Defamation Bill 2006: Committee and Remaining Stages (Resumed).

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

On the section, I want to raise a number of points, including the point Senator White alluded to earlier with regard to the absolute privilege given to Members. I understand the necessity for that. There is a system to deal with it even though I have some reservations about abuses. However, paragraph (b) states, “contained in a report of a statement, to which paragraph (a) applies, produced by or on the authority of either such House,”. What we are discussing here is not the issue in the report but its subsequent publication, which can happen even if it is defamatory. I understand the necessity for it but I have some reservations about it.

Paragraph (k) refers to comments made in proceedings before a committee of either House of the Oireachtas. If I understand this correctly, it confers absolute privilege on those comments. My experience is that a clear statement is made by the chairman of the committee to members of the public who attend the meetings to submit reports or make presentations that while the members of the committee enjoy absolute privilege, they do not. This provision appears to extend it to them. I have some concerns about that because a wide range of people attend those meetings and some of them might have axes to grind.

Paragraph (m) refers to statements “made in the course of proceedings before a tribunal”. I understand why the tribunal would be treated like a court but there have been many instances of people making audacious, unfounded comments as witnesses before the tribunals. Most objective observers would say that some of those comments were made for purely vexatious reasons and were without foundation. I cannot see a way of interfering with or qualifying the privilege. If Members of the Houses of the Oireachtas abuse the tremendous privilege they enjoy, they can be held to account by committees of the Houses. However, in the case of tribunals, that power does not always appear to be exercised by the chairmen. Where the chairman of a tribunal instinctively believes the comments made are defamatory and without foundation, is there a system whereby he could defer their publication for a period until the tribunal can establish their truth or otherwise?

I believe that if a structure has absolute privilege, there is a consequent responsibility to introduce a system of safeguards to ensure that if somebody wilfully comes into that structure and abuses such privilege, there must be a mechanism of correcting or stalling it. That is not in any way to interfere with people who make comments which they genuinely believe. A distinction must be made between the two. Perhaps it is not possible to deal with this but I feel particularly strongly about this point. Any privilege we have must be accompanied by responsibility, and where that responsibility is not exercised there must be a system to correct or arrest it.

The establishment of a tribunal of inquiry is generally a unique event and arises where the political system in a sense becomes somewhat dysfunctional, such that there is a loss of confidence in the system. It is a big step to set up a tribunal of inquiry. It cannot really complete its work without the privilege attached to it. We have long tried to ensure that Oireachtas committees work more effectively and deal with matters of public concern and with matters where there is, perhaps, a loss of trust in politics. The extension of absolute privilege to the committees without qualification means that the committees can perform a very important function and could obviate the need for many of the tribunals of inquiry. The privilege proposed for the committees should stand.

I agree, but I support the points made by Senator Walsh. It is a fact that the chairmen of committees, in advance of hearing submissions from members of the public, clearly indicate to them that while members of the committee are covered by privilege, the witnesses are not. It is correct to put them on notice of this because some controversial matters have been broached at committees in which I have been involved, for example, transport, Tara and so forth. Such intemperance should be held in check, particularly if it involves impugning third parties who are not present to defend themselves. There has been a tendency for that to happen but in the transport and foreign affairs committees the chairmen were good at anticipating what was about to happen and knocking it firmly on the head.

With regard to tribunals, it is important to have a degree of privilege if they are to get to the heart of the matters being investigated. However, injustice can occur. There have been instances where people who have been described, at least in part, as fantasists have made very wild accusations which subsequently turned out to be incorrect and inappropriate.

The Taoiseach.

That includes our revered colleague from the other House. The difficulty is the matter of delay. The tribunal is not a court of law and has a lower standard of proof in terms of giving evidence, which is not tested in quite the same way. The tribunals always make the point that they are not courts. However, if somebody makes an outrageous, defamatory and untrue statement, and that is known to the tribunal, there is no rebuttal for a period of 18 months. That period constitutes a severe punishment for the innocent party. This is the element I believe Senator Walsh is trying to address. It might not be possible to address it at this point in the Bill but Senator Walsh has done a useful service by drawing attention to it. I am a strong supporter of the tribunals but I believe that some of them have been milked by the legal profession.

I seek clarification from the Minister on one point. My understanding of paragraph (k) is that a statement “made in proceedings before a committee” includes a statement made by a witness giving evidence at the committee.

As I listened to Senator Walsh I wondered if I was wrong but that is clearly its meaning.

Senator Walsh referred to three paragraphs. The first is straightforward and refers to a report produced by or on the authority of either House of the Oireachtas. Clearly, a report of the House must have privilege attached. I am not sure whether it is provided for in the Constitution as well as in statute law. If statements in the Houses enjoy absolute privilege under the Constitution, the rationale for including reports is the same.

Fair points can be made on the other two matters raised by Senator Walsh. First, there is a change with regard to the proceedings of a committee of either House of the Oireachtas. It is a change on which I am open to persuasion and I would be happy to get the views of the Committee on Procedure and Privileges of each House to establish what are the wishes of each House with regard to the section. However, there is one difficulty I would like to highlight. Under legislation the Houses have powers of compellability. When a person is compelled to give testimony before the Houses, the Houses are embarking on a fact-finding mission, which would entail the attachment of absolute privilege to the utterances of witnesses. I propose to refer the matter to the committees and I will take into account their views. As Senator Walsh outlined, witnesses are at present advised of their qualified privilege. However, I will seek the view of the committees on this.

The final question related to the tribunals of inquiry. There is no doubt the manner of their operation has led to the traduction of reputation in a very improper way. However, this does not arise in this legislation. It has more to do with our determination to establish tribunals and the character of the terms of reference we attach to them. The tribunal of inquiry, as a device, is a method of transferring an issue from the political system to a judicial investigation. That is the basis of the legislation.

The system of tribunals was introduced in the UK in 1920 after an infamous saga known as the Marconi scandal, in which leading Ministers in the Liberal Government were alleged to have been involved in improper share dealings on the London Stock Exchange. A parliamentary committee of inquiry was charged with investigating the allegations but, of course, a parliamentary committee can become very partisan due to the domination of certain parties in the committee membership. Therefore, in 1920 the then Parliament of the United Kingdom decided to establish a machinery in which a judge would be brought in to investigate the allegations.

In the history of this State, many tribunals have been established to investigate natural disasters or matters which did not have a direct bearing on the Houses of the Oireachtas or the performance of functions by Members. However, in recent years we have come to use these tribunals more extensively in these areas, which has given rise to much difficulty. That is why the commissions of investigation legislation was enacted, and many of the proceedings before those commissions can be conducted in private. The difficulty of public disclosure of private information by tribunals is also serious. As I made clear in the other House recently, the tribunals of inquiry Bill will give us an opportunity to explore these issues, but it is not intended to be brought into operation in advance of the completion of the current tribunals and their work within the envisaged timescales.

I wish to make a suggestion. The Minister is prudent in consulting the Committees on Procedure and Privileges. It might also be useful, however, to consult with the Working Group of Committee Chairmen, because the members would have opinions based on practical experience, which might be helpful.

I wish to put on record my view that this is an entirely appropriate provision and that absolute privilege ought to attach to witnesses before committees of the Oireachtas.

Question put and agreed to.
Sections 16 and 17 agreed to.
SECTION 18
Government amendment No. 6:
In page 14, subsection (1), line 37, to delete "Act" and substitute "section".

Amendments Nos. 6, 7 and 9 are related and No. 10 is a technical alternative to No. 9. These amendments will be discussed together by agreement. Is that agreed? Agreed.

Amendments Nos. 6, 7 and 9 are drafting amendments. Amendment No. 6 is purely technical. Amendment No. 7 provides that the reference in subsection (2)(b)(ii) to “the defence of qualified privilege” be in accordance with all of section 16 and not limited to section 16(2). A similar amendment may be required in section 29(4), and I will examine this matter prior to Report Stage.

Amendment No. 9 proposes to improve the text of the Bill for greater clarity. Having considered the points made by Senators on Committee Stage in the last Seanad and the current wording of this subsection, I agreed that the drafting could be improved on. The proposed amendment improves on the original construction and a simpler approach is taken to this rather complex issue. Amendment No. 10 is in the name of Senator Walsh.

The substitution of "public interest" for "public importance" is——

I do not think that is part of this grouping of amendments. We are discussing Nos. 6, 7, 9 and 10.

We are not dealing with No. 8 at the moment. That is fine, thank you.

I thank the Minister for having read the previous debate and for making this clarification. I was one of those who raised the question of the obscurity of the language and I am glad he is operating in this fashion.

This part of the Bill deals with the defence of honest opinion. My amendment, which excludes part of subsection 3(a), is superseded by the Minister’s amendment, which removes section 3.

We have helped the Senator to some extent.

Yes, indeed. I welcome this change. The last time the Bill was discussed, I pointed out that the plaintiff must give an affidavit and the defendant is not defined in the Bill. I had some concerns that if one is suing a broadcaster or a newspaper — I will stick with the newspaper — it may be unclear who the defendant is. Is it the newspaper itself, the reporter or the editor? There may be a need to define who the defendant is under this section. If a defence of honest opinion is put forward, it comes back to whose opinion that was. I envisage difficulties and confusion in this regard and the possibility of obfuscation. As a consequence, there may be difficulties for the plaintiff in processing his or her case. I am not sure how this could be dealt with.

Let us say a reporter writes an article containing information which he or she believes to be true but the editor knows is not. Alternatively, a reporter may write an article knowing it to be defamatory and surmising it to be untrue, but the editor must defend the case. Are we leaving a lacuna that makes the processing of cases difficult? I ask the Minister whether there is a need to define the defendant and whether we might seek a responding affidavit from both the editor and the reporter in my example. Clearly, if the defendant is claiming the defence of honest opinion, this is being asserted to the court by both of them, because they both have a responsibility in the publication of the article — one writes it and the other decides to publish it, perhaps attaching a headline which puts a further spin on the issue. We know from reading headlines in newspapers that they often bear very little relation to the actual articles and can be very critical or defamatory in their language due to the focus on selling newspapers. We must be careful in this matter. Speaking as a non-legal person, perhaps we should tighten the provision. I welcome the Minister's amendment in general, as it will improve the section immensely.

I welcome the Minister's amendment. All sides of the House fought vigorously on this section because, as originally drafted, it seemed to come dangerously close to meaning "this is true because I say it is true or I think it is the case". By prefacing something with "my opinion", it seemed to mean everything would be all right. I categorised it as the "Joan Rivers defence". At the time, she had advertisements on RTE for her show, which was called "Allegedly". To protect herself, she made a joke out of the issue by prefacing every appalling comment on the stars of the entertainment firmament with the word "allegedly".

Senator Walsh's concern regarding who should be responsible may be addressed by a later amendment if the Minister accepts it. I believe in the timeworn American phrase "the buck stops here". The buck should stop with the editor and proprietor. Amendment No. 39 in my name states: "In the case of a successful defamation action, the Editor and Proprietor of the newspaper which published the defamatory statement shall be liable for damages." This removes the journalist who may be vulnerable from the firing line and places the responsibility where it should be, as the editor is in command of the newspaper, the proprietor profits from it and they have legal staff.

Yesterday, a question was raised during the interview of a newspaper reporter who had been dealing trenchantly with the evidence given by the Taoiseach and the contradiction of that by Mr. Hynes, the former head of the national lottery. When asked whether he had further information, the reporter said that he had, but that his article had been "legalled". Passing articles under the scrutiny of libel lawyers is something that responsible newspapers do routinely.

I sympathise with journalists on this issue because there can be inadvertent libel. I know of one case in which a dear, old friend of mine who is no longer with us made a humorous off-the-cuff remark in a column about a comic. The comic did not have much of a sense of humour and I know the stress and strain caused to my friend as a consequence. It would do no harm to clarify that in terms of these actions, the buck stops with the two principal elements who should be responsible with all of the relevant safeguards, namely, the proprietor and the editor. I do not know whether this would satisfy Senator Walsh's situation.

We can return to this issue when it arises, but I am concerned on behalf of the plaintiff by Senator Norris's proposal. If the potential plaintiff — the little man or woman as described — must face multiple defendants in one action and decide who is responsible——

That is not what I am saying.

I know, but it could be the unintended effect of what the Senator has in mind.

I welcome the Government amendment and the language in the Bill. Senator O'Donovan raised the question of justification and was concerned that we would move from it to truth. The Minister was right to state that they are the same. The 1961 Act uses the word "truth" in seeking to explain what it means by "justification".

The terms "justification" and "fair comment" have other meanings in everyday language and it is right for this legislation to set them aside once and for all. When we use the term "fair comment" in everyday conversation, we mean something distinct in a colloquial sense. Over the years, we have imported that phrase into law, but it has unfortunately not helped. I know from direct experience of trying to explain to people what "fair comment" means that, from a legal perspective, it has always meant honest opinion. It is right to codify the meaning in legislation and refer to it for what it is, namely, the expression of an honest opinion or an opinion honestly held. We should remove the term "fair comment" from our descriptions of these matters in the same way we have replaced "justification" with what was always meant, namely, "truth". I welcome the section's clarity of language, which is carried through in the Government amendment.

The defendant whose editor had one opinion about the honest opinion and whose journalist who wrote the article had a different opinion would be in a weak position in any court proceeding. The credibility of his or her case would be undermined by the conflict within the defendant's command structure in respect of the publication. Regarding this practical matter, Senator Walsh's concern is not real.

The section addresses the question of comment and opinion. It is important to bear in mind section 18(1) which states: "It shall be a defence (to be known, and in this Act referred to, as the "defence of honest opinion") to a defamation action for the defendant to prove that, in the case of a statement consisting of an opinion, the opinion was honestly held." In pleading the defence in defamation actions, the traditional defence of fair comment was to say of an article or statement that in so far as it contained statements of fact, it was true and, in so far as it was a statement of opinion, it was a fair and reasonable comment on matters of public importance. For the reasons outlined by Senator Alex White, this seemed to be a cumbersome way of describing the fact that an opinion cannot be proven as a fact, but that it needed to be shown as being fair and reasonable. The traditional law is being restated in the Bill in terms of an honest opinion.

Having examined the Bill and Senators' opinions on Committee Stage in the previous Seanad, I agree with Senator Norris that the language in the original provision lacked clarity. The Parliamentary Counsel has devised a better formulation in respect of the defence of honest opinion, one over which we can stand as a codification of existing law without going beyond current law. In that respect, I am happy with the provision.

Senator O'Toole raised a matter that will arise when we address section 24. I do not want to anticipate discussion on the section, but an attempt has been made in the legislation to codify all available defences in a defamation action. This is correct because we as legislators have a duty to define in exact terms the scope of this particular civil wrong. We cannot leave matters to be determined by the courts or leave issues open. Consequently, the drafting of this legislation has been a difficult exercise because some concepts with clear meanings in text books and judicial decisions must be translated into statutory form for the first time. This matter is an example of that type of exercise.

I ask for clarity on section 18(3)(b). It states:

[T]hat defence shall not fail by reason only of the defendant's failing to prove the truth of those allegations unless -

(i) the opinion could reasonably be understood as implying that those allegations are true, or

(ii) the allegations are untrue and, at the time of the publication of the opinion, the defendant knew or ought reasonably to have known that those allegations were untrue.

Amendment No. 9 states:

(ii) where the defendant does not prove the truth of those allegations-

(I) the opinion could not reasonably be understood as implying that those allegations were true, and

(II) at the time of the publication of the opinion, the defendant did not know or could not reasonably have been expected to know that those allegations were untrue.

It is the use of the word "and" between the two subparagraphs that I query. Does it make sense to use it? The amendment also changes the wording from "the defendant knew or ought reasonably to have known that those allegations were untrue" to "the defendant did not know or could not reasonably have been expected to know that those allegations were untrue". What are the Minister's views on this wording?

The purpose of the amendment is to give greater clarity to the provision. These are the circumstances in which the defence of honest opinion fails. It fails unless the defendant proves the truth of the allegations, which has to be there. If the defendant does not prove the truth of the allegations when dealing with a matter of opinion, the opinion could not be reasonably understood as implying the allegations were true. This is worded as "at the time of the publication the defendant did not know or could not reasonably expected to know the allegations were untrue." These are cumulative requirements under this amendment.

I will examine the fact that the two requirements are cumulative on Report Stage. It is an imposition on a defendant.

Amendment agreed to.
Government amendment No. 7:
In page 15, subsection (2)(b)(ii), to delete lines 14 and 15 and substitute the following:
"(II) the defence of qualified privilege,".
Amendment agreed to.
Government amendment No. 8:
In page 15, subsection (2)(c), line 19, to delete “public importance” and substitute “public interest”.

This amendment provides that the new defence shall be known as the defence of fair and reasonable publication on a matter of public interest and not public importance. Having examined the debates on the previous Committee Stage, I am persuaded by the argument that for greater clarity it may be better to use the term "public interest" which is well understood and well established in case law.

It also reflects recent developments before the courts where Mr. Justice Peter Charleton referred to the concept of public interest rather than public importance. I do not want to open a debate yet on Mr. Justice Peter Charleton's judgment. I would prefer to discuss this under another section.

I welcome the change to the wording which is appropriate.

If we had continued with the term "public importance" the courts would have been adjudicating as to what constituted a matter of public importance. Controversy would have arisen with the inevitable and almost paternalistic sense as to what a court thinks is an issue of public importance. I welcome the substitution as the concept of public interest is known to us. Although it is not without its own controversies, it is much more attractive than the narrower notion of public importance.

I have some reservations about this amendment as it may be lowering the bar. The thrust of my argument on this Bill is not to allow that to occur. I appreciate what was said by the legal Members about public importance. However, the terms "the opinion related to a matter of public interest" may not necessarily mean it is in the interest of the public. There may be a legal connotation. Public interest could just be a curiosity and, therefore, I am concerned a defence could be mounted with only a low level of proof.

I stand to be corrected but the term "public importance" is clear. In a legal setting it might not be as well defined as I interpret it to be. Public interest could be anything, however, even the result of last night's match. I am not convinced by the substitution of the terms "public importance" with "public interest". I do not want to split hairs on it but it is fundamental when it gets to court as to the level and threshold for the judicial assessment of whether it was correctly done.

I am glad the Minister has taken the arguments on the previous Committee Stage into account. I support the amendment because I believe the Minister has tightened up this provision. Public importance gives a free range for prurient interest, speculation and poking around unnecessarily in people's dirty linen with no good real investigative point.

With so many lawyers around the joint, I am sure I will be told if I am wrong but I believe there is a definition in case law of public interest. It is similar to a phrase in the Constitution, alas rarely used, "the public good". If I am incorrect, there may be a case for attempting a definition of public interest in the Bill. Public interest has been satisfactorily defined by the operation of case law.

Public interest brings greater clarity into the law which is always desirable. Public importance does not have a term of art meaning in the law in the same sense. Apart from established case law in this area, a matter of public interest can be distinguished clearly from a matter of private interest. Public clearly connotes the concept of a zone of private interest and, therefore, increases the burden on a defendant who must demonstrate the matter is of public and not private interest. It is difficult to think of the term "importance" in the same light.

Matters not of public importance — public unimportance, so to speak — does not connote the same degree of public interest. This is an essential feature of the defence of fair comment. One cannot make an honest comment about a matter of private interest. It must be a matter of public interest for one to be entitled to express such a strong opinion. It is a more valuable safeguard to use the term "public interest". I agree with the views expressed by Senators on this matter.

Amendment agreed to.
Government amendment No. 9:
In page 15, lines 20 to 38, to delete subsection (3) and substitute the following:
"(3)(a) The defence of honest opinion shall fail, if the opinion concerned is based on allegations of fact to which subsection (2)(b)(i) applies, unless—
(i) the defendant proves the truth of those allegations, or
(ii) where the defendant does not prove the truth of all of those allegations,the opinion is honestly held having regard to the allegations of fact the truth of which are proved.
(b) The defence of honest opinion shall fail, if the opinion concerned is based on allegations of fact to which subsection (2)(b)(ii) applies, unless—
(i) the defendant proves the truth of those allegations, or
(ii) where the defendant does not prove the truth of those allegations—
(I) the opinion could not reasonably be understood as implying that those allegations were true, and
(II) at the time of the publication of the opinion, the defendant did not know or could not reasonably have been expected to know that those allegations were untrue.".
Amendment agreed to.
Amendment No. 10 not moved.
Section 18, as amended, agreed to.
SECTION 19.
Government amendment No. 11:
In page 16, line 4, to delete "shall".

This is a technical drafting amendment to improve the text of the Bill. The word "shall" appears twice in section 19, in lines 1 and 4. The reference to "shall" in line 4 is superfluous and this amendment proposes to remove it.

I understand that the Minister is trying to make this section grammatically clear but would it not have been better in line 3 after the phrase "consisting of opinion," to include the phrase "and shall include the following"? There is no grammatical proscription on using the word "shall" twice, particularly when it covers slightly different elements. I am not insisting on it but it seems to flow better with "and shall" so that the section would read:

The matters to which the court in a defamation action shall have regard, for the purposes of distinguishing between a statement consisting of allegations of fact and a statement consisting of opinion, and shall include the following:

Senator Norris is grammatically correct because the clause has two purposes, "shall have regard" and "shall include". This seems to be more elegant language.

I have some sympathy with the views expressed. I will consider the issue and table an amendment on Report Stage. It certainly reads more elegantly with the insertion of the conjunction.

Amendment, by leave, withdrawn.
Question proposed: "That section 19 stand part of the Bill."

Is there any necessity for me to table an amendment on this?

No, because section 19 will be part of the Bill as written, not as amended. The Minister will table an amendment on Report Stage.

I am withdrawing my current amendment because of the Senator's observations on it and revisiting the issue the Senator raised on Report Stage. There is no point in amending the Bill with the Government amendment now and coming back to it on Report Stage.

Question put and agreed to.
SECTION 20.
Question proposed: "That section 20 stand part of the Bill."

I am concerned about section 20(5)(b) which, referring an offer to make amends means an offer, “to publish that correction and apology in such manner as is reasonable and practicable in the circumstances,”. There is often a major dispute about the form of the apology. In many cases the apology is printed in the corner of page 10 whereas the defamation was published on top fold of the front page. Could the language in this subsection be tightened up, for example, by the inclusion of a phrase such as “commensurate with the prominence given to the original publication” or otherwise?

I support Senator Regan's comment.

I may revisit section 20 on Report Stage, addressing the issue Senator Regan raised. It may arise on this section but not necessarily because this is an offer of amends procedure which has existed since the 1961 Act. The issue, however, will be better discussed in some of the subsequent sections and we should have a more detailed discussion on the issue of the prominence of an apology. If, as a result of that discussion, we decide to move in that direction an incidental change will be required in section 20 as well.

I have a note in the margin of the Bill that I intend to table an amendment to the effect that the apology shall have at least the same prominence as the original defamatory statement. That is only fair because it is not appropriate for a newspaper to have the defence of an apology if it sticks it on the back page, in Irish.

Question put and agreed to.
SECTION 21.

Amendments Nos. 12 and 31 are related and will be discussed together by agreement.

Government amendment No. 12:
In page 17, subsection (2), line 35, to delete "making" and substitute "the publication of".

These are technical amendments designed to improve the text to make it clear that the apology being made requires publication.

Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22.

Amendments Nos. 14 and 15 are cognate and are related to amendment No. 13. Therefore, amendments Nos. 13 to 15, inclusive, will be discussed together by agreement.

I move amendmentNo. 13:

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.".

This takes us into the area of apologies. I agree with the Minister's earlier comment that to achieve the balance sought by this legislation it is a priority to ensure that media organisations publish apologies as appropriate and would do so "readily". This is desirable.

My default position in this debate is to favour the widest possible latitude for freedom of expression, consistent with the protection of the good name of an individual. Where there is a clash it is for us to determine where to strike the balance. An apology when appropriate should be timely and expeditious. There is little point in giving protection to defendants who delay publication of an apology because the impact of a libel is felt most acutely in the hours, days or weeks after publication. The longer the aggrieved person has to wait the less impact the apology will have.

In this amendment we regard mitigation as substantial mitigation. If an apology is not published within the timeframe that we propose, we would not exclude the possibility of mitigation being associated with late apologies but it would not be substantial mitigation. We would be flexible in a discussion of the timeframe. There could be some mitigation for a late apology but not substantial mitigation. This is consistent with the Minister's comment about apologies being published readily.

I am sure the Minister is more capable of responding to this amendment than I but I support the gist of it. Defamation can cause a great deal of damage. I raised in this House the case brought by a Ukrainian interpreter against a number of newspapers after the death of our former colleague, Liam Lawlor. The accident happened at a weekend and that Sunday morning a most appalling story was told which was poorly researched and utterly untrue. The lady involved, of whom I had never heard previously, used Irish legislation to get a substantial settlement, plus costs.

I am not sure how many people in Moscow and the Ukraine read the Irish newspapers that Sunday and Monday. I do not aim to demean her case but Liam Lawlor's widow and children suffered immense hurt. Irrespective of history, it was bad enough that he was killed but nobody deserved what followed. Not a single cent came to Mrs. Lawlor and no apology was tendered by the print media in subsequent publications. We must not lose sight of such incidents in this Defamation Bill because it could affect another colleague or a prominent public figure, such as a judge. We say that when a person dies that is the end but people who survive deserve respect.

There has been talk of a press ombudsman and a journalists' council, run by the media, covering the area of defamation. This should be examined because we must be wary of giving carte blanche to the media in an area about which I feel strongly. As public representatives, whatever our political leanings, we must be vigilant of what is said about a person who has died, especially when it is untrue. I do not mean to detract from the woman involved in the Liam Lawlor case but it does not rest easy with me that she received a substantial sum using libel laws in this country. The pain she experienced in Moscow was probably far less than that suffered by the Lawlor family. If the Bill ignores this then it will not be as strong a piece of legislation as I would like.

I am not at all sure we should debate who was hurt most as I thought the woman in question had a very reasonable case. She suffered the traumas of the accident and was then told she had been in the car with Mr. Lawlor for the purposes of prostitution. It was indicated that she was a well known teenage prostitute and I think that is a shocking thing to say about a person. I think she is entitled to feel as hurt as anyone else in this case.

I agree with Senator Alex White's argument in favour of the Labour Party's amendment as I think the principle is correct, though I am not sure of the time. People closer to the newspaper trade would be better able to say but 14 days may very well be reasonable; I am not sure of this but I support the principle. I was pleased to hear the Senator speak of the sting of libel as it seems we are returning to the area of feelings, and Senator O'Donovan spoke in a similar way.

I will turn briefly to my own amendments, which sought to insert the word "automatically" in lines 15 and 17 on page 18, section 22. The changes mean the text would read:

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 automatically constitute an express or implied admission of liability by that defendant, and

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

I suggest these changes because I understand the press interests the Minister is addressing. Editors and proprietors of newspapers are almost unable to print apologies because they constitute an admission of liability. Insurance companies tell those involved in car accidents to never admit liability at the scene of an accident and this is similar. People sometimes admit liability and are probably right to do so if they were in the wrong. However, I think it is unfair on the plaintiff that printing an apology automatically expunges all other redresses. I suggest there should be balance and the court should be allowed take apologies and admissions of liability into account when making judgments. This would give a greater scope for the operation of judgments. It might not have a great impact on damages awarded but it would leave it open to judges to acknowledge apologies and decide whether they constitute an admission of liability.

Apologies do amount to an admission of liability and we are, in my opinion, simply giving immunity to those who make admissions of liability. I do not think people who apologise should get away with what they said in every case thanks to the words "I am sorry". That is like something out of the film "Love Story" where the tag line was "love means never having to say you're sorry". In this case it seems one can get away with murder if one says "sorry". One can say the Minister is a well known murderer and bank robber only to disclaim liability by saying "I am sorry, I will read that again" afterwards. I do not believe this is necessarily a good idea and feel the insertion of the word "automatically" strengthens the Bill while retaining the protection so ardently sought by newspapers.

The amendment proposed raises some very important questions. If one relies on this provision to mitigate the level of damages, time should run from the date of the complaint and I feel this level of specificity is necessary. This point is made in the amendment, though whether it should be 14 days is open to debate. It should be clear that time is of the essence when an apology is to be made. The date given may be the day before the action commenced when the aggrieved party has made all efforts to consider the matter. The form of the apology comes into question, which comes back to the point I raised on the previous section. An offer of apology should be reasonable in the sense that it should be as prominent as the insult was in the first instance.

Revision is required in this area, whether using the specific wording proposed by Senator White, because provision must be made for time being of the essence and running from the date of the complaint. The issue of the prominence of the apology must also be dealt with. Without these ingredients this provision should not be open to the publisher.

I oppose the reference to "substantial mitigation" in Senator Alex White's amendment. If the article was defamatory and poorly researched in the first place those responsible should face the consequences. Senator Norris contended in an earlier debate that it should be a case of print the truth or pay the price. I fully subscribe to that. However, I have some support for the timeframes suggested by Senator Regan. Regardless of whether the time allowed should be 14 or 21 days, the important issue is that the apology should be offered as quickly as is reasonable. Some consideration should be given to this.

I fully support the comments made by Senator O'Donovan. The case he raised is a fine example of the issue at hand. It is extraordinary that no heads rolled within the offending organs of the media given that the article in question was clearly published with abandon and written without any research. That is astonishing and it tells its own story. The comparison Senator O'Donovan made is a good one. We have previously urged in this House that a provision be included in the Bill to ensure the next of kin of deceased persons have some redress when scurrilous articles are written about the latter. I am aware of the argument that we should be careful not to interfere with the proper conduct of the writing of history. However, it should not be beyond our ingenuity to afford a protection to which most people would subscribe as fair and reasonable.

It is seldom that a Minister in the Seanad considers it a bad idea when several amendments are grouped together. In this case, however, there might have been merit in dealing separately with these amendments because Senators Norris and Alex White are addressing two entirely different issues.

Section 22 deals with the apology that may be offered by a defendant in mitigation of damages. A defendant can always offer such an apology to reduce the amount of damages to which the plaintiff is entitled. The ability of the defendant to point to an apology as a mitigating factor is an existing and appropriate feature of our defamation system. An apology can only be offered in mitigation of damages, however, not in extinction of damages. I agree with Senator Walsh that there is a danger in Senator Alex White's reference in amendment No. 13 to "substantial mitigation of damage". This would mean that the mere production of an apology would entitle the defendant to a substantial reduction in damages. That is not the law. Rather, the law is that the court can assess the quality of the apology in mitigation of damages.

This also addresses the issue of the time limit proposed by Senators Regan and Alex White. There is no need for a time limit if an apology does not effect a substantial reduction in the damages awarded. That is why no timeframe is written into section 22. To provide for such would prejudice the position of a plaintiff who could be told that, because an apology has been given within 14 days, for example, he or she is thus not entitled to damages. That is not the purpose of the first two subsections which deal with mitigation of damages by an apology.

Senator Norris's amendments propose to amend subsections (3)(a) and (3)(b) by the insertion of the word “automatically”. If I had to go to the stake on this Bill, subsection (3) is the one subsection I would enact unchanged. It is essential we recognise the reality of what happens in court in libel actions. Newspapers are reluctant to issue an apology because they see it as an admission of liability. As a consequence, plaintiffs face the prospect of lengthy, expensive and traumatic proceedings in the High Court where they face the full battery of the legal armoury the defendant can afford to vindicate his or her reputation. There is no incentive for a defendant to apologise under the current system. Rather, the opposite is the case.

It is important that we provide that incentive. This is the purpose of subsection (3), which 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 an important provision not only for litigants in the current system but for the operation of the press council. The council will not work until this subsection is enacted. The press ombudsman has little moral suasion with an editor of a newspaper or the controller of a broadcasting organisation in terms of procuring an apology. The editor or controller will decline to offer an apology because he or she believes the plaintiff in question will swallow the apology before suing the newspaper or broadcasting organisation and taking it to the cleaners. That is the advice the editor or controller will receive. The purpose of this subsection is to move this branch of the law away from that type of approach. We must recognise that media organisations are powerful and we must create a culture where apologies are much more readily given. I cannot accept Senator Norris's amendments because they would introduce a considerable degree of uncertainty in this regard.

The question of deceased persons can be addressed in our discussion of another section. However, I will speak about it now because Senator O'Donovan spoke in strong terms about his concern that an apology is not given to the relatives or next of kin of a deceased person whose reputation has been grievously traduced in print or broadcast media. The Senator referred to the case of the late Liam Lawlor. The person who was travelling in the vehicle with Mr. Lawlor when he died sued before the Irish courts because of claims made against her at the time of his death. This case is a signal illustration of the importance of jury trial in defamation actions. I am not satisfied this action would have led to the same conclusion were the trial conducted by judge alone. The realisation by the newspapers involved that they would face a jury induced them to make a settlement of the proceedings.

It is a matter of record that, after my appointment, I consulted various media organisations, lawyers who acted for both plaintiffs and defendants, and academics in regard to this Bill. I indicated to all the media organisations that the issue of gravest concern to me was that newspapers in recent years had breached a fundamental Irish custom of respect for the dead, particularly at funerals and in the immediate aftermath of death. I indicated that this was an issue about which I had grave concerns. I conveyed my wish to the press ombudsman that the press council address this issue as its number one priority. The situation regarding Liam Lawlor is not the only example of this recent practice.

Whether we can deal with this issue in this Bill is a matter for consideration in our debate on another section. I do not want to anticipate the difficulties that are likely to arise but the writing of obituaries, for example, is clearly in the public interest. The freedom to make comment is important and it is a matter upon which action must be taken. I wish the press ombudsman and press council well in their work. There is a black hole in that certain matters can be published in Irish newspapers that cannot be published in British newspapers because of the operation of the press council in the United Kingdom. I am anxious to give the council an opportunity to plug that black hole. It is matter of public record that I was prepared to leave the Privacy Bill 2006 on the Order Paper of this House for a period to allow the council time to demonstrate its capacity. If that capacity is not demonstrated and this Bill cannot address the issue of the defamation of a dead person at the time of his or her funeral, it is an issue to which I will return in the Privacy Bill 2006. I am not prepared to let this black hole continue.

I agree with most of what the Minister said. In particular, I agree with his comments on subsection (3) and his contention that an apology should not constitute an express or implied admission of liability. I thank Senator Norris for his support of my amendment and I wish I could return the favour on this occasion. Unfortunately I cannot, as it would open up——

The Senator is ungrateful.

I am hoping for a chance to support one or other of the amendments Senator Norris has tabled very carefully to this legislation. He has given much attention to it, both on this occasion and the last, as we can see from reading the transcripts.

If we introduced the word "automatically", it would then give rise to a debate as to the circumstances in which an apology should or should not constitute an admission of liability. That would be unfortunate and would undermine the very laudable intention behind this. It seems to be an incentive for media organisations to furnish an apology and, importantly, it would bring about pressure for them to do so.

This leads to my amendment. I have heard the Senators' concerned comments, especially those of Senator Walsh, regarding the use of the term "substantial mitigation". Perhaps I might reconsider the term before Report Stage. We are in the business with this discussion of incentivising or pressurising media organisations into furnishing apologies in an expeditious manner. There is only a very short moment after the publication of a defamatory statement when it really makes a significant difference to an aggrieved plaintiff that an apology be published in respect of him or her. An impact is made only in that short time.

Putting a timeframe in place, be it 14 days or something marginally longer, will get people thinking. At the risk of personalising the matter too much, as a former journalist who worked in the field for ten years and as a lawyer working in the field, there is nothing that concentrates the minds of journalists and editors more quickly than the prospect of a libel action coming down the tracks that they know they cannot win or to which they have significant exposure.

We are not in the business of solving problems for the media as we have a wider interest here, but if we can pressurise them into seeing that the problem can be fixed quickly, within a period of 14 or 21 days, that would be entirely consistent with the argument made by the Minister. That is to say apologies would be given readily. It concentrates the minds and puts pressure on the editors and everyone else to deal with the problem now rather than delay the matter for six months or two years or whenever the issue goes to court.

I am not completely convinced either by the Minister or Senator Alex White. They seem to be overly optimistic about the nature of the printed media in this country, particularly as it comes under very sustained pressure from the British market. I already referred to the way in which The Sun dealt with its apology under the press council. It made the apology and then repeated the offence. I am very reluctant to give an unqualified “get out of jail free” card, which is precisely what this is. I will wait and see. Perhaps the optimists will be proved right and I will be proved to have been too much of a pessimist.

I am very glad Senators O'Donovan and Walsh raised the question of the offence to the family of the deceased in regard to reputation. I again refer, with a slightly different emphasis, to the story I raised yesterday with regard to the relatives of the deceased. The story was just was bad as the Liam Lawlor case. The story concerned an inoffensive, gentle and decent man who met someone he thought would be a partner in at least some kind of perhaps casual sexual relationship. He was murdered by somebody with a track record in this area of attacking gay people. The man was killed by one stab wound which severed the carotid artery. The large headline in The Star was “Kinky Sex Horror”. The first paragraph stated: “Gardaí were last night probing whether a man was murdered or killed accidentally in a kinky sex game.” The Garda was not doing so as there was no kinky sex game. The man was killed by one stab wound which made him bleed to death very quickly. There were descriptions of the man being trussed up like a pig and it was suggested that he died in some kind of Michael Hutchence-style operation. The word “orgy” was used but it was a pretty modest orgy if there were only two people involved in it.

The idea was put about that this man had voluntarily engaged in a process whereby partial asphyxiation leads to an increase in sexual pleasure. That is completely untrue. After that the newspapers hounded the family and tried to ascertain funeral details so they could take photographs. The family has contacted the newspaper and nothing has been done. There has been no apology and this may be a case that falls into a gap between the passage of this Bill and the operation of the press council.

I agree with my colleagues on the other side of the House that this type of offence is intolerable and unsustainable. I am very ashamed that it happened in an Irish newspaper, not a British tabloid. The newspaper savaged one of our own who was killed under the most appalling circumstances.

I return to the net issue of timeliness. In section 22(1)(b), the term used is “as soon as practicable thereafter, in circumstances where the action was commenced”. Section 22(1)(a) does not mention timeliness. I wonder if the insertion of the term “in a timely manner before the bringing of the action” would make that link between the mitigation and the fact that an apology was offered in a timely manner. Otherwise there is no real direction to a court to take into account the element of timing and timeliness.

We refer to timeliness in section 22(1)(b) and it seems we could usefully do likewise in the previous paragraph. I will leave that for the Minister to consider.

Tá an t-am nach mór istigh. I do not want to labour the point but I concur with Senator Norris's comments about the other example. I picked the case of the reporting of the late Liam Lawlor's death.

I will clarify my point. I only met Liam Lawlor's widow on one occasion and I would not know the lady very well. Responsible journalism should have reacted at editorial level in the aftermath of that saga. It not only affected the family but also politics in general because it could have been anyone who was involved. A Fine Gael or Independent Senator or Deputy could have been abroad and had the same allegations made. It should hurt us all.

What I have in mind does not mean Mrs. Lawlor or her family or grandchildren should get substantial damages. If on the following Sunday, however, the newspapers concerned were like-minded in their editorials and front pages and admitted they got the story wrong, I would have greater respect for the media in general.

For most of my life, Irish journalism in its tradition has been very fair-minded and balanced overall. In the past ten to 15 years, unfortunately, with the input of particular tabloid press, some newspapers are trying to out-do their British counterparts. There is almost a competition on how low they can stoop. If there were greater responsibility within the media, legislators could act accordingly.

I am very pleased about the Minister's comments about the Lawlor saga in particular. A Fianna Fáil Ard-Fheis took place that weekend and the incident was a body blow. The reporting was appalling. It might be five or ten years before such legislation will be revisited. I do not take away in any way from the lady in Ukraine who was an interpreter and was wronged. Thankfully for her she was able to use the Irish system to get substantial damages. I am sure in Ukraine or Russia she would not have got one cent. They would probably have told her to go away and get lost. Out of courtesy and respect the very least those newspapers should have done, including broadsheet newspapers — they were not all tabloids, was apologise the following Sunday at editorial level. That is where the Press Council of Ireland and the press ombudsman will have a leading role to play.

The Minister is right to stand back on the Privacy Bill. I listened to Mr. Horgan the other day. He is a very capable person with an interesting background. I hope the press council will be able to work without the need to interfere, prod or wave the stick if people step out of line. If the media can in some way self-regulate and be responsible, they will do a great justice and obviously will save themselves a great deal of money.

On Senator Alex White's technical amendment, I come back to my core point that the timeframe is supervised by the court. The newspaper or publisher has an incentive to give a quick apology because that will reduce the person's damages. That is the best incentive. Senator Regan said the section refers only to actions and not to the promptness of the apology. It refers to an apology before or after an action has been instituted which may be well after the original offending article or broadcast. I will consider the issue. I signal to the House that on Report Stage I will revisit this section with a view to inserting some reference to the prominence of the apology in the section.

Following Government approval concerning the decision to restore the Bill to the House, the Government decided that the Defamation Bill should provide for equal prominence to be given by publishers of offers of apologies to make amends to persons defamed as to the original defamatory statement. I am working on the matter and I intend to introduce proposals on Report Stage. While considering that issue I will examine whether there is value in including a reference to the promptness with which an apology was given. On balance my instinct is that it is a matter better left to the courts. However, I will examine it.

On the wider issue raised by Senators Norris and O'Donovan about deceased persons, Senator Norris gave an example and I could give several more. I do not wish to do so, however, out of respect for the feelings of the families involved. They were all published in Irish newspapers. It is a deplorable tendency and is completely at variance with our traditions as a people. I am determined to deal with the matter as I have said to the media organisations. Mr. Horgan should be given an opportunity to address it as Senator O'Donovan indicated. However, if he does not, I do not intend to postpone the issue to some indefinite future date.

On the basis of what the Minister has said I will withdraw my amendment. However, I may revisit it at a later stage.

Amendment, by leave, withdrawn.
Amendments Nos. 14 and 15 not moved.
Section 22 agreed to.
Progress reported; Committee to sit again.
Sitting suspended at 2.05 p.m. and resumed at 6 p.m.