Defamation Bill 2006 - Committee Stage Resumed - 6th March 2007

Defamation Bill 2006: Committee Stage
(Resumed).
SECTION 22.
Debate resumed on amendment No. 10:
In page 18, subsection (3)(a), line 15, after
“not” to insert “automatically”.
— (Senator Norris).
An Cathaoirleach: Amendments Nos. 10 and
11 may be discussed together by agreement. Does
anyone wish to speak on those amendments?
Mr. J.Walsh: Senator Norris felt strongly about
this amendment, which seeks to insert the word
“automatically”. He had some concerns in this
regard on which he might well want to elucidate
himself, rather than me doing it. Both amendments
are more or less connected.
Mr. Norris: With the indulgence of the House,
I would like to await the Minister of State’s reply
before commenting.
Minister of State at the Department of Justice,
Equality and Law Reform (Mr. Fahey): I
expected a long contribution from Senator
Norris.
Mr. Norris: The Minister of State should not
tempt providence because he might well get one,
even though my lungs are not what they were
last week.
Mr. Fahey: The reputations of Senator Jim
Walsh and Senator Norris precede them on this
issue. I propose to deal with amendments Nos. 10
and 11 together. The amendments proposed by
Senator Norris do not provide for any additional
clarification of the provision. I am advised by the
Parliamentary Counsel that the proposed wording
would not be normal in drafting legislation
and might have the effect of damaging the meaning.
Therefore, the amendments are being
opposed.
Mr. Norris: The intention of the amendment
was to allow for the proposed insertion of the
word “automatically” as a possibility after the
word “not” in subsection (3)(a) which, as drafted,
states: “does not constitute an express or implied
admission of liability by that defendant, and”.
That means that it cannot constitute an implied
admission. However, when one says that it “does
not automatically” do so, it would leave open the
possibility that in certain circumstances it could.
The point I was making on the last occasion —
and I did have some degree of moral support, at
least, from Senator Jim Walsh — was that the net
effect of the Bill is to skew the balance against the
individual in favour of the newspaper proprietors
who have very large vested interests in this area.
I cannot accept the notion that it is not normal
drafting. There was a wonderful example of normal
drafting the last day. God almighty and His
entire family could not understand section
18(3)(a) which was such a collection of nonsense
that the Minister agreed to have it redrafted. I
will not accept guff referring to normal drafting
because it does not exist.
All that is sought on both sides of the House is
drafting that is clear, simple and defends the
rights of citizens. Inserting the word “automatically”
provides an avenue of approach whereby
a plaintiff may be given a level playing field. I
remind the House that when this legislation goes
through, one will be able to tell any number of
lies about a citizen and follow them with an apology
that must automatically be taken in mitigation
of the effect, consequences and damages
that accrue subsequent to an action for libel. The
apology will be a valuable weapon in the hands
of the press and, if this is how the Minister of
State at the Department of Justice, Equality and
Law Reform, Deputy Fahey, wants it, then that
is fine but he is simultaneously removing that
weapon from the ordinary citizen. He is asking
the court to pretend the apology never took place
and I suggest that such apologies made by newspapers
are worthless and are only made to save
money. I accept that it would be improper to
restrict the freedom of the press excessively and
impede investigative journalism, but I also feel it
is wrong to hinder the individual plaintiff as this
legislation will.
I apologise for being briefly absent from the
House. I passed through the ante chamber, did
not hear a whisper of McDowell and thought I
should follow the Leader’s instructions.
An Cathaoirleach: The Senator should refer to
Minister McDowell.
Mr. Norris: I beg his pardon, the grand panjandrum
himself, Minister McDowell, TD and
Ta´ naiste.
An Cathaoirleach: There is a Minister of State
in the House.
Mr. Norris: He is a distinguished Minister of
State, a decent man, and I know him well but I
thought, since I could not see Minister McDowell,
I would do as the Leader says and read what Mr.
Fintan O’Toole said in his column in The Irish
Times on this subject and the subject of investigative
journalism.
An Cathaoirleach: I do not think we should discuss
what Mr. Fintan O’Toole said. We should
discuss what Senator Norris has to say.
Mr. Norris: I think any restriction on the discussion
of the opinions of Mr. Fintan O’Toole
would only be for the greater sanity and welfare
of the people. On that jocular note, I will listen
to the Minister of State if he has anything more
to say.
Dr. M. Hayes: As a director of Independent
Newspapers and writer, I have an interest to
declare in this matter, and I make such declarations
ritually. We have focused on this issue each
day we have discussed the Bill and I can only conclude
that the intention is not to make progress
on Committee Stage. I agree with the Minister
that the purpose of this section was to encourage
newspapers to offer apologies and, in doing so, to
satisfy those people who find them acceptable.
This would keep many cases from the courts that
would have otherwise have been there, and
people not satisfied with an apology could still go
to the courts.
I share many of Senator Norris’s views on the
inelegance of the drafting of Bills that come
before us but I think adding the word “automat779
Defamation Bill 2006: 6 March 2007. Committee Stage (Resumed) 780
[Dr. M. Hayes.]
ically” in this case would define it out of
existence.
Amendment, by leave, withdrawn.
Amendment No. 11 not moved.
Question proposed: “That section 22 stand part
of the Bill.”
Mr. J. Walsh: I did not receive a satisfactory
response to a point I raised on the previous
occasion the Bill was debated. Section 22(1)
states: “In a defamation action the defendant may
give evidence, in mitigation of damage, that he or
she made or offered an apology to the plaintiff...”.
Why is a distinction drawn between the words
“made” and “offered” in this context? The legislation
does not make provision for a press organ
to unilaterally publish an apology when it knows
it is wrong. Why should the words “or offered”
be included? The section contains a dichotomy.
The reason Senators are painstakingly examining
the sections is that we have strong reservations
about many of the Bill’s provisions. In
addition, the purpose of the House is to examine
legislation. The Minister has kindly agreed to
consider a number of points raised in the House.
Section 22(3) states that in a defamation action,
an apology made by or on behalf of a defendant
in respect of a statement to which the action
relates does not constitute an express or implied
admission of liability by that defendant and is not
relevant to the determination of liability in the
action. This means the plaintiff will not secure
advantage by giving evidence in court that he or
she has received an apology. The defendant, on
the other hand, may, “in mitigation of damage”,
give evidence that he or she has made or offered
an apology to the plaintiff. This is an unfair and
inequitable provision which must be addressed to
achieve balance.
As Senator Norris stated, if an apology can be
cited in support of a case, it should be open to
both the plaintiff and defendant to do so. It is
logical to provide that publications should not
fear that making an apology will result in a subsequent
legal case being conceded. However, if
the defendant can use an apology in mitigation
of damage, it should not follow that the plaintiff
should be deprived of an opportunity to raise the
apology in support of his or her case. If a publication
has done damage to a person’s reputation,
damages should flow.
Mr. Norris: I am impressed by Senator Walsh’s
contribution which was fair, measured and
reasonable. I also have a degree of sympathy with
Senator Maurice Hayes’s comments because I
understand that one does not want to have blood
in the water, in other words, the fact that an apology
is given means that people who might not
otherwise take an action sniff blood and decide
that, having received an apology, they can go for
the publication in question. It is a matter of striking
a balance. The problem, however, is that the
section lacks balance and favours one side.
While I understand the concerns of Senator
Maurice Hayes and, like everybody else, want
good investigative journalism, I do not want the
apology to be used as an excuse. I will retain my
amendments in order that I may resubmit them
on Report Stage. Will the Minister of Stage ask
officials to examine the section to ascertain if the
lack of balance, about which all Senators have
some reservations, can be addressed? In such circumstances,
I would not be vexatious in pushing
my amendments. It is not a matter of personal
vanity on my part to have my name on an amendment
which is accepted.
I accept that the Minister controls the Whip
and that the reality of political life is that
Members on this side will have to do as they are
told and will be dragooned through the lobbies.
There is clearly a belief on all sides of the House
that there is a lack of balance in this regard. It is
incumbent on the Minister to ask his officials to
consider whether it is possible to introduce an
extra degree of balance.
Question put and agreed to.
Section 23 agreed to.
SECTION 24.
An Cathaoirleach: Amendments Nos. 13 and
14 are technical alternatives to amendment No.
12. All three amendments may be taken together.
Is that agreed? Agreed.
Mr. Cummins: I move amendment No. 12:
In page 18, lines 26 to 36, to delete subsection
(1) and substitute the following:
“24.—(1) Subject to subsection (4), 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 the statement in
respect of which the action was brought was
published in good faith and in all the circumstances
of the case, it was fair and reasonable
to publish the statement.”.
I tabled this amendment on the basis of my belief
that newspapers may have too many hoops to
jump through in proving fair and reasonable publication.
An article published in good faith should
be viewed by the court as not being malicious,
and this should be sufficient to proceed with the
defence of reasonable publication.
I am tempted to withdraw this amendment,
however, in view of recent examples of untruthful
newspaper allegations made against certain persons,
On today’s Order of Business, Members
referred to articles published in recent days on
the death of a young man in Lucan. These reports
781 Defamation Bill 2006: 6 March 2007. Committee Stage (Resumed) 782
contained several untruths, including the claim
that he was known to the Garda. Given that we
have been discussing this Bill for some time, I had
expected apologies to appear prominently in the
newspapers that printed these lies. We saw on the
television a grieving mother forced to defend the
good name of her son. The newspapers in question
printed what can be only described as rubbish.
These allegations have hurt the victim’s
family, as they would any decent and right-thinking
person. This is only one example but it is typical
of the problem that exists.
Some weeks ago, I spoke on the Order of Business
about the media treatment endured by the
manager of the Irish soccer team in the wake of
the victory in San Marino. One newspaper article
the following Sunday suggested he should buy
petrol and pour it over himself. This is gutter
journalism and it must be stamped out. The
sooner we have a press council with teeth the
better. As I said, I had hoped today’s editions of
the relevant newspapers would include apologies
for the untruths they published about the gentleman
who died. This was a man who worked for
charity. It is harrowing for his mother and
extended family that such articles should be
published.
I am interested to hear what the Minister of
State has to say about my amendment but I propose
to withdraw it in light of these latest events.
Mr. Norris: I agree with much of what Senator
Cummins said. My understanding, although I may
be wrong, is that we are attempting to introduce
a new concept into Irish law. It is a concept that
is highlighted by the infamous Reynolds case in
which a former Taoiseach was libelled and pilloried
by a trashy rag owned by that despicable man,
Rupert Murdoch. It is astonishing that we should
introduce something like this trailing after these
types of judgments. A judgment in the United
States some years ago in the case of Sullivan v.
The New York Times was based on a first amendment
argument. The net impact of this has been
to introduce negative advertising whereby people
can say whatever they like about their opponents
in election campaigns and can pay people to lie
on public television and get away with it. Is that
what we want?
Mr. George Galloway can be an awkward customer
and sometimes plays to a low gallery,
something I am sure no Member would accuse
me of doing. On the other hand, he was well able
for the Senate of the United States when he went
there and blazedly told the truth. The truth is
something to which The Daily Telegraph is a complete
stranger. That paper repeatedly published
lies about Mr. Galloway and tried to rely on the
justification of fair comment. It lost its case,
however. Are these the standards we wish to
import into Irish law?
My amendment No. 14 proposes to delete paragraph
(a) of subsection (1). This provision is a
squalid piece of work. I ask Members, my fellow
turkeys, to note that subsection 2 (a) refers to the
“extent to which the statement concerned refers
to the performance by the person of his or her
public functions”. This provision purports to do
something I maintain is unconstitutional because
it creates two ranks of citizens. On the one hand,
there is the ordinary Joe Soap who has never
lifted a hand to serve his community or do anything
of a public nature. It seems such persons
are entitled to a higher degree of protection than
somebody who enters public office in an attempt
to do some good.
As politicians, we are saying here that there
should be a weaker test of truth in what newspapers
and other media sources write about us
than there is in regard to ordinary citizens. Why
is this the case? What is the caratage of truth?
Should it not be an absolute standard? Is a lie
somehow lesser if it relates to a Deputy, councillor,
Senator or Minister rather to an ordinary citizen?
I do not understand the logic of that.
I understand that newspapers must pursue
matters of public importance. Above all,
however, is the question of truth. My standard
can be summed up as “Print the truth or pay the
price”. In 1909 or thereabouts, a contemporary of
James Joyce, Arthur Cleary, observed that a
nation which takes an English paper for its Sunday
lunch will one day find a change in its Friday
menu. I should explain for younger people that
at that time, Roman Catholic people who were
citizens of this State were required not to eat fish.
What Mr. Cleary meant by this observation was
that if one allows one’s ethos to be overwhelmed
by the standards of the British tabloid press, one
will find one’s entire ethical context changed. I
do not say this in any racist way. I am proud of
the fact that my father is English. I am not anti-
English but I deplore and despise the standards
of the British press.
Under Article 40 of the Constitution, the State
guarantees to secure the good name of every citizen
and, by its actions, to vindicate that good
name. The Constitution does not provide that this
will be done for Mrs. Olivia Boylan in Sallynoggin
but not for Senator Maurice Cummins,
because he is a Senator, nor for the Minister for
Justice, Equality and Law Reform, Deputy
Michael McDowell, because he had the cheek to
put himself forward for election. We would want
to be very careful before we vote through a Bill
that states that if somebody is in public life there
is a weaker test of truth to be applied in what is
written about them, and I do not give a tuppenny
damn if I attract the further ire of Fintan O’Toole
for expressing this view in Seanad E´ ireann. Much
as I am interested in Mr. O’Toole’s commentary,
he always goes on about the freedom of the press.
I have every freedom to express these opinions in
defence of what I see as proper and decent standards
in this House. That is at least as much part
of the freedom of expression in a democracy as is
the freedom to print lies about politicians.
783 Defamation Bill 2006: 6 March 2007. Committee Stage (Resumed) 784
[Mr. Norris.]
I remind Members, if any of them are in the
slightest doubt, that politicians are routinely held
up to contempt and ridicule by commentators.
Only last night I was listening to Vincent Browne,
whom I usually enjoy, but I had to switch off the
programme because he was posing loaded questions,
barracking people, interrupting them and
groaning and sighing all over the place. It was the
most ridiculous performance. He did not give
people a chance to speak. He was holding them
up to ridicule because they were politicians, and
here we are again allowing a lesser standard of
truth and decency to be applied simply because
we are politicians.
We have been let down by some members of
this profession who appear to have sold themselves
out, especially over planning, for pathetic
amounts of money but I still hold that this is an
honourable profession where honourable and
decent people work hard in the interests of the
community. If there are rotten eggs we should go
after them, sort them out, find out the truth and
publish it fearlessly but we must not publish half
truths and lies. We must not encourage that kind
of low standard of journalism.
Dr. M. Hayes: Senator Norris is extending the
Sullivan judgment far beyond what anybody
expects of it. The basis of the Sullivan judgement
was that people engaged in the rough and tumble
of political debate and public life should be
regarded as having slightly thicker skins than
others but if there is a liable people can proceed
on that. Like Shylock, if we are pricked do we
not bleed?
Mr. Norris: Exactly.
Dr. M. Hayes: That should be respected. At the
same time, we are not putting journalists, writers
or others in a different position from the rest of
the public when giving a defence of good faith
because what is it but mens rea? It is the intent
to commit the crime or whatever. There must be
a good faith defence in that case as in this one.
We tend to concentrate on the press and on the
media but there are other forms of publication. I
was very concerned with a case involving a politician
in Northern Ireland, who is no longer alive,
which caused a history book by a reputable historian
to be pulled because of one reference in a
paper that had stood unchallenged for years.
There must be a provision which allows for a
defence in those cases.
Mr. Fahey: I propose to deal with amendments
Nos. 12 and 14 together. Amendment No. 13 is a
technical amendment. Senator Cummins’s
amendment No. 12 would radically alter the purpose
of the proposed new defence of fair and
reasonable publication. Section 24(1) provides for
the defendant in a defamation action to prove
that the statement in respect of which the action
is brought was published in good faith and was
published in the course of, or for the purpose of,
the discussion of a subject of public importance,
the discussion of which was for the public benefit.
These two qualifications are critical and are not
divisible. While it will be ultimately for the courts
to decide the exact nature and extent of this new
defence, it must retain the qualification that a
matter of public importance be the issue. For that
reason, the amendment is opposed.
Amendment No. 14 is somewhat related to
amendment No. 12 in that it seeks to divide the
essential qualification of the defence. The good
faith requirement is a necessary precondition on
the publisher of the statement and is indivisible
from the public importance requirement. I
oppose this amendment also.
An Leas-Chathaoirleach: Is the amendment
being pressed?
Mr. Cummins: No.
Amendment, by leave, withdrawn.
Government amendment No. 13:
In page 18, subsection (1), line 27, to delete
“as “the defence” and substitute “as the
“defence”.
Amendment agreed to.
Mr. Norris: I move amendment No. 14:
In page 18, subsection (1), line 31, to delete
paragraph (a).
An Leas-Chathaoirleach: Is the amendment
being pressed?
Mr. Norris: I will not press it now because I
want to return to it on Report Stage but it would
strike me as perfectly reasonable that in a matter
of public importance truth, and not partial truth,
is essential. The number of people, including
some of the Minister’s Cabinet colleagues, who
have privately told me I am right would horrify
the people sitting behind him.
Amendment, by leave, withdrawn.
Mr. Norris: I move amendment No. 15:
In page 19, subsection (2)(f)(i), lines 9 and
10, to delete all words from and including “or”
in line 9 down to and including “standards” in
line 10.
This amendment concerns the press council. The
press council is absurd. The Bill refers to the standards.
What are the standards? Where are they?
Are they adumbrated in the Bill? Will the Minister
of State tell the House what precisely are the
standards? What is the code? We are blithely saying
in legislation that there will be an excuse for
785 Defamation Bill 2006: 6 March 2007. Committee Stage (Resumed) 786
them to adhere to the code of standards of the
press council. The incoming head of the press
council is an old friend of mine and a former
Provost of Trinity College but it is his innocent
decency that has allowed him take up this position
because it is a farce.
Everybody knows the idea of a press council is
a complete farce, and I will explain the reason to
the Minister. A classic example of it is that we do
not have any code. The Minister is from a country
region, and I am not more than a hop out of the
bog myself, and I assure him that neither I nor
any of my ancestors would buy a pig in a poke.
This is a classic pig in a poke.
Who are the members of the press council? A
fair preponderance of them are appointed by the
people it is supposed to supervise. It is not, in any
recognisable sense of the word, independent. We
will be dealing later with the profession of architects
in the Building Control Bill where we are
insisting on an independent regulatory body to
validate architectural qualifications and so on. I
could reel off any quantity of cases in which there
have been editorials written, including by Senator
Maurice Hayes’s newspapers, demanding independent
regulation but apparently what is sauce
for the professional goose in every other case is
never to be ladled out as sauce for those in the
press, who are above such concepts as independence.
Just as we are required to dilute the meaning
of truth, we must dilute the meaning of independence.
I will refer to another little wonder. As I will
not be allowed to elaborate too much on it at the
appropriate place, I would prefer to talk about it
at the inappropriate place. Who is paying for this
bird? Did that ever strike anybody? I will tell the
House who is paying for it — the press. We have
a code that is not spelt out, which is the creature
of a group of people who are not independent
and are paid for by the people they are supposed
to be regulating. There is a phrase I encountered,
which delighted me when I moved across the
river: “Well I don’t know about you, but I didn’t
come down the Liffey in a bubble.” Well I did
not, and I can smell this a mile off and I do not
like it. I would very much appreciate if the Minister
of State would agree to delete it.
Mr. Fahey: Section 24(2)(f)(i) makes specific
reference to adhering to a code of standards
equivalent to those of the press council where the
publisher of the periodical is not a member of the
press council. This provision is very sensible as a
periodical may for whatever reason — it could be
valid from its perspective — decide not to be a
member of the press council. We should allow
such a periodical to access such a defence. We
cannot force periodicals to take up their entitlement
to be members of the press council. Thus
when seeking to invoke the new defence, the
existence of an equivalent code of standards
similar to that to be established by the council or
its absence will assist a court in its determination
of whether a published statement was fair and
reasonable on behalf of the non-member of the
press council. For that reason I oppose the
amendment.
An Leas-Chathaoirleach: Is the amendment
being pressed?
Mr. Norris: Not at this stage. I will await
developments.
Amendment, by leave, withdrawn.
Amendment No. 16 not moved.
An Leas-Chathaoirleach: Amendments Nos. 17
and 18 may be discussed together, by agreement.
Ms Tuffy: I move amendment No. 17:
In page 19, subsection (2)(g), line 16, after
“obtain” to insert “in advance”.
The first part of section 24 (2)(g) states that the
plaintiff’s version of events should be represented
in the publication concerned. If we also allow
“the extent to which a reasonable attempt was
made by the publisher to obtain and publish a
response from that person”, that attempt should
be made in advance of publication, which would
be in keeping with the rest of the section. It
makes sense from the viewpoint of having
balance and proportion.
Amendment No. 18 requires that “the extent
to which the prominence and extent of the representation
of that person’s response compares
with the prominence and extent of the suspicion,
allegation or fact concerned” should be taken
into account. It would be possible for a newspaper,
for example, to have the plaintiff’s version
of events in the same article that the person was
defamed but it might be in small print, while a
large heading might defame the person concerned.
It is not enough for a plaintiff to be permitted
to have his or her version of events in the
same publication. The prominence of that version
of events in the publication should be similar to
the article which is defamatory. At least it should
be considered.
Mr. Fahey: While amendments Nos. 17 and 18
would preserve section 24(2)(g), they seek to
alter its meaning by providing that the plaintiff’s
version of events must be obtained in advance
and so obtained the nature and extent of their
representation compared with the suspicion, allegation
or fact concerned. While I have sympathy
for and understanding of the thinking behind the
proposed amendments they seek to be too prescriptive
in imposing these conditions. If accepted
they would run the risk of making the new
defence unusable. There may be valid reasons the
plaintiff’s version cannot be obtained in advance
of publication. I would prefer to let this matter
be the subject of continuing jurisprudence by the
courts in determining cases that might come
787 Defamation Bill 2006: 6 March 2007. Committee Stage (Resumed) 788
[Mr. Fahey.]
before them. As to the nature and extent of the
representation of the plaintiff’s views compared
with the suspicion, allegation or fact concerned
presented by the defendant, I would prefer to let
the courts decide on the basis of the particular
case presented to them. Consequently, amendments
Nos. 17 and 18 are opposed.
Dr. M. Hayes: What Senator Tuffy is
requesting represents good journalistic practice.
Publishers should try to establish the contra case
before publication. Most conscientious journalists
would do so. I agree with what the Minister of
State has said. It should be left either to the
courts or to developing codes of practice.
Mr. J. Walsh: I agree with Senators Tuffy and
Maurice Hayes. I am somewhat taken aback with
the response. Section 24(2) states:
For the purposes of this section, the court
shall, in determining whether it was fair and
reasonable to publish the statement concerned,
take into account such matters as the court considers
relevant including any or all of the following
. . .
Amendment No. 17 would result in section
24(2)(g) stating:
(g) the extent to which the plaintiff’s version
of events was represented in the publication
concerned and, if not so represented,
the extent to which a reasonable attempt was
made by the publisher to obtain in advance
and publish a response from that person... .
If we leave the subsection as it is we would effectively
not place any obligation on a member of
the press and the court would not have any great
regard to it if no attempt were made to establish
from the individual who was defamed whether it
was correct. It would be ludicrous for us to allow
that to go through. It is a very sensible amendment.
If a vote were called I may be put in a position
of having to vote against my conscience. This
section indicates many of the deficiencies and
weaknesses in the Bill. The amendment represents
a simple request that should be acknowledged
and included. It takes nothing from rights
of the media. All it means is that the court will
take into account that the journalist or publication
made some attempt. It is not even necessary
to contact the individual. However, the
defendant should be able to give evidence showing
an attempt to make contact even if it were
not possible to contact the individual. That would
be very germane in a case where a defendant pleads
a defence that it was done in good faith, and
was fair and reasonable in the circumstances. I
will come to the point of fair and reasonable publication
in a moment because I agree with the
insertion of that provision. I strongly urge the
Minister of State to reconsider this aspect
between now and Report Stage. It is a very minor
and commonsense change.
Ms Tuffy: I thank Senators Jim Walsh and
Maurice Hayes. The more I look at it, what the
Minister of State has said does not make sense.
How can one take into consideration whether
something was fair and reasonable if, after publication,
one looked at whether the defendant
made an attempt to contact the person for a
response? That is after the event. If somebody
published something defamatory and he or she
knew, surely he or she would try to get a defence
for himself or herself by making the attempt this
section allows. I do not see the logic of it being
something that could be considered where, after
the event, somebody could make an attempt to
contact the plaintiff to get his or her response.
Dr. M. Hayes: The court would ask whether at
the time this was happening the person made the
effort before he or she published?
Ms Tuffy: Yes.
Mr. B. Hayes: I suggest we get a form of words
to cover that issue.
Ms Tuffy: Exactly.
Mr. Fahey: While I accept the thrust of the
Senators’ arguments, my difficulty with the
amendment is that it is simply too prescriptive
and we cannot be too prescriptive in legislation
of this nature. The matter is best left to the courts
to decide.
Mr. J. Walsh: I take the point the Minister of
State makes but I strongly urge him between now
and Report Stage to have another look at the
issue. It is not necessarily good enough to leave
an issue such as this to the courts. We are making
a significant change in the laws of defamation,
which I will comment on when we come to the
section. In doing that, there needs to be regard to
the ordinary citizen who may well find himself or
herself in a position where he or she is seriously
defamed and, because of the way we construct
the legislation, everything is stacked against him
or her.
If a serious journalist or publication were not
to made any effort to establish from the party
being defamed whether what was to be published
was true and giving that party such an opportunity,
that would be a serious breach of standard
ethics in journalism. I do not think we should prescribe
for that in law. It is wide open to the courts
to interpret it. Conversely, where a case was
pending and the publication had a letter from a
solicitor, it would not be good enough for the
publication to try to establish from the individual
whether it was right or wrong. At that stage one
would not give kudos to anybody for going to
them.
789 Defamation Bill 2006: 6 March 2007. Committee Stage (Resumed) 790
While one does not have to make contact, the
important issue is that an honest effort is made
to make contact in advance. That is the very least
I would expect where a serious defamation issue
arises. I urge the Minister of State to look at that
issue between now and Report Stage because we
are ad idem in the House. All the wisdom on this
issue does not reside just within the Department.
The views of the Houses of the Oireachtas should
be reflected in the Bill as well.
Mr. Cummins: I support Senator Tuffy and
Senator Jim Walsh. I appeal to the Minister of
State, as Senator Walsh has done, to look at the
matter between now and Report Stage. We are
all of the same opinion that the issue should be
looked at and a proper form of words agreed
rather than being dismissed at this stage. The
Minister of State should at least give a commitment
to look at the issue and come back with
another form of words on Report Stage. That is
the least we deserve given that all sides of the
House have the same opinion on this matter.
Ms Tuffy: I agree with the other Senators. It
would be acceptable if the Minister of State were
to say he would look at the matter between now
and Report Stage. Section 24(2) deals with
whether it was fair and reasonable to publish the
statement. Paragraphs (a) to (f) and (h) all deal
with the time of the statement or beforehand.
Paragraph (g) is the one paragraph that allows
for the possibility of something happening after
publication and, surely, that could not be correct.
If so, will the Minister of State clarify the reason
it is necessary to leave it broader?
Mr. Fahey: I am prepared to clarify further the
reason for this requirement. In doing so, I make
it clear I am not necessarily agreeing to any
change in the position I now hold. I am prepared
simply to seek further clarification on the basis
that all Members are in agreement that I should
do so.
Amendment, by leave, withdrawn.
Amendment No. 18 not moved.
Mr. Cummins: I move amendment No. 19:
In page 19, subsection (4)(b), line 36, to
delete “out of spite, ill will or”.
I consider that “bad faith or other improper
motive” is sufficient. I propose the deletion of
“out of spite, ill will or”.
Mr. Fahey: The proposed amendment would
weaken the conditions of the operation of the
new defence of fair and reasonable publication. I
see no reason the publisher of a periodical claiming
the defence should not be required to show
specifically that they did not act out of spite or ill
will. Therefore, the amendment is opposed.
Amendment, by leave, withdrawn.
Ms Tuffy: I move amendment No. 20:
In page 19, subsection (4), between lines 39
and 40, 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”.
This amendment is similar to an earlier amendment.
Obviously, it is part of the defence that an
attempt was made in advance to obtain and publish
a response from the person to whom the publication
related. If one used that defence, it would
logically follow that one should be able to prove
one made that attempt. For that reason the
amendment was tabled.
Mr. Fahey: Amendment No. 20 effectively follows
on from the proposed amendment No. 17 by
seeking to add an extra condition in pleading the
defence of fair and reasonable publication that a
reasonable effort had been made to obtain and
publish the plaintiff’s version of events. I have a
certain understanding of the thinking behind the
proposed amendment. However, I hold the view
that seeking to add this particular condition is
being too prescriptive and, if not met, should be
a reason for automatic failure of the defence. It
is of a different nature from the other conditions
in subsection (4). Therefore, I oppose the
amendment.
Amendment, by leave, withdrawn.
Question proposed: “That section 24, as
amended, stand part of the Bill.”
Mr. J. Walsh: It might well be argued that the
defence of fair and reasonable publication is a
concession to the media. I take a different view.
I think it is a concession to free expression and it
is one I fully support in the Bill. It is a significant
shift and modifies our defamation laws substantially,
but it is right that it should do that where
issues of public importance and matters of public
benefit can be placed as a defence to publication.
In going that route, we need to mindful when easing
the laws of defamation to maintain a balance.
Section 24(3) reads:
The failure or refusal of a plaintiff to respond
to attempts by or on behalf of the defendant, to
elicit the plaintiff’s version of events, shall not -
(a) constitute or imply consent to the publication
of the statement, or
(b) entitle the court to draw an inference
[that is fine] if, in the particular circumstances
of the case, the court considers that
the plaintiff was reasonable in withholding
any response or in believing that a denial or
refutation by the plaintiff of a defamatory
791 Defamation Bill 2006: 6 March 2007. Committee Stage (Resumed) 792
[Mr. J. Walsh.]
statement would itself be unfairly used or
published.
What we are doing is qualifying the denial of the
court’s right to draw an inference. I have serious
concerns in this regard. If a person is contacted
by a newspaper, reporter or radio or television
station, he or she should be entitled to say that
he or she is not prepared to make any comment.
The court should not be allowed to infer in such
circumstances. This is a very significant qualification.
I ask that this be looked at between now
and Report Stage. I am discussing sections
because, as I am on the Government side, I
cannot table amendments to the Bill. If I were in
a position to do so, the House can rest assured
that I would table many amendments.
Section 24(4) deals with the defence of fair and
reasonable publication. It 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,
(b) he or she did not act in bad faith or
out of spite, ill will or other improper motive.
I am not disagreeing with that but how is it to be
proven? It strikes me that other than making an
affidavit, it is impossible to prove this. It is a significant
part of the subsection. What answer or
clarification might we get in this regard?
Mr. Fahey: I repeat that we simply cannot
allow the legislation to be prescriptive to the
point where we are tying the hands of the court.
It would make the defence almost impossible and
it is for this reason we must leave these matters
to the discretion of the court. While, as I stated
previously, I might agree with the principles
behind the case being made, in the interests of
good legislation, we must put these proposals
through as proposed in the Bill.
Mr. J. Walsh: A very simple question arises
from section 24(3)(b) which states that the court
is not entitled to draw an inference but then
qualifies this by stating that the court would look
at whether the plaintiff was reasonable in withholding
a response. In what circumstances would
a plaintiff be unreasonable in withholding a comment
if he or she were contacted by a newspaper?
There should be no obligation on him or her to
comment. We should not build into our laws the
right of the court to have, in some way, discretion
in interpreting that. I see no consistency in this.
If someone has been charged with a criminal
offence, he or she has the right to silence. I know
there is some debate about changing that, which
I would advocate in respect of serious criminal
matters. In this instance, we are allowing the
court to draw an inference where somebody may
have decided that he or she does not wish to comment
on something put to them. I do not think it
right or proper to prescribe this in legislation.
Mr. Fahey: Section 24(3)(b) does not allow the
court to draw any inference from the plaintiff’s
reasonable decision not to respond to the newspaper.
In other words, one could refuse to comment
on whether one denies the story. Therefore,
no inference is being drawn in regard to section
24(3)(b).
Question put and agreed to.
Section 25 agreed to.
SECTION 26.
An Leas-Chathaoirleach: Amendments Nos. 21
and 30 are related and may be discussed together.
Is that agreed? Agreed.
Ms Tuffy: I move amendment No. 21:
In page 20, subsection (1), line 41, after “the”
to insert “District Court, Circuit Court or”.
We tabled this amendment because it allows for
a declaratory order. As there are no damages
with such an order, we believe there is no reason
to confine it to the High Court. In particular, in
light of the costs involved in going to the High
Court, it seems unreasonable not to give the
lower courts jurisdiction in this matter. It is a
general issue which we should examine. There are
other areas where one should be able to go to
the District or Circuit Court but where one is not
allowed to do so at present. This is an obvious
area. It would be a simple remedy for a person
who wanted to clear his or her name. He or she
could simply get an order to the effect that a
statement was false and defamatory of him or
her.
Mr. Fahey: The intention in section 26 is to
provide a clear indication to a potential applicant
that he or she might seek the new relief of a
declaratory order. Thus, the section provides that
such orders should be sought in the High Court.
This is not an issue of jurisdiction. There is no
benefit to providing that such orders should be
sought in the Circuit Court. The District Court
does not have jurisdiction in hearing actions for
defamation as it is very likely that any such
decision there would be appealed to the High
Court. This would not be a particularly desirable
outcome. Therefore, amendment No. 21 is
opposed.
Amendment No. 30 is unnecessary as it is clear
from the text of section 32, which concerns an
order prohibiting the publication of a defamatory
statement, that the Circuit Court has jurisdiction
to hear such an application if the action has been
brought there. Therefore, amendment No. 30 is
also opposed.
Ms Tuffy: To return to what the Minister of
State said——
An Leas-Chathaoirleach: On amendment No.
21.
Ms Tuffy: Yes. I understand what he is saying
and can see that allowing a District or Circuit
Court to decide the issue would be a new
development. On the other hand, why should we
not allow them to decide these issues? One has a
judge and a court. Why must so many things go
to the High Court for determination? It is very
off-putting for many people, especially those who
do not have the money to take a case in respect
of this or other issues to the High Court. If one
goes to the High Court, one can be represented
by a solicitor, although I am not sure if this is
true. The idea of being able to go to the District
or Circuit Court would be much more attractive
to a person of modest means for cost reasons
apart from anything else and possibly because the
case might be dealt with more quickly.
Mr. Fahey: As I have explained previously, it
would not matter. If one brought a case in the
Circuit Court and appealed the decision, it would
go automatically to the High Court.
Mr. Cummins: What would happen if one did
not appeal it? That is the point that is being
made.
Mr. Fahey: If one did not appeal the decision,
it is not a issue.
Mr. Cummins: What would happen if one
appealed the decision of that court?
Mr. Fahey: It is not an issue. It cannot be held
in the District Court so, if one appeals the
decision, it goes to the High Court.
Amendment, by leave, withdrawn.
Ms Tuffy: I move amendment No. 22:
In page 21, subsection (6), line 19, to delete
“applicant” and substitute “plaintiff”.
This is a technical amendment that aims purely
for consistency in language. The word “plaintiff”
is used in previous sections and we suggest that
the “applicant” should refer to the “plaintiff”.
Mr. Fahey: The text of section 26, which provides
for the new remedy of a declaratory order,
provides throughout for mention of applicant and
respondent. This is the correct approach, as no
defamation action has been lodged and thus we
cannot speak of plaintiff and defendant.
An Leas-Chathaoirleach: Is amendment No. 22
being pressed?
Ms Tuffy: It is being withdrawn but I ask the
Minister to reconsider the matter.
Amendment, by leave, withdrawn.
Question proposed: “That section 26 stand part
of the Bill.”
Mr. J. Walsh: I understand some people will
just want to clear their names and therefore will
seek a declaratory order in order not to become
involved in the high cost of prosecuting a case. It
is my understanding that if a declaratory order is
made, no compensation would follow. I am concerned
that if there is no financial penalty, there
is no incentive for journalists to be responsible. I
accept it is up to individuals, but it comes back to
the balance of resources between the defendant
and the plaintiff. In general, defendants will be
corporations of significant means. If an independent
press council found in favour of a plaintiff,
there should be some mechanisms to allow compensation
to be paid. In the public mind, the issuing
of such an order would indicate defamation
had taken place and one side was in the wrong. I
appreciate the Minister of State may not be able
to do much in this regard because declaratory
orders were devised as a short-cut in the system.
Mr. Norris: There is something lopsided about
this approach. If one opts to seek a declaratory
order, one is not entitled to any other kind of
compensation. I do not think that is fair. If one
gets an order that indicates one has been injured,
why should one not have a redress? There is
nothing in the Bill to suggest declaratory orders
are awarded in cases that are not of sufficient
seriousness; they cover everything. One could
make the most tremendously inaccurate and
dreadful statement about somebody and by seeking
a declaratory order, he or she would be cut off
from all other avenues of redress. This approach
appears to be skewed in favour of newspaper proprietors.
That is not fair.
Mr. Fahey: Essentially, if the plaintiff wants a
quick fix, as it were, he or she will seek a declaratory
order. That is his or her choice. If he or she
wants to prove defamation, he or she will choose
another approach. Section 26 provides for this
more expeditious remedy to the applicant where
an allegedly defamatory statement has been published
and the court is satisfied it is so, and that
the respondent has no defence to the application.
Mr. Norris: That is absolute nonsense. With the
greatest respect, I do not imagine the Minister of
State believes for a minute what he is saying. He
could not possibly do so, certainly not as a politician.
In effect, he is saying that if somebody puts
into print or into the airwaves something that is
criminally wrong and damaging about another
person and if, in order to protect one’s reputation,
one seeks to have that statement cor795
Defamation Bill 2006: 6 March 2007. Committee Stage (Resumed) 796
[Mr. Norris.]
rected, one is cut off from all other remedy.
Come on, from where did this idea come — Mr.
O’Reilly?
Mr. Fahey: The proposal was first contained in
a report of the Law Reform Commission in 1991.
It was further recommended by the legal advisory
group on defamation in 2003.
Mr. Norris: I thank the Minister of State for
that clarification. However, I still think it is daft.
Mr. J. Walsh: I listened with interest to the
Minister’s response. While I am not a legal
expert, I understand the system and why people
would seek a declaratory order. In the case of a
person who is seriously defamed, he or she may
well decide to seek a declaratory order. It is easy
to say it is his or her choice and that he or she
can continue the case but one has to take account
of an individual whose financial resources may be
limited. When one goes to court it is a lottery.
Even if one has been advised one has a strong
case, no doubt the other side will have been
advised in a similar way. Ultimately, the advisers
will be the winners in the case.
It is not always possible or prudent for people
to pursue their rights. In this proposed legislation,
no account has been taken of the ordinary citizen
with limited resources who feels strongly he or
she has been defamed, whose reputation is in tatters
and who wishes to have his or her good name
restored. A series of obstacles are in the way of
a person achieving this end. I am in favour of an
independent press council. We will come to this
issue in due course. I do not think it is beyond
the wit of anybody to draft legislation to the
effect that if a declaratory order were issued, it
would be possible for an independent body to
award limited compensation up to \50,000 or
some such sum to a person who had been
awarded a declaratory order.
I recently heard of a case, perhaps not a very
good one, which was settled on the basis of the
newspaper in question taking a proportion of the
plaintiff’s costs. The defendant stated he had
been vindicated but the plaintiff made the point
very clearly that no compensation was paid, only
the costs, and the person who took the case was
a man of straw. If we are to settle cases on that
basis, it does nothing for the restoration of a person’s
reputation where he or she has been genuinely
defamed. The same will happen if this Bill
is enacted. In serious cases a person will have,
and should have under the law, the right to be
vindicated. We need to examine this issue
carefully.
It is easy for us to discuss the matter, it is an
entirely different matter for the person who finds
himself or herself in the Four Courts where we
have allowed exorbitant fees to be charged and
where people can risk everything they own, and
a lot more, by going to court. We need to be
mindful of this when we draft legislation. We
should seriously examine putting balance into
some sections of the Bill and we could do this in
section 26. It would be a simple matter to have
an independent body that could prescribe compensation
to a limited degree. Obviously, people
should also have the right to go to court. This
would be also a media-friendly approach because,
in most cases, people want to be vindicated.
People want their reputations restored and would
settle for small amounts of compensation. Often
in the public mind, the level of compensation
determines the correction of the defamation. We
need to re-examine aspects of the Bill.
Mr. Norris: I support what Senator Jim Walsh
said. I welcome the Minister of State’s enthusiasm
for the Law Reform Commission. I hope that
enthusiasm will be sustained throughout the rest
of this debate, which cannot go on for very long.
I will be suggesting some other things that were
recommended vigorously by the Law Reform
Commission should be taken on board.
The points made by Senator Jim Walsh are
valid. I have a good deal of sympathy for individual
journalists who are brought to court because
it is a very heavy burden on a professional person.
The late Michael O’Toole was a great friend of
mine, a wonderful journalist, a good friend of
Ireland and of literature and all the rest of it. He
wrote the “Irishman’s Diary” column in the
Evening Press. He was a terrific man. Something
quite innocent he wrote was taken up and he was
crushed by it for quite a long time. It was a horrendous
experience. I am not unaware of that
aspect of the matter.
However, if one gets a declaratory order, it is
because one is aware that the longer a matter is
allowed to remain out there, the more it accrues
and acquires substance in the public imagination.
A declaratory order should be an instrument to
prevent that happening but it should not completely
cut off other redress. Why should it? I do
not refer to personal redress against a journalist,
I refer to the press barons. One should bear in
mind that my principal target in this is not particularly
the Irish newspapers, it is bringing the horrible
stable of English publications under the
jurisdiction of our standards. It is unfair that one
is not allowed further redress because one nips a
matter in the bud.
I remind the House of a case of a man in
Waterford. He had a ramshackle hotel and came
across as a decent man but perhaps a little
eccentric.
Mr. Cummins: I know him well.
Mr. Norris: He received \100,000 and did not
think it was enough. If he had been granted a
declaratory order he would not have been
granted anything. The entire country is laughing
at him and he has been exposed to ridicule. It
does not matter to people whether he is running
797 Defamation Bill 2006: 6 March 2007. Committee Stage (Resumed) 798
a brothel. I have no idea if \100,000 was too
much, too little or exactly right.
Mr. Cummins: He was awarded \50,000.
Mr. Norris: In that case I will send him a few
bob in the post. If he nipped this in the bud as
provided for in this Bill he would receive nothing.
He has been damaged and exposed to ridicule. I
read the article, accompanied by a photograph,
and laughed like a drain. It cheered up my morning
but I do not see why he should not have some
recourse. That may have been innocent nonsense
but I am using the story as an instance. I hope it
is an accurate one, perhaps it is not.
I approach this Bill as an ordinary person, not
a lawyer. An ordinary person might well ask why
one is cut off from further recourse if one stops
something that may gather momentum.
Mr. Fahey: The court will decide on the application.
If a person seeks a declaratory order the
person must understand that damages cannot be
awarded.
Mr. Norris: Why? Is that not for the Oireachtas
to decide?
Mr. Fahey: If one seeks damages one should
apply for a standard defamation order. It is up to
the courts to grant a declaratory order and the
courts must decide that the defendant has no
defence. The defendant may be able to offer a
defence. The issue of compensation is a separate
matter.
An Leas-Chathaoirleach: Is section 26 agreed?
We have given the section a good airing.
Mr. J. Walsh: We are entitled to debate it. This
is an important matter that goes to the kernel of
the debate. Section 26(2) states:
Upon an application under this section, the
court shall make a declaratory order if it is
satisfied that—
(a) the statement is defamatory of the
applicant and the respondent has no defence
to the application,
(b) the applicant requested the respondent
to make an apology, correction or retraction
in relation to that statement, and
(c) the respondent failed or refused to
accede to that request.
The court must establish these conditions before
it can proceed with the declaratory order. As
night follows day there should be a system or
another forum where there is a limit to compensation.
I understand the thrust of the comments
of the Minister of State about the declaratory
order. I have not heard any argument that drafting
legislation to provide for such a forum is
beyond our remit and our wit.
Mr. Norris: Senator Walsh is correct. Here is a
situation where lies have been published and the
publication can get away with refusing to withdraw
them or apologise. There is much rubbish
spoken here about free fees, which is an oxymoron.
This Bill establishes free lies and that is
not right.
Mr. Fahey: I have no further comment.
Question put and agreed to.
SECTION 27.
Question proposed: “That section 27 stand part
of the Bill.”
Mr. Norris: Does this section refer to the
situation where the defendant lodges money in
court, the plaintiff refuses to accept it, a lower
award is made and the plaintiff is penalised for
not accepting the earlier offer?
Mr. Fahey: In short, yes.
Mr. Norris: I do not like that and I give notice
that I might table an amendment on Report
Stage. Would that be in order?
Acting Chairman (Mr. Brady): That is
appropriate.
Mr. J. Walsh: I have debated this section with
the Minister and his officials. It is badly in need
of modification. When someone is defamed, the
defendant may agree to offer a degree of compensation
without an apology or acknowledging
the defamation. The person may decide to pursue
the case because reputation is more important
than compensation. Subsequently, the court may
find that the plaintiff was seriously defamed but
damages come to less than what was offered. Suppose
damages of \25,000 were awarded but the
publisher had offered \30,000. The plaintiff may
be lumbered with \500,000 in legal costs.
Mr. Norris: The plaintiff would lose costs.
Mr. J. Walsh: The plaintiff may have to pay
the costs of the defendant. It represents a major
gamble and is grossly unfair. Does the Department
not see the inequity in this? The plaintiff
may be a law-abiding citizen in court for the first
time and would inquire of the legal team when
an offer is made. The plaintiff is likely to follow
the advice of the legal team. As a consequence,
the plaintiff may lose everything and be left
homeless. There is no consideration for the small
man. We are in dereliction of our duties if the
Bill passes as it stands. This is the most galling
provision in the Bill. It does not even require, as
an earlier section does, I believe it is section 20,
that it must be accompanied by an apology. That
is the very least that is required. The primary
interest of most people who take a defamation
799 Defamation Bill 2006: 6 March 2007. Committee Stage (Resumed) 800
[Mr. J. Walsh.]
action is restoring their reputation. We are
crafting the Bill to provide that where somebody
is defamed and takes a case, and where a certain
amount of compensation is offered without an
apology or retraction, the person could find himself
or herself losing everything.
I cannot understand how a Government could
impose that on an unsuspecting public. Of all the
provisions in the Bill, this is the one to which I
have the greatest objection. It disadvantages the
individual when taking a case. In fact, the individual
could find himself or herself on the horns of
a dilemma simply because an offer is made. The
least that should be done by amendment of that
section is to provide that an offer without an
apology, correction and retraction is not, in fact,
an offer.
Mr. Cummins: I agree with Senator Jim Walsh.
This section is grossly unfair. In this Bill we are
trying to get the balance right but the balance is
tilted in one direction in this section. The Minister
must re-examine it and either delete it or
provide a better version. There is no balance in
the section.
Dr. M. Hayes: I have a degree of sympathy
with the position that a lodgement should either
imply or include an expression of apology or of
amends. That would be essential. However, let us
remove this from the realm of libel and consider
it in the context of another case where people
are making claims against each other for injury,
accident or the like. The court decides at what
point one party has acted reasonably and the
other party has begun to act unreasonably.
People, along with their legal advisers, must make
the judgment as to whether they should risk pursuing
the case the rest of the way. It is unreasonable
to say to one party in a case that its costs
will be covered, regardless of how unreasonable
it is and even though the court has said it is
unreasonable, or where the other party has acted
reasonably at that point and the first party has
accepted it. We need to find a middle way. One
cannot give an assurance to one party in a case,
whether it is libel or any other type of case, that
its costs will be always met.
Mr. Norris: Surely one can if the party is right.
The other side is already saving because it is getting
a small reward. I doubt that the plain people
of Ireland have the slightest idea of what is being
imposed on them in this Bill. They would be very
concerned if they did. There are, by and large,
reasonably decent standards in Irish newspapers.
However, as Senator Hayes is aware, this is not
true of many English newspapers and, financially,
they have deep pockets.
I acknowledge the presence in the Visitors Gallery
of senior people from the National Union of
Journalists. I honour them; they are people of the
highest standard. We are lucky to have them, and
I am not simply craw thumping in saying that.
However, we are well aware of the record of
Rupert Murdoch’s newspapers. They find it profitable
to lie about people and they will pay any
amount of money for it. They will crush ordinary
people if they can. In a situation where injustice
has been done, why should the individual not
have his or her fees covered, if they would have
been covered had he or she accepted a smaller
amount?
It is a guessing game, like guessing the weight
of the pig at the funfair. These matters are far
too serious for the individual to be treated in this
manner. I will put down an amendment to delete
this section. I sincerely hope, not in a meanminded
sense, that it will spark a revolt on the
Government side. It does not bother me when
there is an election because it is due in a short
while anyway. If Fianna Fa´ il and the Progressive
Democrats split on this, they could not do so on
a better issue. It is an issue of principle.
The ordinary person is not being treated well
by this Bill. The big newspaper proprietors,
particularly people such as Mr. Murdoch, have
plenty of money. They also have plenty of shrewd
advice and know how these matters can go. They
can take a gamble by offering a carefully estimated
amount of money and they stand a sporting
chance of up-ending the person they have
already libelled. They can then achieve a double
whammy against that person.
We have talked about inhibiting investigative
journalism in the past. What about inhibiting
people from restoring their good names?
Between now and Report Stage I will compile a
catalogue of the things going through in this Bill
and I will read it into the record as a Bill of
shame. It will be a list of things the elected
Members of the Oireachtas are permitting
entrenched interests to do with impunity against
the ordinary citizen. It will be a dreadful day’s
work if this is passed unamended.
Dr. M. Hayes: I remind Senator Norris of the
case of Sir William Wilde and Kit Travers.
Mr. Norris: Is that the one out in Bray?
Dr. M. Hayes: Sir William Wilde complained,
rather ruefully, that he had been charged £5,000
for the pleasure of seducing a young lady whose
virtue was valued at a farthing. There is no justification
for treating libel actions differently from
other actions, where a lodgement in court is
accepted. It is up to the court to decide what is
the reasonable price to put on the hurt and what
redress is required. The practice of lodgement in
court is well tested. It should not be different in
a libel action from any other action.
Mr. Fahey: That is the point. Section 27 brings
defamation proceedings into line with other
actions for damages by allowing the defendant to
lodge in court, with the defence, a sum of money
801 Defamation Bill 2006: 6 March 2007. Committee Stage (Resumed) 802
in satisfaction of the plaintiff’s claim. This lodgement
may be made without admission to liability.
Section 3 is intended to facilitate a plaintiff who
may wish to ensure that some measure of public
recognition attaches to the fact that the defendant
was willing to settle the case before the trial or
action was concluded.
The legal advisory group on defamation was
strongly of the view that it was entirely appropriate
that defendants in defamation proceedings
should be able, along with their defence, to lodge
a sum of money in court in satisfaction of the
plaintiff’s claim regardless of whether liability is
admitted or denied. Some plaintiffs will be content
simply to take up the lodgement. However,
the group also acknowledged, particularly where
the defence of truth was pleaded, that other
plaintiffs may wish for some additional element
which will help them to vindicate in a more public
way the choice which they have made. The group
recommended that the new defamation legislation
should permit plaintiffs to inform the court
formally of the fact that they have accepted the
lodgement and of the consequences for them of
the resolution of the defamation proceedings.
This could provide the vindication element which
might otherwise be missing. This does not,
however, require the defendant to also give an
apology.
The reform of the lodgement in court procedure
in regard to defamation has the potential
to make a significant impact on the law of defamation
in that it is likely to encourage the early
settlement of actions and help reduce legal costs.
Mr. Norris: What are they paying for if they
have not done anything for which they need to
apologise? If that is the case, will they give me a
few bob? They are prepared to hand out money
apparently for no reason at all but they do not
have to apologise or say they were wrong and
admit liability. This is something fishy. People
like Conrad Black, Sir Anthony O’Reilly and
Rupert Murdoch do not hand out money for
nothing. I want to know why they are giving out
money with no admission that they were wrong.
They will claim they settled out of court to shut
the plaintiff up.
Mr. Fahey: The plaintiff has a choice of going
either route. If the plaintiff chooses this route, it
is a matter for him or her.
Mr. Norris: Find the lady; hunt the thimble.
Mr. J. Walsh: I believe the plaintiff has a strong
choice where an offer is made. I note the Minister
of State concurs with the point raised by Senator
Maurice Hayes. I cannot see any comparison
between a case for defamation and another civil
case involving a settlement. A defamation case
primarily requires an apology, retraction and the
restoration of a person’s reputation. I cannot
think of any other civil case where the offer of
compensation would not be a satisfactory outcome
to a case. It is not a satisfactory outcome
in this.
Dr. M. Hayes: There is an enormous difference
between hurt feelings and paraplegia.
Mr. J. Walsh: I accept that. However, if an individual,
who is seriously injured, goes to court, it
will assess compensation and damages. All that is
at issue is the amount. This provision means a
person will receive money but no one will know
there was a retraction of a libel if the newspapers
do not publish it. We are setting a charter where
only the ultra-rich will be able to vindicate their
names. As a republican, this is anathema to me.
Mr. Norris: Hear, hear.
Mr. J. Walsh: Senator Maurice Hayes claims if
we do allow this provision, a person can proceed
with a case, no matter the costs. The person ultimately
will be faced with costs if they lose their
case.
Section 27(4) states, “The defendant shall not
be required to admit liability in an action for
damages for defamation when making a payment
to which this section applies.” This should be
amended to “the defendant shall be required to
admit liability”. If we fail to do this, a person’s
reputation only applies in selected cases. It is
inserting an element of gamble in the legislation
which should not be allowed in cases where a person
has been defamed. It is the most offensive
section in the Bill. It will make it impossible for
people to get satisfaction from a court case unless
they have significant financial resources to follow
the case. A simple amendment will not take from
the rights of the media.
It was suggested the press would not be happy
with a change to this provision. If we are prescribing
legislation just to keep the press happy, we
are taking the wrong route.
Mr. Norris: The Senator got it in one.
Mr. J. Walsh: There is a need to reform our
outdated defamation and libel laws. I agree with
fair and reasonable defence. It must be balanced.
There is little attempt, however, to balance the
rights of the ordinary person whose reputation
can be seriously damaged to get proper justice.
Everything is stacked against them.
Mr. Norris: We have heard very little about the
Privacy Bill for some time.
Mr. Fahey: There is a misunderstanding on the
part of Senator Jim Walsh. He is seeking a
requirement that the defendant admits liability.
He cannot be required to admit liability where
there is only an allegation which has not been
proven. It is for that reason that the requirement
of an apology is not part of this section.
Mr. J. Walsh: Like Senator Norris, I am not a
legal professional. It is often to my disappointment
as it would have been a far more lucrative
profession to have pursued. Settlements of this
nature rarely come out of the blue. They usually
follow some consultation and negotiations
between the legal parties on both sides. If a person
takes a case, the primary objective is the restoration
of his or her reputation. I cannot see any
circumstances why the media, the defendant,
would offer compensation unless there is a clear
acceptance that what was published was wrong.
In that scenario, I am looking for an acknowledgement
for the ordinary person who initiates a
case. It is not just the compensation but the apology
and correction must be combined in settling a
case. In other cases where settlements are made,
negotiations take place on the issues. If one side
believes the other side will not agree, a lodgment
is made. In a case of defamation, there must be
attachment of an apology which I assume is the
main purpose of taking a case.
Question put and agreed to.
SECTION 28.
Acting Chairman: Amendments No. 23 and 24
are related. Amendment No. 25 is a technical
alternative to amendment No. 24 and amendments
Nos. 25 and 27 are consequential on
amendment No. 26. Therefore, amendments Nos.
23 to 27, inclusive, will be discussed together by
agreement.
Dr. M. Hayes: I move amendment No. 23:
In page 22, subsection (1), line 4, after “statement”
to insert the following:
“and to give due prominence to the correction
order such as will ensure that it is communicated
to all or substantially all of those
persons to whom the defamatory statement is
published”.
5 o’clock
I do not mind what form of words is used but this
amendment seeks proportionality and timeliness
in the issuing of an apology. If a libel was on a
newspaper’s front page in stark
headlines, the apology should not be
published months later, tucked away
among the classified advertisements. That part is
common cause. The other part about which I am
concerned is partially addressed by a Government
amendment. It concerns putting a judge in
the position of editing a newspaper. He or she
specifies the time, place and order of publication,
which has no regard for the manner in which
newspapers are produced or what might happen
in the circumstances. Imagine the judge said that
it had to publish something in the top left-hand
corner of page 1 on 14 January.
Acting Chairman: Perhaps the Senator might
report progress.
Dr. M. Hayes: The Acting Chairman has curtailed
my wonderful perorations.
Acting Chairman: I apologise profusely.
Mr. Norris: The Senator’s amendment was
better than the Government’s.
Progress reported; Committee to sit again.