out, find out the truth and publish it fearlessly but we must not publish half truths and lies. We must not encourage that kind of low standard of journalism.
Senator Norris is extending the Sullivan judgment far beyond what anybody expects of it. The basis of the Sullivan judgement was that people engaged in the rough and tumble of political debate and public life should be regarded as having slightly thicker skins than others but if there is a liable people can proceed on that. Like Shylock, if we are pricked do we not bleed?
That should be respected. At the same time, we are not putting journalists, writers or others in a different position from the rest of the public when giving a defence of good faith because what is it but mens rea? It is the intent to commit the crime or whatever. There must be a good faith defence in that case as in this one.
We tend to concentrate on the press and on the media but there are other forms of publication. I was very concerned with a case involving a politician in Northern Ireland, who is no longer alive, which caused a history book by a reputable historian to be pulled because of one reference in a paper that had stood unchallenged for years. There must be a provision which allows for a defence in those cases.
I propose to deal with amendments Nos. 12 and 14 together. Amendment No. 13 is a technical amendment. Senator Cummins's amendment No. 12 would radically alter the purpose of the proposed new defence of fair and reasonable publication. Section 24(1) provides for the defendant in a defamation action to prove that the statement in respect of which the action is brought was published in good faith and was published in the course of, or for the purpose of, the discussion of a subject of public importance, the discussion of which was for the public benefit. These two qualifications are critical and are not divisible. While it will be ultimately for the courts to decide the exact nature and extent of this new defence, it must retain the qualification that a matter of public importance be the issue. For that reason, the amendment is opposed.
Amendment No. 14 is somewhat related to amendment No. 12 in that it seeks to divide the essential qualification of the defence. The good faith requirement is a necessary precondition on the publisher of the statement and is indivisible from the public importance requirement. I oppose this amendment also.
I move amendment No. 14:
In page 18, subsection (1), line 31, to delete paragraph (a).
I will not press it now because I want to return to it on Report Stage but it would strike me as perfectly reasonable that in a matter of public importance truth, and not partial truth, is essential. The number of people, including some of the Minister's Cabinet colleagues, who have privately told me I am right would horrify the people sitting behind him.
I move amendment No. 15:
In page 19, subsection (2)(f)(i), lines 9 and 10, to delete all words from and including “or” in line 9 down to and including “standards” in line 10.
This amendment concerns the press council. The press council is absurd. The Bill refers to the standards. What are the standards? Where are they? Are they adumbrated in the Bill? Will the Minister of State tell the House what precisely are the standards? What is the code? We are blithely saying in legislation that there will be an excuse for them to adhere to the code of standards of the press council. The incoming head of the press council is an old friend of mine and a former Provost of Trinity College but it is his innocent decency that has allowed him take up this position because it is a farce.
Everybody knows the idea of a press council is a complete farce, and I will explain the reason to the Minister. A classic example of it is that we do not have any code. The Minister is from a country region, and I am not more than a hop out of the bog myself, and I assure him that neither I nor any of my ancestors would buy a pig in a poke. This is a classic pig in a poke.
Who are the members of the press council? A fair preponderance of them are appointed by the people it is supposed to supervise. It is not, in any recognisable sense of the word, independent. We will be dealing later with the profession of architects in the Building Control Bill where we are insisting on an independent regulatory body to validate architectural qualifications and so on. I could reel off any quantity of cases in which there have been editorials written, including by Senator Maurice Hayes's newspapers, demanding independent regulation but apparently what is sauce for the professional goose in every other case is never to be ladled out as sauce for those in the press, who are above such concepts as independence. Just as we are required to dilute the meaning of truth, we must dilute the meaning of independence.
I will refer to another little wonder. As I will not be allowed to elaborate too much on it at the appropriate place, I would prefer to talk about it at the inappropriate place. Who is paying for this bird? Did that ever strike anybody? I will tell the House who is paying for it — the press. We have a code that is not spelt out, which is the creature of a group of people who are not independent and are paid for by the people they are supposed to be regulating. There is a phrase I encountered, which delighted me when I moved across the river: "Well I don't know about you, but I didn't come down the Liffey in a bubble." Well I did not, and I can smell this a mile off and I do not like it. I would very much appreciate if the Minister of State would agree to delete it.
Section 24(2)(f)(i) makes specific reference to adhering to a code of standards equivalent to those of the press council where the publisher of the periodical is not a member of the press council. This provision is very sensible as a periodical may for whatever reason — it could be valid from its perspective — decide not to be a member of the press council. We should allow such a periodical to access such a defence. We cannot force periodicals to take up their entitlement to be members of the press council. Thus when seeking to invoke the new defence, the existence of an equivalent code of standards similar to that to be established by the council or its absence will assist a court in its determination of whether a published statement was fair and reasonable on behalf of the non-member of the press council. For that reason I oppose the amendment.
Not at this stage. I will await developments.
Amendments Nos. 17 and 18 may be discussed together, by agreement.
I move amendment No. 17:
In page 19, subsection (2)(g), line 16, after “obtain” to insert “in advance”.
The first part of section 24 (2)(g) states that the plaintiff’s version of events should be represented in the publication concerned. If we also allow “the extent to which a reasonable attempt was made by the publisher to obtain and publish a response from that person”, that attempt should be made in advance of publication, which would be in keeping with the rest of the section. It makes sense from the viewpoint of having balance and proportion.
Amendment No. 18 requires that "the extent to which the prominence and extent of the representation of that person's response compares with the prominence and extent of the suspicion, allegation or fact concerned" should be taken into account. It would be possible for a newspaper, for example, to have the plaintiff's version of events in the same article that the person was defamed but it might be in small print, while a large heading might defame the person concerned. It is not enough for a plaintiff to be permitted to have his or her version of events in the same publication. The prominence of that version of events in the publication should be similar to the article which is defamatory. At least it should be considered.
While amendments Nos. 17 and 18 would preserve section 24(2)(g), they seek to alter its meaning by providing that the plaintiff’s version of events must be obtained in advance and so obtained the nature and extent of their representation compared with the suspicion, allegation or fact concerned. While I have sympathy for and understanding of the thinking behind the proposed amendments they seek to be too prescriptive in imposing these conditions. If accepted they would run the risk of making the new defence unusable. There may be valid reasons the plaintiff’s version cannot be obtained in advance of publication. I would prefer to let this matter be the subject of continuing jurisprudence by the courts in determining cases that might come before them. As to the nature and extent of the representation of the plaintiff’s views compared with the suspicion, allegation or fact concerned presented by the defendant, I would prefer to let the courts decide on the basis of the particular case presented to them. Consequently, amendments Nos. 17 and 18 are opposed.
What Senator Tuffy is requesting represents good journalistic practice. Publishers should try to establish the contra case before publication. Most conscientious journalists would do so. I agree with what the Minister of State has said. It should be left either to the courts or to developing codes of practice.
I agree with Senators Tuffy and Maurice Hayes. I am somewhat taken aback with the response. Section 24(2) states:
For the purposes of this section, the court shall, in determining whether it was fair and reasonable to publish the statement concerned, take into account such matters as the court considers relevant including any or all of the following . . .
Amendment No. 17 would result in section 24(2)(g) stating:
(g) the extent to which the plaintiff’s version of events was represented in the publication concerned and, if not so represented, the extent to which a reasonable attempt was made by the publisher to obtain in advance and publish a response from that person... .
If we leave the subsection as it is we would effectively not place any obligation on a member of the press and the court would not have any great regard to it if no attempt were made to establish from the individual who was defamed whether it was correct. It would be ludicrous for us to allow that to go through. It is a very sensible amendment. If a vote were called I may be put in a position of having to vote against my conscience. This section indicates many of the deficiencies and weaknesses in the Bill. The amendment represents a simple request that should be acknowledged and included. It takes nothing from rights of the media. All it means is that the court will take into account that the journalist or publication made some attempt. It is not even necessary to contact the individual. However, the defendant should be able to give evidence showing an attempt to make contact even if it were not possible to contact the individual. That would be very germane in a case where a defendant pleads a defence that it was done in good faith, and was fair and reasonable in the circumstances. I will come to the point of fair and reasonable publication in a moment because I agree with the insertion of that provision. I strongly urge the Minister of State to reconsider this aspect between now and Report Stage. It is a very minor and commonsense change.
I thank Senators Jim Walsh and Maurice Hayes. The more I look at it, what the Minister of State has said does not make sense. How can one take into consideration whether something was fair and reasonable if, after publication, one looked at whether the defendant made an attempt to contact the person for a response? That is after the event. If somebody published something defamatory and he or she knew, surely he or she would try to get a defence for himself or herself by making the attempt this section allows. I do not see the logic of it being something that could be considered where, after the event, somebody could make an attempt to contact the plaintiff to get his or her response.
The court would ask whether at the time this was happening the person made the effort before he or she published?
I suggest we get a form of words to cover that issue.
While I accept the thrust of the Senators' arguments, my difficulty with the amendment is that it is simply too prescriptive and we cannot be too prescriptive in legislation of this nature. The matter is best left to the courts to decide.
I take the point the Minister of State makes but I strongly urge him between now and Report Stage to have another look at the issue. It is not necessarily good enough to leave an issue such as this to the courts. We are making a significant change in the laws of defamation, which I will comment on when we come to the section. In doing that, there needs to be regard to the ordinary citizen who may well find himself or herself in a position where he or she is seriously defamed and, because of the way we construct the legislation, everything is stacked against him or her.
If a serious journalist or publication were not to make any effort to establish from the party being defamed whether what was to be published was true and giving that party such an opportunity, that would be a serious breach of standard ethics in journalism. I do not think we should prescribe for that in law. It is wide open to the courts to interpret it. Conversely, where a case was pending and the publication had a letter from a solicitor, it would not be good enough for the publication to try to establish from the individual whether it was right or wrong. At that stage one would not give kudos to anybody for going to them.
While one does not have to make contact, the important issue is that an honest effort is made to make contact in advance. That is the very least I would expect where a serious defamation issue arises. I urge the Minister of State to look at that issue between now and Report Stage because we are ad idem in the House. All the wisdom on this issue does not reside just within the Department. The views of the Houses of the Oireachtas should be reflected in the Bill as well.
I support Senator Tuffy and Senator Jim Walsh. I appeal to the Minister of State, as Senator Walsh has done, to look at the matter between now and Report Stage. We are all of the same opinion that the issue should be looked at and a proper form of words agreed rather than being dismissed at this stage. The Minister of State should at least give a commitment to look at the issue and come back with another form of words on Report Stage. That is the least we deserve given that all sides of the House have the same opinion on this matter.
I agree with the other Senators. It would be acceptable if the Minister of State were to say he would look at the matter between now and Report Stage. Section 24(2) deals with whether it was fair and reasonable to publish the statement. Paragraphs (a) to (f) and (h) all deal with the time of the statement or beforehand. Paragraph (g) is the one paragraph that allows for the possibility of something happening after publication and, surely, that could not be correct. If so, will the Minister of State clarify the reason it is necessary to leave it broader?
I am prepared to clarify further the reason for this requirement. In doing so, I make it clear I am not necessarily agreeing to any change in the position I now hold. I am prepared simply to seek further clarification on the basis that all Members are in agreement that I should do so.
I move amendment No. 19:
In page 19, subsection (4)(b), line 36, to delete “out of spite, ill will or”.
I consider that "bad faith or other improper motive" is sufficient. I propose the deletion of "out of spite, ill will or".
The proposed amendment would weaken the conditions of the operation of the new defence of fair and reasonable publication. I see no reason the publisher of a periodical claiming the defence should not be required to show specifically that they did not act out of spite or ill will. Therefore, the amendment is opposed.
I move amendment No. 20:
In page 19, subsection (4), between lines 39 and 40, to insert the following:
"(d) as far as practicable, he or she made a reasonable attempt to obtain in advance and publish a response from the person to whom the publication related, and”.
This amendment is similar to an earlier amendment. Obviously, it is part of the defence that an attempt was made in advance to obtain and publish a response from the person to whom the publication related. If one used that defence, it would logically follow that one should be able to prove one made that attempt. For that reason the amendment was tabled.
Amendment No. 20 effectively follows on from the proposed amendment No. 17 by seeking to add an extra condition in pleading the defence of fair and reasonable publication that a reasonable effort had been made to obtain and publish the plaintiff's version of events. I have a certain understanding of the thinking behind the proposed amendment. However, I hold the view that seeking to add this particular condition is being too prescriptive and, if not met, should be a reason for automatic failure of the defence. It is of a different nature from the other conditions in subsection (4). Therefore, I oppose the amendment.
It might well be argued that the defence of fair and reasonable publication is a concession to the media. I take a different view. I think it is a concession to free expression and it is one I fully support in the Bill. It is a significant shift and modifies our defamation laws substantially, but it is right that it should do that where issues of public importance and matters of public benefit can be placed as a defence to publication. In going that route, we need to mindful when easing the laws of defamation to maintain a balance. Section 24(3) reads:
The failure or refusal of a plaintiff to respond to attempts by or on behalf of the defendant, to elicit the plaintiff's version of events, shall not -
(a) constitute or imply consent to the publication of the statement, or
(b) entitle the court to draw an inference [that is fine] if, in the particular circumstances of the case, the court considers that the plaintiff was reasonable in withholding any response or in believing that a denial or refutation by the plaintiff of a defamatory statement would itself be unfairly used or published.
What we are doing is qualifying the denial of the court's right to draw an inference. I have serious concerns in this regard. If a person is contacted by a newspaper, reporter or radio or television station, he or she should be entitled to say that he or she is not prepared to make any comment. The court should not be allowed to infer in such circumstances. This is a very significant qualification. I ask that this be looked at between now and Report Stage. I am discussing sections because, as I am on the Government side, I cannot table amendments to the Bill. If I were in a position to do so, the House can rest assured that I would table many amendments.
Section 24(4) deals with the defence of fair and reasonable publication. It states:
The defence of fair and reasonable publication shall fail unless, in relation to the publication of the statement in respect of which the action was brought, the defendant proves that-
(a) at the time of publication he or she believed the statement to be true,
(b) he or she did not act in bad faith or out of spite, ill will or other improper motive.
I am not disagreeing with that but how is it to be proven? It strikes me that other than making an affidavit, it is impossible to prove this. It is a significant part of the subsection. What answer or clarification might we get in this regard?
I repeat that we simply cannot allow the legislation to be prescriptive to the point where we are tying the hands of the court. It would make the defence almost impossible and it is for this reason we must leave these matters to the discretion of the court. While, as I stated previously, I might agree with the principles behind the case being made, in the interests of good legislation, we must put these proposals through as proposed in the Bill.
A very simple question arises from section 24(3)(b) which states that the court is not entitled to draw an inference but then qualifies this by stating that the court would look at whether the plaintiff was reasonable in withholding a response. In what circumstances would a plaintiff be unreasonable in withholding a comment if he or she were contacted by a newspaper? There should be no obligation on him or her to comment. We should not build into our laws the right of the court to have, in some way, discretion in interpreting that. I see no consistency in this. If someone has been charged with a criminal offence, he or she has the right to silence. I know there is some debate about changing that, which I would advocate in respect of serious criminal matters. In this instance, we are allowing the court to draw an inference where somebody may have decided that he or she does not wish to comment on something put to them. I do not think it right or proper to prescribe this in legislation.
Section 24(3)(b) does not allow the court to draw any inference from the plaintiff’s reasonable decision not to respond to the newspaper. In other words, one could refuse to comment on whether one denies the story. Therefore, no inference is being drawn in regard to section 24(3)(b).
Amendments Nos. 21 and 30 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 21:
In page 20, subsection (1), line 41, after "the" to insert "District Court, Circuit Court or".
We tabled this amendment because it allows for a declaratory order. As there are no damages with such an order, we believe there is no reason to confine it to the High Court. In particular, in light of the costs involved in going to the High Court, it seems unreasonable not to give the lower courts jurisdiction in this matter. It is a general issue which we should examine. There are other areas where one should be able to go to the District or Circuit Court but where one is not allowed to do so at present. This is an obvious area. It would be a simple remedy for a person who wanted to clear his or her name. He or she could simply get an order to the effect that a statement was false and defamatory of him or her.
The intention in section 26 is to provide a clear indication to a potential applicant that he or she might seek the new relief of a declaratory order. Thus, the section provides that such orders should be sought in the High Court. This is not an issue of jurisdiction. There is no benefit to providing that such orders should be sought in the Circuit Court. The District Court does not have jurisdiction in hearing actions for defamation as it is very likely that any such decision there would be appealed to the High Court. This would not be a particularly desirable outcome. Therefore, amendment No. 21 is opposed.
Amendment No. 30 is unnecessary as it is clear from the text of section 32, which concerns an order prohibiting the publication of a defamatory statement, that the Circuit Court has jurisdiction to hear such an application if the action has been brought there. Therefore, amendment No. 30 is also opposed.
To return to what the Minister of State said——
On amendment No. 21.
Yes. I understand what he is saying and can see that allowing a District or Circuit Court to decide the issue would be a new development. On the other hand, why should we not allow them to decide these issues? One has a judge and a court. Why must so many things go to the High Court for determination? It is very off-putting for many people, especially those who do not have the money to take a case in respect of this or other issues to the High Court. If one goes to the High Court, one can be represented by a solicitor, although I am not sure if this is true. The idea of being able to go to the District or Circuit Court would be much more attractive to a person of modest means for cost reasons apart from anything else and possibly because the case might be dealt with more quickly.
As I have explained previously, it would not matter. If one brought a case in the Circuit Court and appealed the decision, it would go automatically to the High Court.
What would happen if one did not appeal it? That is the point that is being made.
If one did not appeal the decision, it is not an issue.
What would happen if one appealed the decision of that court?
It is not an issue. It cannot be held in the District Court so, if one appeals the decision, it goes to the High Court.
I move amendment No. 22:
In page 21, subsection (6), line 19, to delete "applicant" and substitute "plaintiff".
This is a technical amendment that aims purely for consistency in language. The word "plaintiff" is used in previous sections and we suggest that the "applicant" should refer to the "plaintiff".
The text of section 26, which provides for the new remedy of a declaratory order, provides throughout for mention of applicant and respondent. This is the correct approach, as no defamation action has been lodged and thus we cannot speak of plaintiff and defendant.
Is amendment No. 22 being pressed?
It is being withdrawn but I ask the Minister of State to reconsider the matter.
I understand some people will just want to clear their names and therefore will seek a declaratory order in order not to become involved in the high cost of prosecuting a case. It is my understanding that if a declaratory order is made, no compensation would follow. I am concerned that if there is no financial penalty, there is no incentive for journalists to be responsible. I accept it is up to individuals, but it comes back to the balance of resources between the defendant and the plaintiff. In general, defendants will be corporations of significant means. If an independent press council found in favour of a plaintiff, there should be some mechanisms to allow compensation to be paid. In the public mind, the issuing of such an order would indicate defamation had taken place and one side was in the wrong. I appreciate the Minister of State may not be able to do much in this regard because declaratory orders were devised as a short-cut in the system.
There is something lopsided about this approach. If one opts to seek a declaratory order, one is not entitled to any other kind of compensation. I do not think that is fair. If one gets an order that indicates one has been injured, why should one not have a redress? There is nothing in the Bill to suggest declaratory orders are awarded in cases that are not of sufficient seriousness; they cover everything. One could make the most tremendously inaccurate and dreadful statement about somebody and by seeking a declaratory order, he or she would be cut off from all other avenues of redress. This approach appears to be skewed in favour of newspaper proprietors. That is not fair.
Essentially, if the plaintiff wants a quick fix, as it were, he or she will seek a declaratory order. That is his or her choice. If he or she wants to prove defamation, he or she will choose another approach. Section 26 provides for this more expeditious remedy to the applicant where an allegedly defamatory statement has been published and the court is satisfied it is so, and that the respondent has no defence to the application.
That is absolute nonsense. With the greatest respect, I do not imagine the Minister of State believes for a minute what he is saying. He could not possibly do so, certainly not as a politician. In effect, he is saying that if somebody puts into print or into the airwaves something that is criminally wrong and damaging about another person and if, in order to protect one's reputation, one seeks to have that statement corrected, one is cut off from all other remedy. Come on, from where did this idea come — Mr. O'Reilly?
The proposal was first contained in a report of the Law Reform Commission in 1991. It was further recommended by the legal advisory group on defamation in 2003.
I thank the Minister of State for that clarification. However, I still think it is daft.
I listened with interest to the Minister of State's response. While I am not a legal expert, I understand the system and why people would seek a declaratory order. In the case of a person who is seriously defamed, he or she may well decide to seek a declaratory order. It is easy to say it is his or her choice and that he or she can continue the case but one has to take account of an individual whose financial resources may be limited. When one goes to court it is a lottery. Even if one has been advised one has a strong case, no doubt the other side will have been advised in a similar way. Ultimately, the advisers will be the winners in the case.
It is not always possible or prudent for people to pursue their rights. In this proposed legislation, no account has been taken of the ordinary citizen with limited resources who feels strongly he or she has been defamed, whose reputation is in tatters and who wishes to have his or her good name restored. A series of obstacles is in the way of a person achieving this end. I am in favour of an independent press council. We will come to this issue in due course. I do not think it is beyond the wit of anybody to draft legislation to the effect that if a declaratory order were issued, it would be possible for an independent body to award limited compensation up to €50,000 or some such sum to a person who had been awarded a declaratory order.
I recently heard of a case, perhaps not a very good one, which was settled on the basis of the newspaper in question taking a proportion of the plaintiff's costs. The defendant stated he had been vindicated but the plaintiff made the point very clearly that no compensation was paid, only the costs, and the person who took the case was a man of straw. If we are to settle cases on that basis, it does nothing for the restoration of a person's reputation where he or she has been genuinely defamed. The same will happen if this Bill is enacted. In serious cases a person will have, and should have under the law, the right to be vindicated. We need to examine this issue carefully.
It is easy for us to discuss the matter, it is an entirely different matter for the person who finds himself or herself in the Four Courts where we have allowed exorbitant fees to be charged and where people can risk everything they own, and a lot more, by going to court. We need to be mindful of this when we draft legislation. We should seriously examine putting balance into some sections of the Bill and we could do this in section 26. It would be a simple matter to have an independent body that could prescribe compensation to a limited degree. Obviously, people should also have the right to go to court. This would be also a media-friendly approach because, in most cases, people want to be vindicated. People want their reputations restored and would settle for small amounts of compensation. Often in the public mind, the level of compensation determines the correction of the defamation. We need to re-examine aspects of the Bill.
I support what Senator Jim Walsh said. I welcome the Minister of State's enthusiasm for the Law Reform Commission. I hope that enthusiasm will be sustained throughout the rest of this debate, which cannot go on for very long. I will be suggesting some other things that were recommended vigorously by the Law Reform Commission should be taken on board.
The points made by Senator Jim Walsh are valid. I have a good deal of sympathy for individual journalists who are brought to court because it is a very heavy burden on a professional person. The late Michael O'Toole was a great friend of mine, a wonderful journalist, a good friend of Ireland and of literature and all the rest of it. He wrote the "Irishman's Diary" column in the Evening Press. He was a terrific man. Something quite innocent he wrote was taken up and he was crushed by it for quite a long time. It was a horrendous experience. I am not unaware of that aspect of the matter.
However, if one gets a declaratory order, it is because one is aware that the longer a matter is allowed to remain out there, the more it accrues and acquires substance in the public imagination. A declaratory order should be an instrument to prevent that happening but it should not completely cut off other redress. Why should it? I do not refer to personal redress against a journalist, I refer to the press barons. One should bear in mind that my principal target in this is not particularly the Irish newspapers, it is bringing the horrible stable of English publications under the jurisdiction of our standards. It is unfair that one is not allowed further redress because one nips a matter in the bud.
I remind the House of a case of a man in Waterford. He had a ramshackle hotel and came across as a decent man but perhaps a little eccentric.
I know him well.
He received €100,000 and did not think it was enough. If he had been granted a declaratory order he would not have been granted anything. The entire country is laughing at him and he has been exposed to ridicule. It does not matter to people whether he is running a brothel. I have no idea if €100,000 was too much, too little or exactly right.
He was awarded €50,000.
In that case I will send him a few bob in the post. If he nipped this in the bud as provided for in this Bill he would receive nothing. He has been damaged and exposed to ridicule. I read the article, accompanied by a photograph, and laughed like a drain. It cheered up my morning but I do not see why he should not have some recourse. That may have been innocent nonsense but I am using the story as an instance. I hope it is an accurate one, perhaps it is not.
I approach this Bill as an ordinary person, not a lawyer. An ordinary person might well ask why one is cut off from further recourse if one stops something that may gather momentum.
The court will decide on the application. If a person seeks a declaratory order the person must understand that damages cannot be awarded.
Why? Is that not for the Oireachtas to decide?
If one seeks damages one should apply for a standard defamation order. It is up to the courts to grant a declaratory order and the courts must decide that the defendant has no defence. The defendant may be able to offer a defence. The issue of compensation is a separate matter.
Is section 26 agreed? We have given the section a good airing.
We are entitled to debate it. This is an important matter that goes to the kernel of the debate. Section 26(2) states:
Upon an application under this section, the court shall make a declaratory order if it is satisfied that—
(a) the statement is defamatory of the applicant and the respondent has no defence to the application,
(b) the applicant requested the respondent to make an apology, correction or retraction in relation to that statement, and
(c) the respondent failed or refused to accede to that request.
The court must establish these conditions before it can proceed with the declaratory order. As night follows day there should be a system or another forum where there is a limit to compensation. I understand the thrust of the comments of the Minister of State about the declaratory order. I have not heard any argument that drafting legislation to provide for such a forum is beyond our remit and our wit.
Senator Jim Walsh is correct. Here is a situation where lies have been published and the publication can get away with refusing to withdraw them or apologise. There is much rubbish spoken here about free fees, which is an oxymoron. This Bill establishes free lies and that is not right.
I have no further comment.
Does this section refer to the situation where the defendant lodges money in court, the plaintiff refuses to accept it, a lower award is made and the plaintiff is penalised for not accepting the earlier offer?
In short, yes.
I do not like that and I give notice that I might table an amendment on Report Stage. Would that be in order?
That is appropriate.
I have debated this section with the Minister and his officials. It is badly in need of modification. When someone is defamed, the defendant may agree to offer a degree of compensation without an apology or acknowledging the defamation. The person may decide to pursue the case because reputation is more important than compensation. Subsequently, the court may find that the plaintiff was seriously defamed but damages come to less than what was offered. Suppose damages of €25,000 were awarded but the publisher had offered €30,000. The plaintiff may be lumbered with €500,000 in legal costs.
The plaintiff would lose costs.
The plaintiff may have to pay the costs of the defendant. It represents a major gamble and is grossly unfair. Does the Department not see the inequity in this? The plaintiff may be a law-abiding citizen in court for the first time and would inquire of the legal team when an offer is made. The plaintiff is likely to follow the advice of the legal team. As a consequence, the plaintiff may lose everything and be left homeless. There is no consideration for the small man. We are in dereliction of our duties if the Bill passes as it stands. This is the most galling provision in the Bill. It does not even require, as an earlier section does, I believe it is section 20, that it must be accompanied by an apology. That is the very least that is required. The primary interest of most people who take a defamation action is restoring their reputation. We are crafting the Bill to provide that where somebody is defamed and takes a case, and where a certain amount of compensation is offered without an apology or retraction, the person could find himself or herself losing everything.
I cannot understand how a Government could impose that on an unsuspecting public. Of all the provisions in the Bill, this is the one to which I have the greatest objection. It disadvantages the individual when taking a case. In fact, the individual could find himself or herself on the horns of a dilemma simply because an offer is made. The least that should be done by amendment of that section is to provide that an offer without an apology, correction and retraction is not, in fact, an offer.
I agree with Senator Jim Walsh. This section is grossly unfair. In this Bill we are trying to get the balance right but the balance is tilted in one direction in this section. The Minister must re-examine it and either delete it or provide a better version. There is no balance in the section.
I have a degree of sympathy with the position that a lodgement should either imply or include an expression of apology or of amends. That would be essential. However, let us remove this from the realm of libel and consider it in the context of another case where people are making claims against each other for injury, accident or the like. The court decides at what point one party has acted reasonably and the other party has begun to act unreasonably. People, along with their legal advisers, must make the judgment as to whether they should risk pursuing the case the rest of the way. It is unreasonable to say to one party in a case that its costs will be covered, regardless of how unreasonable it is and even though the court has said it is unreasonable, or where the other party has acted reasonably at that point and the first party has accepted it. We need to find a middle way. One cannot give an assurance to one party in a case, whether it is libel or any other type of case, that its costs will be always met.
Surely one can if the party is right. The other side is already saving because it is getting a small reward. I doubt that the plain people of Ireland have the slightest idea of what is being imposed on them in this Bill. They would be very concerned if they did. There are, by and large, reasonably decent standards in Irish newspapers. However, as Senator Maurice Hayes is aware, this is not true of many English newspapers and, financially, they have deep pockets.
I acknowledge the presence in the Visitors Gallery of senior people from the National Union of Journalists. I honour them; they are people of the highest standard. We are lucky to have them, and I am not simply craw thumping in saying that. However, we are well aware of the record of Rupert Murdoch's newspapers. They find it profitable to lie about people and they will pay any amount of money for it. They will crush ordinary people if they can. In a situation where injustice has been done, why should the individual not have his or her fees covered, if they would have been covered had he or she accepted a smaller amount?
It is a guessing game, like guessing the weight of the pig at the funfair. These matters are far too serious for the individual to be treated in this manner. I will put down an amendment to delete this section. I sincerely hope, not in a mean-minded sense, that it will spark a revolt on the Government side. It does not bother me when there is an election because it is due in a short while anyway. If Fianna Fáil and the Progressive Democrats split on this, they could not do so on a better issue. It is an issue of principle.
The ordinary person is not being treated well by this Bill. The big newspaper proprietors, particularly people such as Mr. Murdoch, have plenty of money. They also have plenty of shrewd advice and know how these matters can go. They can take a gamble by offering a carefully estimated amount of money and they stand a sporting chance of upending the person they have already libelled. They can then achieve a double whammy against that person.
We have talked about inhibiting investigative journalism in the past. What about inhibiting people from restoring their good names? Between now and Report Stage I will compile a catalogue of the things going through in this Bill and I will read it into the record as a Bill of shame. It will be a list of things the elected Members of the Oireachtas are permitting entrenched interests to do with impunity against the ordinary citizen. It will be a dreadful day's work if this is passed unamended.
I remind Senator Norris of the case of Sir William Wilde and Kit Travers.
Is that the one out in Bray?
Sir William Wilde complained, rather ruefully, that he had been charged £5,000 for the pleasure of seducing a young lady whose virtue was valued at a farthing. There is no justification for treating libel actions differently from other actions, where a lodgement in court is accepted. It is up to the court to decide what is the reasonable price to put on the hurt and what redress is required. The practice of lodgement in court is well tested. It should not be different in a libel action from any other action.
That is the point. Section 27 brings defamation proceedings into line with other actions for damages by allowing the defendant to lodge in court, with the defence, a sum of money in satisfaction of the plaintiff's claim. This lodgement may be made without admission to liability. Section 3 is intended to facilitate a plaintiff who may wish to ensure that some measure of public recognition attaches to the fact that the defendant was willing to settle the case before the trial or action was concluded.
The legal advisory group on defamation was strongly of the view that it was entirely appropriate that defendants in defamation proceedings should be able, along with their defence, to lodge a sum of money in court in satisfaction of the plaintiff's claim regardless of whether liability is admitted or denied. Some plaintiffs will be content simply to take up the lodgement. However, the group also acknowledged, particularly where the defence of truth was pleaded, that other plaintiffs may wish for some additional element which will help them to vindicate in a more public way the choice which they have made. The group recommended that the new defamation legislation should permit plaintiffs to inform the court formally of the fact that they have accepted the lodgement and of the consequences for them of the resolution of the defamation proceedings. This could provide the vindication element which might otherwise be missing. This does not, however, require the defendant to also give an apology.
The reform of the lodgement in court procedure in regard to defamation has the potential to make a significant impact on the law of defamation in that it is likely to encourage the early settlement of actions and help reduce legal costs.
What are they paying for if they have not done anything for which they need to apologise? If that is the case, will they give me a few bob? They are prepared to hand out money apparently for no reason at all but they do not have to apologise or say they were wrong and admit liability. This is something fishy. People like Conrad Black, Sir Anthony O'Reilly and Rupert Murdoch do not hand out money for nothing. I want to know why they are giving out money with no admission that they were wrong. They will claim they settled out of court to shut the plaintiff up.
The plaintiff has a choice of going either route. If the plaintiff chooses this route, it is a matter for him or her.
Find the lady; hunt the thimble.
I believe the plaintiff has a strong choice where an offer is made. I note the Minister of State concurs with the point raised by Senator Maurice Hayes. I cannot see any comparison between a case for defamation and another civil case involving a settlement. A defamation case primarily requires an apology, retraction and the restoration of a person's reputation. I cannot think of any other civil case where the offer of compensation would not be a satisfactory outcome to a case. It is not a satisfactory outcome in this.
There is an enormous difference between hurt feelings and paraplegia.
I accept that. However, if an individual, who is seriously injured, goes to court, it will assess compensation and damages. All that is at issue is the amount. This provision means a person will receive money but no one will know there was a retraction of a libel if the newspapers do not publish it. We are setting a charter where only the ultra-rich will be able to vindicate their names. As a republican, this is anathema to me.
Senator Maurice Hayes claims if we do allow this provision, a person can proceed with a case, no matter the costs. The person ultimately will be faced with costs if they lose their case.
Section 27(4) states, "The defendant shall not be required to admit liability in an action for damages for defamation when making a payment to which this section applies." This should be amended to "the defendant shall be required to admit liability". If we fail to do this, a person's reputation only applies in selected cases. It is inserting an element of gamble in the legislation which should not be allowed in cases where a person has been defamed. It is the most offensive section in the Bill. It will make it impossible for people to get satisfaction from a court case unless they have significant financial resources to follow the case. A simple amendment will not take from the rights of the media.
It was suggested the press would not be happy with a change to this provision. If we are prescribing legislation just to keep the press happy, we are taking the wrong route.
The Senator got it in one.
There is a need to reform our outdated defamation and libel laws. I agree with fair and reasonable defence. It must be balanced. There is little attempt, however, to balance the rights of the ordinary person whose reputation can be seriously damaged to get proper justice. Everything is stacked against them.
We have heard very little about the Privacy Bill for some time.
There is a misunderstanding on the part of Senator Jim Walsh. He is seeking a requirement that the defendant admits liability. He cannot be required to admit liability where there is only an allegation which has not been proven. It is for that reason that the requirement of an apology is not part of this section.
Like Senator Norris, I am not a legal professional. It is often to my disappointment as it would have been a far more lucrative profession to have pursued. Settlements of this nature rarely come out of the blue. They usually follow some consultation and negotiations between the legal parties on both sides. If a person takes a case, the primary objective is the restoration of his or her reputation. I cannot see any circumstances why the media, the defendant, would offer compensation unless there is a clear acceptance that what was published was wrong.
In that scenario, I am looking for an acknowledgement for the ordinary person who initiates a case. It is not just the compensation but the apology and correction must be combined in settling a case. In other cases where settlements are made, negotiations take place on the issues. If one side believes the other side will not agree, a lodgment is made. In a case of defamation, there must be attachment of an apology which I assume is the main purpose of taking a case.
Amendments No. 23 and 24 are related. Amendment No. 25 is a technical alternative to amendment No. 24 and amendments Nos. 25 and 27 are consequential on amendment No. 26. Therefore, amendments Nos. 23 to 27, inclusive, will be discussed together by agreement.
I move amendment No. 23:
In page 22, subsection (1), line 4, after "statement" to insert the following:
"and to give due prominence to the correction order such as will ensure that it is communicated to all or substantially all of those persons to whom the defamatory statement is published".
I do not mind what form of words is used but this amendment seeks proportionality and timeliness in the issuing of an apology. If a libel was on a newspaper's front page in stark headlines, the apology should not be published months later, tucked away among the classified advertisements. That part is common cause. The other part about which I am concerned is partially addressed by a Government amendment. It concerns putting a judge in the position of editing a newspaper. He or she specifies the time, place and order of publication, which has no regard for the manner in which newspapers are produced or what might happen in the circumstances. Imagine the judge said that it had to publish something in the top left-hand corner of page 1 on 14 January.
Perhaps the Senator might report progress.
The Acting Chairman has curtailed my wonderful perorations.
I apologise profusely.
The Senator's amendment was better than the Government's.