In September 2002 I asked the legal advisory group to report to me on the issues involved with regard to defamation and to make recommendations. This request was on foot of a commitment in the programme for Government. I brought the report to Government in June 2003 but it is the group's report, not a report by me to Government or a report of the Government which has made no decision in respect of the substance of the contents of the report.
The report contains some 23 separate recommendations. The group also put forward a suggested text for a new defamation Act which would completely replace the Defamation Act 1961. This is a very useful and helpful approach since we are concerned with a potential legislative outcome and it is, therefore, very informative to see how the various recommendations would translate into legislative form. One of the terms of reference for the group was to consider the nature and extent of any statutory intervention which might attach to the establishment of any entity concerned with the regulation of the press. This is a subject on which there are diverging views as to the optimum approach to be followed.
On the one hand, there is a need to achieve a form of regulation which is effective and in which the public can have confidence. On the other hand, care must be had to ensure that any regulatory framework does not trespass needlessly upon the traditional freedoms which the press enjoys in all democratic societies. Having considered the options, the group recommended the establishment of a statutory press council with functions which would include the preparation of a press code of conduct and the investigation of complaints concerning alleged breaches of that code. The report sets out, in some detail, the main features of such a council including proposals for its operation and structure. The draft defamation Bill contains a template for the legislative intervention which would be required were such an entity to be established.
The model examined by the group is neither the only nor the most obvious model for a statutory press council. There could be a body chaired by a judge, and composed of nominees of various groups to reflect the different interests involved such as the public, media owners, and journalists. The public interest might be represented in several ways including some form of proportionate selection by elected public representatives to ensure that the Government of the day could not swamp the council with its sympathisers. Other models were suggested which I will consider carefully before bringing a proposal to Government.
There are other important recommendations in the report. For example, the proposed new defence of reasonable publication; the rebalancing of the role which judge and jury have at present in defamation actions commenced in the High Court; the Circuit Court to have jurisdiction in all defamation cases where the amount of the damages claimed does not exceed €50,000; a one-year limitation period for defamation actions and the enshrinement in legislation of a defence to be known as the "defence of innocent publication" which would be available, among others, to broadcasters, distributors, printers and Internet service providers.
The advisory group endorsed many of the recommendations put forward by the Law Reform Commission in its report on the civil law of defamation, such as making an apology, court lodgements and the rationalisation of the defences of absolute and qualified privilege. It is a mark of the excellence of the work done by the Law Reform Commission that the report which it prepared on this topic remains so seminal and so influential.
Some of the recommendations are more radical than others and will provoke considerable comment which will secure an informed and wide-ranging debate on this important topic. In consultation with my colleagues in Government, I decided the best way to proceed was to have a period of public consultation which will allow all interested parties to comment on the substance of the recommendations contained in the report. The deadline for receipt of submissions is 31 January 2004. I also held a major conference on 1 December last to facilitate an exchange of views from a cross-section of interested parties. This was well attended and thought provoking.
Following completion of the consultative process I intend to reflect carefully on the consensus that emerges on the issues and also on the best way forward on the proposals I bring to Government. I hope to bring forward proposals in the latter half of this year.