Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Wednesday, 16 Jun 1993

Vol. 136 No. 15

Report of Law Reform Commission on Defamation: Motion.

I move:

That Seanad Éireann condemns the failure of the Government to respond to the issues raised in the report of the Law Reform Commission on Defamation through legislative proposals as was promised by the Minister for Justice.

I welcome the Minister to the House. The law on defamation should protect and vindicate, as far as possible, the right of the individual to his or her good name and the right to freedom of expression. Both these rights are expressly guaranteed by the Constitution. The law as it stands does not provide a satisfactory framework for ensuring that they are adequately protected in modern times.

It is 30 years since the law was altered in this area and reform is overdue. The Government has ignored the obvious need to reform the law and I now ask Seanad Éireann to condemn its failure to respond to the issues outlined in two reports of the Law Reform Commission, the last of which was published over two years ago. Nine months earlier, in March 1991, the Law Reform Commission published a consultation paper.

Despite repeated calls from this side of the House, there was no debate on that consultation paper and — until now — on the report itself. I believe that the views of this House on the issue should have been expressed at the time of consultation. They could then have been considered when the Law Reform Commission was writing its final report.

The law on defamation needs to be changed because it is archaic. The right of the media to expose shortcomings in all areas of society must be protected. Smaller media, such as local newspapers and radio have to keep looking over their shoulders to be sure they are not presented with a writ which would wipe out their business. The purpose of the law should be to ensure that there is a balance between the preservation of the individual's good name and reputation and the right to free speech. It is a prerequisite in a democracy that the public know what is going on.

In recent years there has been a discernible shift from the public's need to know, on the one hand, and individual's rights on the other. This can stymie publication of information on issues of important public interest. The Government should respond positively and introduce legislation as outlined in the report of the Law Reform Commission, published in December 1991.

There were 13 key recommendations in the report to update the law for the 1990s. The recommendations ensure that an individual's good name and reputation is preserved. The European Convention on Human Rights and Fundamental Freedom rightly imposes a number of requirements in the context of any defamation law. Any changes in our law must, of course, conform to this Convention.

The distinction between libel and slander in our civil law on defamation should be abolished. It is an ancient distinction and does not have a logical or rational justification. It is also inaccurate in the context of modern communications. It was formerly said that libel consisted of written statement while scandal was oral. The traditional view that the written statement involves more premeditation or malice than a transient oral statement is now incorrect. The problems of the distinction between libel and slander have been compounded by modern, electronic means of communication — radio, television and so on.

The common law with regard to radio broadcasting suggests, that broadcasting from a script could be libellous which an extemporary broadcast could only be slanderous. However, since 1961 all broadcasts are deemed to be libellous if the law is broken even though they are oral. The practical difference between libel and slander is that proof of damage is not required to prove libel while slander is actionable only on proof of damage. The legal situation has become very unclear over the years and it should be cleared by legislation.

Another distinction is that libel is a crime as well as a tort while slander is not in itself a crime, although in four distinct areas the spoken word may breach criminal law. The abolition of the distinction to which I referred was first proposed in 1843 in a report on the law of defamation issued by a select committee of the House of Lords.

I also believe the law should be changed to allow defendants in defamation actions to make payments into court without admitting liability. The present situation is unsatisfactory as it prevents settlements without full court hearings. In civil actions making of payments into a court by a defendant does not involve an admission of liability and it encourages early and less costly resolutions to actions taken. If there is no settlement after a lodgment in court the defendant is not deemed to have admitted liability and this lodgment does not prejudice his defence if subsequently the case goes to a jury. However, this is not the case in defamation actions where payment into a court is deemed an admission of liability. I believe this should be changed.

Mistakes will be made and it is impossible to provide for a situation where defamation will be eliminated. Every encouragement should be given to ensure a quick and full apology. Under present law the fact that a defendant made or offered an apology is construed as an admission of liability. This should be changed. The offering of or the making of an apology should not be construed as an admission of liability and jury in a subsequent trial should be directed that it is not an admission of liability. Furthermore, it should be lawful for the defendant to give evidence in mitiation of damage that he or she made or offered an apology as soon as he or she could do so. It is important that we encourage the defence of apology.

I want to refer to the Law Reform Commission's position on privilege and I would like the Minister to comment on it, especially in relation to the Houses of the Oireachtas. The report says:

We therefore recommend a statutory provision stating that the Members of each House of the Oireachtas shall not, in respect of the contents of any communication, whether written, oral or otherwise, in either House of the Oireachtas, be amenable to any court or any authority other than the House itself.

It also states:

We accordingly recommend a statutory provision that official reports of communications in either House of the Oireachtas, whether written, oral or otherwise, shall be absolutely privileged and that reports in newspapers and on television or radio of such communications, whether written, oral or otherwise, shall enjoy the same privilege as is at present extended to reports or oral statements in either House.

With regard to defamatory communications between spouses the present position is that communications between spouses about a third party, however defamatory, are not actionable in court as defamation. The courts have invoked the legal unity of spouses to determine that there was no publication. The Law Reform Commission suggests that this should be changed to allow inter-personal communications between spouses to be dealt with under the general law of defamation.

Care must be taken in this area however. I do not believe the law should intrude into the privacy of communications between spouses. There will always, of course, be a problem of proof of communication in such cases. I would welcome the Minister's view on the report which suggests that the law should be changed in this area.

The Law Reform Commission also deals with the area of communications between lawyers and their clients. The Minister will, I am sure, have some personal views on this. The Law Reform Commission suggests that absolute legal professional privilege should be abolished. I do not feel sufficiently qualified to give a strong view on that area, but there are some legal people in the House and I would welcome their views.

The issue of damages has been the subject of much discussion in Ireland. Irish insurance rates are many times that of neighbouring countries. The level of awards given by Irish courts is given as an excuse for the high level of insurance. A recent survey of awards of damages in all areas bear out the fact that Ireland has one of the highest award rates among European countries. In forming the new legislation on defamation judges should be allowed to determine the amount of damages to be awarded after a jury has indicated that such damages should be awarded. The jury should give guidelines to the judge as to the category of damages which would fall into one of three areas — nominal, compensatory or punitive — which are outlined by the Law Reform Commission.

At present there is no provision for redress where defamation of the dead takes place. This should be changed. There should be a provision for defamatory statements about a person who is dead at the time of publication. Defamatory statements can be hurtful and distressful for the bereaved and there is no control in the area at present. As soon as a person dies, anything can be said and no action can be taken. There should be a right to institute proceedings in the case of defamation of the dead. This right should be vested solely in the personal representative of the deceased who should consult with members of the family. It is important that the legal system should afford some redress where a person's reputation is destroyed by defamatory statements as soon as he is dead. The approach should be, however, to restore the person's good name and not to award damages to the family. The Law Reform Commission recommends a three year limitation period from the time of death within which proceedings must be instituted.

The Law Reform Commission also provides that distributors and printers should be immune from defamation actions. The provision that the distributor, whether it be the local shop or the boy selling the papers, or the printer who does not see the contents of the article should be liable should be changed. Modern technology means that everything is done through computers. The publisher communicates with the printer by computer and the publication is printed without the publisher ever seeing the contents. It is unfair that the printer who, because of modern technology, does not see the contents should be liable. The person who sells the publication can be enjoined in a defamation action. This too should be changed. I look forward to the Minister's reply.

I second the motion. If the Minister would like to speak now, I will give way. Since this is not a contentious party political issue, the Minister might like to respond at this point.

I welcome this opportunity to tell the House about my position in relation to the updating of the civil law of defamation. As Minister for Equality and Law Reform it is my responsibility to bring forward legislative proposals for reforms in relation to civil law generally as well as in relation to equality matters. My responsibilities in that context are very wide ranging and this is reflected in the law reform measures which are set out for implementation in the Programme for a Partnership Government. It is inevitable in advancing any legislative programme that decisions have to be made about the priority to be given to the proposals within that programme. Since my appointment as Minister I have, as I must, set about deciding on priorities. A major part of my priority programme concerns family law. I shall deal later with specific aspects of that programme as well as my programme on equality matters. Most Senators, I think, would agree with those priorities.

No doubt, Senators would wish to see the Law Reform Commission's report on defamation implemented quickly. While that may be a desirable aim, it would not be feasible at this stage as it would necessatate the reallocation of staff away from existing high priority projects. In stating that I do not wish to appear to detract from the importance of updating the law of defamation. The fact is that the Government's programme contains a commitment to update the law in this area and that commitment will be honoured in due course when the other important legislative matters for which I also have responsibility can be disposed of.

I am indebted to the Law Reform Commission for the major work it has carried out on the law of defamation. Following a request from the Attorney General in 1989 to examine the law of defamation and formulate proposals for its reform, the commission published two consultation papers — one on the civil aspects and and the other on the criminal aspects. Both papers contained the commission's provisional recommendations on the subjects.

In December 1991 the commission published two separate reports: the report on the Civil Law of Defamation falls within my area of responsibility and the other, the report on the Crime of Libel, falls within the area of responsibility of the Minister for Justice. I shall be confining my remarks to the report on the civil aspects of defamation.

There are, of course, divergent views on the various recommendations contained in the report. Taken together, the changes recommended would seem to amount to quite substantial changes in the law which need to be reflected on from various points of view. Inevitably, that will take time. In that regard, while reports such as these make recommendations which are undoubtedly of value in reaching the best decisions, they do not produce instant legislation — even if a draft Bill accompanies the report which, as it happens, is not the case here.

It is my responsibility to see if the recommendations in the report, as in other reports, stand up in principle and are workable in practice before bringing the matter to Government. Accordingly, the report is being examined by my Department and when that exercise is completed questions of policy are teased out fully and my policy is formulated, I shall be in a position to bring forward proposals for legislation to the Government on this subject.

Senators will be aware that the purpose of the law of defamation is to protect and vindicate, as far as possible, the right of the individual to his or her good name with due regard to the right of freedom of expression others. Both of these rights are expressly guaranteed by the Constitution.

It is the view of the commission that the law of defamation, which has remained unaltered by the Legislature for over 30 years, requires a more satisfactory legislative framework to meet the needs of modern society. The existing law comprises common law rules, the provisions under the Defamation Act, 1961 and the fundamental rights which are enshrined in our Constitution.

The media, in particular, have expressed concern at the scale of awards by the courts in cases of defamation. In their view the current position is that their ability to pass comment and report in an independent manner is threatened. They point out that in difficult trading times, with competition from foreign newspapers and the broadcast media, the financial burden placed upon them as a result of libel awards or settlements is unacceptable. I am aware of those concerns. I have met with representatives of the National Newspapers of Ireland and I have noted carefully what they had to say.

The commission's report contains over 50 recommendations covering a wide area and, while a number of the recommendations may be regarded as merely technical, there are some which appear to involve a shift in the balance between, for example, the rights of the individual and the right of the press to pass comment.

The report recommends among other matters, abolition of the distinction between libel and slander; a new definition of defamation; new provisions regarding the making of an applogy; removal of the uncertainty surrounding the use of the word "utterances" in Article 15.13 of the Constitution as regards Oireachtas privilege; extension of absolute privilege to witnesses appearing before Oireachtas Committees; downgrading of executive privilege from absolute immunity to qualified immunity; delineation of the extent of judicial privilege; clarification of the extent of courtroom and other privilege and downgrading of lawyer privilege from absolute immunity to qualified immunity.

Of note also are recommendations that defendants may make payments into court without admission of liability; the downgrading of the immunity of the press when reporting parliamentary statements from absolute to qualified privilege; allowing the defence to succeed in cases where the defendant does not communicate with the correct person but reasonably thinks he did; requiring the plaintiff to carry the burden of proof on falsity issues and provision that judges, rather than juries, should determine the amount of damages to be awarded.

The recommendations in the report, therefore, have implications not just for the media but for the rights of citizens generally. The proposals in this area must be subject to careful analysis from constitutional and legal points of view in ensuring that the balance which exists between the freedom of information enjoyed by the media in the interest of democracy, and the right of citizens to their good name, is fair and equitable. These are issues which cannot be dealt with on the basis of quick-fix solutions: they are fundamental issues which must be addressed in a careful and measured way which is how I am proceeding on this matter.

I should like to deal briefly with certain of the issues addressed in the report, namely, the questions of the role of the jury, fair comment, and the issue of reasonable care.

The jury in cases of defamation has traditionally been seen as having a particular role. An indication of this can be seen from remarks made by Judge Brian Walsh in the case of Quigley v. Creation Ltd., where he said that: “when a jury has found that there has been a libel, this court would be more slow to set aside such a verdict that in other types of actions”. Indeed, the policy, it appears, under the Courts Act, 1988 which abolished juries in personal injury cases was not to exclude defamation cases from jury trials.

The commission stops short of recommending abolition of juries in cases of defamation but recommends that the role of assessing the level of damages be taken from them. The function of juries would be to decide on issues of fact and the commission's expectation is that the function of assessing damages would be best left to judges and that this presumably should lead to a reduction in the level of awards. The judges would, however, ask juries to decide whether the damages should be nominal, compensatory or punitive.

This is a recommendation which needs to be considered carefully. There is a view that the abolition of juries in personal injury cases under the 1988 Act has not led to any significant reductions in the level of damages awarded by the courts and if that view is correct the question arises as to whether the answer to the problem, as some see it, of large-scale awards in defamation cases is to take the function of determining the level of awards away from juries.

The commission's view as regards the question of payments into court in defamation cases, is that it should be possible for defendants to do that without admission of liability. This is a matter which appears to be determined at present by rules of court, although there is another view that it may be more a matter of the substance of the law. Nevertheless, following submissions made to me by the National Newspapers of Ireland, I have taken up the matter with the Superior Courts Rules Committee to see if anything can be done in this particular area without the need, perhaps, for legislation.

It is a defence in cases of defamation if the defendant can show that his statement was an opinion, not an assertion of fact; that it was substantially fair comment on a matter of public interest; and that it was not malicious. The defence of fair comment is used, for example, in connection with cases involving reviews of books.

The commission recommends the abolition of the common law rule that "malice" defeats the defence of fair comment if it can be ensured that the plaintiff's position is otherwise reasonably protected. The commission's proposal attempt to remove the difficulty involved in distinguishing clearly between fact and comment. Acknowledging that there will always be grey areas as to what might be regarded as comment or fact, the commission states that there would seem to be no way to avoid this difficulty completely if the interests of plaintiffs, defendants and the public generally have to be taken on board. On the face of it, the commission's aims in this respect may for clarity in the law seem laudable but I would raise the question as to whether legislation on this point is really necessary and whether it would have the desired effect of clarity in the law.

A proposal put forward by the commission which might affect the present balance between the plaintiff's and the defendant's rights, relates to the recommendation that, in effect, defamation should no longer be a tort of strict liability. It would mean that liability would no longer arise where there was no fault on the part of the defendant. Yet another important recommendation is that the defence of reasonable care, as it applies in cases of negligence, should apply. The commission's view is that the defence of reasonable care should be available in cases of claims for general damages and where financial loss has arisen which is clearly linked with the publication of the defamatory material. These two recommendations, which need to be studied in the context of certain other recommendations in the commission's report, would seem, nevertheless, to represent a significant departure from existing rules of law.

Another recommendation which the commission makes in the context of damages is that the Supreme Court in appeal cases should be allowed to assess damages. This has implications also for the relevance of the jury system in defamation cases and would state that there would seem to be no way to avoid this difficulty completely if the interests of plaintiffs, defendants and the public generally have to be taken on board. On the face of it the commission's aims in this respect may, for clarity in the law, seem laudable but I would raise the question whether legislation on this point is really necessary and whether legislation would have the desired effect of clarity in the law.

A proposal put forward by the commission which might affect the present balance between the plaintiff's and the defendant's rights relates to the recommendation that, in effect, defamation should no longer be a tort of strict liability. It would mean that liability would no longer arise where there was no fault on the part of the defendant. Yet another important recommendation is that the defence of reasonable care, as it applies in cases of negligence, should apply. The commission's view is that the defence of reasonable care should be available in cases of claims for general damages and where financial loss has arisen which is clearly linked with the publication of the defamatory material. These two recommendations, which need to be studied in the context of certain other recommendations in the commission's report, would seem, nevertheless, to represent a significant departure from existing rules of law.

Another recommendation that the commission make in the context of damages is that the Supreme Court should, in appeal cases, be allowed to assess damages. This has implications also for the relevance of the jury system in defamation cases and would need to be considered in that light.

I think the House will appreciate, having regard to some of the issues I have outlined, that great care is necessary in determining the approach to adopt in framing legislation in these fundamental areas which have been highlighted in the commission's report.

I would now like to refer briefly to the proposals for legislative reform to which the Government has given priority.

On a point of order, I have no wish to be churlish to the Minister who is the most courteous of men but I have read the Minister's script and the next four pages have no relevance to the subject under discussion.

That is not a point of order. We have not reached the point to adjudicate whether it is relevant. I cannot intervene.

We are giving the Minister an opportunity to tell the House why he is not doing anything in this area and what he will do in other areas. However, I bow to the Chair's ruling.

Acting Chairman

The Minister to resume, without interruption.

In the area of family law and indeed commercial law, Senators will recall that I initiated my first Bill, the Jurisdiction of Courts and Enforcement of Judgments Bill in the Seanad. The Bill has since been enacted into law. It will make Irish judgments, including maintenance orders, enforceable in a wider number of EC countries than heretofore and in EFTA countries. The judgments of the courts of those countries will also be enforceable here as a result of the legislation. The legislation enables this country to become party to two international conventions in this area and arrangements are now being made to have those conventions ratified.

Publication of the Matrimonial Home Bill giving each spouse equal rights of ownership of the family home and household contents is imminent. Senators will, in due course, have the opportunity to discuss this important measure which has been expected for some time by many interested groups and which has been supported by the Second Commission on the Status of Women.

A Family Law Reform Bill based on the No. 1 Bill in the White Paper on Marital Breakdown is in the course of being drafted and will be published later this year. It will provide for important reforms of the law in relation to maintenance of spouses and children, nullity of marriage, recognition of foreign divorces and declarations of status of marriage. A Civil Legal Aid Bill putting the scheme of civil legal aid and advice on a statutory footing is also being prepared and that measure will be published as soon as possible.

A Family Law (Recovery of Maintenance) Bill to ensure better and more centralised arrangements among EC countries for the enforcement of foreign maintenance orders is being prepared. It will involve setting up a central authority in the State to co-ordinate applications coming into and going out of the State for maintenance. It will operate on similar lines to the central authority which already operates successfully in my Department under provisions in certain international conventions to deal with the problem of abductions of children across international frontiers.

These are all important measures which I aim to ensure will be in legislative form by the time the referendum on divorce is held in 1994. This is an action programme which is in line with the commitments in the Programme for a Partnership Government. I have already made clear, on a number of occasions recently that I intend to publish before the referendum the details of the legislation which would follow in the event that the people were to vote in favour of divorce. That legislation will spell out the details on all the main issues including maintenance of dependent parties and children, custody of children, the family home and other property, succession rights, pension rights and so on. Moreover, the administrative and other arrangements which other Departments, such as the Department of Social Welfare, intend to bring forward as required, will also be made known.

Other legislative matters are also receiving attention in my Department. I shall, as soon as possible, introduce proposals for amending legislation on occupier's liability to the Government in consultation with the Law Reform Commission and taking into account reaction from the farming organisations and other interested groups to their paper.

A Bill is being drafted at present to provide an entitlement to adoptive leave for working mothers. My Department is also developing proposals for future legislation in relation to employment equality, equal status in the non-employment areas, updating the law regarding registration of births, marriages and deaths and national law to implement an EC directive on pregnant workers.

The Private Members' motion before the House refers to the failure of the Government to respond to the issues raised in the report of the Law Reform Commission on defamation. Given the extent of the legislative programme which I am in the course of implementing, I think the House will agree that the motion is totally inappropriate in the present context. I am sure also that, in view of the very positive start I have already made on the delivery of the legislative commitments in the programme, the House will have confidence that my commitments in relation to reforms of the law will be honoured in due course.

I hope I have said enough to convince the House that many important reforms of the civil law and equality matters which need to be dealt with are being dealt with as part of a very considered and wide ranging programme of reform. As I have said, the programme includes updating the civil law of defamation and I look forward in due course, when other important matters are disposed of, to debating in this House my legislative proposals in this area. I will be happy then to discuss at length with Senator Neville and others the arguments for and against the varied provisions in the commission's report on defamation. I have formed personal views on many of those issues but I do not wish, at this time, to prejudge a more detailed consideration and examination of those provisions. They will be examined in detail and I will keep an open mind when discussing those provisions in the Seanad. I will listen sympathetically to amendments proposed on Committee Stage.

I welcome the Minister to the House. We have been colleagues for a long time and I wish him well in his new and exciting portfolio.

I hope the substance of the reforms he has outlined will be more significant than his approach to this measure. The Minister concluded by telling us that this motion is not appropriate. It is appropriate because less than a year ago the Minister of State, now the Minister's partner in Government, gave this House a firm undertaking that there would be a firm legislative proposal on this issue within a year. I realise that politics is an ordering of priorities, but there is a firm commitment to this in the Programme for Partnership Government.

Having listened to the Minister, I could only regret that the Irish rugby team is currently in a settled phase. The Minister kicked so successfully for touch that he would challenge very strongly for a place on that team. Every issue this evening was given the long kick into touch.

The commission report is, as the Minister acknowledged, an impressive and important document. Unfortunately, that report does not carry any political imperative. There is little political will to change the law on defamation. This may be because there is, and there should be, a nomal tension between politics and the media. All of us, in different ways, carry the scars of encounters with the media where we felt we had been unfairly treated. The Minister's party in recent times has suffered from media criticism, some deserved, some not. All politicians have that tension in our relationship with the media. Nonetheless, the issues addressed in this report are fundamental to a society that wishes to be open and believes in a strong vibrant democracy. I am sorry the Minister has told us that they will be dealt with at the end of this Administration, if at all.

We live in an age where the mass media has enormous, unprecedented and unparalleled influence. Frequently, especially in the UK, we have seen this influence used by unscrupulous avaricious media moguls for their own narrow ends. It has been used to destroy the careers of people like Neil Kinnock. We saw the treatment of Norman Lamont and at a different level the treatment given to the manager of the English football team. In a situation where the media has such power, it is vitally important that the rules governing the use and abuse of that power be as clear and updated as possible.

The Law Reform Commission report on defamation is not a one way street; it imposes rules and guidelines within which the media must operate. The biggest lack in the area at present is the absence of any developed jurisprudence in the area of defamation. It seems as though cases are tried on a case by case basis, without proper precedent build up, or the certainty which is so important in good law.

Every case is different.

The Minister knows from his own experience that there is a degree of precedent. It is not the Minister's fault that there is lack of jurisprudence, I appreciate that, but it is one of the factors which contribute to the absence of certainty at present.

We live in an age where the technology of the media is changing at a very rapid rate, where the comprehensiveness of what is covered and the speed with which it is covered is something we could not have anticipated 25 years ago. There has, in turn, been a change in the sort of society we are. There is virtually no area of Irish life today which is not subject to media scrutiny, and nobody here would say that we are not the better for all of that. However, the very speed under which the media operates, its very comprehensiveness, can lead to genuine mistakes being made.

One of the areas which the report tries to tackle is the question of apologies and lodgments, and the Minister referred to both of them. It is in the area of apologies that an immediate and effective change could be made. Where a newspaper genuinely admits that a mistake has been honestly made, where it is prepared to give equal prominance in fair language to the apology, this should not then be accepted as an admission of malice or guilt. That that is one area which could be considered.

A number of other issues were covered. I agree with the Minister's stance in regard to juries. I do not support the case being made by the National Newspapers Association of Ireland for the abolition of juries. The Minister is quite right to point to the fact that we were told that when juries were abolished in insurance cases that the level of costs would drop dramatically. That has not been the case; indeed, I suspect the level of awards has gone up. In some cases I would prefer to have that matter adjudicated on by a jury, rather than by one of our less eccentric judges.

The Minister also spoke of payment into court in defamation cases. It should be possible to do this without admission of liability, which would be an immediate improvement. The other sources of concern to those in the media centre frequently around the question of fair comment. What is fair comment? Our media has changed beyond recognition, but Senator Lee would agree with me were I to say that on the question of fair comment we are, to an extent, back to where we were about 100 years ago, because fair comment 100 years ago was frequently outrageous. People could say things about their opponents which today would land them behind prison bars or find them subject to enormous costs. How do we regulate the question of fair comment in an age like ours, where virtually every issue is open to comment and where a healthy democracy depends upon as wide a range of different points of view as possible, where a columnist, commentator, journalist, in a sense will be read because of the vigour with which they express their views?

The difficulty which the report addresses is that of defining fair comment. It probably does not have to be fair. I could attack Senator Gallagher, were I so ungracious. There is the question of how fair it has to be, and we have seen in recent times where people will sue where the comment may have been truthful but was hard-hitting. Is that in itself a case for legal action? I am disappointed that the Minister is not moving more quickly, because there are only about six major issues addressed in this report. There is the question of comment, which I have mentioned, there is the question of how apologies should be treated, whether they should be regarded as an admission of liability or whether it should be possible for them to be accepted as a genuine recompense for a mistake that was honestly made.

There is the question of libelling the dead, and here I do not agree with the National Newspaper Association of Ireland. References to the dead, as Senator Neville has said, can be very hurtful. On the other hand, if one is writing about the late and unlamented Mr. Robert Maxwell, what can one say? Is one expected to write well of him, when all the evidence points to the contrary? It is something that arises very rarely. Nonetheless, when does someone who is dead become a historical figure? When do the normal canons of historical judgment and objectivity apply? This is another issue which needs to be resolved. I favour a specific time limit there, two or three years, and after that, maybe five or six years, when comment can be less inhibited. I am talking largely about public figures, what they did, their actions and so forth.

While I understand that the Minister has a range of genuinely serious issues on his agenda, he should not let the issues raised by this Commission fall too far behind. It might very well be the case that this issue could be examined by one of the various Oireachtas committees in existence at present, because this issue is more important than the Minister has indicated in his reply.

I move amendment No. 1:

To delete all words after "Seanad Éireann" and substitute the following:

"welcomes the commitment in the Programme for a Partnership Government 1993-1997 to update the law of defamation as part of the Government's wide-ranging programme of legislative reform of the civil law”.

I welcome the Minister to the House. I am glad to have the opportunity to participate in this debate on the whole area of defamation. It is a subject that has aroused considerable interest and controversy in recent times. However, at times this debate has been overly simplistic and a variety of nuances are not taken into account. It is important that we have a full and open debate on the subject of defamation, before introducing any changes to the law in this regard, as recommended by the commission. We need to look at all the facts at our disposal, we need to hear all sides of the argument and, most importantly, we need to rigorously analyse the effects of any changes of proposed legislation. In particular, we should examine the defamation models in other countries and see how they work or, in most cases possibly, do not work. The Programme for a Partnership Government commits this Government to updating the law on defamation and contempt. This commitment will be dealt with in time. To my mind it does not have the same urgency as other pressing issues of legal reform. Therefore, we have the necessary time for the required period of debate and analysis. I hope that the debate in this House will contribute positively to the overall debate.

In starting off in this area, I would like to quote George Bernard Shaw who said that liberty means responsibility and that is why most men dread it. I think that sums up the whole issue of defamation and the different areas and rights concerned with it. No one disputes the right of freedom of expression. It is an absolute prerequisite in an open and democratic society. It is a right that cannot be taken for granted. It is one that must be zealously guarded. However, this right must be complemented by another equally fundamental right: that of the individual to protect their own good name and reputation.

Defamation can be considered as the law's response to the two above-mentioned rights — the right to free speech and the right of the individual to preserve his or her reputation from unjust attack. Defamation is the publication without lawful justification to a third party of matter defamatory of the plaintiff. It is a libel where the publication is in permanent form and a slander where the publication is in transient form. For the purposes of the law of defamation, a publication is anyone who makes a statement, who distributes or disseminates a statement, or who repeats a statement to a third person, or publishes that statement.

Our law of defamation is based, in the main, on the English common law as it evolved over four centuries. Many questions have been raised about our current legislation. Some of these questions are valid. For example, does our present law lay undue stress on damages as a remedy? Should there be changes in how we assess these damages? Should the families of deceased persons have a right to sue for defamation? Should a public figure have to establish that the words complained of were not only defamatory but also published maliciously as is the case in the United States? These and many other questions must be considered in the debate on the matter.

I am concerned that a rather simplistic view prevails regarding reform of the law of defamation; that the law at present is overly restrictive, limits freedom of expression and must be radically overhauled. I believe that to follow this path is a mistake. I understand the point of view of our newspapers and other media but I think in some ways it is a selfish one. It is a point of view that sees the pursuit of news as more important than the reputations and indeed, feelings of citizens. I do not share this point of view; I believe the citizen has a fundamental right to have their integrity and reputation protected to the utmost.

For me the key word is protection. Protection from insult, smears and lies. False accusations are not to be taken lightly. They can ruin careers, reputations and even lives. It is absolutely vital that people have a right of redress in such cases. Indeed, this right and protection is mentioned in our Constitution and in the European Convention on Human Rights which, in Article 10 (2), states:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions, or penalties as are prescribed by law and are necessary in a democratic society, in the interest of national security, territorial integrity of public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.

The protection of a person's reputation and freedom of expression is thus enshrined in the Constitution and the European Convention on Human Rights.

Some have tried to belittle the pain and hurt that defamation can cause and have even tried to portray actions for defamation as a means of gaining money. I find this point of view unacceptable. To anyone who has been defamed, the matter is a serious one. It is not a matter to be dismissed lightly even when it may not always seem so to an outsider observer. It is not always necessary to even name the person in order to defame them. I recall an old case where the plaintiff — an antique dealer — while unnamed in a book, was referred to as being more interested "in young mistresses than old masters". However, in an affidavit, the young Samuel Beckett said that reference in the text led him to recognise who the plaintiff was and the defamation was upheld.

I have observed the activities of the print media in the UK with some concern and a great deal of incredulity in recent years. The tabloids in particular, though by no means exclusively, have transgressed every rule of privacy and common decency. They have lied, distorted and mounted hate campaigns. They have long since abdicated any claim to impartial reporting. Examples of this are legion. I recall one particularly grotesque episode where a tabloid newspaper manufactured an interview with the widow of a soldier who had been killed in the Falklands, complete with tearful text and accompanying photos. The entire article was a repulsive fraud. There are many more such examples of this kind of journalism in Britain. Recent comments made in English newspapers regarding the Guildford Four were equally distasteful, carrying as they did the taint of anti-Irish sentiment.

Looking further at these newspapers we have to ask ourselves what constitutes news these days? Much of the British print media seems to subsist on a diet of bingo games, lurid exposés and cheap titillation. The traditional vocation to inform and educate has fallen by the wayside in the ever ruthless quest to succeed in the circulation wars. In such a climate the personal integrity of an individual is simply grist to the mill of sensation hungry editors. If a sensational or cruel claim or comment will sell more newspapers, then so be it.

I believe it is absolutely essential in such a climate that the individual has a legal framework on which they can rely when they have been libelled or slandered. It is important to remember that it is not merely the rich and famous who are attacked by the press; it is ordinary people also. These people have as much right to defend their good name as anyone else. There is a moral obligation on a democratic state to ensure that this right exists. If we tamper with this framework we run the risk of weakening or watering down this inalienable right.

I think representatives of our newspapers will say there is no real comparison between Irish and British newspapers. At present this is probably the case but the recent Casey affair, with its surreptitious recordings and its cruel pursuit of Bishop Casey, does not bode well for the future development of journalism and newspapers in this country. Our newspapers have not yet fallen into the habits of their British counterparts but, in truth, there is nothing to stop them doing so if they so wish, apart from the principles and convictions of our own journalists and editors. Unlike the UK, we do not even have a Press Council to adjudicate on or monitor harmful and cruel stories. Without sounding unduly pessimistic, I can envisage a future where our newspapers, faced with falling circulations and competition from the electronic media, might adopt the habits of their British counterparts. This may be unlikely but it cannot be ruled out.

Both at present and in the event of a deterioration in media standards, it is important that the right to defend and preserve one's good name is protected. For that reason I believe that we tamper with current legislation at our own risk. If anything, we should be thinking of ways to bolster the protection we afford to the individual in this regard. For example, do we need new measures, such as a declaration restoring the plaintiff's reputation or an order directing the defendant to publish a correction? This begs the question that when a newspaper does have to make an apology, why is the apology almost unnoticeable inside the newspaper. This is a very grudging response and seems to be an insult in itself.

The Irish Times recently published a summary of remarks by Mr. Justice Hugh O'Flaherty on the constitutional area governing the right to freedom of expression. He examined the constitutional provisions governing freedom of expression and the right to protect one's integrity and good name. I recommend the article to everyone. I will not read the relevant extracts now because it would take too long. He mentioned one decision with which I agree which has been followed by the Irish Supreme Court. A famous judge, Lord Atkin, “the son of a Corkman” as Mr. Justice O'Flaherty says, was quoted in the case of Ambard v. Attorney General for Trinidad and Tobago, decided in 1936:

Justice is not a cloistered virtue. She must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.

This dictum has been approved by our Supreme Court with the slight qualification that "in his private personal character a judge should receive no more protection from the law than any other member of the community at large". This means we should all be treated equally but also that it should not be only people who can afford to take expensive actions in the Supreme Court who can defend libels or defamations against them.

I welcome the Minister's decision to delay enactment of the Law Reform Commission's report and to have more debate on the matter from all interested parties.

I welcome the Minister to the House. I would be the last person to criticise priorities in his law reform because I am extremely glad to see reforms in family law and equality legislation.

However, there should not be too great a delay in changing this legislation. The need for change in the civil law on defamation is recognised by a large number of people and the Minister would have all party support for changes.

There are three conflicting interests in this arena. The individual has a right to a good name, the media has a right to freedom of expression and, perhaps, the most important third element, the freedom of information which is essential in the public interest.

At present none of these is well served. Private or public individuals may be defamed and may have to wait a long time before the alleged defamation is retracted. The media feel their comments are constrained because they fear libel action and the public are too often denied information which may be vital for decision-making in the common good.

The commission recommended that the plaintiff should have to prove that the words published or uttered were untrue. I have always thought it incredible that a court case starts on the presumption that what was written was true and numerous witnesses had to be called to show it was untrue if it was patently obvious it was untrue from the beginning.

The Commission also recommended consideration should be given to the fact that the newspaper — which I am using to cover all the media — has made a reasonable effort to get all the facts in a case because a case can be taken at the moment even if a person has avoided giving the facts to a reporter. It is possible to avoid taking telephone calls and replying to letters and faxes. When the case comes to court the plaintiff can say he or she was not given a chance to present his or her side of the case. If a reporter or a newspaper can show they made reasonable efforts to ascertain the facts on the other side of the case it should be taken into consideration. Records will have to be produced but it is important that such consideration is given.

A couple of weeks ago a Sunday newspaper said that Senator O'Toole, Senator Norris and I were not in favour of Mother Teresa speaking in the House. I cannot speak for the other two Senators but the reporter had not interviewed me or asked my opinion on this matter. No one had. The only view I had volunteered——

Will the Senator give it to us now?

I will not. I think I am the only Member of the Seanad to have met Mother Teresa, at a medical meeting in the Philippines. I also met President Marcos there but I did not meet Imelda because she was in America shopping.

For shoes.

I met the reporter in question some days later and I asked why that had been written about me when I had not said a word on the subject. He looked suitably shaken and asked if I wanted clarification. I did not reply. If he had written a clarification in the next issue to say I had never said what was attributed to me that should have been sufficient and I should not be in the position — in which apparently I am — to take a court case and seek damages because my reputation had been damaged. An immediate clarification should be enough.

One can say worse things about people than that they did not want Mother Teresa to speak in the Seanad.

Yes, but I would have privately communicated with Mother Teresa if I felt she thought I had said anything nasty about her. If the person feels his or her reputation has been damaged immediate clarification is the most important remedy but this is not the case at present. There is a two to three year waiting list for court cases in defamation.

There is also dreadful discrimination concerning money. This is a rich person's area as it is virtually impossible for the poor to take such cases. The reputation of an ordinary person is just as important as that of a well-off person or a public figure. It may be even more important because if an employee is defamed his employer may believe the defamation and dismiss him. The employee will have little recourse to justice for several years.

The rights of the poor — as well as those of the rich — must be vindicated but at the moment the system is heavily biased in favour of those with money to employ legal representatives. This is an extraordinarily expensive area. Unless one can obtain solicitors on a "no foal, no fee" basis, it is almost impossible to take a case. One recommendation was that civil legal aid should be extended to such cases, I support that. The rich are most unlikely to apply for civil legal aid because it is so difficult to qualify for it.

The effect of the dealy on those who feel they have been defamed should not be underestimated. Medical negligence was discussed earlier. People experience dreadful problems waiting for injury cases to come to court, their lives revolve around it. The delay also has tremendous effect on the defendant doctors who, while sure they will not be found negligent in a case, nonetheless suffer considerable stress.

It is not exactly the same in defamation allegations. Emphasis must be put on getting immediate redress for the defamation, not on financial recompense, which is the case at present. Senator Crowley said he would like to see all people treated equally. At the moment poor are definitely treated differently from the rich, who have a strong advantage.

Clarifications or apologies are usually printed in the same place as the defamation. However, the major problem is that if one publishes an apology it can be taken as an admission of liability. This should be changed as rapidly as possible. Any measure which would avoid these expensive cases, while not being taken as damaging the defendant's case, would be welcome.

Some years ago a friend of mine, Stephen Hilliard, was tragically killed. Appallingly, a defamatory aricle was published on him and his widow had no proper recourse to defend his good name. In cases like this, where there is immediate publication of defamatory material, the personal representatives of the deceased, usually relatives, should be in a position to take corrective action.

I accept that there should be a mechanism whereby vexatious cases cannot be taken in regard to those who have been dead for many years and that there should be no financial reward. In addition, the reduction of the time limit from six to three years is essential as I cannot understand how it would take six years for someone to decide he had been defamed.

Democracy depends on the free flow of information. I have been on the receiving end of critical comment — I cannot understand it — but while it is very annoying, a degree of criticism is justifiable if it is in the interests of democracy, particularly if it is fair comment based on facts.

The reform of the malice element is important, especially for book publishers. Newspapers are in a better position on this issue as they have a close liaison with the reporter. However, an author who submits a book to the publisher may be the only person who can deal with the problem. The contents of the book may be foreign territory to the publisher but if sufficient editorial effort is made to ensure factual accuracy, I do not believe it should be possible to take action in regard to a small error. The context of the error is important. A small error in a large book is very different from the same error on the front page of one of the mass tabloid newspapers. If this is not taken into consideration there could be a dearth of books with any political, social or cultural comment.

I must remind the Senator that her time has elapsed.

Legal advice is very expensive and it is important to ensure that publishers do not go out of business because of fear of litigation. In this respect I am delighted that printers are exempt, as Senator Neville pointed out, modern technology made that provision obsolete.

I am also pleased at the suggestion that booksellers should be exempt as sometimes they are enjoined in cases because they are the best financial target when it is obvious that the author, the printer and the publisher do not have financial resources.

The Minister pointed out in regard to compensation injuries that the size of awards did not diminish when decisions were transferred from jury to judge, they are now larger than ever. Juries should at least be given scales.

Acting Chairman

Senator, I must call the next speaker.

I also welcome the Minister to the House.

The amendment to the motion is that the House should delay consideration of the position relating to the report of the Law Reform Commission on the law of defamation. I am very interested in law, it has been one of my pet subjects for a long time.

This report is impressive and detailed. There are approximately 50 recommendations, on two of which I will comment. Does "apology" mean an admission of liability? What is the agreed definition of "defamation"?

On these two areas alone as on all other aspects, there are many underlying issues and much analysis is required. Therefore, legislation should not be rushed on this matter. In addition, as a lay person I believe more time is required to enable the public to become familiar with and knowledgeable on this subject.

Regarding the underlying assumptions, how does defamation of a person arise? Is the psychological hurt or the personal hurt considered? Lawyers will formulate a judgment based on common sense, but what is common sense? The Law Reform Commission was not happy with the recommendations submitted on this aspect. In view of that, will the Minister analyse "defamation" on the basis of the psychological — as against the common sense — assessment of each case?

Defamation affects not only the individual but also the family. In this respect it is necessary to measure in some way the hurt caused by defamation in relation to a legal remedy and in terms of damages. If money is awarded, is it in compensation for the personal or the psychological hurt? Are successful cases of defamation publicised on the basis that the litigant was psychologically hurt?

I pose these questions to illustrate the complexity of the situation. Unless the issues are examined in some depth and a balance struck, there is a danger that every headline will be construed as hurtful and, therefore, defamatory.

The power of the media is extensive, for example, I am apprehensive when talking to the media that my remarks will be misinterpreted. This can become a maze of conflicting perceptions. There must be clarity between perception and fact to avoid ambiguity and vulnerability in people on this issue.

The media has a role in informing the public. This is especially the case in respect of media headlines, which are all that many people in today's busy world have time to read. However, the headline conveys a message which may be contradicted in the report which often goes unnoticed.

It is the role of public representatives, journalists and the media generally to impart accurate information. There must be a balance and I am concerned that people go to court for the wrong reasons in these situations. The adversarial setting can induce an unhealthy atmosphere where action is couched in terms of putting the other party down and demanding compensation.

We are talking about high standards. I support honesty, integrity and high standards, which can be found in all walks of life. I hate to say it but the standards adopted by our media have slipped. The reason for this may have been the competition between newspapers and television. Newspapers use attractive headlines to highlight a story; yet they are often careless about the truth. One line in an article can defame a person. We must be aware of the damage caused by personal hurt and psychological hurt.

I welcome the proposed legislation in relation to family law reform and I hope it will be introduced in the near future. I look forward to a more detailed analysis of the issues which have been raised here today.

I welcome the opportunity to debate the law of defamation and I thank the Minister for his enlightened contribution.

The original motion sought to chastise the Government for allegedly failing to deal with the measures raised in the report of the Law Reform Commission on defamation. I am aware of the work which has been undertaken by the Minister, Deputy Taylor, and his Department. Members and the public regard certain matters of social reform and general law reform as priority issues and these should be considered.

The Minister has made it clear that he is committed to law reform. The fact that the laws of defamation are not listed in the Programme for a Partnership Government shows it is a matter of priority. The complications of social legislation need consideration because they affect everyone. Legislation should not be rushed through the Houses just to facilitate other interests.

Dealing specifically with the law of defamation, I agree it needs reform. At present, we have common law, which is mostly outdated, the Defamation Act, 1961 and the fundamental rights under the Constitution. Article 40.3 of the Constitution provides that the State must protect the personal rights of the citizen and ensure that each citizen is protected from unjust attack. Article 40.6 guarantees freedom of expression. We must balance these two rights when considering the law of defamation. which is a complicated area, and ensure we get it right.

I take issue with Senator Manning who said that six areas recommended in the report needed to be considered and that it was simply a matter of pushing them through—

I did not say that.

There are approximately 69 recommendations in the report, more than was quoted. Each recommendation needs consideration. I would not like to see the Minister making hasty decisions and I would welcome an opportunity for another debate.

One of the recommendations in the report is that defamation should be redefined. This is a good start. This anomaly has existed for some time and it needs to be changed. The report also recommended that certain cases could be heard in the Circuit Court. This was changed some years ago and it will be subject to assessment with regard to damages. This is a practical move because it allows one to protect one's good name in a cost effective way, rather than taking a costly High Court action which often deters people from defending themselves.

Certain matters were raised about the defence of apology. It is not sufficient to state in one sentence that the original statement was incorrect. This does not rectify the problem. While it should be considered in mitigation of damages, it should not be a defence.

Members will be pleased to see that the report did not recommend any changes regarding absolute privilege. We are still free to argue with each other. Qualified privilege in relation to solicitors' clients was mentioned by Senator Neville. I am concerned about this, although I do not yet have a definite opinion on it. This is an area which needs further consideration.

As regards the defence of opinion on fair report I understand that in the US there is freedom to express one's opinion and the offended party cannot get redress. We must be very careful about allowing such situations to occur in Ireland. This is part of an ongoing problem. When does opinion become fact, and how does one differentiate between various circumstances? This is a difficult area and I do not envy the Minister trying to find a balance.

Other areas are affected by laws introduced to reform the law of defamation, including contempt of court, the criminal aspects of defamation and the right to privacy. These issues should also be considered. I look forward to hearing the Minister's views.

There are many problems regarding the law of defamation. Defamation should no longer be a tort of strict liability. In other words, an individual should only be able to take a case if the person who issued the publication is in the wrong. This is an important point because in areas of innocent publication one should not be able to claim large amounts of damages through the courts, if the offence was not intended. The role of juries in these cases has been mentioned. It is a sad reflection on our courts that we have the highest awards in Europe. This matter must be redressed.

As regards the burden of proof, it should be up to the plaintiffs to prove the falsity of a statement. I would favour that but there would have to be a balance. The survival of the causes of action following the death of the defamer or the victim is important and I would welcome that provision in the law. I note the media's concern about insurance and high awards. I would be in favour of seeking a balance between the British tabloid press and the cases I have outlined in the United States, yet allowing freedom of expression by the media.

As the Minister has the Civil Legal Aid Board on his agenda, I hope one would link with the other because there is no point in having rights if one cannot defend them or cannot afford to defend them. The report also recommends that legal aid be provided for such actions and I hope that will be considered. There are many issues that require greater consideration and I do not envy the Minister his task, but I am happy to have the Department consider the report and I look forward to it coming back to this House for further consideration in due course.

I thank Senators who contributed to the debate. The outcome seems to be that this report and its recommendations are being put on the long finger and that we will not see the implementation of this report in the lifetime of this Government. One will always have priorities and something will always be more important than what one is doing today, but this report is important. We will not miss democracy until it is gone, and the media have an important role in our democratic system. The media are concerned about this matter.

Consultations have been taking place since 1989 when the Law Reform Commission commenced its investigation of this issue. A consultation report on defamation was published two years ago and all interested parties were invited to make submissions. Now that the final report has been submitted, the time for consultation has concluded and the Government should make up its mind on the recommendations. While there are 60 recommendations, there are 13 key recommendations which must be looked at. I do not agree that there should be further consultation because that can be used to postpone a decision to introduce legislation. Consultation papers are published to allow people to give their views. A final report is the views of the commission, and now Government must make up its mind whether it accepts or rejects that report.

The openness of society and how society has changed has been referred to throughout the debate. Society has become more open and we should do everything to avoid, and legislation must avoid, our media becoming like the British gutter press. We agree with Senator Crowley on that point. That is not the purpose of this report nor is it the purpose of this side of the House to prompt the Government to bring in legislation. Hopefully, we will never see the day when the Irish media go down the road of the British tabloid press, and long may that remain the case.

People have freely supported two areas of the report. The first is the payment into court of moneys without admitting liability. This would allow cases to be settled with little cost and it would allow the media to settle cases without admitting liability. At present the placing of moneys in court is an admission of liability and is a prompt to the plaintiff to go to court since they believe they are already halfway towards winning the case. The other issue highlighted by several Senators was the writing and publishing of apologies. Apologies should be written and published without admitting liability. This is the fastest way of correcting damage done to a person's reputation. Everything should be done to facilitate early correction by the media if they have defamed somebody. This should not be held as an admission of liability if the case goes to court at a later stage.

As Senator Gallagher said, there are serious problems in this area which should be addressed. However, we will not see them addressed in the lifetime of this Government, at least that is what I interpret from what has been said. Senator Henry alone commented on defamation of the dead. This too is an important issue. A certain period should elapse before publications of a defamatory kind could be made, and the suggestion in the report of three years is a fair balance, that is, three years from the time the person died, not three years after the defamation.

As we are discussing the media, and we have been crictical of them from time to time, I would like to compliment them for their fairness in the way they handle many social issues and the debates in this and the other House. I regret we will not see the laudable work of the Law Reform Commission, the many hours of work that have gone into two reports and the hundreds of consultations, become legislation in the lifetime of this Government.

Amendment, by leave, withdrawn.
Motion, by leave, withdrawn.
Sitting suspended at 7.40 p.m. and resumed at 8 p.m.