This meeting has been convened for the purpose of consideration by the committee of the Defamation Bill 2006. I welcome the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, and his officials. I also welcome Mr. Alan Guidon who will be acting as clerk to the committee in the next couple of months in the absence of Mr. Ronan Lenihan.
Sections 1 and 2 agreed to.
SECTION 3.
I move amendment No. 1:
In page 7, lines 1 to 4, to delete subsection (2) and substitute the following:
"(2) This Act shall not affect the operation of the general law in relation to defamation except to the extent that it provides otherwise (either expressly or by necessary implication).".
The provision of section 3(2) of the Bill was the subject of some discussion when it was considered by the Seanad last year. The original intention was to preserve the operation of the general law on defamation in force immediately before the commencement of the Bill. When enacted, this would involve essentially common law jurisprudence and precedent. However, I have re-examined the provision and following consultation with the Office of the Attorney General and the Parliamentary Counsel, I now propose the deletion of section 3(2) and the substitution of a new text which provides for improved clarity in the matter. I have been advised that it is important to ensure all of the current case law on specific legal terms used in the Bill such as "publication" is carried forward. Thus, the saver proposed in the new section 3(2) seeks to achieve this, while the main provisions of the Bill provide explicitly for a new dispensation regarding the defamation law in general.
It has been suggested there is some ambiguity about section 3(2). I am entirely sure that I can see the difference between its import and the Minister's amendment. What is the relationship between this and the new section 14? Does section 14 clear up whatever ambiguity was apparent in section 3(2)?
Section 14 abolishes all of the offences under the existing legislation. It is a saver for a number of defences that would be necessary under statute and the institutions of the European Union. While the main provisions of the Bill provide explicitly for a new dispensation, section 3(2) is a saver clause regarding the general law on defamation. I have been advised by the Attorney General that it is necessary to include it.
Amendment agreed to.
Section 3, as amended, agreed to.
Section 4 agreed to.
NEW SECTION.
I move amendment No. 2:
In page 7, before section 5, but in Part 1, to insert the following new section:
"5.—The Minister shall, not later than 5 years after the passing of this Act, commence a review of its operation.".
This amendment inserts a new section in the Bill to provide for a review mechanism to oversee the development of the law in this area. The review clause will be a useful measure, as it will facilitate the assessment of the operation of the legislation. The review will take place no later than five years after the enactment of the Bill, although it could take place earlier, if necessary. This reform legislation has been much awaited and commented upon by all those concerned with the operation of defamation law, whatever their perspective. It is also an area in which we would expect continuing development of jurisprudence. It seems reasonable that, as a particular policy approach to the Bill is framed against the background of the establishment of an independent Press Council and Press Ombudsman in 2008, the operation of the legislation against that background should be subject to review. I imagine that the review, when it occurs, would seek the widest range of views, as was done by my predecessor, former Deputy Michael McDowell, during the consultation process that preceded the Bill.
Deputy Flanagan's amendment tries to ensure the review would conclude within three months. That would impose a very strict time limit for the review. While I appreciate the desire for swiftness, I am not sure that tying ourselves to such a short time limit would be useful, given the very protracted nature of reforms in this area. I am not averse to providing for some time limit, but three months might be a little too short.
I move amendment No. 1 to amendment No. 2:
In the second line, after the word "operation" to insert "to conclude within 3 months".
I will not make a meal of this. I would be very concerned if a ministerial review was to take an inordinate length of time, but given some of the reviews being undertaken, one could not rule that out. If the Minister will not accept a statutory provision that such a review should be completed within a period of three months, he might come back on Report Stage with a recommendation that a review should be completed within six months or a reasonable period of time. I would be concerned if a review was to take a long time and be used to prevent the making of an amendment to legislation, if required. The Minister has stated this is new territory and that we in the Oireachtas are anxious to let matters proceed in a way that is not unduly restrictive. We are all supportive of the setting up of the Press Council of Ireland, but if there is to be a review, it should not impede, halt or unduly delay what might be an important initiative at some stage in the future.
I will come back to the matter on Report Stage. I will consider a time limit longer than three months.
Amendment to amendment withdrawn.
Amendment agreed to.
SECTION 5.
I move amendment No. 3:
In page 7, subsection (4)(b), line 26, after “person” to insert the following:
"or the publication to the second-mentioned person was in the course of the performance of duties of a secretarial nature by the second-mentioned person (being a person whose relationship if any to the first-mentioned person is primarily based on contract) and there were no reasonable grounds to believe that the first-mentioned person would suffer any significant injury by reason only of such publication".
This amendment is designed merely to clarify section 5(4)(b) which states there will be no publication where “it was not reasonably foreseeable that publication of the statement to the first-mentioned person would result in its being published to the second-mentioned person”. My amendment seeks to clarify this, given the relationships that could apply. I have given the example of where Person A sends a letter to Person B which is read by Person A’s typist and Person B’s secretary. There will be no publication in law, unless there is a special injury. It is not hard to give examples of how that could occur unintentionally. It would be best if section 5(4)(b) contained this additional phrase to clarify what is meant by what is and what is not reasonably foreseeable.
I am not aware of any action which resulted in the secretary being found guilty of a defamatory act or being the subject of a defamation action taken against him or her. My advice is it would be unwise and impractical, on the basis proposed, to exempt any party as a possible respondent to an action against defamation. Each case will turn on its own merits and it would be better to make it clear, as the Bill does, that liability for a defamation action lies generally where it falls, not on an innocent intermediary. I could never foresee an innocent intermediary being sued for defamation.
I do not want to make a big issue of this. I do not agree with the Minister that it is difficult to foresee circumstances where it might be invoked but I have no great attachment to it. If the Minister believes it is not necessary and would not add anything to the section, I will not press the amendment.
Amendment, by leave, withdrawn.
Section 5 agreed to.
Section 6 agreed to.
SECTION 7.
Amendments Nos. 4 to 11, inclusive, are cognate and may be discussed together.
I move amendment No. 4:
In page 8, subsection (1), to delete lines 5 to 8 and substitute the following:
"7.—(1) Where the plaintiff in a defamation action serves on the defendant any pleading containing assertions or allegations of fact,".
These essentially are all drafting amendments following advice received from the Office of the Attorney General and the Parliamentary Counsel. They propose the deletion in section 7(1)(b) and (2)(b) of the references to the provision of “further information” which is required of plaintiffs or defendants in a sworn affidavit. I am advised that the retention of the provisions, as currently drafted, would require a very detailed definition as to what constituted “further information”. This would not be considered the optimal approach. The proposed deletions do not materially impact on the provision of information between plaintiffs and defendants. I am also amending the text to ensure the correct reference to assertions and allegations, where required.
Amendment agreed to.
I move amendment No. 5:
In page 8, subsection (1), lines 12 and 13, to delete ", or that further information".
Amendment agreed to.
I move amendment No. 6:
In page 8, lines 14 to 19, to delete subsection (2) and substitute the following:
"(2) Where the defendant in a defamation action serves on the plaintiff any pleading containing assertions or allegations of fact, the defendant shall swear an affidavit verifying those assertions or allegations.".
Amendment agreed to.
I move amendment No. 7:
In page 8, subsection (3), lines 23 and 24, to delete "assertions, allegations or further information" and substitute "assertions or allegations".
Amendment agreed to.
I move amendment No. 8:
In page 8, subsection (3), line 26, to delete "assertions, allegations or further information" and substitute "assertions or allegations".
Amendment agreed to.
I move amendment No. 9:
In page 8, subsection (4), line 30, to delete "assertions, allegations or further information" and substitute "assertions or allegations".
Amendment agreed to.
I move amendment No. 10:
In page 8, subsection (4), line 32, to delete "assertions, allegations or further information" and substitute "assertions or allegations".
Amendment agreed to.
I move amendment No. 11:
In page 8, subsection (5), lines 36 and 37, to delete all words from and including "or" in line 36 down to and including "be," in line 37.
Amendment agreed to.
Section 7, as amended, agreed to
Section 8 agreed to.
SECTION 9.
I move amendment No. 12:
In page 10, line 12, to delete ", in particular,".
I am seeking to have deleted the words "in particular" because they are unduly restrictive. It is not difficult to envisage circumstances where a small group of identifiable people could be involved and where the particular utterance should be actionable, notwithstanding the requirement of the Minister for particularity. For example, if I were to say the Ministers for Justice, Equality and Law Reform of recent years sat on their hands in order to encourage gangland crime——
The Deputy would be saying it with parliamentary privilege, I suspect.
——without the words "in particular", it is plain that this would reflect on the existing Minister or the last one. I do not know why it is necessary to include the words "in particular". What is the explanation for it? One could imagine a similar small group as an example and put it in the place of "recent Ministers for Justice, Equality and Law Reform".
I am advised by the Parliamentary Counsel that the proposed deletion of the words "in particular" would remove the requirement that a possible defamatory statement should be clearly understood to refer to a particular person within a class of persons. It would result in a completely undesirable and unworkable extension of potential defamation actions on the basis primarily of membership of a group rather than being a readily identifiable person within a particular group. For example, an untrue allegation could perhaps be made about a person from an ethnic group. The fact that it was not made about one person could leave open the possibility of defamation actions being taken by a multiplicity of persons who would feel they were part of that identifiable group. That is why there is an effort in this section to try to make it particular to an individual or individuals. If the words "in particular" were deleted, as proposed by the Deputy, it could widen the possibility of many more unnecessary actions being taken.
The example I gave referred to recent Ministers for Justice, Equality and Law Reform as being guilty of something or other. I am not saying it was Michael McDowell "in particular" but it seems Michael McDowell is identified. I do not understand why he could not act to defend his good name. Even though there is no reference to him "in particular", he is manifestly included in that small group of recent Ministers for Justice, Equality and Law Reform.
That is probably not a good example because one would probably be making the statement with absolute privilege in the Dáil. If an allegation was made against, say, one or two people from the Travelling community and it was made in such a way that someone in that wider community could prove that in some way he or she felt aggrieved, in the context of the Deputy's amendment, it would leave the way open to a multiplicity of actions by people who might not really be directly affected. That is why we are trying to hone in on people who may have a grievance.
It is plain the Minister is looking at this issue through a different prism. Clearly, he has made up his mind on the matter of defaming a class of persons but he is coming at it with a different view. The excision of the words "in particular" would be fairer to somebody who finds himself or herself easily identifiable in that class of persons, despite there having been no reference to him or her, in particular. I would have thought it would not be too difficult to envisage circumstances where that could happen.
There must be many politicians who would have an opportunity to consider a number of actions because we have all been maligned in different ways during the years. I presume we will not be statute barred when we leave here and have time to reflect back and do a bit of research. It is critical, whatever legislation we pass, that neither the State nor others would find itself or themselves in a situation where groups of people could take actions against it or them. We must make the law specific to ensure actions are taken against somebody who maligns and impugns the integrity and character of a person. It should be possible to deal with the matter on an individual basis through the process of law rather than having pseudo easy options taken by groups of people who may or may not suffer from defamation as a result of the utterances of another person.
To clarify, section 9 states:
Where a person publishes a defamatory statement concerning a class of persons, a member of that class shall have a cause of action under this Act against that person if—
(a) by reason of the number of persons who are members of that class, or
(b) by virtue of the circumstances in which the statement is published,
the statement could reasonably be understood to refer, in particular, to the member concerned.
The omission of the phrase "in particular" could conceivably allow a multiplicity of actions by all the members of a particular class of persons.
In the example I have given the defamatory action could refer not to the particular Minister I mentioned but to his or her predecessor. I do not see why one former Minister should be deemed eligible to take an action while another who is a member of the same small and easily identifiable group is not.
The example the Deputy has given is somewhat facile in that it involves such a small number of persons.
There is only a small number of former chief executive officers of the Bank of Ireland, to give another example.
Let us assume that all members of the Traveller community constitute a class of persons. If a defamatory statement were made about a member of the Traveller community, it is conceivable myriads of members of that community could take an action. The inclusion of the phrase "in particular" is an attempt to hone the potential number of those taking an action to the person or persons properly aggrieved by the defamatory statement.
The Minister says my example of recent Ministers for Justice, Equality and Law Reform is not a good one. I am not sure his example of the Traveller community is especially useful either. How many cases have been brought before the High Court by that community? If we take a class of bankers as an example——
I understand a very significant case was taken recently by a member of the Traveller community. Given the result of that action, I am certain the media would not have liked it to be taken by a class of persons comprising all members of the Traveller community.
Amendment, by leave, withdrawn.
Section 9 agreed to.
Sections 10 to 12, inclusive, agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."
I am not sure whether this is the appropriate point at which to raise an issue of concern to me. One of the deficiencies of the legislation is that it does not address the prohibitive cost of taking an action against an instance of defamation. There are serious consequences in taking such a case, including the possibility of bankruptcy. In the case of politicians, that will mean the loss of one's Oireachtas seat. This certainly constitutes a prohibitive cost. Even though a person may be genuinely aggrieved, a concern as to cost may discourage him or her from taking a case. Cognisance must be taken of this fact. I will propose to insert an amendment on Report Stage if this issue is not addressed elsewhere in the Bill.
Is the Deputy referring specifically to Oireachtas Members?
I do not refer exclusively to Oireachtas Members, although the consequences of bankruptcy are particularly severe for them. The risk of losing one's seat must be taken into account by any Member before taking a case.
I do not understand the Deputy's objective. I would like to understand his intentions before Report Stage.
I will table the amendment in good time to allow the Minister to consider it.
What is the Deputy trying to achieve?
I am proposing some mechanism to allow for the provision of legal aid or similar support for persons who wish to take defamation cases, or some method of preventing people from being made bankrupt as a consequence of taking legal proceedings to defend their good name.
We must move on. This is a matter for Report Stage.
Legal aid is not applicable in cases involving defamation.
Yes, that is the reason for my concern.
Question put and agreed to.
NEW SECTION.
I move amendment No. 13:
In page 11, before section 14, but in Part 3, to insert the following new section:
14.—(1) Subject to sections 15(1) and 16(1), any defence that, immediately before the commencement of this Part, could have been pleaded as a defence in an action for libel or slander is abolished.
(2) In this section—
"defence" shall not include a defence under—
(a) statute,
(b) an act of the institutions of the European Communities, or
(c) regulations made for the purpose of giving effect to an act of the institutions of the European Communities;
"European Communities" has the same meaning as it has in the European Communities Act 1972;
"statute" means—
(a) an Act of the Oireachtas, or
(b) a statute that was in force in Saorstát Éireann immediately before the date of the coming into operation of the Constitution and that continues to be of full force and effect by virtue of Article 50 of the Constitution.”.
Amendment No. 13 arises as a consequence of amendment No. 1 which relates to section 3(2). For the avoidance of doubt, I propose, following consultation with the Office of the Attorney General and the Parliamentary Counsel, the insertion of a new section 14. The new section abolishes any defence that might have been pleaded in a libel or slander action under the common law immediately before the commencement of this Part. The Bill then provides for a range of defences in defamation actions in Part 3 which will apply to causes of action which might arise following enactment of the Bill.
Deputy Rabbitte's amendment to the amendment seeks to achieve much the same purpose. However, I am advised by the Attorney General and the Parliamentary Counsel that the text proposed by the Deputy does not improve on the text provided in my amendment. Therefore, I am not disposed to accept his amendment to the amendment.
I am satisfied with what the Minister has said.
Amendment No. 1 to amendment No. 13 not moved.
Amendment agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."
I give notice of my intention to propose an amendment on Report Stage relating to subsection (2) of the existing section 14. This subsection states:
In a defamation action in respect of a statement containing 2 or more distinct allegations against the plaintiff, the defence of truth shall not fail by reason only of the truth of every allegation not being proved, if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining allegations.
In such instances, the publisher may get away with a defamation because it will be difficult to prove material damage to one's reputation. The provision, as drafted, allows the publication of statements which are false or parts of statements which are false without a remedy. I will try to devise some formulation that would prevent even statements that are half-truths from being published without a remedy.
I bring to the Deputy's attention that the key words in this provision are "materially injure".
I share Deputy Ó Snodaigh's concerns. As I have pointed out in several fora, including this committee, the Oireachtas sets up tribunals of investigation at which allegations can be made, documents presented and statements issued which can find their way into the public arena and defame and injure the good character of a person who cannot respond until he or she is called before the tribunal. Even if he or she ultimately succeeds in clearing his or her name, that will not generate as much publicity as the initial defamatory statement. We must create an environment in which any document lodged before a tribunal is sacrosanct until such time as it and the witness to whom it relates have been investigated. It should be a crime in law to publish such material until the tribunal has dealt with it in a public forum, as distinct from a private investigation. Will the Minister consider inserting such a provision in the Bill?
We have discussed this issue in the course of the debate on the Tribunals of Inquiry Bill 2005 which is being dealt with by the Houses.
It has not yet passed.
I ask the Minister to revisit the matter to ascertain whether he can insert an amendment therein.
As I stated previously, I await a seminal judgment on the subject.
Excellent. Members will wait with the Minister.
Question put and agreed to.
SECTION 15.
Amendments Nos. 14 and 17 are cognate and will be discussed together.
I move amendment No. 14:
In page 11, subsection (1), line 30, to delete "Act in accordance with section 1(2)” and substitute “section”.
The related amendments are drafting amendments to correct the required reference to section 1 in sections 15 and 16.
Amendment agreed to.
Amendment Nos. 15 and 16 are related and will be discussed together.
I move amendment No. 15:
In page 13, subsection (2), between lines 9 and 10, to insert the following:
"(v) made in the course of proceedings before an arbitral tribunal where the statement is connected with those proceedings,”.
Amendment No. 15 provides for absolute privilege for statements made in the course of proceedings before an arbitral tribunal where the statement is connected with those proceedings. The amendment is consequent on publication of the Arbitration Bill 2008.
I take it there are appropriate definitions to prevent confusion at a later stage as to what constitutes an arbitral tribunal and that there is consistency throughout the legislation pertaining to tribunals.
That is what I am trying to do in this instance.
Amendment agreed to.
I move amendment No. 16.
In page 13, lines 17 to 20, to delete subsection (4).
Amendment No. 16 is a consequential amendment to delete the current section 15(4) in the text which bestowed absolute privilege by reference to the Arbitration (International Commercial) Act 1998.
Amendment agreed to.
Section 15, as amended, agreed to.
SECTION 16.
I move amendment No. 17:
In page 13, subsection (1), lines 26 and 27, to delete "Act in accordance with section 1(2)” and substitute “section”.
Amendment agreed to.
I move amendment No. 18:
In page 13, lines 42 to 48 and in page 14, lines 1 to 4, to delete subsection (3) and substitute the following:
"(3) Without prejudice to the generality of subsection (1), it shall be a defence to a defamation action for the defendant to prove that the statement to which the action relates is—
(a) a statement to which Part 1 of Schedule 1 applies,
(b) contained in a report, copy, extract or summary referred to in that Part, or
(c) contained in a determination referred to in that Part.
(4) Without prejudice to the generality of subsection (1), it shall be a defence to a defamation action for the defendant to prove that the statement to which the action relates is contained in a report, copy or summary referred to in Part 2 of Schedule 1, unless it is proved that the defendant was requested by the plaintiff to publish in the same medium of communication in which he or she published the statement concerned, a reasonable statement by way of explanation or a contradiction, and has refused or failed to do so or has done so in a manner that is not adequate or reasonable having regard to all of the circumstances.”.
Has the committee left section 15?
We have.
Amendment No. 18 pertains to section 16. Did Deputy Rabbitte wish to speak on section 15?
No, he wishes to speak on section 16. We will dispose of the amendment first.
The amendment essentially is of a technical nature. It is consequential on primarily the advice received from the Attorney General regarding changes in the provisions of section 17 which deals with the loss of qualified privilege. The amendment removes the reference in the existing section 16(3), making its application subject to section 17. By separating the provision into two separate subsections, it also provides a clearer text.
Amendment agreed to.
Question proposed: "That section 16, as amended, stand part of the Bill."
I am afraid I missed my slot. The Minister was correct to suggest I wished to speak on section 15. I merely wished to query whether these changes would bring the Bill into line with the Arbitration Bill that is passing through the House. Is the Bill in sync with the Arbitration Bill?
Yes; I am told that is the case in respect of absolute privilege.
Question put and agreed to.
SECTION 17.
I move amendment No. 19:
In page 14, lines 17 to 27, to delete subsection (1) and substitute the following:
"17.—(1) In a defamation action, the defence of qualified privilege shall fail if, in relation to the publication of the statement in respect of which the action was brought, the plaintiff proves that the defendant acted with malice.".
Originally, this section as proposed, in subsection (1), expanded the situations where the defence of qualified privilege would fail. However, following further consideration of the legal issues involved in this regard by the Attorney General, I am advised it would be prudent to amend the provision in section 17(1) so as not to alter the existing law. The revised position reflects the existing position in law. This is to make loss of the defence of qualified privilege solely dependent on proving that the defendant acted with malice.
Amendment agreed to.
Section 17, as amended, agreed to.
SECTION 18.
Amendments Nos. 20 to 23, inclusive, are related and will be discussed together.
I move amendment No. 20:
In page 15, subsection (2)(a), line 8, after “believed” to insert “with objective reason”.
These amendments deal with qualified privilege. There is a lack of objectivity in this regard, in so far as belief of itself should not be sufficient. In section 18 the Minister is allowing belief to stand alone without being accompanied by any form of reasonableness. There are difficulties that must be dealt with. For example, I refer to the right to one's good name and the provisions of Article 40.3.2° of the Constitution on the right to one's good name, its protection and the vindication of the good name of a citizen of the State. The authorities on this subject such as, for example, in re Haughey, perhaps the leading authority on procedural fairness, as well as further Supreme Court judgments, point to the fact that belief of itself should not be sufficient. A belief that the author believed the statement to be true such as that contained in section 18(2)(a) has a lack of objectivity and is entirely subjective and by being so, is too narrow. Such a belief should be clothed in objective reason and there should be an element of objectivity at all times. Accordingly, my proposed amendments would facilitate and perhaps require an objective test which I consider to be important and for which the courts would look. In the judgment on the lost Supreme Court action, Hynes-O’Sullivan v. O’Driscoll, it is stated specifically that where the person uttering the statement honestly believed the matter to be true, there should be a test of whether that was reasonable and that such a test would not be subjective, but objective. The proposals in section 18 by way of honest opinion are too subjective.
I am at a loss to know what the Deputy's amendments are trying to achieve. In effect, he is attempting to insert an objective test in respect of an opinion that someone might have and believes to be true. Either a person believes it to be true or he or she does not. It would be extremely difficult to prove an objective reason such a person had such an opinion. Either the person has such an opinion or does not. I suggest the inclusion of the Deputy's proposals would make it nearly impossible to use honest opinion as part of a defence. An honest opinion is honestly held, if at the time of publication, the defendant believed in the truth of the opinion or when the defendant believed it, with objective reason, to be true.
It could be completely unreasonable for someone to state he or she held a belief in circumstances in which he or she was the only person stating it.
That would be for the court to decide and that is where objectivity comes in. This type of——
The Minister is not allowing for an objective test. According to the Minister, the defendant believing it to be true at the time of publication would be sufficient. There must be a test of objectivity.
I cannot see that, as this is pertinent to the person. It follows on from the defence of fair comment. It shall be a defence in the defamation action for the defendant to prove that, in the statement consisting of an opinion, the opinion was honestly held by him or her.
At the time, but one would prefer more than that in law.
The proposed section is based on the recommendation of the Law Reform Commission. It shall be successfully invoked by a defendant if the opinions expressed were believed to be true. The defence will not fail if the opinion was based on allegations of fact contained in the original statement or if those allegations ought reasonably to have been known by the recipients of the opinion. Following the comments of the commission, the allegations of fact in the statement must be demonstrably true, although the defence may not fail should some of them prove to be untrue.
Yes, but would the Minister not——
I can re-examine it, but I am not convinced that including a reasonability test would help. Rather, it would hinder it. The position would need to be more definite, in that the person would need to swear that he or she honestly held a particular view.
Would the Minister not agree that belief by the defendant could not of itself give rise to an occasion of privilege? There is a duty of care on any defendant when seeking privilege and it must rely on a certain test of reasonableness, that is, there must be a reasonable belief or objectivity. While I will not labour the point, will the Minister reconsider it and give me a note before Report Stage?
On reading section 18, it seems that an opinion being honestly held and believed to be true would be sufficient. It is not a sufficient threshold to warrant privilege. Some sort of objective test must be introduced.
I support Deputy Charles Flanagan. The section is tantamount to people being able to make a statement and subsequently using the defence of honest opinion. This is dangerous. In the Hannon case this week, an unfortunate man was a victim of an allegation that, while decided in court to be fact, has proven to be fiction. He has lived with the destruction of his character for 12 years. I do not know what the outcome will be for him. A statement was made by someone who had not reached the age of maturity, yet it was believed and used against the man.
It is important that there be a detailed provision to ensure objectivity and to prevent someone from destroying another person's character and, on 27 May 2010, defending that statement by claiming that it was an honest opinion on 19 June 1966.
How far would this section move us from the previous defence of fair comment?
This modernises it, more or less, although it will not be called "fair comment". The Deputy's amendment would introduce a type of self-censorship in respect of any statement. It could lead to people being more circumspect in what they print, although this would probably not be the case in practice. They would need to take an objective look at their reasonably held opinions.
I do not see anything wrong with that.
In this context, is the Reynolds defence intact? We have just passed section 15, but does the right to publication, even if untrue in the particular circumstances, remain intact in the Bill? Are we the first country to legislate for it or has any other common law jurisdiction done so?
We are not aware of any, but this matter is addressed in section 24 of the current legislation. It will change to section 26.
Will it retain the defence?
It was amended by the Jameel case. I will re-examine the amendment, but I am not convinced.
I am not happy, but I will not divide the committee on it. Is the Minister saying that belief on the part of a party to an action will give rise to privilege? This is the net point. I am saying "No".
It is not a matter of privilege. It is not a privilege defence.
Opinion.
The report of the Legal Advisory Group on Defamation regarding the defence of fair comment reads:
Under present law the defence of fair comment is available where it is being pleaded that the allegedly defamatory words were fair comment or expressions of opinion as opposed to statements of fact. It is an essential component of the defence that the comment or expression of opinion constitute the defendant's [own] honest belief and that the opinion itself is supported by sufficient facts. The Group concurs with the recommendation of the Law Reform Commission that the title of the defence should be changed. However, it suggests that, rather than "comment based on fact" a more appropriate title for the defence would be "honest opinion". Such a title is more in keeping with the actual ingredients of the defence and is more meaningful in terms of its actual purpose.
It also reads:
The defence now known as the defence of fair comment should be re-named the defence of honest opinion. The elements necessary to establish the defence, for example, that the opinion was supported by sufficient facts and that the opinion was given on a matter of public interest, should be set out clearly in statutory form.
We are doing this.
Does section 18 refer to a written statement in a publication, newspaper, booklet or other document that is publicly available?
Yes. It covers both oral and written statements.
The defence is simple as far as I am concerned.
Amendment, by leave, withdrawn.
Amendments Nos. 21 to 23, inclusive, not moved.
Section 18 agreed to.
Sections 19 and 20 agreed to.
SECTION 21.
Amendments Nos. 24 and 25 are related and may be discussed together by agreement.
I move amendment No. 24:
In page 17, subsection (2), line 44, to delete "a defence to" and substitute the following:
"an admissible plea in mitigation of any award of damages in".
I am not sure that we should remove the status of a full defence from an offer to make amends. The offer would be an admissible plea in mitigation in respect of any award of damages. I am conscious that we do not want to defeat the purpose of section 21 but it is too broad unless we introduce a restriction. It could give rise to injustice. The amendment could introduce a narrowing of what is very broad and I ask the Minister to consider it.
Section 21 deals with the situation where an offer to make amends made under section 20 is accepted and the consequences that attach thereto. These two sections seek to modernise the provisions in section 21 of the 1961 Act in respect of unintentional defamation and to provide a remedy in that regard that would be of greater value and thus avoid court action. The current provision in section 21(2) is that it shall be a defence to a defamation action for a person to prove he made an offer of amends and that it was rejected unless the plaintiff proves in the subsequent action that the defendant knew that, at the time of publication, the statement referred to the plaintiff and was false or defamatory of him. Deputy Flanagan's proposal is to replace the ability to plead a defence in this regard and substitute that only a plea of mitigation of damages can be made. I oppose this approach, which would upset the careful balance involved and reduce the potential use of this new provision in making amends.
I also oppose Deputy Flanagan's proposal to delete section 21(5). This would lead to a lack of balance in the section. We want to get people to use the procedure of making amends as much as possible in order to avoid unnecessary court action. If we were to delete as proposed by Deputy Flanagan, this would make that avenue less beneficial to both parties.
I will read the Minister's reply and come back to this matter on Report Stage. I am fearful that this section is too broad.
Amendment, by leave, withdrawn.
Amendment No. 25 not moved.
Section 21 agreed to.
SECTION 22.
I move amendment No. 26:
In page 18, subsection (1), to delete lines 25 to 27 and substitute the following:
"as soon as practicable after the plaintiff makes complaint to the defendant concerning the utterance to which the apology relates, or after the bringing of the action, whichever is earlier.".
I refer colleagues to section 22, which concerns apology. One can now submit an apology about an incorrect statement without liability. Section 22(4) makes plain that evidence of an apology is not admissible in any civil proceedings as evidence of liability of the defendant. This is a major step forward in terms of the situation up to now. Not only politicians are concerned with this and not only newspapers would be glad to have the opportunity to make an apology.
My amendment refers to when the apology is made. This is critical. The subsection allows an apology to mitigate damage but we must encourage early apology.
Hear, hear.
What is the point in getting an apology so long after an event, or just before a court case, that it undermines its value? The apology should be made as soon as practicable after the complaint. I urge the Minister to examine this seriously. Why should it not be made as soon as practicable? When something appears in a newspaper that is not because of malice, the following week's Sunday Independent ought to have the apology, not one some months later, not that one would find incorrect statements in the Sunday Independent.
The Minister proposes that the apology is effective if made at any time up to bringing proceedings or as soon as practicable thereafter. This could allow the defaming party up to one year to apologise. That undermines the merit of this approach. If the one year aspect was removed, this would not undermine the effectiveness of the apology provision as drafted. I seek that the apology be made as soon as practicable after the complaint or the proceedings, whichever is earlier.
I support Deputy Rabbitte. I am nervous about the section. When one reads it in totality, it could give an escape clause to the defaming party. If a case is taken the latter can apologise and there is mitigation of circumstances and liability. Unless the apology comes before the case is taken it should have no gravity whatever. We cannot have a situation where people defame others and when they receive a legal writ, they can go into court saying they are truly sorry and point to the published apology. They published the apology because a legal document was served. In that case, it should not have any impact on the consideration by the court.
I support this amendment, which is reasonable, rather than the current situation which encourages people to wait until they are on the steps of a court. I would go further and say that the apology must be of equal or greater prominence than the item that defamed the person in the first place. An apology is often buried in the back or middle pages when a front page headline caused the problem in the first instance. I agree with Deputy Rabbitte.
The amendment is worthwhile. This deals with a situation where evidence is given in mitigation and there is a certain acceptance of publication and a certain culpability already determined. Regarding catering for the prominence of the publication in the newspaper or magazine in section 22(1)(b), the timing of the apology is central and it is important that this should be included in the section. Even if it was not, it would be central to any determination by a court.
I am a little bemused. I have sympathy with Deputy Rabbitte. Clearly apologies should be given as soon as practicable after a complaint is made. We are not second guessing that in any way. Section 22(1) should be read in the context of the entire section because it is grounded in an action. I am not sure whether the three lines proposed by Deputy Rabbitte are grammatically correct but, leaving that aside, section 22 deals with actions that have already commenced. In a defamation action, a defendant may give mitigating evidence that he or she made and published an apology. The Deputy would have this amended to as soon as practicable after the plaintiff has made the complaint but his proposal is not relevant to the section because the action has already commenced.
Leaving aside the question of grammar, are the Minister's claims true? The purpose of my amendment is to encourage early apologies.
That should be done elsewhere.
Should that not be our public policy irrespective of whether a case has commenced? The plaintiff must be presumed to have made a complaint because otherwise an action would not have been taken. As Deputy Flanagan noted, subsection (1) allows the defendant to use an apology to abate damages.
Again, I go back to the overall intention of this section, which is to change the law so that apologies can be made. Subsection (4) provides that evidence of an apology made by or on behalf of a person is not admissible in civil proceedings as evidence of liability. That is the encouragement. Subsection (1) refers to a defamation action, while subsection (2) starts with the phrase "In a defamation action". The section deals with the type of evidence that can be presented in regard to an apology. In other words, if the defendant gives an apology as soon as possible after the complaint is made, that can be part of his or her evidence.
Is Deputy Treacy not correct? Why should the defendant be indulged in entering an apology at the last minute? I accept it represents a major change in the law on liability but why not put pressure on the defendant to advance an apology at an early stage? As Deputy Treacy noted, one will have incurred significant costs by the time one is forced to commence a defamation action and the emergence of a late apology is no more than permitting the mitigation of damages.
We are ad idem in our desire to see that an apology is given as soon as possible after a complaint is made. However, we believe this is provided for in subsection (4), which states that evidence of an apology is not an admission of liability. An apology can be made at any time subsequent to a complaint but this section sets out the way in which the fact of an apology is introduced as evidence. Subsection (2) specifically states that a defendant who intends to give evidence of an apology shall at the time of filing his or her defence notify the plaintiff in writing of this intention. This is an enabling section to allow the tendering of an apology as evidence. I suggest that the Deputy is being more proactive or up-front in proposing that an effort should be made by the defendant to make an apology as soon as possible after the complaint. That is not the same thing as what section 22 is trying to do.
Is the Minister implying that subsection (4) contains within it a dynamic that would encourage a defendant to advance an early apology?
Absolutely.
I am not sure where that dynamic is to be found. Unless I am misreading subsection (4), it merely provides that the giving of evidence about an apology may not be admissible as evidence of liability. Does it do any more than that? There is no injunction that would encourage the defendant to come forward sooner rather than later.
No, but this is what the media has sought. They claim that they cannot at present give an apology for fear that it would be taken as an admission of liability, which clearly is the case under current law. Subsection (4) makes it clear that an apology is not an admission of liability and the other subsections set out the way in which the fact of an apology can be tendered as evidence.
I understand that.
The Deputy is trying to put a stronger onus on, for example, a media organ to make an apology sooner rather than later. I do not disagree with him in this regard.
If the Minister for Defence, Deputy O'Dea, defames me in the Sunday Independent ——
He would never do that.
——I would like to encourage him to apologise the following Sunday. We had two pieces from the Minister, Deputy O'Dea, on the Sunday before last which, coming as they did after a week of Seamus Heaney's poetry, were a special delight. I would like the apology to be made before people forget that he defamed me but I do not see a dynamic in this section that would encourage an early apology.
A form of deterrent will be needed. We are dealing with a situation in which the case has already commenced and evidence of an apology is being given by the defendant in mitigation of damages. Both the Minister and Deputy Rabbitte agree that the earlier the apology, the better. Perhaps the Minister can return on Report Stage with an amendment which would provide that the earlier an apology is made, the greater the mitigation. An early apology could thereby be cited as a deterrent or inducement.
We must be very carefull here. A media organ might not wish to give an apology for whatever reason in a particular case, leaving aside the issue of whether it is an admission of liability. Here we are forcing defendants to make an apology sooner rather than later when they may not wish to do so.
This is a major concession to media organisations. They have been complaining, and it is a reasonable complaint, that they cannot make such an apology without its——
We are not excluding them from doing that.
I know that but it is a big concession to them. In public life most politicians would only want the matter corrected as quickly thereafter as possible. It is a significant concession. Media organisations will talk bluntly about the amount of money this area costs them per annum. This allows for the making of the apology. Implicit in that, most of the time, is that it is acceptable. As I read the section, an apology could still mitigate damages even if it is made only at the last minute. If we are going to make this change in the law why ought there not be some deterrent to cause it to happen sooner rather than later?
I am at a loss on this issue because I see it as a two-way street as distinct from a one-way street. The people who have made a defamation can tender an apology without an admission of liability, and yet when there is a case the apology is taken as a mitigating factor in the compensation that may be awarded. That is giving the defendants two or three options. They have made the defamation, they make the apology, there is no liability, the case is heard and in a quantum of evaluation of the situation their apology is given credit against the liabilities. That is a three-way street. The victim is still there and these people have all the options. If the statement impugning the character of somebody, the defamation, is an utterance in a broadcast, is it covered in this situation?
I can understand what Deputy Rabbitte is trying to do, and that is to encourage the defendant to make an apology as soon as practicable after a complaint is made. However, we cannot be prescriptive. We are wrong in assuming the defendant is a media organ. It may be an individual who may, for his or her reasons, want this issue ventilated in court ultimately but does not want the apology to be seen as giving ground. Putting it as prescriptively as that proposed in the amendment, however it is worded, would tie the hands of a defendant. It is better to leave it as the case in subsection (4), that is, anybody who is alleged to have defamed can, at any time before an action, make an apology without admission, which will, to a certain extent, pull the rug from under the plaintiff's case. The defendant can use the fact that he or she has given this in evidence and that is set out in section 22.
That is my point. I will not press it but will consider what the Minister has said between now and Report Stage. I will not delay the committee. A defendant can pull the rug from under the plaintiff at the last minute. If the plaintiff is deserving of an apology, the only inference one can draw from that is that the plaintiff was somehow wronged. The plaintiff has been forced to go to court and initiate a defamation action and at the last minute the defendant can make an apology, which can be used in mitigation of the damages.
No, this apology would be made before, not during, the action. That would be part of a settlement.
Section 22(1) provides that an apology may be used as evidence after the action has been brought "where the action was commenced before there was the opportunity to so do".
The other point that has to be mentioned here is that a plaintiff or victim is under a general obligation to bring proceedings as quickly as possible if he or she feels he or she was so wronged. If there is a delay on the part of the plaintiff to bring proceedings, that would affect the judge or jury's view of the case or how they treat the defamation and decide whether the plaintiff's reputation was damaged. The provision says the apology should be given as soon as practicable after the action was commenced, or beforehand. The action should generally be commenced fairly quickly after the defamatory comment was published.
I will look at it again, but the Deputy is putting too much onus on a defendant to come forward with an apology when there may be particular circumstances where, from a tactical point of view he or she may not wish to make an apology.
Amendment, by leave, withdrawn.
Section 22 agreed to.
Section 23 agreed to.
SECTION 24.
Amendments Nos. 27 to 31, inclusive are related. Amendments Nos. 32 and 33 are related and alternative to amendment No. 31, therefore, amendments Nos. 27 to 33, inclusive, may be discussed together by agreement.
I move amendment No. 27:
In page 19, lines 1 to 11, to delete subsection (1) and substitute the following:
"24.—(1) It shall be a defence (to be known, and in this section referred to, as the "defence of fair and reasonable publication") to a defamation action for the defendant to prove that—
(a) the statement in respect of which the action was brought was published—
(i) in good faith, and
(ii) in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit,
(b) in all of the circumstances of the case, the manner and extent of publication of the statement did not exceed that which was reasonably sufficient, and
(c) in all of the circumstances of the case, it was fair and reasonable to publish the statement.”.
This amendment provides for a new subsection 24(1) to replace the current text. The purpose and nature of section 24, fair and reasonable publication on a matter of public interest, and its origins in the jurisprudence in our courts and the UK courts was extensively debated during Second Stage in the Dáil. In addition there was considerable examination of this new defence in the Seanad. The Government accepted a number of amendments there designed to improve the drafting in the text. We have continued to consider the provisions of section 24. Previously, subsection (4)(a) provided that the defendant be required to believe in the truth of the statement at the time of publication, although it subsequently transpired to be false.
It was brought to my attention that it could be argued that this could hinder the reportage of stories which contain a number of conflicting opinions and it appeared to conflict with the provisions of subsection (2)(i), which allowed for the extent to which the statement drew a distinction between suspicions, allegations and facts.
Having consulted further with the Office of the Attorney General, I came to the view that the provisions of subsection 24(4) could add an additional bar to the Reynolds test originally developed in the UK courts. Its effect would be to make the defence of reasonable publication more difficult to prove. Being mindful of the provisions of the European Convention on Human Rights I am of the opinion that we should delete the previous subsection 24(4). My amendment restates the existing 24(1) while relocating to it certain elements of subsection 24(4). We propose here to delete 24(4), and one element of 24(4) is now being taken care of in subsection 24(1).
This defence of fair and reasonable publication is at the heart of this Bill. It is a bit messy trying to follow the rewrite that the Minister has advanced. I do not believe the earlier part of the rewrite amounts to a great deal other than merely being a redrafting.
There are issues after that. Taking the rewrite 24(1)(b), which states: “in all of the circumstances of the case, the manner and extent of publication of the statement did not exceed that which was reasonably sufficient, and”, I wonder if that would narrow the defence of fair and reasonable publication, where the defendant must prove the statement was made in good faith. What is meant by “manner and extent of publication”? Does that relate to the presentational image?
If we are talking about a newspaper, we are getting more familiar with the style of the tabloid, which has a pretty dramatic way of catching one's attention through photographs and so on. There is even the phenomenon of some of the broadsheets on occasion imitating the tabloids. Is that a step back from what the Minister agreed earlier? With regard to the publication of the statement not exceeding "that which was reasonably sufficient", that is a very unusual term and I do not know off the top of my head what it means. Do paragraphs (b) and (c) constrain what was already there?
In 24(2)(g), the rewrite will state “in the case of a statement published in a periodical by a person who, at the time of publication, was not a member of the Press Council, the extent to which the publisher of the periodical adhered to standards equivalent to the standards specified in paragraph (f);”.” I recall being at the recent publication by the Minister of the annual report of the Press Council. I got the impression that the Minister agreed that it is desirable that the Press Council be encouraged and supported in the work it is doing.
Does paragraph (g) unintentionally undermine the Press Council in the status it now confers on publishers that are not in membership of the Press Council? It basically indicates that so long as they adhere to the standards or code of practice, it ought to be enough and membership of the Press Council is no longer an issue. Members of the Press Council would have a concern about where that would ultimately lead in terms of its objective, which I heard the Minister encourage, which is that as many publishers as possible in the jurisdiction become members of the council. Has the Minister given any thought to that or is there an unintended consequence in this amendment to the section?
As regards amendment No. 29, I am merely seeking to clarify that the response should be in the same publication rather than a later one. I cannot see why subsection (h) ought not be amended to make that explicit. Do I have other amendments in the group?
The Deputy has amendments Nos. 29 and 33 in the group.
Amendment No. 33 relates to the point I have already made. It states:
In page 20, subsection (4), between lines 12 and 13, to insert the following:
"(d) as far as practicable, he or she made a reasonable attempt to obtain in advance and publish a response from the person to whom the publication related and”.
It is merely to synchronise with the earlier amendment. This is an important section and we have chopped and changed it, taking out and putting in elements. The defence of fair and reasonable publication is what we are all about here.
It is a very important section.
Amendment No. 32 is to achieve clarity of language. Do I understand from the Minister that the subsection in question will be removed anyway?
Yes.
That is fine. I am concerned about the introduction of terminology such as "bad faith", "spite" and "ill will" into legislation where there is not adequate definition. There is no certainty as to what legal convention might regard as being spite, ill will or other improper motive. Such terminology is present earlier in the legislation as well. I am concerned about the attempt by the Department of Justice, Equality and Law Reform to introduce such conversational language or plain English into legislation, which may have consequences down the line which might not be anticipated.
It would hardly be described as plain English. I am taking this part of the legislation out. One could make equal claims about "good faith", which we are putting into legislation.
I have never seen "spite" in legislation before.
I would have thought they would be easy to prove.
I hope the Minister can stand over them. The Minister has withdrawn that piece of the legislation in any event so my arguments are redundant. I thank the Minister for doing so.
My comments are on the section rather than these amendments.
I wish to comment on the section also.
The Deputies can wait until I put the question on the section.
Amendment No. 31 is to delete subsection (4). I thought it reasonable to have this subsection included so what is the reason for removing it in total, whatever about words such as "spite"? I also wish to comment on the section later.
There are conflicting views between Deputies Ó Snodaigh and Flanagan as to whether we should leave in "ill will", "spite" and "bad faith" but we are proposing to delete the section. Arguments have been made and there have been long discussions with regard to subsection (4), particularly subsection (a), which states:
The defence of fair and reasonable publication shall fail unless, in relation to the publication of the statement in respect of which the action was brought, the defendant proves that—
(a) at the time of publication he or she believed the statement to be true,
If an investigative journalist was looking at some very important issue of public interest and there were a number of sides to the issue, forcing the journalist to believe in the truth of one or both sides would be to put a considerable onus on the journalist, who would just be endeavouring to bring forward facts.
In a context, particularly, in which there are two diametrically opposed views on an issue, what the Deputy is saying would imply that the journalist would have to believe in both of them. However, the journalist may simply wish to put something in the public domain. Having thought long and hard about it from a personal point of view, I have some sympathy with the view that if somebody wants to publish something of significant public interest and plead this defence he or she should have some element of belief in its truth, but I am swayed by the arguments that have been made and the legal advice I have received, which is that an investigative journalist, for example, who puts up two different scenarios should not be required to believe in both of them if he or she subsequently wishes to plead this defence.
What about subsection (4)(a)?
That is the main reason we took out subsection (4) in its entirety. I am inclined to agree with Deputy Flanagan that the content of subsection (4)(b) — I must point out that this Bill predated my position as Minister — is more appropriately dealt with in subsection (1)(a)(i), which states that the statement has to be “in good faith”. That is more positive language.
The Minister would be a stranger to the concepts in paragraph (b).
I would be, yes. Bad faith, spite, ill will, improper motive.
A complete stranger.
As the Deputy knows, I am as close to baby Jesus as one can get. The Deputy has often told me so.
I advise the Minister that is blasphemous.
Subsection (1)(b) states that the defence applies if “the manner and extent of publication of the statement did not exceed that which was reasonably sufficient”. The statement could be completely over the top, as some statements have been. Thus, it is only fair there should be an element of reasonableness about how it was put out in the first place.
Deputy Rabbitte mentioned that some organs of the media are in the Press Council of Ireland while others are not. We cannot force them to be in the Press Council. The only answer to the Deputy's argument would be to have a statutory press council and, in effect, legally force all organs of the media to be part of it. I am not even sure whether the Labour Party, in its wisdom, would like that.
Are we not encouraging publications not to become members of the Press Council if we afford them the same protection as we are affording those which are members of the council and are, I think, funding it? It is substantially or totally funded by the media industry.
It is funded by them, as far as I know. It is an independent body and I do not honestly know how it is funded.
Therefore, why should we confer the same protection on bodies which are not members, in circumstances where the Press Council has no right to investigate complaints against such publications?
We would be flying in the face of the constitutional right to freedom of association — or non-association, in this case — by conferring particular rights on what is in effect a self-appointed body.
The Minister is already doing that. For example, paragraph (g) in amendment No. 28, which refers to the Press Council, is new. If it was in the Bill previously, I cannot find it. It states: ”in the case of a statement published in a periodical by a person who, at the time of publication, was not a member of the Press Council, the extent to which the publisher of the periodical adhered to standards equivalent to the standards specified in paragraph (f);”; in other words, the code of practice of the Press Council. We are now including such publishers in the same protection.
To the same standards.
If they adhere to the Press Council code of practice, they get the same protection even though the Press Council does not have any authority in examining whether they are adhering to the code of practice in all respects, and certainly not to investigate them in respect of any complaint.
Again, it is up to the court to decide. The court is allowed to take into account any or all of the criteria mentioned. I understand the Deputy's point, but it would be wrong of us as a Legislature to confer an advantage on a defendant due to being a member of a self-appointed organisation. We would be flying in the face of fairness and freedom of association. Of course, if the association has standards and if the standards are of a certain level, the court should be able to take these into account. We are merely saying that if a person who is not in that association wishes to plead this defence, if they can show they have standards equivalent to those under paragraph (f), that may be considered, or not, as the court decides.
Why could we not take another approach? If we consider amendment No. 28, tabled by the Minister, why could we not take the view that we approve (f) but excise (g)? In such circumstances we would be conferring special protection on periodicals that are members of the Press Council but are silent on what happens to those periodicals that are not members. This would seem to act as an incentive for such periodicals to become members of the Press Council.
There was a long debate in the past about whether we ought to have a statutory press council, although the Minister's attention was probably taken up with other things. There are arguments for that.
I accept that.
If we could pause for one second, I need to go up to the Chamber. May I have the agreement of members for Deputy Connick to take over as Chairman? Agreed. I ask the Deputy to continue.
Deputy Seán Connick took the Chair.
If that is the Minister's view, why include paragraph (g) in amendment No. 28?
I will repeat my earlier point that I do not think we can, by prescribing something in legislation, force a body to be part of an association of which it does not wish to be part. The standards that are agreed by a group of organs of the media would act as the normal standards and could apply to everyone whether in or out of the organisation. I come to this Bill with some sympathy with the idea of a statutory press council, but I accept that we are where we are. There is a functioning Press Council and a Press Ombudsman, and they are making a good fist of it. We must deal with the position. They have set certain standards by their rules and regulations and, in effect, by the jurisprudence to date. It has worked well and we should endeavour but not force. This can happen even by being silent, by not giving the courts the direction in which we wish to go.
I thought we would require the measure. If anybody wishes to plead this defence it must be said it is a very difficult one. On the one hand, it is for people who allegedly may be defamed, while on the other it could be used by some media organs, not necessarily members of the Press Council, to drive a coach and four through some of the normal standards. We are trying to get a balance here and I suggest that to be silent is the worst of all worlds. My belief is that we should try to have a common standard. The ultimate goal is not to get people to join the Press Council but to have a level playing field in respect of the types of standards to which all the media organs adhere, irrespective of whether they are members of a self-appointed Press Council.
In fairness, it is the existence of the Press Council that is likely to encourage adherence to somewhat more objective good standards. I agree with the Minister that the Press Council seems to be doing a good job and we will test that in the years ahead. If a significant case emerges, or whatever, we will see whether the present independent status will be maintained and that there is no need for a statutory Press Council.
Therefore, we should do nothing to diminish the effectiveness of the Press Council that is in place. By wantonly inserting a clause that gives the same protection to publications not in membership of the Press Council the Minister is doing nothing to encourage these publications to become members of the Press Council. Arguably, he is encouraging publications which are in membership in difficult economic times to pull back from it. Why should they subscribe to the Press Council and keep it in existence if they can go into court and plead they are doing their best to adhere to the same standards? They would get the benefit of that even though they are not pulling their weight in the Press Council.
I do not see that the Minister is treating anybody less equally by being silent about this. If he is to enact paragraph (f), which refers to the code of standards of the Press Council and abiding by any determination by the Press Ombudsman, obviously that is very important, but it does not bring us further. What is the reason for paragraph (g) against the background we have been discussing?
The reason for paragraph (g) is to be fair to everyone. It is not a matter of whether somebody is a member of the Press Council. This defence applies not only to a media organ but also to an individual who might have nothing to do with the press but who may have an opportunity of publishing a defamatory statement. Let us say there is a defamation by a media organ that is a member of the Press Council. Standards have been set by the council and because the organ is a member there is an extent to which it adhered to its code. However, in the situation of an ordinary Joe Soap who publishes, who is not a member of the Press Council, if such a person wants to plead this defence he or she must have standards similar to those suggested by the code of standards laid down by the Press Council.
I do not want to hold up the committee but I am not persuaded by those arguments. If there are maverick publications of various kinds out there they should be urged or encouraged by public policy to adhere to standards and comply with general membership of the Press Council.
I take the Deputy's point. In the case of publishing material on the Internet, if the Deputy's line were followed, great numbers of people who would not have or want any association with a self-appointed Press Council would be forced to have it and their ability to claim this defence would be reduced. Concerning a person who publishes on the Internet, in effect one would be saying that the courts should not take into account whatever standards that person might have. One would be penalising that person for not being a member of a self-appointed Press Council.
The words used by the Minister in the amendment are "the publisher of the periodical". I would not have thought that by publishing material on the Internet one is the publisher of a periodical.
It could be the case.
The publisher of a periodical.
This legislation also applies to the Internet.
A cyber periodical.
Concerning the overall section, in his response the Minister talked about significant public interest. What is the definition of public interest and who decides it? Is there a definition in the Bill? Is it based on the volume of newspapers sold or the numbers of readers reading those newspapers? Is it based on the volume of hits that a website gets or Twitter, or whatever it may be. How is it decided?
Returning to Deputy Rabbitte's earlier point, tabloid journalism is very cute. It can publish an article and place it very cutely beside a very revealing or derogatory photograph linked to the article and its contents. First it brings the story to the notice of the public in a more magnified way and then, by way of the photograph, it gives the overall impression that the person referred to in the article is linked to the photograph even though de facto that is not the case as printed. This causes further damage to the character of that person.
One can consider further invasion of privacy. Take this week alone, I do not know if colleagues are aware there are media outlets in this country that have photographers running around taking photographs of politicians' homes. I do not know when we will see these in the papers, perhaps next weekend. That is an outrageous invasion of any citizen's privacy and security and is tantamount to visiting difficulties on the unfortunate citizen, regardless of whether that citizen is a politician. Surely there is some level by which this can be curtailed. There are other cases concerning unfortunate families, the finest people and most decent of families. None of us is perfect. If one member of the family gets into difficulty in one way or other——
I have to make an intervention at this stage. I can bring the Deputy back in after we put the amendment.
I am in the Acting Chairman's hands.
I must answer Deputy Treacy about who determines public interest. In effect, public interest is a relatively subjective notion. People in the media will say they will determine what is public interest. With regard to this defence the court will determine what is the public interest.
As public representatives in Oireachtas Éireann and as legislators——
We would have a view on what is the public interest too.
——we should be in a position to define it.
Deputy Treacy can be happy in the knowledge that any photographers in Punchestown today will have missed us politicians.
I am not sure that would warrant our photographs in the paper — "Hard at work yesterday, seen at Leinster House".
I appeal for co-operation.
Amendment agreed to.
I move amendment No. 28:
In page 19, subsection (2), lines 26 to 32, to delete paragraph (f) and substitute the following:
"(f) in the case of a statement published in a periodical by a person who, at the time of publication, was a member of the Press Council, the extent to which the person adhered to the code of standards of the Press Council and abided by determinations of the Press Ombudsman and determinations of the Press Council;
(g) in the case of a statement published in a periodical by a person who, at the time of publication, was not a member of the Press Council, the extent to which the publisher of the periodical adhered to standards equivalent to the standards specified in paragraph (f);”.
This is a drafting amendment the purpose of which is to improve the text for greater clarity. The proposed new subsection (2)(f) and (g) separate the two distinct provisions contained in the previous subsection (2)(f) regarding standards adhered to by the members of the Press Council and non-members of the Press Council. Thus for clarity, the proposed new subsection (2)(f) applies to members of the Press Council while the new subsection (2)(g) applies to non-members.
Amendment agreed to.
I move amendment No. 29:
In page 19, subsection (2)(h), line 39, after “obtain” to insert “in advance”.
As I said with regard to the previous amendments and on the debate we have just had, I reserve my position for Report Stage.
On amendments Nos. 29 and 33, I have considered again the portent of what Deputy Rabbitte is saying. In amendment No. 33 particularly he seeks to add an extra condition, in pleading the defence of fair and reasonable publication, that a reasonable effort has been made to obtain and publish the plaintiff's version of events in advance. I have sympathy with the thinking behind that proposal and I propose to bring forward a proposal on Report Stage. Deputy Rabbitte might re-table those amendments and we will try to bring forward some measure as close to that as possible, having spoken with the people in the Attorney General's office.
Amendment, by leave, withdrawn.
I move amendment No. 30:
In page 19, subsection (2), lines 41 and 42, to delete paragraph (i) and substitute the following:
"(i) the attempts made, and the means used, by the defendant to verify the assertions and allegations concerning the plaintiff in the statement.”.
Amendment agreed to.
I move amendment No. 31:
In page 20, lines 4 to 15, to delete subsection (4).
Amendment agreed to.
Amendments Nos. 32 and 33 not moved.
Question proposed: "That section 24, as amended, stand part of the Bill."
To conclude my point about the invasion of privacy, exposing the unfortunate members of a family of someone who gets into difficulty, and the exposure of that family to unnecessary outrageous publicity involving their homes, cars, locations, work and so on, is unfair. Just because an individual gets into some difficulty does not mean the family is culpable or that they should carry that unnecessary burden. I have seen a situation, about which I spoke previously, where parents who were old people were prisoners in their own home. Several times in my political life I have seen, as a result of spurious allegations, a media invasion in an effort to trap the unfortunate person, but it also trapped the family. We must do something about protecting people in those circumstances. "Public interest" should be defined. We are public representatives but it appears the media has decided that we, as individuals, and our families, are chattels of the public interest in the justification of what they do in terms of the public interest. That is outrageous, illegal, unnatural and unconstitutional, and we have a duty to deal with it.
One of the problems I have with section 24 is that, until recently, despite media claims to the contrary, this broad new defence we are discussing is not dependent on compliance with Press Council standards or equivalent standards because the section states that the court is to consider "... any or all of the following:". I will be looking to see if I can amend that to read "... including all of the following" because the court can consider all of them. It does not have to make its finding on all of them but it should consider all of them, which would ensure that each box is ticked, so to speak.
In terms of the defence of fair and reasonable publication, the defendant must only prove that at the time of publication he or she believes that the statement is true. That is wholly subject and it should be qualified. I will try to qualify it to the effect that in the eyes of a reasonable person it could be believed to be true, or some other qualification that would ensure a more reasonable approach to this aspect is taken.
Will the Minister give us an indication of what we can do about defining "public interest"?
I do not think we can define "public interest" but——
Is that not a serious statement.
The issue the Deputy refers to is pertinent to the Privacy Bill, which is on the Seanad Order Paper.
Will it come to this committee?
Ultimately. I indicated publicly that we need to progress that Bill, not necessarily in regard to the issue of media intrusion in privacy but, more particularly, in regard to the advancement of new technologies, including bebo, facebook, mobile phone technology, CCTV cameras and the infringement of people's privacy. As we found in the surveillance legislation, there is a fine balance to be struck between what should and should not be permitted in any democratic society. I am aware people have misconstrued my views on privacy and tried to make out that I am trying to muzzle the media in some way, but that is not the case, as can be seen from the way we have addressed this legislation. I suggest to the Deputy that is the route we should be going in regard to some of the issues he raised in his last contribution.
I ask that between now and Report Stage the Minister and his outstanding team examine the definition of "public interest" and come back with some proposal to the committee.
I would say we will but I cannot say that I will square that circle.
We will have a look at the circle and see if we can square it.
Question put and agreed to.
Section 25 agreed to.
SECTION 26.
I move amendment No. 34:
In page 21, subsection (1), line 14, after "the" to insert "District Court, Circuit Court or".
The amendment is self-evident. As there are no damages in a declaratory action there is no reason we should confine it to the High Court. I would argue that with the high level of legal costs it seems to be crazy not to give the lower courts jurisdiction. I do not know of a reason we should not do so, unless I am missing something.
On amendment No. 34 there is no omission in the text of section 26. With regard to the jurisdiction of courts, the District Court does not have jurisdiction in hearing actions of that nature. There is no benefit in providing that the new remedy of a declaratory order should be sought in the Circuit Court as it is very likely that any such decision there may be appealed to the High Court. In the circumstances that would not be a particularly desirable outcome as the clear intention is that such an order is most appropriately sought in the High Court.
I disagree with that on the basis that many libel actions are dealt with exclusively by the Circuit Court for precisely the reason Deputy Rabbitte put forward, namely, the question of costs and delay. The only criticism is that one puts a value on one's reputation by going to the Circuit Court. It is often less than prudent for a person to value his or her reputation at an amount of €30,000 but the amendment is well meant. I would have a difficulty with the District Court making declaratory orders but there is every reason for the Circuit Court to do so. I urge the Minister to consider it.
I will consider it between now and Report Stage.
I support my two colleagues on that issue. I agree the District Court is not the appropriate venue but the Circuit Court is, from a regional point of view. Provincial media have reasonably open access to the Circuit Court. If we refer everything to the High Court it will make access harder and more expensive and we should try to open it up.
Amendment, by leave, withdrawn.
I move amendment No. 35:
In page 21, subsection (6), line 39, to delete "applicant" and substitute "plaintiff".
This is a matter of consistency of language. It is no big deal. I told the previous clerk that I have a meeting at 6 p.m. for which I must read a file. I seek the indulgence of the Minister and the committee.
I can understand the Deputy's thinking on this amendment but the purpose of the use of ‘applicant' and ‘respondent' in section 26 as opposed to ‘plaintiff' and ‘defendant' is a policy decision to make clear that the proceedings in question in regard to a declaratory order fall short of an action of defamation in respect of which damages may be awarded. Section 26(8) provides that no order in relation to damages shall be made when the application for a declaratory order is made. Accordingly a decision has been made in consultation with the Parliamentary Counsel that the appropriate titles for the parties in this section are ‘applicant' and ‘respondent' rather than ‘plaintiff' and ‘defendant'.
Amendment, by leave, withdrawn.
Section 26 agreed to.
SECTION 27.
I move amendment No. 36:
In page 22, between lines 19 and 20, to insert the following subsection:
"(5) Where a payment to which this section applies is made, the court before which the defamation action is brought may make such order in relation to costs as it considers appropriate having regard to the manner in which the action has been defended by the defendant, and this subsection shall apply notwithstanding any provision in relation to the payment of costs in a defamation action contained in rules of court.".
Section 27 is a significant reform measure bringing defamation actions into line with other civil actions where damages are sought. The section abolishes the restriction on lodgments being made in defamation actions without admission of liability as contained in Order 22, Rule 1.3 of the rules of the superior courts. I am concerned, however, that this reform should not encourage the inappropriate conduct of a defence by a defendant that might, with judicious use of the lodgment procedure, result in adding insult to injury where an award of damages to the plaintiff did not exceed the lodgment amount.
Thus I propose to insert a new subsection 5 in this section the purpose of which is to amplify in primary legislation the saver provision in regard to the award of costs in Order 22, Rule 6 of the rules of the court. That rule provides that in a situation where damages awarded do not exceed the lodgment made by the defendant and thus normally in relation to a cost order the cost would follow that event and the plaintiff would be liable to the defendant's costs, that "the judge at the trial shall for special cause shown and mentioned in the order otherwise direct effectively". This means the judge can have regard to any special factors in deciding on a costs order. The rule in question refers to the conduct of the defence in this regard. Basically, it gives the judge discretion in respect of the costs vis-à-vis the lodgment.
In effect the Minister is giving statutory effect to——
To Rule 22.
In other words, he is advising the court that in certain circumstances it may not be bound by the convention that costs follow the award.
Yes.
Is there any other precedent for this?
It is in Rule 22 of the rules of the superior courts. We are putting it in as primary legislation merely to emphasise that there could be circumstances in which the defendant may use the lodgment judiciously or injudiciously, in such a way that he or she could perhaps repeat the defamation or be inclined to repeat it. The judge would have to take into account the conduct of the defence in the type of action.
Is there a specific reason that drew the Minister's attention to this practice or were representations made to him?
No. It was my view because the law in this area has opened up significantly that people must be conscious that there are avenues, particularly section 24, in which false statements could be made and people have a defence if they can prove (a) to (f). In that context it is only fair that people use a lodgment, which we are allowing, in such a way that their conduct in the trial is reasonable and fair.
I thought the Minister was breaking new ground here and that this might have far-reaching implications. Do members of the committee appreciate that the Minister is suggesting that the court be allowed to penalise the plaintiff where he does not beat the lodgment? If he is successful but does not beat the lodgment he might end up bearing the defendant's costs or part of them. There have been fairly dramatic decisions in this area. One can win one's case and be awarded a euro. There seems to be some arbitrariness about the awards and in circumstances where a lodgment is made and the plaintiff establishes his case but does not beat the lodgment he might pay for the defendant's costs.
This in effect re-states the existing law. We are not breaking any new ground but it emphasises in primary legislation what exists already in the rules of the superior courts, that a judge can take into account special factors. I considered the possibility that anyone pleading section 24 would not be able to make a lodgment because to an extent it is a double whammy. It assists somebody who has in effect made a false statement about somebody because he or she can put in a lodgment and claim the defence of fair and reasonable publication. The compromise was to amplify and give statutory recognition to the judge's ability to award costs. It would normally follow the cause of action but he can take in "shall for special cause shown and mentioned", and direct otherwise. He or she can take into account special factors.
I presume we are talking about a pre-hearing lodgment by the defendant against the case being brought by the plaintiff. I am a bit uncertain about the situation. I listened with interest to what the Minister and Deputy Rabbitte said. It would be serious if the plaintiff were to be the victim of bringing a case against someone.
Potentially, this is allowed already. Potentially, the judge could, despite the fact that they did not meet the lodgment, award costs otherwise than the norm because of the conduct of the defence either in the alleged defamation or during the court action.
Is the Minister saying the section is in ease of the plaintiff?
Yes, I would think so.
I am curious. I smell a rat but I do not see it. I do not have a copy of the superior court rules with me but perhaps I could have a copy later. I am concerned at a departure from ——
I shall read it out again. That rule provides that in a situation where damages awarded do not exceed the lodgment made by the defendant and thus normally in relation to the cost order, the cost would follow that event and the plaintiff would be liable for the defendant's costs that the judge at the trial shall for special cause shown and mentioned in the order, otherwise direct.
It is a special cause.
So, it is a special credit to the Minister's own profession. It might be very important for somebody in public life to clear his or her name. It might have an importance that is not immediately obvious to the man in the street and, for that reason, one's good name may be vindicated but one may get a very low award. It is quite a deterrent to me to initiate an action in those circumstances where I could end up being successful but if I do not beat the lodgment I could end up paying.
The whole portent of this legislation is to allow defendants to put in a lodgment. That is one of the prizes for certain interests, that they can now put in a lodgment. It had been my intention to exclude that ability in connection with section 24 but that did not prove possible. By allowing section 24 fair and reasonable publication and also a lodgment, to a certain extent, there was a possibility that a very devious defendant could make a false statement, say it was in the public interest and lodge at the same time, putting the plaintiff under extreme difficulty that potentially — maybe this is over-Machiavellian — when that action is finished, the particular media organ could go out the next day and repeat the defamation knowing that it could again potentially beat a subsequent lodgment. Given that section 24 is a big step in defamation law, I did not see why the availability of that section should be coupled with the ability to lodge. That proved impossible for a number of legal reasons and the compromise is to amplify it to a statutory footing in Rule 22.6 of the rules of the court.
Perhaps the Minister and his team will prepare a note for members of the committee, including some information on Rule 22.6?
We shall get Rule 22.6 for the Deputy.
Is there any anecdotal evidence in the courts that when one makes a lodgment that the court has taken a particular view that the lodgment has been made as distinct from when no lodgment is made? Is there any evidence to show that has a bearing on the outcome of cases? If so, I would not like that situation to prevail.
The normal situation is that if a person does not beat the lodgment date, he or she has to pay the costs. However, there is a saver in the rules of the superior courts in regard to the conduct of the defendant. Basically, we are raising that up from the rules of the superior court into the section in regard to defamation. It is the only place that I know of where it is in primary legislation.
I presume the conduct of a defendant would include his generosity or otherwise, corporate or personal, in making the lodgment.
No, it is conduct in regard to the issue which was subject to the adjudication.
To facilitate other members of the committee I propose that we adjourn consideration of this Bill at this point, sine die. We will resume on section 27? Is that agreed? Agreed.
Progress reported; Committee to sit again.