He should not put himself into such a position. If a newspaper comes into possession of information about a person and is not sure whether it is true it should not be published. That may sound basic but that is how I would interpret how a newspaper should act. Up to the time of the publication of this Bill by Deputy McDowell of the Progressive Democrats there was no statutory definition of defamation. Section 6 of the Bill sets out to rectify what I perceive as a major problem in the area of defamation. We had to rely on the common law. The Irish Law of Torts by McMahon & Binchy, page 609, states:
Defamation is committed by the wrongful publication of a false statement about a person, which tends to lower that person in the eyes of rightthinking members of society or tends to hold that person up to hatred, ridicule or contempt, or causes that person to be shunned or avoided by right thinking members of society.
This definition derives its authority from judicial pronouncements, and unlike a statutory definition which Deputy McDowell proposes, is capable of extension and further extrapolation and is not rigid. The problem arises as to whether a matter is to be considered defamatory because of what right thinking members of society in fact think or because of what they ought to think. It involves a consideration of the standards of the community and the position of the plaintiff in that community.
It would appear from the judicial decisions that courts must apply community norms rather than apply its value judgment as to how right thinking members of society ought to regard the plaintiff. Section 6 of the Bill deals with these problems and the statutory definition of defamation serves as a useful starting point. Publication is obviously an essential ingredient of the tort, and communication must be to a person other than the plaintiff, as the kernal of the action for defamation is that the false statement tended to lower the plaintiff in the eyes of right thinking members of society.
Usually the normal communication method of publication is language, i.e by words, spoken or written. Section 14 (2) of the Defamation Act, 1961, explicitly recognises that there are other forms of communication, and refers to "visual images, gestures and other methods of signifying meaning".
The present law draws a distinction between libel and slander, and essentially the position is that if the defamatory statement is made in permanent form it is libel, but if it is made in an impermanent or transient form it is slander.The Bill before the House seeks to abolish the distinction between both but it is an important saving point to which I will refer later. It should also be noted that a libel may be a crime as well as a tort, and may thus be the subject of criminal proceedings and further from a tort point of view, libel is actionable per se, whereas in general the plaintiff in a slander action, must prove special damages.
The time frame analysis in relation to the current mores of society and indeed the location of the society in which the plaintiff participates in defamation actions are important, as social values change from time to time, from place to place and from society to society. In an examination of the current position applicable to defamation law the functions of the judge and jury are worth examining. It is for the judge to say at the outset whether the words uttered are capable of defamatory meaning in law. If he so decides, it is for the jury to decide whether the words in fact have a defamatory meaning in the circumstances as presented before the court. Unlike my senior colleague here I have been involved only in a few defamation cases.
Section 21 of the Defamatory Act, 1961, made provision whereby a person who innocently published defamatory material about another could have an opportunity to make an offer of amends. Under this section the offer must be expressed to be made for the purposes of the section and must be accompanied by an affidavit of the facts relied upon to show the defendant's innocence. It was tight and rigid in that respect. The Bill would attempt to examine that aspect in a wider context.
There is a number of defences available to a defendant in a defamation action as follows: justification, privilege — absolute and qualified — fair comment, consent, apology and offer of amends. I will deal briefly with a few of the foregoing defences.
The justification defence obliges the defendant to prove the truth of the alleged defamatory statement. Deputy McDowell said that was the real problem.Where this defence is available, it is a total defence and cannot be destroyed even by showing malice on the part of the defendant or that the defendant believed that statement to be false when he made it.
It is for the defendant to plead the truth of the statement and not for the plaintiff to show that the defamation was false. Once the plaintiff shows the statement to be defamatory the presumption arises that it is false and the onus is on the defendant to justify. This is where I would have difficulty with section 9 and the thrust of the Bill — a matter to which I will refer later. Accordingly, if the defendant fails in his defence to justify the statement, and in effect has persisted with what amounts to a lie, he may well have to pay aggravated damages for having done so. I agree with that and would differ from Deputy McDowell here, as the defence is established by the defendant if he can prove that the defamatory statement is substantially true, even if it is not true in every detail. The defendant has a reasonable opportunity to establish the veracity of what he is saying and that is as far as it should go.
In some circumstances the law considers that the public interest in the freedom of speech can be best served by ensuring uninhibited expression. Such an occasion is said to be privileged in law. Privilege is either absolute or qualified.When it is absolute, the defendant is totally protected in respect of any statements made by him. I note that section 17 abolishes the rule of law that communications between members of the executive are absolutely privileged. I support the inclusion of that section in any forthcoming Bill on defamation.
Malice destroys qualified privilege but not absolute privilege. A person who makes a statement on such occasions is protected provided he or she was not motivated by malice in making the statement. If you make a statement because you have a duty to speak or because you are obliged to protect an interest, those statements are privileged provided no malice is involved.
It is against the foregoing background that the Law Reform Commission in 1989 was given a wide brief by the then Attorney General to submit proposals for reform of the law of defamation, both civil and criminal, and contempt of court. The civil law aspects of Deputy McDowell's Bill which we are debating draw heavily upon the Law Reform Commission recommendations, but his Bill also deals with the criminal defamation area and contempt of court.
The main changes which it proposes in the existing law of civil defamation include the following: (a) the distinction between libel and slander would be abolished; (b) plaintiff would have to prove that the allegedly defamatory material was false, whereas at present, if the material is proved to be defamatory it is for the defendant to show it is true; (c) new remedies are proposed which would aim to shift the focus away from high damages awards and (d) the defences available in defamation actions would be recast with the aim of making them clearer and more comprehensible. That is a laudable provision which should be supported.
It should be clear that this is a complex area of law to which much time must be devoted to tease out the various issues which have the potential to be controversial. There are different interests which need to be reconciled. On the one hand, the media in particular would be anxious to see some liberalisation of defamation law. It has been said that they find themselves constrained by unduly harsh defamatory laws. On the other hand, individual citizens are concerned that the law should offer them the appropriate mechanism to vindicate their reputation should they feel that their character has been impugned.
The complexity that arises in this area involves striking a balance which necessitates a review of constitutional law, statute law and common law. Accordingly, I am in total agreement with the procedure adopted by the Minister for Equality and Law Reform in tabling an amendment to allow the Bill to be read a Second Time in nine months' time. This will allow an opportunity for debate, critical analysis and evaluation of this complex subject.
The proposal to abolish the distinction between libel and slander is in accord with the Law Reform Commission report which advocated that there should be a new cause of action in defamation in which proof of special damage is not necessary. This proposal is worthy of support. I would not be happy to support the change in the law proposed in section 9 which places the burden of proof on the plaintiff to show that the matter contained in the publication was defamatory which necessitates the establishment of its falsity, and that the defamatory matter concerned the plaintiff. Currently, as I said, the burden is on the defendant in a defamation action to establish the truth of the statement if the defence of justification is raised.
I note that the proposal now included in the Bill was the product of a majority decision of the Law Reform Commission who supported the abolition of the presumption of falsity of defamatory statements. The current legal position where a defendant must substantiate the defamatory statements which they are alleged to have made should be retained.
I agree with the thrust of sections 11 and 12 which respectively deal with offer of apologies and lodgement in courts. The provisions of section 12 allow for the same procedure concerning lodgements which is currently pursued with other civil actions in tort to be adopted in cases of defamation. It is right and proper that this procedure be standardised in the fashion set out in section 12.
Currently the main remedy available in defamation actions is damages. The Bill attempts to address this approach by providing for alternative remedies. In particular it focuses on applications for declaratory judgments in lieu of damages as set out in section 8 and declaratory and corrective order as set out in section 13. These procedures undoubtedly have the aim of providing a plaintiff with a cheap and speedy mechanism for vindicating their right to a good name. These proposals should be carefully examined and explored during the course of this debate and in the intervening time proposed by the Minister for evaluation of the matter.
There is a view abroad that the level of damages is too high. Section 27 sets out various factors which a court should take cognisance of in making an award of general damages. This is a useful starting point, but I anticipate that the factors enumerated in section 27 are not exhaustive and would focus on acts and omissions on the part of the defendant in the assessment of damages.
As I understand it, section 26 effectively deprives a person whose reputation has been damaged of any award of general damages if the defendant newspaper manages to satisfy the court that it tried to get it right, and that it exercised reasonable care before publication of the material. The problem with this — I am open to correction — is that the court might well accept that the plaintiff has suffered substantial damages, some of which cannot be quantified, which are in effect intan-gible, such as loss of financial opportunities.Perhaps this provision could be considered before the Bill comes back to the House.
Section 10 provides that a single publication will only give rise to a single cause of action. This has the effect of abolishing the rule of law under which each legal innuendo in a single publication gives rise to a separate and distinct cause of action. This is a sensible streamlining provision and is in accord with recommendation 14.4 of the Law Reform Commission report.
Deputy McDowell, and his party, have served a useful purpose in bringing forward this Bill. I appeal to them to accept the amendment put forward by the Minister to allow a period of time for due consideration and debate of the subject. I am sure the Minister will consider a number of the worthwhile proposals in the Bill and will note my reservations and those of other Deputies about aspects of it. I hope he will bring forward a Bill that will meet some of the problems experienced by the newspaper industry. I do not agree that current defamation laws have restricted freedom of the press in reporting and investigation.