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.