Defamation Bill 2006 - Second Stage Debate - 6th December 2006

Defamation Bill 2006 – Second Stage – 6th December 2006-12-07

Mr. Norris: I welcome the Minister to the House but I do not really welcome the Bill, although I will probably be a lone voice in the latter respect. As long as I have been a Member of this House, there has been pressure from newspaper proprietors and editors to make life easier for them. I can understand that because they are human beings and have their own interests, but it would be a great pity if we gave in to them. I know it is the Christmas season but this looks very much to me like turkeys queuing up to vote for Christmas.
I am not impressed either by the Bill or the proposal for a press council. The Minister has a reputation in the Lower House of being a rottweiler, and has been described as such. This is not the work of a rottweiler, however; it is much more like the work of a chihuahua. I know the intention is to rebalance towards newspapers so that they can do more investigative journalism. That is the pious aspiration that comes along with it. I am all in favour of investigative journalism and the exposure of hypocrisy and evil, but let us look across the water and see what has happened there since Rupert Murdoch acquired the Sun newspaper. It has been driven by profits and that is what we will get here.
The press council and press ombudsman will be toothless. The proposed press ombudsman does not deserve that title. The Minister knows well that the post will be quite unlike that of any other ombudsman. For example, it will lack all significant powers to compel, produce witnesses or impose financial penalties. In addition, the ombudsman will be appointed by this wonderful new press council, which is not independent. Is that not an irony?
The Minister may take a principled position with regard to whether or not a council of this kind should be independent and whether various groups should be self-regulating. He is entitled to do that and he is a man of intellectual honesty and consistency, but the newspapers are not like that. There is not a newspaper in this country that has not called for independent regulation of every other profession, except themselves. What is sauce for the goose is sauce for the gander, so I would like the newspaper editors to tell me what is so precious about their little profession. I am a fully paid up member of the National Union of Journalists, although I may not survive its next annual general meeting. As a journalist, I have seen both sides of the libel issue. I will put some of my experiences in this regard on the record in due course.
Under the terms of the Bill, we will have a press council established by the industry. There will be a figleaf comprising five industry representatives and six representing the public interest. The five will include a representative of newspaper owners and editors, while journalists will also be represented, in addition to six people representing the public interest. There will be a majority of one on the amorphous side but, as anybody familiar with juries will know, it is easy to sway the others if one has a block. Therefore, the situation is not as balanced as it seems to be.

We are told that publications which sign up to the code of practice will be

governed by it, but what about the ones who do not sign up? How useful is a

practice that governs only those who sign up to it? Murdoch-style

newspapers are filthy little rags and some of them are printed in this country.

They are not subject to the code of ethics of the National Union of Journalists because their proprietors make damned sure their journalists are not allowed to join the NUJ and their houses are non-union in the manner of Mr. Rupert Murdoch. How will we control the newspaper proprietors with weak and fluffy legislation?
The general secretary of the NUJ is a decent and honourable man who has done Members some service by producing a document which, while it puts the best possible face on the proposed press ombudsman and press council, is none the less weak. It states, for example, that when a significant inaccuracy, misleading statement or distorted report or picture has been published, it shall be corrected promptly with due promise. That is fine. It also states that while comment, conjecture, rumour and unconfirmed reports shall not be reported as if they were fact, newspapers and periodicals are entitled to advocate strongly their own views on topics. This is also fine. It continues: "In reporting news and information, newspapers and periodicals shall strive at all times for truth and accuracy". There is a great deal of this.
The Press Complaints Commission in Britain is useless. After it was established, The Sun newspaper deliberately and grossly libelled Elton John. It was fined £1 million but did not give a damn because its circulation increased. British newspapers do not give a damn because the Press Complaints Commission is toothless. They invade people's privacy, lay siege to their houses and name and shame them. Perhaps the Minister will remember an example of naming and shaming when a man who shared the same name with a convicted paedophile had his address published and was subsequently killed. This is the kind of extremely dangerous behaviour in which a certain type of newspaper engages.
In 1993, Sir David Calcutt in Britain stated:
The Press Complaints Commission is not .... an effective regulator of the press. It has not been set up in a way, and is not operating a code of conduct, which enables it to command not only press but also public confidence.... It is not the truly independent body that it should be.
This is the type of organisation we will get. The British body even has much stronger elements than the proposed body.
The code of conduct of the National Union of Journalists states:
A journalist has a duty to maintain the highest professional and ethical standards. A journalist must at all times defend the principle of the freedom of the press and other media in relation to the collection of information and the expression of comment and criticism. He-she shall strive to eliminate distortion, news suppression and censorship.
Distortion occurs throughout the press. Last week, Independent Newspapers, on foot of a serious political report from Europe, deliberately distorted and lied about the entire document. It was perfectly clear that rendition aeroplanes had regularly landed at Shannon Airport. The question was not whether they were full of torture victims, yet the headline in one of the Independent Newspapers titles was: "Torture planes did not land at Irish airports". How close is that to the truth?
Let us examine the way the company dealt with the Shell to Sea campaign. It falsified statistics from a commissioned report and personally vilified a Member of the Other House, Deputy Cowley, who was singled out and details of his income printed on the front page. It would have been remarkable had the Deputy been the highest earner in the health system but his earnings were ranked down the table. What relevance is this information? It was published to discredit the Deputy.
Does the Minister remember the way Eamon Dunphy was treated when he left the Irish Independent? One could not pick up a newspaper without reading details of the colour of his hair, how much hair he had and the kind of shoes he wore. Former President, Mary Robinson, appeared in every part of the Irish Independent, from the weather forecast to the social column and fashion reviews. In other words, powerful interests target people they do not like. This behaviour may not be coverable by the legislation but it is the ethos with which we are dealing. I am not saying that these newspapers are not good at times in other respects - the quality is very mixed - but the motivation involved in them is disgusting and contemptible. People are afraid to say this because they know they may well be the next target.
I remember when a colleague of the Government Members, an MEP, won a libel action against a newspaper, which then waited for 18 months before it got him.

Ms O'Meara: The electorate got him if I recall correctly.

Mr. Norris: The electorate is perfectly entitled to get him but one must consider the degree of malice sometimes shown by newspapers.
I am worried that the proposed press council will not be independent. A group that calls for independence for everybody else does not like independence for itself and is governed by weak guidelines. Let us operate a code similar to that applied by the British NUJ whose code of conduct states: "A journalist shall mention a person's age, race, sex, colour, creed, illegitimacy, disability, marital status, or sexual orientation only if this information is strictly relevant." I do not see such a stipulation in the Bill. Some newspapers continually refer to the sexual orientation of individuals.
I am not impressed by the proposed press council or press ombudsman, as they will not be fully independent. I accept, however, that the Minister has appointed good people to both bodies, starting with the former Provost of Trinity College Dublin, Tom Mitchell. Who knows who will be appointed chairman under the next Administration? To answer the Minister's question, Tom Mitchell could tell him that Trinity College has a fully independent regulator, the appeal to the visitor. I am always happy to supply information to address deficiencies in the Minister's knowledge. As I do not often get the opportunity, it is a particular pleasure for me to do so when the occasion arises.
The defence of reasonable publication worries me. Reference was made to a celebrated case in which a jury of the people awarded a significant amount of money. This is not what happened. The newspaper in question returned to the courts for a second cut and continued to defend all the lies being told. We are supposed to be in sackcloth and ashes because the jurors, in their wisdom, tripled the original award. I will not second guess the people.
Qualified privilege will be given a statutory basis in the Bill. An English court held that Albert Reynolds was libelled on this basis and he was awarded a farthing or shilling.

Mr. Dardis: It was a penny.

Mr. Norris: The figure was repeatedly adjusted. Everything was done to humiliate him, after which he was not awarded his costs. I would be very careful in this regard.
It is fair that one cannot libel the dead. We all use this when we tell stories. In one particular story I refer to the late Sir Laurence Olivier. The only reason I name him is that I know he is dead and cannot take a libel case. It is a funny story and as he has been dead for a long time, no one at a dinner party will be overly concerned. We should examine the possibility of introducing a limited period under which a dead person can be libelled. Libel is particularly painful for people in the immediate aftermath of death. Why not provide that the right not to be libelled will not be extinguished for a year after death in the interests of the family of the deceased? Liam Lawlor, who was not, God knows, a saint, comes to mind. He did not deserve the kind of lies which were told about him to the grief of his family. What about the case of a well-known murderer - I will not mention his name - whose son was photographed while cycling through Trinity College where he was studying for a degree? His name and association with the murderer were then published in a newspaper. Was that in the public interest? Will this type of practice be addressed in the legislation?
Let us look at the ethos of newspapers. They do not give a damn about the damage they do. I have consistently raised the point that every single newspaper, including the most reputable in the land, routinely publish the name, address, occupation and photograph of accused persons who may or may not be found guilty. If they are found innocent they have already been very severely punished but no editor has taken up this issue. That is the prevailing ethos in the press.
I am pleased to have an opportunity to address some of the provisions of the Bill in more detail. The Bill provides a curious protection of a judge. It states: "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 in respect of which the action was brought was .... made by a judge, or other person, performing a judicial function".

The Minister should remove this from the Bill. For what reason should a judge be allowed to defame a citizen in giving a judgment? I refer the Minister to Nell McCafferty's reports from the District Court and the outrageous and disgraceful things the judges got away with saying. Are judges to be allowed under this provision to humiliate with no substance distressed persons appearing in court before them and to be granted an immunity? Why should judges be granted an immunity?
I suggest the Minister consider carefully circumstances in which judges can take libel actions. I have been involved in such circumstances - although not personally - for saying that the licensing situation in Dublin had gone out of control and that every second-hand newsagent's shop was being licensed. I said I did not know who were the judges responsible and whatever kind of lunatics were handing out the licences. The station was sued because of my use of the word "lunatic", which is in common usage in England. Substantial sums of money were gained by that judge, not once, but twice. I am not sure that judges should be protected in this way.
I regard one section of the Bill as appalling and I want the Minister to remove it. I refer to section 18, the defence of honest opinion. Section 18(1) states:
It shall be a defence (to be known, and in this Act referred to, as the "defence of honest opinion") to a defamation action for the defendant to prove that, in the case of a statement consisting of an opinion, the opinion was honestly held.
It seems one can say whatever one likes about a person so long as one can say in court that one thought that was the case and that it was one's opinion. This is ridiculous.
Section 18(2)(a) states:
[A]t the time of the publication of the statement, the defendant believed in the truth of the opinion or, where the defendant is not the author of the opinion, believed that the author believed it to be true,
This is kowtowing to editors.
This Bill is a dreadful day's work. There are a few good points in it. I support a balanced approach and I support investigative journalism but I do not for one minute accept that people in public life should be subject to a lower standard of proof. They should be held to their views if they say one thing while passing laws and their private behaviour goes in another direction. I agree this should be exposed. However, to go after their children by photographing them and listening to their telephone conversations is abhorrent. There is nothing in this Bill that will prevent it because we have given up on privacy. This was supposed to be the balancing act. The newspaper editors would be given this free charter but the private citizens were to be protected by privacy laws and they have now been dropped because we have given in. That is the measure of the fear, not only of the ordinary citizen in this country, but even of the legislators. They are afraid to squeak.