Defamation Bill 2006: Committee Stage (Resumed).

SECTION 23.
Question proposed: "That section 23 stand part of the Bill."

I welcome the Minister for Justice, Equality and Law Reform to the House. The debate is resumed on section 23. Is the section agreed?

I have a difficulty with it but I am prepared to wait until we reach the next section to discuss it.

Is it clear from this section that the onus is on the defendant to prove that the plaintiff consented to the statement?

On the issue of consent, it generally arises by way of a telephone call to the person concerned.

If a person consents to a publication, he or she may not be fully aware of its full content. I have concerns that a person might indicate he or she is happy with a statement, but without knowing the detail of the full article, it is impossible for a person to give such consent. I do not know the case law on this issue but consent in this regard is not good enough. Such consents are generally sought at the last minute by reporters trying to cover themselves by making a telephone call to the person concerned and if he or she is not fully au fait with the total content of the article, it could create an injustice if such defence of consent were accepted by the court.

Senator Walsh's point has brought something to mind. I consider I was seriously libelled by one of the gutter newspapers some time ago and on that occasion I did not take the matter to court. I was telephoned around midnight and I got out of bed to answer the telephone, the person read over what he or she proposed to publish and wanted a comment from me. That person was just covering himself or herself. That is precisely the kind of matter about which Senator Walsh spoke. Newspapers may in a sneaky way try to get one offside.

I imagine the Minister will say newspaper reporters must prove what they write. I wonder what is that proof. Does the provision mean proof in writing or can the record of a telephone call made late at night to a person be held to be convincing proof or would the person need to have a contemporaneous note or a recording of the conversation? The section does not seem to indicate that. If a person gives consent in writing in advance, he or she has very considerably weakened his or her case for taking an action for libel to the point of extinction. I have concerns about precisely the matter that Senator Walsh raised.

The issue is that the defence of consent would apply only where the plaintiff is apprised of the full extent of the statement which is to be made and which then is the subject of the action. In circumstances where one is doorstepped and asked to accept or reject a cryptic statement that is put forward, the true situation is not covered. Therefore, some elaboration is needed on the consent required to enable this to be a valid defence.

If Senator Regan wishes to table an amendment, I will it consider it sympathetically. This is a new provision and was not included in the 1961 Act. Therefore, Senators are entitled to question its meaning, as they are to question the meaning of anything that is put before them. However, specifically, they should raise any concerns they have about this section. I will examine the issue the Senator raised.

On the drafting of the section, as it stands, I advise Deputy Walsh that a consent clearly must be an informed consent. A consent is not simply a casual conversation with a garrulous newspaper man or woman at a late hour of night; it must be an informed consent. The expression "consent" in the section clearly is the consent of the plaintiff and, therefore, must be a consent to the publication of the statement in respect of which the action was brought. In other words, if a person said, "you can say of me that I am the keeper of a house of ill repute in this city" and consented to having said that, but did not own a house of ill repute, under this section he would not have an action for it. There have been cases where persons have uttered utter falsehoods and untruths to reporters for the purpose of generating libel actions. The consent must be freely and spontaneously given.

In relation to the onus of proof, an issue raised by Senators Norris and Walsh, the words "it shall be a defence" mean that the onus rests clearly on the defendant to make out the defence.

I wish to ask the Minister a question on what he has said. I have never heard it said that people have sought out newspapers and told reporters lies. Are there any proven instances of this? It would be fascinating if there were, and perhaps it is possible there have been such instances.

Returning to the matter of telephone calls by reporters, there is also a question of headlines carried by newspapers and information having been twisted. I have to use Senator Walsh in the hypothetical case I will cite, but I do not mean to sully his reputation. I believe he has a wife. I am not so provided and, therefore, I cannot put this hypothetical question in regard to myself. If a newspaper reporter telephoned Senator Walsh and asked him, "Did you beat your wife last night?" and he rightly said "No" and the newspaper then carried the headline "Walsh says he did not beat his wife", the implication would be that nobody would believe him because they would know perfectly well that he beat the daylights out of his wife. That is the type of circumstance I mean and perhaps such communication is a kind of consent. I am interested to know if there are cases of scams where people have lied to reporters to damage their reputation and have taken action on foot of that. I have never heard of it, but it might well be a lucrative additional source of income for Members of the House.

Senator Walsh is anxious to answer that question.

No, I cannot think of the right answer to that question, one that would not get me into more trouble.

On the question of consent — I am sure the Minister would be able to advise me on this — there is reference in a later section of the Bill to the interaction between the reporter and the person who is defamed. Rather than inserting a defence of consent, I wonder if that later section deals sufficiently with this issue. I note the Minister said the consent would be an informed consent. That is not stated in this section but perhaps it is implied from other laws.

In what section is this?

I cannot say off the top of my head, but there are sections dealing with interaction that takes place. For example, section 24(3) deals with the issue, as do other areas. I wonder whether it is necessary to include it. A kind of confusion can arise. It would not be uncommon if somebody was contacted off guard by a reporter who knew what he was doing and told the reporter he could publish whatever he liked. It might just be a throwaway remark and the person might not be fully au fait with the issue, but it could provide cover in a subsequent defamation case. Perhaps the Minister’s point about informed consent is right and the courts would very strictly interpret that consent could only be given where the person had time to peruse fully the article and to respond to it in a measured way. However, I wonder whether it is necessary at all in the Bill.

It has always been part of the common law. All we are seeking is a codification of that, which is an expression of what is the current law in statutory form. I cannot see that it prejudices the parties to a legal action.

Can the Minister give any examples of people telling lies?

I could give many examples of persons who tell lies.

I will be more specific under cross-examination and ask whether the Minister can give any examples of people telling lies to newspapers with the intention of making profit from libel actions. He said he could do so.

Not this afternoon. I will return to the subject on Report Stage if the Senator wishes to table an amendment.

I would be very interested in hearing some of these examples, if the Minister can dig them out. I do not mean to be awkward, but I challenged his predecessor on the basis that I have yet to come across a convincing case where the libel laws frightened off a proper investigative journalist from an investigation. I asked him on a number of occasions, but he said he could not find such a case, having previously said such cases existed. It is just a little piece of forensic cross-examination.

Legal professional privilege prevents me from comprehensively answering the Senator's question.

My compliments on an elegant wriggle.

To deal with Senator Norris' case and the situation that may arise, perhaps another defence should be built in here for the publisher. We have a whole list of defences, but we may need another defence. I will be putting down amendments on Report Stage for this and other sections of the Bill. We are agreeing to these sections on the basis that further amendments will be submitted on Report Stage.

Question put and agreed to.
SECTION 24

Amendments Nos. 16 to 19, inclusive, are related and may be discussed together by agreement.

I move amendment No. 16:

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 think it is agreed that instead of a subject of public importance, the section should be amended to refer to a subject of public interest. I am not committed to the exact wording proposed in the amendment and I am prepared to withdraw it. However, I think that this section creates a defence which has very serious implications. It is based on jurisprudence established in the United Kingdom that has not yet been adopted in this jurisdiction, although there are intimations that it has been so adopted at the level of the High Court, following the Reynolds judgment. However, this is the subject of a Supreme Court appeal. In a sense, we are codifying jurisprudence which is not yet settled in this jurisdiction. That has far-reaching consequences because it sets up a defence which effectively means that a publisher can print an untruth and defame somebody, yet still establish a defence.

There is other jurisprudence in the US which states that there is no constitutional value in a false statement of fact. It affects confidence in politics and it also infringes the right to privacy and the constitutional right to one's good name. This section is very important and I question the extent to which we codify a defence which is not settled in the jurisprudence of this jurisdiction.

I agree with Senator Regan. I am astonished that a Fianna Fáil Minister would introduce this kind of thing in the light of the case mentioned by the Senator. This is the celebrated Reynolds case, which followed some American precedents that have been extremely damaging. Look at the state of play in America, especially for politicians and negative advertising. People can tell any quantity of lies with apparently complete impunity about opponents in a political race. People who are highly decorated war heroes can be described by little lice as cowards. People who never got their backsides off the seat in front of the television and who never fired so much as a pop gun in their lives, can still tell these lies. That is where all this thing started.

In my opinion, Mr. Reynolds was very badly treated by the British courts and I would be horrified that the same kind of practice could be pursued here. Senator Regan also made another point that I had intended to make. Under the Constitution, the State guarantees very strongly not only to protect but actively to vindicate the good name of its citizens. Yet this Bill states that someone can print something that is untrue, as long as it is done in good faith. That is not good enough and that is why my amendment is more limited than that of Senator Regan. My amendment just deletes the expression "in good faith". I do not believe in it and I think it is wrong. Why should people be allowed to print lies? What does good faith mean? Is there a definition of good faith? Does it mean that the publisher had the day off because of a hangover, so he did not look over the article in question? Does it mean that he was too stupid to realise that the thing was defamatory? Why should the stupidity or unprofessional behaviour of an editor be allowed to protect him or her against an action by a citizen?

I am astonished at this. A very distinguished former Taoiseach and leader of the Minister's party was very badly treated under similar ideology in the British courts, yet here we are happily introducing it into our own legislation. No thank you.

I said this on the previous occasion we debated this issue, when the Minister's predecessor took the debate, and I did not get far. This is a significant shift in our defamation laws. I agree with Senator Norris. The good faith criteria are weak. There is an amendment to remove section 24(1)(a), “in good faith”, and even paragraph (b), “in the course of, or for the purposes of, the discussion of a subject of public importance, the discussion of which was for the public benefit”, may not be strong enough. It is a shift towards freedom of expression, which we must make, but it could undermine all the other balancing measures we are trying to include for the person who is defamed, the plaintiff. This is significant.

If we continue with this we should have at least a paragraph (c) stating that strenuous efforts must be made by the reporter or publication concerned and obliging them to check or ascertain that what they are publishing is true and factual. That is not in place. I am concerned by the absence of this strong criterion, which should underpin all publications of statements that may impact on people’s good names. If stories are not true they should not be published. This significantly dilutes that principle.

Before I deal with the detail of the amendments I will say a few general words on this section. Section 24 puts on a statutory footing the new defamation defence of fair and reasonable publication on a matter of public interest. It extends the occasion of qualified privilege to the world at large. Defamations can occur on occasions of absolute or qualified privilege without malice. Formerly the phrase "public importance" was used and there is no issue on the fact that "public interest" is now proposed because it is a more precise concept. Senators are familiar with the genesis of this new defence. As Senator Norris said, it was first set out by the United Kingdom court of appeal in 2001 in the case of Reynolds v. Times Newspapers Limited, which developed this new defence.

It also came out of the United States case of Sullivan v. The New York Times Company.

Sullivan v. The New York Times Company originated this doctrine in the 1950s. The High Court decision in July 2003 by Mr. Justice Ó Caoimh in the case of Hunter and Callaghan v. Duckworth and Company Limited and Blom-Cooper adopted the reasoning of the Reynolds case and introduced the concept into Irish jurisprudence. In September 2006 the United Kingdom court of appeal refined and clarified this defence in the case of Jameel and others v. Wall Street Journal Europe. In his consideration of the case of Leech v. Independent Newspapers (Ireland) Limited of June this year, Mr. Justice Charlton was of the opinion that a fair and reasonable defence existed for the Irish media and he drew heavily on the Jameel judgement. While Senator Regan said the matter has not been resolved by the court of ultimate resort in this country, the judicial precedents are not encouraging. The new defence provided for in section 24 codifies in statute the existing judicial position following the decisions of the Irish High Court to apply the reasoning of the United Kingdom authorities.

I agree philosophically with Senators Norris and Regan on this. Many commentators argue that the issue in defamation should be truth or falsehood. Absolute and qualified privilege trench on it, but to extend an occasion of privilege for media interest to include the whole world is a far-reaching step and I share the Senators' reservations. I would be interested to see whether Senator Regan can bring his party, including Members of the Dáil, along on this and whether there might be all-party agreement which would put us all in a stronger position. As Minister for Justice, Equality and Law Reform I am in a difficult position. Were I not to legislate for this area I would leave the matter to the courts, where the signals are not encouraging. Our only option therefore is to legislate for it but to restrict it in every way possible. The reference to compliance with the standards of the Press Council of Ireland has been inserted to make the defence difficult to make out. That is the only way forward.

As a person interested in legal matters I never agreed with the Sullivan judgment and the fact that our courts are introducing it is disappointing to me. As legislators we have a duty to stop them. In this legislation we purport to codify all the defences. If we do not address this issue, we leave it out and say it does not exist. I appreciate Senator Regan's comment that we should leave this matter to the courts, but the signs are that if we do so they will develop this defence at their own pace and on their own terms. When the courts raise an issue, we as legislators have a duty to respond to it in our way. My instinct on this defence is to circumscribe it as much as possible. Our views on this may be misrepresented in public comment and I want to be clear why I am concerned about it. Truth should be at a premium in defamation matters and our laws should not encourage the publication of falsehoods.

I appreciate the Minister's outline of the case law. Mr. Justice Ó Caoimh's statement was obiter dictum to the case and cannot be relied on except in the broadest sense. The matter will be a subject of a Supreme Court ruling soon and that is why I say the law has not been settled. We must be conscious we are adopting legislation that might have constitutional impediment in light of the constitutional requirement that the good name of an individual be protected and vindicated. I am concerned that we do not overstep the mark in this legislation and we have an obligation on that.

The Minister has been open, honest and interesting. I applaud the fact that he shared his views on this difficulty with the House. I am pleased he thinks the judges' following the Sullivan case was the start of the rot, followed by the infamous Reynolds case in Britain, which no Irish person could relish. The Minister indicated that the Judiciary is following such precedents in other jurisdictions, as it is entitled to do, in the absence of any prescription from the Houses of the Oireachtas, which we are doing. The Minister has suggested an elegant and sophisticated approach in which we appear to do what the newspapers want but tie it around with so much red tape that they will find it difficult to enter this defence. We must legislate for this area but I would like us to do so that we can close it down. As the Minister said, truth is at a premium. If we allow newspapers to tell lies, they will be happy so to do and it will be damaging, especially with the impact of the British tabloids in this country. The judges will not follow these precedents if we legislate effectively and tie their hands. The judges only interpret the law, we originate it and it is up to us to do our best.

Further down the section is this business which I believe is lamentable. The Minister spoke about broadening out the concept of public benefit, etc., to cover the entire population and so on. However, in section 24(2) it is narrowed down again in a manner that raises questions. Subsection (2)(a) 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:

(a) the extent to which the statement concerned refers to the performance by the person of his or her public functions.

In other words, one can tell lies about people in public life and this can be construed as something of a mitigating factor. I do not see the logic of that, although perhaps, in one sense there is. On the Order of Business today, for example, there was an interesting series of exchanges about drugs and whether the approach should be to hammer down as hard as possible the American style war on drugs or to liberalise them by going towards decriminalisation and so forth. I can see a case, for example, if a Minister was taking a hard line on drugs and was then discovered every Saturday, in the potting shed, smoking joints and taking cocaine. At that point, fair enough, the Minister should be made responsible to public opinion. However, as regards this bald statement, "the extent to which the statement concerned refers to the performance by the person of his or her public functions", what has that got to do with the price of eggs? Why should that be allowed to dilute the necessary and primary element of truth? I cannot follow that.

I would inform the Minister that this is possibly unconstitutional. When the Constitution talks about vindicating a person's good name, it is very strong in this regard. It is one of the great things in Éamon de Valera's Constitution.

One of the many great things.

It allowed me to decriminalise homosexuality. I thank Mr. de Valera, and I do not imagine he expected that.

There are lurking problems still, in Article 41.

I am just making the point, and, regrettably I have to leave the House for a while, although not before I hear the Minister's reply. I believe we are creating two classes of person here. The Constitution does not say the good name of an ordinary citizen may not be dragged in the mud but if he or she is stupid enough to get elected to the Dáil or Seanad, or even a county council, then one may say whatever one likes about him or her. I do not believe that is right and I shall take a good deal of convincing.

I welcome the Minister's comments as regards the premium on the truth, and it should be the criterion by which all sections of the Bill are measured.

To follow through on the point I made earlier about the statement being true, I wonder whether we are proceeding with that. I heard what the Minister had to say on the advisability of it because of the codification. If section 24(1)(a) was to read, “[I]n good faith, following implementation of best practice in establishing the truth of the public statement, and...”, then the term “In good faith” is qualified by compliance with best practice in the media and the newspaper business about establishing the truth. My understanding of the way the media operates is that if something is controversial or defamatory of somebody, it should not be published without corroborating evidence from other sources. At least that could put some degree of qualification on the term “In good faith”. I am not sure whether it is perfect qualification, but it would certainly be an improvement on what is there. I share the concerns of other Senators that a lazy reporter could, in fact, just publish without establishing how factual or otherwise a statement was. The rest of the section contains some qualifications but this insertion, stating what is meant by fair and reasonable publication, ensures a definition that is as good and tight as it can be.

On the specific point raised by Senator Walsh, my advice is that good faith encompasses all the factors subsequently referred to which includes, in the case of a statement published in a periodical, the extent to which the publisher adhered to the code of standards of the Press Council or to standards equivalent to those specified, and abided by decisions of the Press Ombudsman and determinations of the Press Council. However, I am prepared to look at the points Senator Walsh has raised to see whether it can be strengthened.

Amendment, by leave, withdrawn.
Government Amendment No. 17:
In page 18, subsection (1), line 27, to delete "as "the defence" and substitute "as the "defence".
Amendment agreed to.

I move amendmentNo. 18:

In page 18, subsection (1), line 31, to delete paragraph (a).

I am precluded from calling a vote because I have another appointment. Perhaps we can return to battle, however, on Report Stage.

Amendment, by leave, withdrawn.
Government Amendment No. 19:
In page 18, subsection (1)(b). line 33, to delete “public importance” and substitute “public interest”.
Amendment agreed to.

Amendment No. 20 is in the name of Senator Norris. Amendment No. 21 is related, therefore, amendments Nos. 20 and 21 may be discussed together by agreement. Agreed.

I move amendmentNo. 20:

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.

Can the Leas-Chathaoirleach give me the opportunity to find the relevant part of the Bill because I was just leaving the House? .

Does the Senator want me to deal with it?

I shall be obliged because unfortunately I have to leave now. That leaves me with the opportunity to re-submit. I shall read the Minister's reply with great interest, and I apologise for having to leave now.

Senator Norris's amendment on this section is not as fundamental as his previous one and might not require a vote. However, the point being raised is whether the membership of the Press Council can be made compulsory. In providing for the circumstance in which a matter of public interest can be a fair and reasonable publication, the section goes on to state, at subsection (2)(f):

in the case of a statement published in a periodical, the extent to which the publisher of the periodical—

(i) adhered to the code of standards of the Press Council or to standards equivalent to those specified in that code of standards, and

(ii) abided by decisions of the Press Ombudsman and determinations of the Press Council.

If I interpret Senator Norris correctly, he is trying to delete all the words that are equivalent. In other words one must either adhere to the code of standards of the Press Council or else one may not avail of this defence at all. That is something I will look at.

Section 24 makes specific reference to the Press Council, and that is to be welcomed. We cannot force periodicals to take up their entitlement to be members of the Press Council and therefore in a sense we are making it mandatory. However, this is a civil matter and it will be possible to look at Senator Norris's amendment. I will consider it for Report Stage.

I am very grateful. The Minister, in fact, has articulated exactly what was in my mind, and I am grateful for that.

That is a unique gift.

However, he looks rather shocked at the prospect of entering my consciousness like that. I thank him for his undertaking to look at this amendment and I shall re-submit it on Report Stage.

Amendment, by leave, withdrawn.
Government Amendment No. 21:
In page 19, subsection (2)(f), to delete lines 11 and 12 and substitute the following:
"(ii) abided by determinations of the Press Ombudsman and determinations of the Press Council;".
Amendment agreed to.
Amendment No. 22 not moved.

Amendments Nos. 23 to 26, inclusive, will be discussed together rather than being discussed with Amendment No. 22, which has been withdrawn.

I move amendment No. 23:

In page 19, subsection (2)(g), lines 15 and 16, to delete “a reasonable attempt was” and substitute “reasonable attempts were”.

This is important as it is the judicial interpretation of whether the defence of fair and reasonable publication is accepted by the courts and compliance with the subsections of section 24(2) is germane. Section 24(2)(g) states:

. . . 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 and publish a response from that person.

Leaving a voicemail message for a person after an article is written and an hour prior to publication stating that one has been told something about that person, that an article has been written and is about to go to press and for the person to please telephone back if he or she has a comment to make should not satisfy the situation. Given access to mobile telephones, landlines, e-mail and various communication modes which now exist, it is not unreasonable for "reasonable attempt" to be in the plural. Therefore, if one claims the defence of fair and reasonable publication one must show one made not only one attempt but a number of attempts. I propose changing it to the plural in order that it would read, "to which reasonable attempts were made".

While it is probably implied that these attempts are made prior to publication, paragraph (g) does not state this. Amendment No. 24 would include the words “in advance” and I considered suggesting the phrase “a reasonable time in advance”. If one is defamed in an article on which a reporter has worked for weeks, one should have an opportunity to consider for some time what has been stated before one responds. One should not be expected to respond on the hoof and not doing so should not give the green light to the publisher of the offending article to avail of this defence. If this section is passed in its present format it will represent an extremely significant modification of our libel laws.

Amendment No. 25 is similar to that of Senator Walsh, and either would be acceptable. The basis is to ensure it is done in advance. The Labour Party would be happy to support Senator Walsh's amendment.

The purpose of amendment No. 26 is to make clear that a brief response by the plaintiff at the end of the article is not sufficient. It should be a detailed response and this opportunity should be given to the plaintiff.

If this section is maintained, I agree with the amendments tabled by Senators Walsh and Hannigan. They are reasonable amendments to the text.

I support Senator Walsh because his amendment is worthy of favourable consideration.

With regard to sections 24 and 25, particularly in light of recent media coverage, it is my view that whether one is a catwalk model or politician, any citizen of the Republic——

I will allow Senator Callely to speak on the section after we have dealt with the amendments.

I wish to speak on the amendment. I support the amendment but I want clarification from the Minister as to what is deemed to be the private life of the individual and deemed to be of importance to the interest of the public and legitimately published. This is a major issue and it would be great to have clear guidelines in this regard. We have all witnessed the intrusion into the private lives of individuals which some members of the media state is of interest to the public.

I understand what Senators seek to do, although they have not passed the parliamentary draftsman yet. I notice Senator Regan proposed to delete the section which should not have happened. It is important to have paragraph (g) in the section because it is a protection. The paragraph states:

. . . 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 and publish a response from that person.

The purpose of this paragraph is to put a limitation on what is a fair publication defence. I understand Senators wish to strengthen this. However, with regard to amendment No. 23, Parliamentary Counsel states the term "reasonable attempt" may be interpreted in the plural as well as in the singular. Therefore, it is not required to state "attempt or attempts" because "attempt" encompasses "attempts" in current legislative practice.

Amendments Nos. 24 and 25 would preserve paragraph (g) but seek to alter its meaning by providing that the plaintiff’s version of events must be obtained in advance. I have a sympathy for and understanding of the thinking behind this proposed amendment. However, it is extremely prescriptive. Valid reasons can exist for not being able to obtain the plaintiff’s version in advance of publication. One must leave to the courts the determination of what is reasonable. By inserting the word “reasonable” one gives control to the courts over the operation and conduct of the defendant.

In amendment No. 26, the Labour Party proposes that the nature and extent of the representation of the plaintiff's views compared with the suspicion, allegation or fact concerned presented by the defendant be taken into account. I am prepared to consider this prior to Report Stage. It appears to strengthen the subsection in terms of imposing an obligation on a journalist. It has a concrete meaning and I will examine this.

I thank the Minister for his reply. I understand the parliamentary draftsman stated the singular may be interpreted as the plural. Let us remove the concept of "may" and make this mandatory by including the plural. This is a significant shift in favour of freedom of expression and against the plaintiff in the case. In the circumstances, it would be fair and reasonable for the publisher to make a number of attempts to ascertain the opinion of the person who may be defamed. While the parliamentary draftsman may be correct in this regard, why is it necessary to allow for discretion in this instance? Why not make the provision stronger? I do not wish to be pedantic but this is an important issue. I ask the Minister to consider it positively before Report Stage.

The motivating factor behind amendment No. 23 is not so much to require a publication to obtain in advance the views of a person who may be defamed and reflect these in a statement but to require that a publisher make reasonable attempts in advance to obtain and publish a response from the person, perhaps even in a timely fashion. We want to prevent the media from engaging in token gestures to satisfy the letter but not the spirit of the law by attempting to contact individuals at the last minute. In these circumstances, they have the excuse of being unable to contact the individual at a given time.

If we choose to shift the onus on the defendant in a defamation action from being required to show a statement was true to being required to show it was made in "good faith" as part of a "discussion of a subject of public importance", we must, as a corollary, strengthen the interest of the plaintiff to ensure he or she is not placed in an impossible position in attempting to have his or her good name vindicated in court.

In light of advances in communications and the length of time some articles are in gestation prior to publication, it is not unreasonable to expect that early attempts would be made to obtain a statement, correction or opinion from the person about whom the article has been written, if he or she wishes to provide such information.

I support Senator Walsh's amendment. While I appreciate the Minister's point with regard to parliamentary draftsmen and his undertaking to report to the House again on Report Stage, I am inclined to support the view that the House should be more prescriptive in this regard and should not leave a decision on the matter to the interpretation of a court. I emphasise my earlier point on the provision allowing for a defence of "fair and reasonable publication" on a matter of public importance or that a statement has been essentially designed to facilitate public discussion. Where do we draw the line? What is the difference between an issue of "public importance" and what the media may decide is of interest to the public?

Members of the House or, given the day that is in it, catwalk models and their spouses, children and other family members are entitled to a private life. In certain cases in the past, they have not been afforded this entitlement. While we can support the defence that a statement has been published to further discussion of a matter of public importance, we should have a clear understanding of what is a private issue for an individual and his or her family. In this regard, I highlight the practice of publishing stories or photographs of individuals or their families. In the case of a public representative, his or her family members or spouse are not subjects of public importance and their private lives should remain private.

It is very difficult to adjudicate on whether "a reasonable attempt was made by the publisher to obtain and publish a response" from a plaintiff. If a media organisation communicated to a person by sending 101 e-mails which were not received, would this be deemed "a reasonable attempt" to obtain a response? Perhaps the person's system received the e-mails or he or she received a document by fax or letter. In such cases, will it be left to the court to adjudicate on what is reasonable? Senator Walsh is correct to argue that we should be more prescriptive in this regard. At minimum, the section should include a definition of what is deemed to be reasonable.

I thank the Minister for his comments on amendment No. 26. I concur with Senator Walsh's views on amendment No. 25. Given the modern forms of communication available, the legislation should require that a reasonable attempt be made to obtain and publish a response "in advance" of publication. Many publications do not go to press daily and hold stories for days or weeks. It is not too much to ask that they seek to obtain in advance a comment from the person about whom an article is written. I support the amendment.

Senator Callely referred to private lives, an issue which will arise on many sections of the Bill. In the context of this section, however, it is proposed in the Government amendment to delete the reference to "public importance" and insert the words "public interest". This is a much stronger phrase because it clearly implies that there is a distinct private sphere which is not of public interest. As the Senator indicated, the words "public importance" can connote anything in relation to the conduct of a public figure.

On the substance of what Senator Walsh was seeking and the question regarding the reasonable number of attempts made to obtain a response from an individual, I am prepared to examine whether this issue can be addressed by way of a separate subsection. This is the only way in drafting terms that the issue could be addressed because the section, as it stands, does not include a reference to the plural. If one were to stipulate the number of attempts which were made, it would elevate it into a separate requirement.

Will the words "in advance" be inserted?

By definition, the attempt must be made in advance. Obviously, the criterion of reasonableness will govern how far in advance the attempts were made. I see some merit in examining whether we can include the plural in this context but it would have to be by way of separate expression.

I welcome the Minister's comments and understand his point of view. I look forward to the proposals he will make on Report Stage. We should not lose sight of what Senator Hannigan said. In fairness to the Irish media, the majority of outlets are not bad. On occasions, however, members of the media have stories building up for weeks and choose to contact the public figure concerned at short notice to inform him or her that the publication in question is running with the story. We should consider the issue in the context of the interval between the commencement of the story and the point at which the public figure was given an opportunity to respond. The Minister finds himself between a rock and a hard place in terms of what would be deemed to be reasonable in this context. We should not leave this matter to the court to determine. If information has been gathered over weeks and months, the word "reasonable" requires that the person who is likely to be defamed in the article should be given a similar or appropriate period to respond adequately to the material. I accept what the Minister has said and ask him to come back on Report Stage with a comprehensive response.

Amendment, by leave, withdrawn.
Amendments Nos. 24 to 26, inclusive, not moved.

I move amendment No. 27:

In page 19, subsection (3)(b), lines 25 to 30, to delete all words from and including “if,” in line 25 down to and including “published” in line 30.

This is an amendment about which I feel strongly. I suggest section 24(3)(b) should read, “entitle the court to draw an inference” and that the following be deleted, “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”. I am not satisfied with that qualification. The plaintiff should have an absolute right to withhold comment if somebody comes to him and there should be no imputation, good, bad or indifferent, from that. We go part of the way but then say “shall not . . . entitle the court to draw an inference”. A judge may decide that is giving judicial discretion.

We are dealing with very powerful influences within the media. Public opinion is shaped to a large extent by what people hear and read in the media. There is no doubt that judges are also influenced. There are comments sometimes from judges about reports of court cases. There is a real concern about the influences that can be brought to bear on judges or others in cases where a great deal of money is at stake.

To qualify the absolute right in this instance is wrong. To come back to the fundamental principle, one can go to court and remain silent. There is no obligation on one to comment. While the recent criminal justice legislation may have allowed some inference to be drawn from that in certain offences, there should be no inference in this instance. There should not be an onus on an individual, if somebody contacts him, to make any comment. The onus should remain on the press, the reporter or the publication to establish that what they are publishing is factual and the truth. I feel strongly that by including the additional wording of paragraph (b) we are going yards offside in respect of the balance we should maintain between freedom of expression and the right of an individual to his or her good name and in respect of the mechanism we have for protecting that for them.

I agree with Senator Walsh. The paragraph as written provides that failure to respond in the circumstances outlined in the paragraph shall not entitle the court to draw an inference. This means that if the person in respect of whom the article is being written does not respond, an inference can be drawn. The point that has been made is correct.

The general situation is that anyone who has time to think about a question that is posed will be able to give a more complete and appropriate response, but in many cases we are talking about situations where people are door-stepped or caught on the hop and given a cryptic account of what is suggested will be in an article. There is a general belief by many that they cannot win by responding, that in some way their response will feed the story and feed a distortion of a publication. There is merit in what Senator Walsh said that the situation where an inference can be drawn should not be particularised and instead it should be that there is no entitlement to draw an inference simpliciter.

The purpose of this subsection is to make it clear that 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 imply consent to the publication or entitle the court to draw an inference. That is the fundamental purpose of this subsection and I have no difficulty with that. In fact, the additional words were introduced for the purpose of trying to strengthen the hand of a plaintiff in this situation by making it clear that the simple publication of a denial would not be sufficient cover for a publisher in those circumstances. I agree the language is somewhat tortuous and complicated and I am quite happy to table an amendment on Report Stage to delete the formula altogether. If Senators have other ideas on the subject they may table amendments on it if they can see some way of capturing that idea in the subsection.

In fairness to the Minister, if after the word "if" it read "including, in the particular circumstances", perhaps it would capture the objection that has been raised.

Perhaps the Senator would table an amendment to that effect.

I will do so on Report Stage.

I am strongly of the view that the wording should be deleted. I fully support the fact that the court should not be able to draw any inference. Once one goes beyond that, one is asking the court to ask if the plaintiff was reasonable in withholding a response — very subjective — or whether the plaintiff felt that the denial or refutation would in itself lead to an inference being drawn. There does not have to be any reason. Why give reasons? If a person gives specific reasons, it opens up other avenues whereby the court could say he or she should have given a comment because of certain specific circumstances. If the wording in the subsection is deleted, it is clear the court can take no inference from the fact that a person does not make a comment. That is crystal clear and in my opinion that is the way it should be. I agree with the Minister and welcome that he will table an amendment on Report Stage.

Amendment, by leave, withdrawn.

Amendments Nos. 28 and 29 are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 28:

In page 19, subsection (4)(b), line 36, to delete “out of spite, ill will or”.

I wonder if the language there is as intended — "bad faith or out of spite, ill will or other improper motive"? I am not familiar with the use of "out of spite" being used in legislation of this nature but I will not necessarily press the matter. I want to comment generally on the section.

Amendment No. 29 is in line with previous amendments to strengthen the case to allow for the defendant to put in place a response in a timely manner.

On Senator Hannigan's amendment, in a sense it might have been grouped with the earlier amendments because I have agreed to revisit the issue whether there should be a number of attempts to obtain a response. On Senator Regan's point, the wording "out of spite, ill will" is not surplus as it makes the defence stricter and for those reasons I would retain it.

That statement has troubled me very much. There is almost a "prove your innocence" aspect to it. It does not seem to fit with the general approach in legislation that a person would have to prove he or she did not act out of spite, for whatever reason. The first part of the subsection refers to reasonableness but how does one prove one did not act out of spite? How can one quantify the burden of proof in such a situation?

We are now dealing not just with domestic publications but international publications with Irish editions, which come in the main from England. If one picks up any newspaper, one would find statements that would fit the bill in regard to subsection (4)(b).

This is a matter of defence not of claim. I expressed my view earlier that I must view this defence with some suspicion given it is a judicial innovation, and I am anxious to have it restricted and limited as much as is practicable. Truth should be at a premium in defamation proceedings. This creates an occasion of qualified privilege where matters of public interest are concerned. It is important that this privilege is not abused and that the position is that if there is malice or, in the words of Senator Regan, spite or ill will displayed on the face of the article, that can be taken into account in denying a defendant the opportunity to avail of the defence.

While I do not wish to be awkward, I do not understand the point. I am trying to visualise a relevant situation. There is an important point with regard to the claim of reasonableness, which I thoroughly support. I believe it is a major move forward and I support what we are trying to achieve in subsection (4). However, I cannot understand how the "defence of fair and reasonable publication shall fail unless . . . the defendant proves that . . . he or she did not act in bad faith or out of spite". Can anyone explain how a person would do that? How does one prove one did not act out of spite, beyond saying it? A person would have already proved, under the previous subsection, that he or she believed the statement to be true, fair and reasonable. If somebody goes to the trouble of trying to prove that point, an additional burden seems to be added in order that, in addition, the person would also have to prove he or she did not act out of spite.

The two parts are contradictory. If one part proves it is fair and reasonable, this I can accept, but to have to prove at the same time that one did not act out of spite seems contradictory. Is it possible to prove one's actions were fair and reasonable but that one was also acting out of spite? This is not even a belt and braces approach. It is a case of belt and throw away the braces, and hold one's trousers up with one's hands.

In a similar vein, a matter can be presented by way of fact and can therefore be deemed to be fair and reasonable. However, while subsection (4)(d) refers to the “extent of publication”, I am not sure this covers the manner in which a publication is presented, which is also an issue that causes difficulties and complications.

The manner in which an article is presented can give a reflection that would, particularly when it is thrown into the public arena, create a new discussion on the issue. Whereas the publisher may state that what has been published is fact, and is fair and reasonable, the manner in which it is presented would not reflect what is stated in this section.

In reply to Senator O'Toole, the crucial point is that we are allowing a defence even though there is an untruth. Senator O'Toole is impressed that we have introduced concepts of fairness and reasonableness. They are being allowed to qualify an individual's reputation and to permit the publication of untruth. It is important that strict qualifications be placed on this facility.

I agree with the Minister that there is no contradiction in this regard. The defence should fail if there is malice, which is not unusual. The criteria by which "reasonable publication" is determined are set out in section 2. It is a different assessment to judge bad faith, improper motive, spite or malice in general. There is not the contradiction to which Senator O'Toole referred.

I accept the point.

Amendment, by leave, withdrawn.
Amendment No. 29 not moved.
Section 24, as amended, agreed to.
Section 25 agreed to.
SECTION 26.
Amendment No. 30 not moved.
Government amendment No. 31:
In page 21, subsection (2)(b), line 5, to delete “make” and substitute “make and publish”.
Amendment agreed to.

I move amendment No. 32:

In page 21, subsection (6), line 19, to delete "applicant" and substitute "plaintiff".

The amendment seeks to ensure consistency of language throughout the document.

The reason the terms "applicant" and "respondent" are used in section 26 is that the proceedings in question fall short of an action for defamation in respect of which damages may be awarded. Under section 26(8), no order in regard to damages shall be made when an application for a declaratory order is made. Accordingly, the decision was made that the appropriate titles of the parties are "applicant" and "respondent" rather than "plaintiff" and "defendant". I understand this mirrors the practice in the courts. In other words, when a person is applying for an order rather than seeking damages, he or she is known as an applicant and, consequently, the defendant is known as a respondent.

I will withdraw the amendment and consider the Minister's response.

Amendment, by leave, withdrawn.
Section 26, as amended, agreed to.
SECTION 27.

I move amendment No. 33:

In page 21, subsection (4), line 41, to delete "not".

I had much debate in this regard with the former Minister, Mr. Michael McDowell. I felt it was one of the most un-republican aspects of legislation I had seen introduced in the House, and I still take equally strong exception to it.

This section deals with the lodgement of money in settlement of an action. My understanding is that it is customary in civil cases that where compensation is in order, the defendant can agree to pay a sum and can lodge it in court. It is then open to the plaintiff whether it is accepted. In general, this is reasonable in cases where monetary compensation is the primary purpose of the case being pursued. Obviously, if the plaintiff decides decides not to accept the lodgement, the lodgement is not disclosed to the court, and the court functions without the knowledge of the sum of the offer from the defendant. However, if the subsequent outcome of the case is less than the lodgement initially offered, the plaintiff is caught with the costs of the case. That is my understanding of the matter, and the eminent legal persons present in the House may correct me if required.

This section concerns a case for defamation. I put it to the Minister that while not exclusively, most plaintiffs' primary purpose in such cases is to re-establish their reputations, which have been seriously eroded through libel or defamation in some media organ. Therefore the primary purpose in taking such a case is to obtain an apology and a correction. To some extent in the public mind the attending damages vindicate the individual's right and the seriousness of the defamation they suffered.

In this section, however, we are saying that if a lodgment of money is made, the defendant shall not be required to admit liability. 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." In other words, they do not have to offer an apology, but do offer an amount of money. The premier motivation of the individual who has been defamed is to re-establish their good name and reputation through the pursuit of such a case, and subsequently the court may vindicate their position by ruling that they were defamed and that the media concerned must publish a retraction and an apology. For some reason, however, they may get a financial award which is less than the lodgement. As I read this section, they could be caught for costs totalling hundreds of thousands of euro for having pursued the case and therefore would be at a huge financial loss, while having won the case on the fundamental issue. That is totally unfair and works against the plaintiff in such situations.

In general, there will be a significant divergence between the resources available to the defendant and those available to the plaintiff. As a consequence, this section will make it difficult for a plaintiff to continue prosecuting a case where they obtain an award which — whether they accept it or not — will often be determined by their legal advice. We are placing the plaintiff in an invidious position. It takes nothing away from the defendant to give an apology as well as providing money. The question is, however, why would they make a compensatory award if in fact the defendant's case was unlikely to lead to the plaintiff winning it? I strongly urge that the word "not" should be deleted and therefore if a lodgment is to be made it must be accompanied by an agreement to publish an apology and a correction. In that case there is no admission of liability because if the case is pursued the matter is not known to the court, as I understand it. That is what I am seeking. We debated this matter in the House before and at that time neither the Minister nor anybody else said my interpretation was incorrect in any way.

This amendment would undermine the whole purpose of the legislation. At present, the law on lodgements is clear. In every other class of action in civil proceedings it is open to a defendant to lodge a sum of money in satisfaction of the plaintiff's claim. It is open to a plaintiff to accept, or not accept, that in satisfaction of their claim. If a plaintiff does not accept a lodgement the plaintiff puts himself or herself at risk when the final hearing of the action takes place. This is because if the plaintiff fails, as the expression goes, to beat the lodgement, the plaintiff can be penalised in costs.

We have always had a procedure by way of lodgement in our legal system. The procedure encourages the settlement of legal actions. In the course of the debate on Committee Stage, I have already mentioned that the lodgement procedure encourages the speedy resolution of disputes. The whole thinking behind this legislation is that apologies should not be reckoned as admissions of liability so that we have more apologies, and that the defendants in these proceedings should be put in the same position as any other defendant, and allowed to lodge a sum of money so that the plaintiff can seriously consider his or her options before embarking on the hazard of a court proceeding.

It must be remembered that many of those who have suffered most in defamation proceedings in recent years have been plaintiffs who established a violation of their reputation but failed to beat lodgements. In justice to the defendants in such cases, whether they are newspapers or anyone else, I do not see why they should be put in a different position in civil litigation than any other person. Every other defendant in a civil litigation is entitled to make a lodgement. Senator Walsh is right in saying that many defendants are powerful organisations but we have always afforded them the facility of saying to a plaintiff, "This is my view about the colour of your money. If you think you are worth more than that, get on with it. If you don't, take it". It is not an unreasonable attitude for the State to take concerning the use of the courts system. In this section we are ensuring that the defendants in these actions are put in the same position as anyone else. Therefore, I cannot accept the amendment, which would entirely undermine the purpose of this legislation.

However, the Senator has made one point on which I may be able to provide him with a crumb of comfort on Report Stage. Section 27(3) states:

Where a payment to which this section applies is made, the plaintiff in the action concerned may accept the payment—

(a) in accordance with the rule referred to in subsection (2), or

(b) inform the court in which the action was brought, on notice to the defendant, of his or her acceptance of the payment in full settlement of the action.

In other words, the section envisages that where a lodgement is accepted a plaintiff will have the right to inform the court that the lodgement has been accepted. Senator Walsh may argue that is not an apology but it must be remembered that in our current legal system when the court awards damages at the end of a defamation action there is no apology either. The defendant is not required to apologise even in a High Court action where the jury brings in a verdict and awards a plaintiff €500,000 for the wrong done to that person's reputation. It is the case at present that there is still no requirement on that defendant to give an apology. The award speaks for itself. I would maintain that the acceptance of a lodgement speaks for itself as well. The fact that the newspaper had to pay up shows in effect that there was an argument about the item concerned.

I am prepared, however, on Report Stage to examine the issue of whether, in the context of the court being informed of the acceptance of the lodgement, the court may direct the publication of the fact of acceptance in a place of prominence in the offending broadcast or article. That is as far as I can go on that matter.

I am not happy with that.

The Senator should put it to a vote.

I might do that. I have listened carefully to what the Minister said. I note his first comment was that it would undermine the legislation, although I fail to see how it would do so. It is not the same as other civil cases. If I break my leg, for example, and take a case to court, I am seeking financial compensation. The court will not put my leg in plaster and fix it up for me; I must do that separately. I am seeking compensation for loss, so a monetary lodgement fully caters for my court claim. However, if I am seriously defamed in an article it could be far more important to clear my name by way of an apology. The inclusion of this section, as drafted, undermines the spirit of much of what we are trying to do in this legislation. We are trying to get claimants to deal reasonably with the issue and accept that the pursuit of monetary compensation is not the primary purpose of pursuing such cases. We are allowing for the newspaper industry to apologise earlier and to do such things.

As was rightly said, if a lodgement is made, it puts the plaintiff in a precarious position financially and legally and also in an invidious position if he or she lacks considerable financial resources. His or her primary motive could be the re-establishment of his or her good name. It might not be satisfactory for him or her to get €100,000 to put in his or her bank account, even if it is a very generous lodgement, if the whole town or county from which he or she comes does not see the record corrected.

I note what was said about judges but should we legislate on the basis that in order for the defendant to get fair play, it is absolutely at the discretion of the Judiciary? I do not believe that should be the case. Our legislation should ensure that the person who is offended can pursue his or her case and will be treated fairly. We should not encourage a defendant to make a lodgment in court unless he or she believes the article was wrong, untrue and defamed an individual. In such a scenario, it is not unreasonable to expect that he or she would be prepared to make an apology along with a lodgement. The apology should be read out in court and published. I cannot see the logic in taking this route. I appreciate the Minister said he would look at it between now and Report Stage.

The declaratory order is an entirely different matter. The plaintiff can go to the court in advance for the declaratory order with no compensation. I am not in favour of huge amounts of compensation. When we come to deal with the press council, I will argue that it should be independent and in a position to make awards up to a certain level.

The Personal Injuries Assessment Board model is a good one, which could be used in this instance. It would avoid the court route where costs are exorbitant. Until we reform costs in our court system, we should try to find alternative mechanisms to do this, as in the case of the Personal Injuries Assessment Board. It is unsatisfactory that an individual, who is defamed, would go to court and come away with a lodgement but with no apology. If he or she does not have the resources to pursue the case, he or she is forced into a situation where he or she must accept the lodgement, even though a smaller amount in damages and a correction in the newspaper might have been his or her primary objective.

I listened with interest to the Minister and I appreciate the need for a lodgement in order to have a speedy settlement. I presume our intention is to improve the legislation. If a person has been defamed and he or she accepts the lodgement, what is to stop him or her being defamed again on the basis that he or she accepted the lodgement but no apology or correction was made? While the person was awarded an amount of money, it does not clear up the situation in terms of whether he or she was defamed. One could argue that point. The media, whether print or otherwise, could continue to use the original line.

Why is section 27(4) included? If the lodgement route is being taken to ensure speedy settlement, I presume it is being done on the basis of the relevant professionals speaking either inside or outside the court and on agreements being reached in regard to the lodgement. There must be a wink or a nod. Perhaps I am wrong but there must be some discussions. If there are discussions, perhaps there could be agreement in regard to an apology or otherwise. That is the reason I ask about the need for section 27(4), if there is an agreement on the lodgement.

I support the Minister on this issue and will try to defend him against his party colleagues. Senator Jim Walsh referred to the Personal Injuries Assessment Board legislation. The Cathaoirleach will recall we faced a similar situation when that legislation was brought before the House by the then Minister, Deputy Mary Harney, because he was the Government Whip. The problems were on the Government side.

Senator Jim Walsh is arguing against himself. This is precisely the model in the Personal Injuries Board legislation. The big debate which took place on the Government side at that time was whether an award could be made without an admission of liability. We debated that extensively and we tried to explain that there was no problem and that one would simply pay the money for the damages and that would be the end of the matter. The question of accepting liability, or in this case acceptance of liability leading to an apology, does not arise. It is precisely as the Minister said. In the case of this legislation, it is damage to reputation or otherwise while under the Personal Injuries Assessment Board legislation, it is damage to a limb or whatever.

At that time it was very difficult to get the agreement of the House on that point and to get it to understand that a defendant — in that case, an insurance company — having assessed a case would pay a certain amount of money without accepting liability or without any reference to liability. A long debate took place on that issue. This is exactly what is involved here. People will pay the money in all circumstances without accepting liability. There is at least one substantial legal precedent to prove that point.

Senator Callely made an important point. If another publication publishes a statement knowing money has been paid on account of it being published, it is more money into the hand of the person who was defamed. It would be very foolish for another publication to take that course of action, so I do not believe that would arise.

The reality is that the money can be paid without an admission of liability. That is the outcome if, as the Minister said, a person takes the decision to look for more money. In terms of the operation of the Judiciary, we cannot ask for more. I fully support this section.

The parallel with personal injury actions is not quite correct. The reality is that in personal injury actions, one tries to determine liability for the purpose of securing compensation. In the case of defamation, although there is a general view that an individual who pursues an action in defamation seeks money, the apology and admission that an individual has been defamed is also important. The lodgement can distort the position and lead to a situation where one is, in a sense, done out of the opportunity to secure a determination as to the defamation by virtue of the costs, risks, etc., in pursuing the action. There is a risk that the lodgement system could distort the process. I appreciate that the Law Reform Commission and, to a certain extent, the courts have criticised the fact that there is no provision for a lodgement without an admission of liability. There is a risk in this provision, however, and I reserve my position in terms of tabling an amendment on Report Stage.

I take the point made by Senator O'Toole in respect of the Personal Injuries Assessment Board. I did not mean to go down that cul-de-sac because I think the analogy with the Personal Injuries Assessment Board is, as Senator Regan said——

It is only marginal.

It is marginal. The point I was trying to make was that——

It is before the court.

I would say to the Minister, as I would have said to the previous Minister in the previous debate, that if the Press Council were independent and in a position to give awards of up to €50,000 or €100,000 — one can choose any amount, much like the Personal Injuries Assessment Board — there would be an alternative whereby a plaintiff could pursue a route that was not costly, satisfied him and cleared his name. If I were defamed and were offered a lodgement of €50,000, I would much rather get €20,000 or €10,000 and an apology. Many people are in that position. This section puts people in the position of being in a lottery. Do they pursue the case and seek what they came for, namely, an apology and a correction, or must they accept money, which was a very secondary consideration in taking the case? We are forcing them into a position. The declaratory order is a different issue.

In respect of section 27(4), my colleague, Senator Callely, made an interesting point. Why is it there? It states that the defendant shall not be required to admit liability. There is no need for the subsection. We would only need it if we were saying the defendant would be required to admit liability. I do not have an argument with a situation whereby the lodgement is made with a commitment to publish an apology on page four of the newspaper or other publication. The judge is not privy to the contents of the apology but it is part of settling the case. By putting it as it is in the Bill, where one does not get the apology, we are ensuring the genuine person who did not take the action for money and who wants to get a correction is forced to continue his or her case at huge risk to him or herself. If the apology were part of the lodgement, the matter probably could be settled more reasonably from a financial perspective.

One could argue that in any instance, be it personal injuries or defamation of character, a lodgement denotes an admission of liability and is in some way an apology. I have some support for Senator Walsh's argument.

Defamation is a tort and an unusual hybrid creation from a legal perspective. For the first time in our legal or political lifetime, we have a chance to deal with this issue which has not been dealt with since the early 1960s. I see some merit in the case of a lodgement of coming clean and apologising where there is blatant and obvious defamation under the new law, such as where a section of the media, such as a radio station or RTE, in unquestionable terms takes somebody's character without proper assertions. An example would be the case I mentioned last week — I will not dwell on it — which involved Liam Lawlor, God be good to him, which everyone accepts was blatantly wrong. In those circumstances and in most cases where a person's character is taken, be it the ordinary man in the street or, as in the case of Liam Lawlor, a lady from Ukraine who was an interpreter and whose character was severely and unfairly defamed, in the case of a lodgement why not come clean and say "Sorry"?

This is possibly a teaser for the Minister. A personal injuries case is slightly different. A bone is broken or damage is done and compensation is awarded. Under the Constitution, our good name and character is something we hold very dear. We often walk a tightrope in public life because people say that because we are in public life and politics, we are fair game. Would it not be possible to frame this section in such a way that where a lodgement is made, the defendant admits that the real foundation is that the person's good name has been taken and apologises for doing so? One is talking by and large about the print media and radio or television stations. Perhaps I am misreading it but I cannot see why this cannot be done.

We are offering some sort of opt-out clause or diminution, not necessarily of responsibility but certainly of damages, if we allow a newspaper to admit within 48 hours that it was wrong and to print a fine front-page apology on equal terms with the article that defamed the plaintiff, thereby resulting in most instances in the plaintiff receiving a very small figure in compensation. That is an opt-out clause for the defendant.

We accept that these defendants in most cases have large sums of money behind them. They have the best legal teams. I will not name names but some of the huge media conglomerates around the world have the best counsel on stand-by. The best legal teams are available and are probably on retainer. The unfortunate person who has been defamed may not have such facilities.

Given that it is such an unusual tort and that this Bill is the first opportunity to address this, I would find it difficult to accept that in all instances, with or without money and regardless of the seriousness, when a person's good name or that of a company or a body politic such as the Seanad or the Dáil, which can be seriously damaged, is taken, when it comes to an apology and financial compensation, the defendant can offer €50,000 but does not have to apologise. Perhaps the learned Minister can enlighten me and I am sure he will. I am not here purely to support Senator Walsh. If a vote is called, obviously I must refrain. I would still like a sincere explanation.

I thank Senator O'Donovan for his encouraging concluding remarks. I am not a learned Minister but listening to Senators this evening reminded me of the learned phase of my existence when one met a client who told one that they were only here as a matter of principle to which one replied: "How much are your principles worth?" That is at the heart of this section.

Those who are concerned about their principles will now for the first time have section 26. A declaratory order is available, to which no lodgement can be made, seeking the vindication of one's reputation and establishing as a matter of law on a matter of fact that defamation took place and requiring a correction. While section 26 was being debated I should have mentioned that I plan to revisit the section on Report Stage to ensure that where the court makes a declaration and directs an apology, the apology can be required to be in a place of equal prominence with the original statement.

Regarding section 27, the principles are being substantiated in the form of a claim for a cash award. It is entirely reasonable for legislators to provide for the same lodgement procedure that applies in any civil litigation. Senators Regan and O'Donovan pointed out that a defamation action is not the same as a personal injuries action but there is commonality between them. Both are claims for compensation for damages. The element we are addressing can be isolated because the legislation specifically provides for a declaratory order on reputation. At the conclusion of a libel action one cannot require an apology to be made by a newspaper. Much of Senator Walsh's observations on this matter can be reduced to the proposition that either we should not have lodgements in libel actions because it is entirely wrong, or we should be able to require apologies. When the matter goes to damages, the fact that damages were awarded illustrates the nature of the wrongdoing. In civil litigation a settlement is always made without concession of liability.

Regarding Section 27, I can meet Senator Walsh's argument in the sense that I am considering providing that the court can have the fact of the apology publicised in the defendant newspaper or broadcasting organisation in a place of equal prominence with the original statement. The readership or viewership can witness the fact that the defendant was forced to pay that sum of money and there was something unsound in what was said. That is as far as it can be put. If one were to follow the path suggested by Senator Walsh, who suggests there could be some form of sealed apology, it would only lead to further litigation. The purpose of the lodgement is to stop litigation, not prolong it.

I welcome the Minister's last comments on Section 26, which we skipped but which is worthy of comment. I welcome the fact that the Minister is considering amendments in order that the apology is as prominent as the original statement.

Regarding section 27, many people who take cases for defamation and win damages subsequently donate the damages to charity. It is a reasonably common occurrence.

It is far from universal.

Not long ago, a case was taken in Ireland and I listened to a radio broadcast concerning it. The editor made a significant financial settlement but did so without an apology. He was at pains to point out that he did so because of the financial bill of legal costs that would have arisen and the fact that the plaintiff may not have been in a position to pay the costs of the case if it were lost. In a genuine situation, it would be grossly unfair to put the plaintiff in such a position. If only people of significant wealth, such as Denis O'Brien, Michael O'Leary and J.P. McManus, can vindicate their names, we have not done a good day's work. It must be also open to others.

I ask the Minister to examine this section and to consider whether section 27(4) is needed. The Minister referred to the judge making an order for the publication of an apology. Perhaps the section should include a broad hint that would encourage the Judiciary, while leaving some judicial discretion, to do so unless there is a valid reason not to do so. Let us not consider those cases that do not have foundation. Many people who take this route have genuine cause of complaint because of defamation. It is important that an apology can be granted because this is why the cases are initiated even though, as the Minister states, principle has a price. The declaratory order is an avenue that did not exist previously and mitigates this but balance is needed.

If a person seeks a declaratory order it is not a deterrent to the press. The costs are much lower because it is much quicker but that may not ensure implementation, particularly because we have no independent press council, an organ created by the media. In any case it does not have the force of law to implement standards. The deterrent to defamation comes from the potential risks the media take with the cost of court cases rather than the award. The costs are generally multiples of the award and are the real deterrent. Where we dilute that we must be mindful of the consequences for media standards.

Amendment, by leave, withdrawn.
Section 27 agreed to.
SECTION 28.

Amendments Nos. 34 to 36, inclusive, are related and will be discussed together.

Government amendment No. 34:
In page 22, subsection (2), line 6, to delete "specify".

These amendments relate to the correction order in section 28. They seek to offer some flexibility in regard to the timing of the publication of a correction order, where such an order has been made by the court following a successful application by the plaintiff. Amendments Nos. 35 and 36 are related and allow a court to specify the time and date on which a correction order must be published or a period not later than which the order must be published. Amendment No. 34 is a consequential technical drafting amendment.

Regarding section 28, I intend to revisit the question of whether the court can be empowered to ensure the correction is in a position of equal prominence.

The correction seems to apply only to declaratory orders. The section refers to where the defendant has no defence to the action, the same wording used in the declaratory order. That is the intention. The prominence of the correction, to which the Minister referred, is appropriate.

Is the High Court the only court with the jurisdiction to issue a correction order or would this extend to the Circuit Court?

The section we are discussing relates not to the declaratory order but to the correction order, when one seeks an apology in the course of a substantive defamation action. That is why there is no reference to a declaratory order at that stage. In other words, it is a stand-alone provision governing the correction that takes place in a substantive defamation action where there is also a claim for damages.

With regard to the jurisdiction of the courts, I take it that it will have to apply to both the Circuit Court and the High Court. If there is any defect in that regard, I will revisit the matter on Report Stage.

Amendment agreed to.
Government amendment No. 35:
In page 22, subsection (2), lines 7 and 8, to delete paragraph (a) and substitute the following:
"(a) specify—
(i) the date and time upon which, or
(ii) the period not later than the expiration of which, the correction order shall be published, and".
Amendment agreed to.
Government amendment No. 36:
In page 22, subsection (2)(b), line 9, to delete “the form” and substitute “specify the form”.
Amendment agreed to.
Section 28, as amended, agreed to.
SECTION 29.

I move amendment No. 37:

In page 22, subsection (2), line 27, to delete "shall give directions" and substitute "may advise".

Section 29 updates the existing provisions, contained in the 1961 Act, in respect of the award of damages. The parties in a defamation action may now make submissions to the courts regarding damages and various matters are set out in that regard. Section 29(2) is a critical element of the Bill, which requires that where a defamation action is brought in the High Court, the judge shall give directions to the jury in the matter of damages. The jury then must make its own decision.

Section 29(2) is an essential part of the Bill and I do not understand why the amendment proposes that the provision it contains should be weakened. The approach taken in the subsection is very much in line with the recommendations of the Law Reform Commission and the legal advisory group. Senator Norris, who originally tabled the amendment, is seeking to substitute the term "may advise" for that of "shall give directions". However, it is always the function of a trial judge to give directions to a jury. That is how lawyers formulate the matter. I take it Senator Norris is concerned that we are weakening the function of juries in respect of this matter. However, I do not believe that the formula used does so.

I will withdraw the amendment on the understanding that Senator Norris may wish to resubmit it at a later Stage.

Amendment, by leave, withdrawn.

I move amendment No. 38:

In page 23, subsection (4), lines 21 and 22, to insert the following:

"(l) the extent to which it was fair and reasonable to publish the statement having regard to matters specified in section 24 subsection (2).”.

I am trying to recall what prompted me to table this amendment. Section 24(2) refers to what constitutes fair and reasonable publication and lists matters the courts should take into account in this regard. I may have tabled this amendment in respect of the wrong section. However, I am concerned that where appeals are made to the Supreme Court, the latter should take account of the list of matters contained in section 24(2) in making its assessment. Perhaps the Minister's reply will indicate whether I have tabled the amendment in respect of the wrong section.

My answer suggests that there is not an inner logic to where the amendment has been tabled. Perhaps the Senator might revisit the matter on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 39:

In page 23, between lines 21 and 22, to insert the following subsection:

"(5) 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.".

Senator Norris, who tabled the amendment, is seeking to ensure that 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. Although he is not present, I can almost hear him pronounce the words "editor" and "proprietor". This matter is already provided for in existing law. Each defamation action must be taken on its own merits and the liability lies where it falls. It is a case for the plaintiff and his or her advisers to name the appropriate defendants. However, in the case of a defamation action against a newspaper, it is highly likely that the named defendants at the commencement of the action will be the journalist, the editor and the publisher. The latter can, of course, vary, depending on the circumstances involved.

I will withdraw the amendment but Senator Norris may wish to resubmit it for Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 40:

In page 23, subsection (6)(a), line 29, before “give” to insert “with the leave of the court,”.

We are concerned that a time limit or some form of constraint is not included in this section. In such circumstances, people will be able to trawl through information relating to the reputations of particular individuals. For example, there is nothing to stop a person being cross-examined in respect of a once-off crime committed 15 years previously. We ask that the phrase "with the leave of the court" be included in order that a reasonable balance might be struck.

The courts have a discretion in this matter. I take it Senator Hannigan is concerned that by not stating expressly in the subsection that this is the case, in some way the tendering of evidence such as that to which he refers will be made quite habitual in actions of this nature. I am willing to examine the amendment and return to the matter on Report Stage.

We are of the view that the words contained in the amendment would allow a reasonable balance to be struck. I appreciate the Minister's commitment to consider the matter and return to it on Report Stage.

I do intend to look at it because when one includes the phrase "with the leave of the court" in legislation, one immediately sends a signal to the courts that they must be careful not to admit prejudicial evidence in a particular context. It might be useful to send such a signal in the context to which we are referring.

Amendment, by leave, withdrawn.

I move amendment No. 41:

In page 23, between lines 38 and 39, to insert the following subsection:

"(7) In a defamation action the Press Council may make a recommendation regarding the reasonable parameters of damages and limitation thereto to be awarded in any case where the newspaper apologises in advance of the hearing. The court must take such a recommendation into consideration in assessing damages.".

Senator Walsh may intervene in respect of this amendment, which proposes that the press council may make a recommendation regarding the reasonable parameters of damages to be awarded in any case where the newspaper involved apologises in advance of the hearing. It also states, "The court must take such a recommendation into consideration in assessing damages." I am opposed to that because the courts, not the press council, should have the final say in respect of the damages people should obtain. I do not agree that the press council should be able to advise the courts or that its advice should be taken into account by the courts in assessing damages for infringement of a person's reputation.

It is a pity Senator Norris is not present. I take the Minister's point that particular bodies should not be in a position to advise the courts. The latter should be independent in the assessment of damages, etc. I would favour a situation where a person could make a complaint to the press council and if he or she was prepared to allow it to deal with the matter up to a particular point — for example, where it might award up to €50,000 in damages — he or she would then sign a waiver indicating that he or she would not subsequently take the matter to court. We should create a system whereby a person would be in a position to circumvent the need to go to court in order to vindicate his or her good name. In that context and acting as somewhat of a halfway house, the press council could solve the issues.

We are trying to encourage people to take routes other than those that involve the necessity to pursue costly court cases. In addition, I am also concerned that much of the time of the courts is being taken up in dealing with issues that might be resolved directly by the parties. I presume people will first approach the newspaper or media organisation they believe to have defamed their good name in order to seek an apology. If the latter is not forthcoming, they will then go to the press council. If we could allow for some determination at that level, even small amounts of compensation, we would save court time and perhaps facilitate the thrust of what we are trying to achieve here. I see some merit in it. The PIAB is not a good analogy to use, as previous speakers have said, but it is the closest to an independent press council. The PIAB was set up for specific reasons. The press council needs to be independent. We could not allow a body established by and paid for by the press to make such determinations.

I take a slightly different view from my colleague in that I regard the press council or press ombudsman as having the role of monitoring the conduct, code of ethics and standards of the media. When we talk of giving powers to the press council, I envisage its role as one of admonishing a certain newspaper, radio station or television channel, pointing out it has sinned and crossed the boundary of fairness and propriety and that it should apologise. However, suggesting that it should recommend a monetary settlement would be totally ultra vires of the council. When the Oireachtas tried to impose mandatory sentences for drug-related offences under the Criminal Justice Bill, sections of it were more observed by the Oireachtas ignoring that suggestion. That might be the wrong analogy to use in this regard. If the press council were given extra power to recommend monetary settlements of, say, €50,000 or €100,000, it would create mayhem. Not alone would it give rise to an unintended interference with the Legislature and the process of proceedings, it would also set a dangerous precedent. I regard the role of the press council or press ombudsman as being one of cracking the whip where somebody steps out of line and prodding him or her into settling the case or printing an apology. I see nothing wrong with that, but to give that body or individual statutory powers to award damages, whether involving small or large amounts, would be wrong. In that regard, we must be extremely careful. The Minister’s response to Senator Norris’s amendment was fair, reasonable and one with which I concur.

I concur with Senator O'Donovan's statement. Guidelines are set out in the legislation and it would usurp the function of the courts to include any such provision. It would be inappropriate.

We will withdraw the amendment and may retable it at a later Stage.

Amendment, by leave, withdrawn.
Section 29 agreed to.
Sections 30 and 31 agreed to.
Amendment No. 42 not moved.
Section 32 agreed to.
Sections 33 and 34 agreed to.
SECTION 35.

I move amendment No. 43:

In page 25, subsection (1), line 24, after "knowingly" to insert "or recklessly".

May I speak to the section first as it might assist consideration of the amendment?

Is that agreed? Agreed.

The amendment is to a section I am considering deleting. That is the reason I was anxious to spare Senator Hannigan some time. Section 35 deals with an arcane branch of our law. Part 5 deals with criminal liability. If I may, I will revert to section 34, which is linked to section 35. Section 34 purports to abolish the common law offences of criminal libel, seditious libel and obscene libel and section 35 proposes to establish an entirely new section dealing with the publication of gravely harmful statements. All of these matters in sections 34 and 35 are criminal and not civil matters. Article 40° of the Constitution provides that the publication of blasphemous, seditious or obscene material is in itself an offence. As legislators, we must have regard to that in whatever proposals we draw up in these areas.

I am not satisfied with the current arrangement in sections 34 and 35. Following discussions with the Attorney General, I am reviewing the provisions of sections 34 to 36, inclusive, to ensure that whatever legislation we bring in respects the existing constitutional provisions and goes no further than them.

In light of the Minister's statement, we will withdraw the amendment and await sight of his revisions.

Amendment, by leave, withdrawn.
Section 35 agreed to.
Sections 36 and 37 agreed to.
SECTION 38.
Question proposed: "That section 38 stand part of the Bill."

I wish to refer to a point raised by my colleague, Senator O'Donovan. I do not wish to labour it now as I might deal with it on Report Stage. The Minister may be relying on the effectiveness of the press council to meet the issue, not of the survival of cause of action on death, but of defamation of a deceased person and that there would be respect for the dead, which is a very important part of our ethos. I do not want to delay the debate by initiating a debate on this issue. This is important, however, and this is the only section on which I thought it appropriate to refer to it. Senator O'Donovan has strongly expressed his views on this issue. Perhaps I might defer dealing with it until Report Stage.

I would like to reply to the point as it is a serious one. Section 38 provides for current law, that libel defamation is one of those causes of action that ceases upon death and that one's reputation, as a matter of legal action ability, does not survive one's death. There are good reasons of policy for this. The tort is necessarily personal and intimate in character and the principal witness is not available to prosecute the claim in a defamation action.

Concern was expressed at an earlier stage in Committee about incidents that have taken place in this context and clearly it is a concern I share. I made that clear in Committee. I have said to the press council that the first matter to which I want it to attend is put in place a proper code of practice to bring an end to this. I made it clear to the council that if it did not address it, I would deal with it as a first priority in the Privacy Bill because first and foremost the wrong being done is the wrong to the privacy of those who mourn the person whose reputation is traduced in this manner.

One of the difficulties of dealing with this subject in the province of defamation law, as distinct from the province of privacy, is that once one starts to legislate in this area in defamation law, one inhibits the writing of obituaries. I am sure that no one in this House would want to inhibit the writing of well-researched obituaries, which necessarily have to contain some candid, if carefully worded, comment about a deceased person. I do not want to inhibit that but I welcome that Senator Walsh raised this point. I do not agree with all the points he raised but I agree with this one. It is not an issue that will go away. I made it clear in Committee that if this issue is not satisfactorily addressed we will have to legislate in this area within the lifetime of this Government and not in the decades to come.

I welcome the Minister's comments and look forward, with interest, to the progress he makes on this matter.

Question put and agreed to.
Sections 39 to 42, inclusive, agreed to.
Progress reported; Committee to sit again.