Defamation Bill 2006 - Committee Stage Resumed - 5th December 2007

Defamation Bill 2006 - Committee Stage Resumed - 5th December 2007

SECTION 12.
Question again proposed: ”That section 12 stand part of the Bill.
Senator Jim Walsh: As I said yesterday, I appreciate the Minister’s comments on lodgments. However, we should examine this further. If an appeal is based on the substantive issue of defamation, the costs will accord with the decision of the Supreme Court in this regard. Nobody can argue with that. However, an appeal based only on the award of damages exposes the plaintiff, who has succeeded in vindicating his or her good name, to a financial loss.
Will the Minister consider before Report Stage whether provision can be made whereby costs would not be borne by the plaintiff where the appeal relates only to the award of damages? If necessary, this could be ameliorated such that the costs would fall individually to the parties concerned and could not be claimed by one against the other. I understand this would be an unusual legislative provision. However, I am seriously concerned that a person who vindicates his or her good name in court should incur significant costs where the defendant, who has been found guilty, appeals the award granted. That is unfair.

Senator David Norris: On the issue of the Supreme Court second-guessing a jury, I refer to the words of the then Chief Justice, Mr. Finlay, in Barrett v. Independent Newspapers Limited that the assessment by a jury of damages for defamation has an “unusual and emphatic sanctity”. This is an interesting point to bear in mind.
While I will not rehearse everything I said on this matter on a previous occasion, I draw the Minister’s attention to a case that was then unreported, Independent News and Media plc and Independent Newspapers (Ireland) Limited v. Ireland, which was related to the case of De Rossa v. Independent Newspapers, in which the defendants lost their case in Ireland and so sued in the European Court of Justice. This was the argument made in Strasbourg in 2005 by the legal representatives of the State:

The applicants were effectively asking the court to assume that jurors were unable to value reputation in accordance with certain factors outlined to them in order to arrive at a rational and proportional decision without further guidance. Not only was that an inappropriate assumption but the calculation made by a jury attracted an even wider margin of appreciation than that completed by, for example, a judge. In this latter respect, they explained why framing and applying defamation laws in a modern democracy was a complex exercise requiring a delicate calibration of a variety of interests. The domestic authorities were therefore clearly better placed to judge how the most appropriate balance could be struck in a given situation and, further, an authority comprising a group of informed, reasonable and conscientious citizens (a jury) would be best placed to reach that balance given their direct and continuous contact with the realities of life within their countries.
I recount this to put on record the great significance attached by august legal authorities to what has been described as the sanctity of juries. There was some suggestion yesterday that jurists are mere Joe Soaps who could not be expected to know much. We must bear in mind that legal authorities do not take that view. This Government, in its last incarnation, announced here the doctrine of the continuity of the two Houses of the Oireachtas. One assumes the Minister will agree there is an unbroken seam between the last Government and its representation in Europe and this Government.
I am sure I will be allowed a flashback because I am steaming with a cold. This flashback relates to the question of feelings, as they are assessed in damages. We have been told that feelings are not of any consequence in this regard. I draw Members’ attention to the judgment of Henchy J. in Barrett v. Independent Newspapers Limited. He stated:

It is the duty of the judge to direct the jury that the damages must be confined to such money as would fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution of his standing among right thinking people as a result of the words complained of.
The learned judge, Mr. Justice Henchy, placed feelings first. The question of feelings is relevant, therefore, despite what was said here yesterday by learned and august barrack room lawyers such as Senator O’Toole and others whose blushes I will spare, although I am sure they will not spare mine as they seek to correct me. Although they can be glossed any way one likes, these are the learned words of Mr. Justice Henchy to whom, for his reasonable, decent and humane dissenting judgment in my own case, I shall be forever grateful.

Senator Denis O’Donovan: I was lost in the wonderful outlinings of my colleague, Senator Norris. He has distracted me from my train of thought and diverted me in another direction. Will the Minister clarify the issue of costs? Senator Walsh gave the example of a successful plaintiff who subsequently incurs the costs of an appeal by the defendant on the basis of the award granted. In the event of the Supreme Court granting €80,000 rather than €100.000, for instance, the person who has been defamed would be penalised on costs.
The National Union of Journalists, RTE and other elements of the media have made the point ad nauseam that the costs incurred in libel and slander cases are so severe that they far outweigh any award granted. Even where a relatively minor reduction of the figure awarded is ordered on appeal, the cost of that appeal is levied entirely against the unfortunate litigant who has already proved that he or she has been defamed. This is a cause for concern. A case heard in the Supreme Court for seven or ten days, with senior and junior counsel, could involve legal costs of €500,000. A plaintiff whose award has been reduced from €100,000 to €50,000 thus would incur a net loss.

On the question of libel and defamation, have our parallels in Europe been considered with the thrust of this Bill? My knowledge of libel and slander is that mainland Europe has a far more liberal approach, even in the European courts at Strasbourg. There was an interesting case involving a politician in Austria, I believe, who was very fond and proud of his reputation. He was taken to task by a particular newspaper on a few instances and he sued the publication. I am not entirely sure if this happened in Austria or Germany. The politician lost the case and appealed it to the European courts.
There appears to be a number of precedents in European courts where the court has taken a liberal view, particularly when a politician is involved. The courts appear to deem that if a person is in the public eye running for office, or succeeds in becoming a Minister, that person is fair game.
When I chaired the Joint Committee on the Constitution, we reviewed the area of libel and slander under the Constitution. Of all European countries we would be seen as one of the more conservative nations, with our awards in general being much higher than others in Europe. At the higher echelons of our European courts, the area of libel and defamation, which this Bill tends to marry, is treated far more liberally and is less kind to the person instigating the action. This is particularly relevant to politicians because, irrespective of whether we like it, politicians have had a stand-off with journalists, especially over the past 20 years, in terms of there being a shift this way or that.
If we were to be honest, we would like the current system retained. On the other side there is a hue and cry by the print media and journalists in general that our awards and old defamation and libel laws have been far too generous to the plaintiff.

Senator David Norris: I support Senators Walsh and Donovan on a point, to be fair, which was raised by the Minister. It appears wrong that if a person gets an award and appeals it, he or she may be seriously penalised despite having won in the first case. The example from the figures given by my two colleagues was very persuasive.
The notion of lodging money into court introduces a slightly indecent element of gambling. The courts are hoping to get it right but they may wrong-foot the plaintiff by so doing. A very astute adviser on one side may indicate a certain award will be received, but if it is dropped slightly the other side may be punished by attacking their matter of cost.

Senator Alex White: The plaintiffs have astute advisers also.

Senator David Norris: Yes, but they do not always have the best. There is no question that the newspapers can always afford the best. There is a disproportion there.

Senator Alex White: Absolutely not in defamation.

Senator David Norris: I am surprised a member of the Labour Party would support multinational corporations in the way the Senator has.

Senator Alex White: That is untrue.

Senator David Norris: Socialism is changing and I know there is a middle way and a new Labour.

Senator Alex White: That is silly.

Senator David Norris: I am on the side of the small person in this.

Senator Denis O’Donovan: The Taoiseach is a socialist.

Senator David Norris: They must be defended.
I welcome Senator O’Donovan’s honesty in saying what we all know, that this Bill is a result of intensive lobbying by media interest and the press barons. The politicians, by and large, have strong and serious reservations about it. I hope the Minister will be in a position to take on board at least some of the amendments put before the House today.

Senator Alex White: I was going to address the last issue later as it is perhaps a bit more relevant to other sections but as the point has been again made by Senator Norris, I will address it.
In the context of dealing with defamation law, the fact that the newspaper industry has pressed for change and some of the changes included in this Bill may be welcomed by the industry does not of itself suggest we should oppose them. If I have a view on a matter, the fact that somebody else, whom I dislike or even detest, holds the same view does not undermine the strength of my opinion.
Senator Norris is going a little over the top or is at least missing the point when we talk about freedom of expression and freedom of the press. This is not just something going to the pockets of the press barons. It may, of course, because it suits them. I am more interested in access of the public to the maximum amount of information, free comment and debate in a modern democratic society. The fact that the newspaper industry is also on that side of the argument should not push us off our perch. With respect, Senator Norris is confusing two different things.

Senator David Norris: I have experienced a gross obfuscation of my views. It should be a lesson to us all.

Senator Alex White: I would be perfectly happy to have a debate on the newspaper industry but it seems the most serious issue in that area is the proliferation of ownership and control among a small number of people, whether it is the O’Reillys or anybody else. A small number of people nationally, and increasingly internationally, control the newspapers and media. Governments clearly must intervene in that regard to ensure we have real freedom of the press and get away from the concentration of ownership among a small number of people.
I regard freedom of expression as precious, and to throw out this in the wide latitude that ought to be given to debate on public issues——

Senator David Norris: I hope the Senator is not using it there as well.

Senator Alex White: ——does not line me up with press barons, irrespective of whether I am a member of the Labour Party. I am perfectly free to make the argument in the context I make it. I will not fly off the handle as other people seem to do at the least suggestion in here but I take exception to the coupling of the argument I am making, in the context of freedom of expression, with the notion of the big bad press barons. I am very critical of those as well.

Minister for Justice, Equality and Law Reform (Deputy Brian Lenihan): We have had a very wide-ranging debate on this section and it has afforded Senators an opportunity for a quasi-Second Stage debate. I will add my tuppence worth.
On the net issue of the section, I have indicated to Senators that I am anxious to reconsider the section in terms of its consequence for an order for costs in the Supreme Court. That issue should be examined. It is desirable that we have a section confirming the appellate powers of the Supreme Court in this area.
It is also important that if the Supreme Court is to substitute a verdict for the verdict of the jury in the High Court — a power it has and which we are confirming in the legislation — there should not be serious implications for costs for a plaintiff who has succeeded in the High Court action. I am prepared to review the matter on Report Stage.
On the wider matters raised, Senator Norris referred to judicial authorities in connection with the jury and the central function of the jury in our law of defamation. I stated yesterday that the Supreme Court has confirmed that the jury is an appropriate constitutional tribunal for vindicating the reputation of the citizen, and that is not an issue in the legislation. The right of a citizen in Ireland to have his or her reputation vindicated before a jury is carefully protected and preserved in this legislation.
That a jury verdict can be appealed to the Supreme Court is also a well-established feature of our legal system and it is not proposed to change this. The courts and the Supreme Court have tended to view the verdicts of juries with great respect and Senator Norris quoted an authority to that effect. The courts and the Supreme Court have tended to view the verdicts of juries with great respect and Senator Norris — I was going to say Judge Norris — quoted an authority to that effect, which is as it should be. He also referred to judgments regarding the question of feelings. The point I made about feelings is that they are not the gist of the action. It is not possible to sue for hurt feelings in our law — it is possible in some other legal systems. It is necessary to establish an element of falsity or rather the newspaper must disprove the falsity of the statement on which the plaintiff is suing.

Senator David Norris: I understand other speakers discounted the notion of feelings altogether.

Deputy Brian Lenihan: Once someone establishes that he or she has been defamed, of course feelings come into the equation in the assessment of damages as Senator Norris outlined very well.
The Senator questioned whether we should have lodgements. Lodgements are a well-established part of our civil litigation system for the obvious reason that they discourage litigation. Litigation is very expensive for the State, which has an interest in this matter along with the parties. The State provides machinery for the adjudication of civil disputes, which is the courts system. Equally the State has an interest in discouraging parties from recourse to civil proceedings that are heard at full length, which is done through the lodgement system. The whole purpose of the lodgement system is to encourage individuals to settle their claims. The view is taken, to which I subscribe, that it is in the public interest to quieten claims and settle matters in so far as they can be settled. We are always outlining how undesirable it is for matrimonial proceedings to go their full distance and how desirable it is for parties to settle their unhappy differences before they enter the courtroom. However, that applies to most disputes. The State provides a lodgement system to encourage individuals to settle their disputes. A lodgement system needs to be a central feature of defamation law in our system.
Senator O’Donovan referred to the level of award for damages. In the continental jurisdictions the levels of awards for damages are lower than they are in common law jurisdictions. We have used the examples and experiences of other common law jurisdictions in deciding how to reform the law here. That brings me to Senator Alex White’s general reflections on how we should reform our defamation laws. In this area we are dealing with powerful media organisations irrespective of whether their ownership is concentrated or diffuse. They are powerful organisations and can command substantial legal expertise. There has never been a shortage of intrepid and able lawyers willing to take them on. They are very powerful organisations that cannot be allowed to dominate debate on a subject like this. As the class of potential plaintiffs has no equivalent lobby group, it is important that careful scrutiny be given to this legislation.
That is why governments in most common law countries have embarked on an extensive period of consultation, discussion and report before proceeding to houses of parliament in this area. That has been the experience in the United Kingdom and has also been the process in this jurisdiction. The Bill did not fall out of the sky from the headquarters of some powerful media organisation. Considerable work was done by the Law Reform Commission and the Mohan committee. This issue was considered in great detail. The arguments on each issue were assessed. My philosophy on this legislation is that anything we can do to encourage the media organisations to apologise more readily is to be welcomed. Anything that promotes a culture of greater responsibility in writing in media organisations is to be encouraged. This legislation is a substantial step in that direction.

Senator David Norris: This point goes to the matter of the press council. The Minister raised the matter of apology. A few years ago, The Sun newspaper was admonished very strongly by the British Press Complaints Commission for publishing particular photographs of Princess Diana. The Sun dutifully published the PCC’s judgment and then republished the offending pictures under the heading “This is what all the fuss was about, folks”. That effectively undermined the Press Complaints Commission. It depends on the quality of the apology, its sincerity and the prominence it is given. I understand that matter is addressed later in the Bill. I know the Minister is sympathetic on this issue. Apologies can be given tongue in cheek and in such a manner that the newspaper gets a second strike at its victim.

Deputy Brian Lenihan: We will be able to revisit apologies.

Question put and agreed to.
Section 13 agreed to,
SECTION 14.
Question proposed: “That section 14 stand part of the Bill.”
Senator David Norris: This section relates to the reliance on a defence of truth. I made a point during the Second Stage debate and I regret that I did not table an amendment. I wish to signal that I will table such an amendment on Report Stage. Truth is the very best defence because nobody could possibly object to newspapers publishing truth however painful it might be for the person embarrassed or inconvenienced by that truth. The person against whom the allegations have been made in a newspaper should be entitled at a relatively early stage through his or her legal representatives to know the basis upon which that claim of truth is being made. On Report Stage I will table an amendment along the following lines: “Where the defendant relies upon truth as a defence he or she should be obliged in the pleadings contained in the defence to set out the facts upon which he or she will rely in the defence”. That would give the plaintiff the opportunity to examine it, rather like the notice for further and better particulars, etc. If an appalling claim is made about somebody and the defendant relies on the defence of truth, it is only fair that the other side should get the opportunity to examine it in order to prepare for proper cross-examination in the process.

Senator Denis O’Donovan: I accept what the Minister said earlier that the Bill did not fall out of the sky or originate as a result of a considerable media lobby. There has been considerable thought by successive Governments and the Law Reform Commission. The Minister also mentioned Mr. Mohan’s input on the matter. We are enlarging on the old phrase, “justification”. I may be wrong in this. However, my perception is that to prove something beyond yea or nay, the burden of proof is much stronger to prove something is true before a judge and jury. Is there a raison d’être for using the word “truth”, as I would have felt the old defence of justification was quite acceptable? I saw no great desire by any lobby to use the word “truth”. While I may be getting this wrong, I feel the use of the term “truth” raises the bar. It is much stronger to establish truth rather than justification in a court of law, especially before a jury. 12 o’clock
Certain justifications can be claimed. I was at a meeting the other night at which I was told “Sure you’re all on the take and looking for more money”, which is a general perception. However, the truth is that 95% or 98% of politicians are decent, honest and hard-working people. Justification and truth are at different levels. We are raising the bar. I ask the Minister to explain why he is making this change. While I may be missing the point, I feel there will be a far greater onus on the defence to establish that something was true beyond yea or nay. Justification seems to be easier to establish from a court perspective.

Deputy Brian Lenihan: If Senator Norris tables an amendment on the question of what a defendant should plead, naturally I will examine it. However, this Bill already requires that a defendant must swear a verifying affidavit on the defence filed and the defence will have to be verified on oath. This is a substantial change in the existing law.
On the point made by Senator O’Donovan, section 14(1) is a restatement of the existing law and section 14(2) is a restatement of an existing statutory provision. There is no new law in section 14; there is no change of substance but there is a change of wording. The defence of justification, as Senator O’Donovan rightly said, is being renamed the defence of truth but they have been the same in substance for more than 100 years.
The Law Reform Commission pointed out that originally the word “justification” was used to describe all the defences available in a defamation action. The defences of qualified privilege and fair comment were then developed and the term “justification” was restricted to the plea of truth. Subsection 14(1) will make the substance of the law the form of the law in providing that the defence is a defence of truth. With regard to Senator O’Donovan’s point, I am not sure if it makes any difference on the substance of the law but it does mean the law is clearer and more intelligible. For that reason it is desirable to have the expression of truth there as this is at the heart of our defamation system. We put truth at a premium and those who utter falsehoods pay for them.

Question put and agreed to.
SECTION 15.
Senator David Norris: I move amendmentNo. 3:

In page 12, subsection (2), lines 3 and 4, to delete paragraph (f).
I oppose the inclusion of judges in the exemption from defamation. The Minister has strengthened my feeling on this matter when he talked about truth. Why would a judge want to lie about anybody? Judges should not make outrageous or untrue comments about anybody. After all, a judge should know better than anybody else the primacy of truth and the reason for telling it. In vigorous argument between the combatants in a court case or in a robust debate in this or the other House, I can understand it and there is an argument for protecting people by absolute privilege. Will the Minister explain why a judge would wish to libel somebody? What part of a judicial function is it to libel the ordinary citizen? A libel by a judge on a citizen in the course of a judgment which is protected is far more damaging.
Some people are of the opinion there should be a clear definition of defamation at the beginning of the Bill. It is defined in section 5(2) as:

. . . the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person)...
Why would judges wish to do this? I know it is a practice and the Minister probably is aware it is a practice. I am sure the Minister can remember back — I certainly can — to the days when Nell McCafferty was writing In the Eyes of the Law . A number of judges routinely and for the purposes of entertaining and diverting the audience in the court made the most appalling comments about people which if made outside a court probably would be libellous. We are just reciting a whole list of establishment figures who have to be protected. I do not see any reason to license the Judiciary to lie about the citizenry.

Senator Alex White: I support this section and disagree with Senator Norris. I do not think it is a licence for judges to defame people. I ask the Minister to confirm this but my understanding of this protection — if it can be called such — is practically ancient. Authority for this proposition goes back at least 400 years——

Senator David Norris: I disagree.

Senator Alex White: It certainly goes back to the early 17th century. The principle is a very good one. I suggest if Senator Norris reflects on it, a good analogy is the protection afforded to us in this Chamber. We have a responsibility in this House to debate public issues, to deal with the cut and thrust of those issues. There have been occasions when — I will not say Senator Norris — some of our colleagues over the years may have been tempted to engage in very robust analysis and debate of issues and of the conduct of individuals. They have speculated on individuals and their actions and on what they ought to have done. This Chamber affords a protection for both Senator Norris and me and other Members. We are not exposed to being sued for libel in circumstances where we stray into that area, albeit one hopes, on rare occasions. In other circumstances we could end up in the High Court being sued for defamation. There is a very good reason for that protection and if Senator Norris reflected on it, he would see it is right he has that protection in this House. It is not a protection that should be abused but it is right that Senator Norris has that protection.
The same applies in regard to the exercise of a judicial function. The independence of a judge is vitally important to the conduct of his or her duties. Judges must be fully and entirely independent in the exercise of their important job. If they are to have a concern or a fear that they may be sued for defamation in respect of remarks they might make — these are sometimes very intemperate and I have criticised in this House remarks made by District Court judges — this would risk undermining the important independence of their function. Judges should be able to administer justice in a free, impartial and independent way. I suggest to Senator Norris it is quite wrong to interpret this section as being a protection for a member of the establishment — that we are singling out individual members of the establishment and giving them protection that is not given to other people. The issue is to do with the function they exercise for the community and for society. We as a community believe it important that judges have full independence in the carrying out of that function. This is for the protection of the community rather than it being a licence for individual members of the Bench to say whatever they want about whoever they want at any time. Senator Norris is under a misconception of what is at stake. A very important principle is at stake and it is the same principle that applies in this House and in the other House in the protection of persons. Those of us engaging in public debate in the House can at times stray into areas that could expose us to suit, even without knowing it; we could defame somebody.
It would undermine the effectiveness and the important independence of the role of the Judiciary if this section of the Bill were to be changed. Senator Norris’s proposal would constitute a change. I do not have before me the particular provision of the 1961 Act but I am almost certain a similar provision exists in that Act. It is our law, as I understand it, that judges cannot be sued for defamation in the exercise of their judicial function. They are not protected when they step down from the Bench and start, willy-nilly, to gratuitously defame or attack people. They ought to be protected when they are carrying out their functions.
I have other issues to speak about on the same section of the Bill.

Senator Jim Walsh: Like Senator White, I will refer to other examples in the section when they arise.Speaking on amendment No. 3, I fail to understand how a judge can be prevented from commenting on a case which is then reported. Because of the nature of the people who come before the courts, judges will often comment in very derogatory terms about the criminal activities of some of those people. It is right they should comment and that these comments should be reported.
I agree with the sentiments expressed by Senator Norris. There are many examples, in particular at District Court level, of judges who exceed what is fair and reasonable. While I appreciate the views expressed by Senator White, if we step over the line in this House, the Leas-Chathaoirleach will call us to account if we breach our privilege. However, a judge is master of his own comments in his own house.
While I fail to see how Members can deal with this issue in this Bill, I have long been an advocate of accountability for judges.

Senator David Norris: Hear, hear.

Senator Jim Walsh: There should be a judicial commission and were such a commission comprised exclusively of judges, I would have no objection. I refer to instances in which judges step out of line, of which there have been examples. The Oireachtas has conducted inquiries to deal with such issues and such inquiries should have had a structure other than the cumbersome model under which my colleague, Senator O’Donovan, was obliged to labour in one instance. It was a very difficult task. There should be a mechanism for dealing with this issue. When judges breach the privileges they enjoy, accountability to their peers should be an important component of the structures incorporated in the judicial system.

Senator Eugene Regan: I agree this provision is required. In the next paragraph, section 15(2)(g), privilege also attaches where a witness or a legal representative or a juror makes a statement. Consequently it would be entirely incongruous to exclude a judge performing his or her judicial functions from the protection of the privilege afforded in the Bill.
Under this section I also wish to ask whether——

An Leas-Chathaoirleach: Members should discuss only amendment No. 3 at present.

Senator Eugene Regan: Very well.

Senator Denis O’Donovan: I understand the reason Senator Norris tabled this amendment. In effect he asks for the removal of all protection from the Judiciary, which would be similar to taking a sledgehammer to crack a nut. However, I can see where he is coming from. I refer to the court case yesterday involving three ladies who were taking drugs back to County Cork and who went astray. The judge made certain remarks I considered to be highly appropriate. The amendment would place a severe curtailment on the Judiciary and would not achieve the correct result. It is common practice in all courts and in the District Court in particular for judges to tell a young brat who comes in with cock and bull story that he is lying through his teeth. As this is quite common, where would one stop?
Senator Walsh touched on a very important point and while I do not wish to stray from it, I consider the establishment of a judicial council or commission to be a necessity in future. Although a former colleague and previous Minister promised it some years ago, it has not arrived yet. Hopefully, like this Bill, it has been cooking for a long time and that when the time comes, like a Christmas cake, Members will get the mix right.
In my experience of approximately 30 years of dealing with judges and so on, our Judiciary and judicial system has served the country well since the foundation of the State. While there are exceptions, by and large we have some excellent judges and to remove section 15(2)(f) from the Bill would do far more harm and damage to the necessary defences than it would achieve. Consequently, Members must be extremely careful. I support section 15 in general and section 15(2)(f) in particular.



Senator David Norris: While I will be happy to withdraw the amendment, I am glad I tabled it because it has teased out a number of issues. I greatly welcome Senator Walsh’s comments that were supported by Senator O’Donovan. I agree that one must protect the independence of the Judiciary. However, one of the instances given was very interesting. If, for example, a judge in his or her court told someone, who was what Senator O’Donovan referred to as a little brat, that he was lying through his teeth, this would get a headline. However, were that person to be found innocent the next day, damage would have been done. This is the kind of point I was making. While I did not expect this amendment to be accepted, I wanted to draw such a case to the attention of the House.
This strengthens the call made from the Government side for the establishment of a form of regulatory or overseeing body. I also accept Senator Alex White’s comments in this regard. While I am happy to withdraw the amendment, if the Minister responds he should indicate whether he agrees with his colleagues on the Government side. I refer to the necessity for some form of regulation in the circumstances that have been suggested, that is, if a judge makes plainly defamatory remarks that turn out to be unsubstantiated and damaging to someone who is found innocent. This is inappropriate and it is a question of regulating behaviour.
I agree that I took deliberately a sledgehammer to crack the nut. However, if the nut gets cracked by the mild blow of a nutcracker forged skilfully by the Minister, I will be perfectly happy.

Deputy Brian Lenihan: First, for the reasons outlined by all the Senators and accepted by Senator Norris, the effective operation of the judicial power in the State requires that absolute privilege should attach to the statements made by the Judiciary in court. Members of the Oireachtas enjoy such privilege and it is absolute in character. While Members also have a committee that regulates the abuse of that privilege, from a constitutional point of view it is clear that if Members enjoy this privilege for their effective operation, a co-ordinate branch of government, namely, the judicial power also should have that privilege. Moreover, apart from the question of equality, there are far more practical reasons that one must have such a privilege attaching to statements made in court, which have been outlined by Members in the course of their contributions.
Another reason becomes obvious when one considers the list of those to whom absolute privilege attaches. It attaches not only to statements made by judges or other persons performing a judicial function, but also to statements made by a party, a witness, a legal representative or a juror in the course of proceedings presided over by a judge or other person performing a judicial function. The reason for this is that in addition to being essential for the effective operation of the particular institution, the State has an interest in preventing further litigation about litigation. Were one not to have an absolute privilege attaching to court proceedings, one would have fresh actions stemming from disputes that were already resolved in the original action, in which points of fact were at issue. This would be a disastrous inconvenience for the State and constitutes the other reason for attaching absolute privilege in this regard.
However, the sentiment that motivated the tabling of this amendment concerned the issue of judicial conduct and misconduct. While this is an area in which Members must respect the independence of the courts, I can state that the Government is committed to a judicial council Bill that will provide for the regulation of judicial conduct. Of necessity, a great deal of such regulation must be self-regulation. However, there is a strong case for collective self-regulation in this area and this is in accordance with the Constitution. I am aware that Senator O’Donovan explored the outer limits of the constitutional provisions that we posses in this regard.

Senator Joe O’Toole: However, his work was ignored. It is still sitting there.

Deputy Brian Lenihan: It is fair to say that his work came to a conclusion. One of the difficulties associated with spelling out in greater detail in the Constitution how one removes a judge is that it makes it easier to so do, thereby undermining the independence of the institution. However, there was a full exploration in the last Dáil as to how one would go about such an enterprise. As for the judicial council Bill, I am anxious to make progress in this regard and I await the views of the Chief Justice on this Bill.

Senator Joe O’Toole: Hear, hear.

Deputy Brian Lenihan: When I have those views to hand, I will introduce legislation on it. Senator Norris makes a fair point. While I do not wish to be seen to criticise the Judiciary as I am the Minister for Justice, Equality and Law Reform, it is important that utterances from the judicial bench do not damage people in their reputations. I recall that a wise District Court judge, who has now retired, told me that on his appointment, the first thing he taught himself to do was simply to read the statute, read the penalty prescribed by the Oireachtas and read it out to the guilty party when imposing sentence without making any other comments whatsoever regarding the imposition of sentence. It is a wise rule.
I await the views of the Chief Justice in this regard. While I understand the reason Senator Norris raised the issue, it cannot be dealt with in this Bill. It is a matter for a separate item of legislation.

Senator Denis O’Donovan: I wish all judges had that rule.

Senator David Norris: I thank the Minister for his undertaking and his understanding of what I was getting at and I am happy to withdraw it.

Amendment, by leave, withdrawn.
Government amendment No. 4:

In page 12, subsection (2), between lines 15 and 16, to insert the following:

“(j) a fair and accurate report of proceedings to which a relevant enactment referred to in section 40 of the Civil Liability and Courts Act 2004 applies;”.
Deputy Brian Lenihan: The purpose of this proposed amendment to section 15 is to provide for certainty that absolute privilege will attach to the reporting of family law cases. Section 40 of the Civil Liability and Courts Act 2004 provided for a relaxation of the in camera rule, with the key safeguard that the confidential nature of family law cases would continue to be respected. Section 40(3) specifically provides that nothing in any enactment can prohibit the preparation of a report of proceedings in family law cases on the publication of the decision of the court in those proceedings. The identities must not be disclosed. That is a safeguard of great importance. Reports under section 40(3) of the Act do not attract absolute privilege at present and it is important to clarify the law in that regard.
Senator White inquired as to whether the provisions in section 15 are new. They are new; they were not contained in the 1961 Act. This is a codification of the law on absolute privilege. For example, the absolute privilege enjoyed by a judge in judicial proceedings was something that rested in common law rather than in statute. In this section we are providing an exhaustive list of the circumstances in which absolute privilege can be claimed. Having examined various issues, this amendment was tabled to cover that point.

Senator Alex White: That serves as an introduction for the comment I wish to make on the balance of the section. As the Minister stated, it looks like an exhaustive list of circumstances which will be covered by absolute privilege. This is something new to our statute law. As lawyers would acknowledge, the very fact that it is a detailed list would give rise to a serious concern about matters which do not appear in it. If they are not in such a detailed list, it would be clearly seen to be our intention to have excluded them. In those circumstances I wish to raise two issues with the Minister and I am interested in his view on them.
Reference is made to courts, and it is quite proper that this is the case because, as we have already discussed, that is one of the fundamental areas that it is sought to protect. However, what is the position with quasi-judicial tribunals? I have a professional background in this area. In the previous debate speakers repeatedly pointed to worries about conflict. I do not have a conflict but I should point out that I do practise in the area of employment tribunals and have some familiarity with them. These are quasi-judicial tribunals set up under statute. Did the Minister consider whether privilege ought to attach to the proceedings of these tribunals? I refer to the Employment Appeals Tribunal, the equality tribunals, and perhaps the Labour Court. I am interested in whether the Minister addressed this issue and if so, why it was determined not to include them?
The second area relates to local authority meetings. Did the Minister consider whether privilege ought to attach to the proceedings of meetings of local authorities? I am sure he did address the matter. What was his rationale for the conclusion that they ought not to be granted the protection of absolute privilege?

Senator Eugene Regan: Senator White raised the issue I wish to raise, namely, privilege for local authority meetings. In carrying out their public duties, councillors perform important work in the public interest. Was consideration given to the extension of this section to local authority meetings and local area committee meetings? The work of councils is significant. Much of European Union legislation is now implemented through local authorities. This is important work and there would appear to be a case that the privilege referred to in this section might be extended to local authorities and local councillors. I invite the Minister to comment.

Senator Joe O’Toole: I am completely opposed to the inclusion of local authorities in this section. They would be uncontrollable and that would give me cause for concern.
I was prompted to ask this question by the first point raised by Senator White. I am uneasy about an exclusive list, which is what this section appears to contain. We appear to have taken a decision to collate aspects of common law, existing legislation and the Constitution. Is it necessary to put into legislation something which is clearly understood to be protected? What is the rationale for including in legislation statements “made in proceedings before a committee of either House of the Oireachtas”? We know that to be the case, as it is covered in the Constitution and is stated at the beginning of every meeting. The extension of the privilege of the Houses to committees has been previously addressed. At the beginning of each meeting the basis on which the committee takes place is made very clear by each committee Chairman.
I find it interesting that in his protection of the Judiciary, with which I completely agree, the Minister intends to extend privilege to witnesses. Very often it is the comments made by witnesses in court that can cause a problem. In an earlier section we made it a requirement that when people put forward something in pleadings, they would have to swear an affidavit as to the factual nature of the statement, and that they stood by it, yet at the same time one can introduce a witness who can lose the run of himself of herself and say things about somebody in a court. This gives rise to serious questions. Why do we need to put into legislation something which is already covered either by previous legislation or by the Constitution, not to mention common law? It worries me to do that.
I remember arguing this case previously. When the first version of the Official Languages Act came before the House approximately five years ago, an issue arose concerning the provision that Members of the Oireachtas could speak in Irish or in English. I see the Minister is smiling but I will not talk about the obvious. I opposed this measure vehemently. It was a tautology, to say the least, and completely unnecessary that something which is a constitutional right was being given a statutory basis. Why do we need a statutory basis for something which is constitutionally protected? This is unnecessary, unless there is a constitutional imperative to do something, which is not the case here.
Following that debate, in the next version of the Bill that section was omitted. I worry when something that is in the Constitution is relegated to a statutory protection. This is unnecessary. The point raised by Senator White is an important one. If one starts making lists then the fact that something is not on the list will gives rise to questions.

Senator Jim Walsh: I am a strong proponent of the list approach because absolute privilege should be confined to where it is essential and necessary for people to function effectively. The question of local authorities is an interesting one. Councillors enjoy some privilege if not absolute privilege when speaking.
A case occurred in Wexford a quarter of a century ago when one of my colleagues on the county council criticised the management of the local landfill site in fairly condemnatory language. There was much agitation in the area because of the nuisance people encountered with flies, smells, etc., due to the way in which the site was managed. On the face of it, the comments made appeared to be fair but the landfill site employee whose job it was to maintain the site took a legal case against the councillor, who was a former eminent Member of the Lower House at the time or subsequently. The case went on for a considerable period but to the best of my knowledge he was found not to be in breach of making a defamatory statement. The judge sensibly took the view that in his position as a public representative, he was entitled to make the point but it struck me, with the points being put forward, that it is an interesting anecdote in terms of ensuring that councillors, in the genuine performance of their functions, are not exposed to similar circumstances which could inhibit them functioning effectively at local authority level.

Senator Paddy Burke: I support my colleague, Senator Regan, and the other speakers on the question of some form of privilege for local authority members. As one who served on a local authority for many years I do not believe there was ever an occasion where privilege was used but anything can happen in the heat of the moment and if occasions arise where the heat of the moment battle can be established, there should be some form of privilege for the member. Heated debate can take place in chambers and comments made in anger or in the heat of the moment. However, I agree with Senators who said there should be some form of privilege for a local authority member. I ask the Minister to examine that because it is an important issue for local government.

Deputy Brian Lenihan: Members of local authorities enjoy qualified privilege and that is dealt with in the next section. A qualified privilege is a privilege to make an utterance or publish a statement in circumstances where the privilege can only be destroyed in the event of malice being established. That is the current position in regard to local authorities.
Senators should recall that absolute privilege is a drastic device. It means that all statements are immune from any actionability. When Senator Norris raised the question of the courts system I made the point that one of the reasons the courts must enjoy absolute privilege is not just because of the position of the Judiciary in the Constitution but because of the need to prevent litigation spawning further defamation actions. That is the fundamental reason we attach a privilege, for example, to the utterance of a witness in a court proceeding because as Senator O’Toole pointed out, the utterance of a witness in a court proceeding can often be reported and can often be defamatory but the State must attach absolute privilege to that statement because we cannot spawn another defamation action arising out of the facts in dispute in the court case. That is the fundamental justification for absolute privilege in court proceedings.
The absolute privilege the Houses of the Oireachtas enjoy stems from the Constitution. Senator O’Toole raised the issue of whether in the case of that absolute privilege, we should legislate for it and whether the legislation is superfluous. I agree with him that matter should be reviewed, and I will have it reviewed, and if there is any element of surplusage in the legislation which is additional to the Constitution and unnecessary, it should not be in the legislation. However, I do not agree with the Senator that it is a mistake to provide an exhaustive list. It is important, given the absolute character of this privilege, that we do an exhaustive list now. The constitutional references have crept in because there was an exercise to establish a comprehensive list of occasions of absolute privilege.
That leads me to the points of substance raised by Senators Alex White and Regan about the occasions that should qualify and whether there is a case for an extension. The Law Reform Commission examined the question of quasi-judicial bodies and came to the conclusion, reflected in the legislation, that absolute privilege does attach to a statement made in the course of proceedings involving the exercise of limited functions and powers of a judicial nature in accordance with Article 37 of the Constitution where this statement is connected with those proceedings and also, in subsection (f), made by a judge or other person performing a judicial function. Therefore, a person performing a judicial function or a person exercising limited functions and powers of a judicial nature enjoys absolute privilege under these provisions.
The Law Reform Commission pointed out that defining a quasi-judicial function can be a difficult exercise in draftsmanship and it is impossible to provide an exhaustive list of quasi-judicial bodies. For that reason it included the reference to Article 37 in its recommendation because at least it provides a definition that has a foundation in existing case law. We can say with clarity, therefore, that a range of bodies will be covered by virtue of the reference to Article 37. The more general reference in the section to any person performing a judicial function would cover a wide range of bodies. It would certainly cover, for example, a county registrar exercising limited civil functions.
Regarding bodies on the employment law side, I would envisage, for example, that the Employment Equality Tribunal is a body exercising judicial functions and hearing and determining evidence and therefore statements made there would attract an absolute privilege.
On the other hand — Senator White will probably be better than me on this — the Labour Court as an institution is not necessarily judicial or quasi-judicial in its functions. It is not hearing evidence and making a determination on evidence.

Senator Alex White: It is somewhat controversial at the moment as to whether it is or not.

Deputy Brian Lenihan: Yes, my advice is be careful with regard to the Labour Court. The Labour Court may well enjoy a qualified privilege because the parties making statements there have an interest in making them and the person hearing the statements has a duty to hear them. There may well be a qualified privilege but it is desirable, as a matter of principle, to have an exhaustive list of the occasions to which absolute privilege attaches.
That leads me to the last question which Senator Regan, and all of the Senators, naturally raised and that is the question of local authorities. The current position is that they enjoy a qualified privilege. The question then arises whether an absolute privilege is attached to it. This House enjoys an absolute privilege for the effective operation of its system of supervision of the Executive but even in the experience of this House we have seen arguments about the abuse of privilege. We have a committee in each House to regulate the abuse of privilege so when an abuse takes place the House, of its own motion, can discipline a Member for a breach of privilege.
It is a drastic extension of the law to create very large numbers of bodies. In justice we could not confine it to county councils; we would have to include town councils as well. The number and range of bodies is so large, the problems of regulation of abuse so extensive and the risk to the reputation is so great for those who could be defamed by these statements, that on balance there is not a good case for it.

Amendment agreed to.
An Cathaoirleach: Amendment No. 5 is a Government amendment and amendment No. 45 is cognate. Therefore, amendments Nos. 5 and 45 will be discussed together by agreement.
Government amendment No. 5:

In page 12, subsection (2)(r), line 44, to delete “under the Constitution” and substitute “by law in the State”.
These are technical amendments which provide continuity with the correct reference to a court established by law in the State, which is already correctly referred to in section 15(2)(i).

Amendment agreed to.
Progress reported; Committee to sit again.

Fifth Report of Committee of Selection: Motion.
Senator Paddy Burke: The Committee of Selection reports that it has discharged Senator Maurice Cummins from membership of the Joint Committee on European Affairs at his request and has appointed Senator Paschal O’Donoghue in substitution for him.
The Committee of Selection reports that it has discharged Senator Lisa McDonald from membership of the Joint Committee on the Constitutional Amendment on Children, at her request, and has appointed Senator Maria Corrigan in substitution for her.
I move: “That the report be laid before the Seanad.”

Question put and agreed to.

Defamation Bill 2006: Committee and Remaining Stages (Resumed).
SECTION 15.
Question proposed: “That section 15, as amended, stand part of the Bill.”
Senator Jim Walsh: On the section, I want to raise a number of points, including the point Senator White alluded to earlier with regard to the absolute privilege given to Members. I understand the necessity for that. There is a system to deal with it even though I have some reservations about abuses. However, paragraph (b) states, “contained in a report of a statement, to which paragraph (a) applies, produced by or on the authority of either such House,”. What we are discussing here is not the issue in the report but its subsequent publication, which can happen even if it is defamatory. I understand the necessity for it but I have some reservations about it.
Paragraph (k) refers to comments made in proceedings before a committee of either House of the Oireachtas. If I understand this correctly, it confers absolute privilege on those comments. My experience is that a clear statement is made by the chairman of the committee to members of the public who attend the meetings to submit reports or make presentations that while the members of the committee enjoy absolute privilege, they do not. This provision appears to extend it to them. I have some concerns about that because a wide range of people attend those meetings and some of them might have axes to grind.
Paragraph (m) refers to statements “made in the course of proceedings before a tribunal”. I understand why the tribunal would be treated like a court but there have been many instances of people making audacious, unfounded comments as witnesses before the tribunals. Most objective observers would say that some of those comments were made for purely vexatious reasons and were without foundation. I cannot see a way of interfering with or qualifying the privilege. If Members of the Houses of the Oireachtas abuse the tremendous privilege they enjoy, they can be held to account by committees of the Houses. However, in the case of tribunals, that power does not always appear to be exercised by the chairmen. Where the chairman of a tribunal instinctively believes the comments made are defamatory and without foundation, is there a system whereby he could defer their publication for a period until the tribunal can establish their truth or otherwise?
I believe that if a structure has absolute privilege, there is a consequent responsibility to introduce a system of safeguards to ensure that if somebody wilfully comes into that structure and abuses such privilege, there must be a mechanism of correcting or stalling it. That is not in any way to interfere with people who make comments which they genuinely believe. A distinction must be made between the two. Perhaps it is not possible to deal with this but I feel particularly strong about this point. Any privilege we have must be accompanied by responsibility, and where that responsibility is not exercised there must be a system to correct or arrest it.

Senator Eugene Regan: The establishment of a tribunal of inquiry is generally a unique event and arises where the political system in a sense becomes somewhat dysfunctional, such that there is a loss of confidence in the system. It is a big step to set up a tribunal of inquiry. It cannot really complete its work without the privilege attached to it. We have long tried to ensure that Oireachtas committees work more effectively and deal with matters of public concern and with matters where there is, perhaps, a loss of trust in politics. The extension of absolute privilege to the committees without qualification means that the committees can perform a very important function and could obviate the need for many of the tribunals of inquiry. The privilege proposed for the committees should stand.

Senator David Norris: I agree, but I support the points made by Senator Walsh. It is a fact that the chairmen of committees, in advance of hearing submissions from members of the public, clearly indicate to them that while members of the committee are covered by privilege, the witnesses are not. It is correct to put them on notice of this because some controversial matters have been broached at committees in which I have been involved, for example, transport, Tara and so forth. Such intemperance should be held in check, particularly if it involves impugning third parties who are not present to defend themselves. There has been a tendency for that to happen but in the transport and foreign affairs committees the chairmen were good at anticipating what was about to happen and knocking it firmly on the head.
With regard to tribunals, it is important to have a degree of privilege if they are to get to the heart of the matters being investigated. However, injustice can occur. There have been instances where people who have been described, at least in part, as fantasists have made very wild accusations which subsequently turned out to be incorrect and inappropriate.

Senator Alex White: The Taoiseach.

Senator David Norris: That includes our revered colleague from the other House. The difficulty is the matter of delay. The tribunal is not a court of law and has a lower standard of proof in terms of giving evidence, which is not tested in quite the same way. The tribunals always make the point that they are not courts. However, if somebody makes an outrageous, defamatory and untrue statement, and that is known to the tribunal, there is no rebuttal for a period of 18 months. That period constitutes a severe punishment for the innocent party. This is the element I believe Senator Walsh is trying to address. It might not be possible to address it at this point in the Bill but Senator Walsh has done a useful service by drawing attention to it. I am a strong supporter of the tribunals but I believe that some of them have been milked by the legal profession.

Senator Alex White: I seek clarification from the Minister on one point. My understanding of paragraph (k) is that a statement “made in proceedings before a committee” includes a statement made by a witness giving evidence at the committee.

Deputy Brian Lenihan: Yes.

Senator Alex White: As I listened to Senator Walsh I wondered if I was wrong but that is clearly its meaning.

Deputy Brian Lenihan: Senator Walsh referred to three paragraphs. The first is straightforward and refers to a report produced by or on the authority of either House of the Oireachtas. Clearly, a report of the House must have privilege attached. I am not sure whether it is provided for in the Constitution as well as in statute law. If statements in the Houses enjoy absolute privilege under the Constitution, the rationale for including reports is the same.
Fair points can be made on the other two matters raised by Senator Walsh. First, there is a change with regard to the proceedings of a committee of either House of the Oireachtas. It is a change on which I am open to persuasion and I would be happy to get the views of the Committee on Procedure and Privileges of each House to establish what are the wishes of each House with regard to the section. However, there is one difficulty I would like to highlight. Under legislation the Houses have powers of compellability. When a person is compelled to give testimony before the Houses, the Houses are embarking on a fact-finding mission, which would entail the attachment of absolute privilege to the utterances of witnesses. I propose to refer the matter to the committees and I will take into account their views. As Senator Walsh outlined, witnesses are at present advised of their qualified privilege. However, I will seek the view of the committees on this.

The final question related to the tribunals of inquiry. There is no doubt the manner of their operation has led to the traduction of reputation in a very improper way. However, this does not arise in this legislation. It has more to do with our determination to establish tribunals and the character of the terms of reference we attach to them. The tribunal of inquiry, as a device, is a method of transferring an issue from the political system to a judicial investigation. That is the basis of the legislation.
The system of tribunals was introduced in the UK in 1920 after an infamous saga known as the Marconi scandal, in which leading Ministers in the Liberal Government were alleged to have been involved in improper share dealings on the London Stock Exchange. A parliamentary committee of inquiry was charged with investigating the allegations but, of course, a parliamentary committee can become very partisan due to the domination of certain parties in the committee membership. Therefore, in 1920 the then Parliament of the United Kingdom decided to establish a machinery in which a judge would be brought in to investigate the allegations.
In the history of this State, many tribunals have been established to investigate natural disasters or matters which did not have a direct bearing on the Houses of the Oireachtas or the performance of functions by Members. However, in recent years we have come to use these tribunals more extensively in these areas, which has given rise to much difficulty. That is why the commissions of investigation legislation was enacted, and many of the proceedings before those commissions can be conducted in private. The difficulty of public disclosure of private information by tribunals is also serious. As I made clear in the other House recently, the tribunals of inquiry Bill will give us an opportunity to explore these issues, but it is not intended to be brought into operation in advance of the completion of the current tribunals and their work within the envisaged timescales.

Senator Jim Walsh: I wish to make a suggestion. The Minister is prudent in consulting the Committees on Procedure and Privileges. It might also be useful, however, to consult with the Working Group of Committee Chairmen, because the members would have opinions based on practical experience, which might be helpful.

Senator Alex White: I wish to put on record my view that this is an entirely appropriate provision and that absolute privilege ought to attach to witnesses before committees of the Oireachtas.

Question put and agreed to.
Sections 16 and 17 agreed to.
SECTION 18
Government amendment No. 6:

In page 14, subsection (1), line 37, to delete “Act” and substitute “section”.
An Cathaoirleach: Amendments Nos. 6, 7 and 9 are related and No. 10 is a technical alternative to No. 9. These amendments will be discussed together by agreement. Is that agreed? Agreed.

Deputy Brian Lenihan: Amendments Nos. 6, 7 and 9 are drafting amendments. Amendment No. 6 is purely technical. Amendment No. 7 provides that the reference in subsection (2)(b)(ii) to “the defence of qualified privilege” be in accordance with all of section 16 and not limited to section 16(2). A similar amendment may be required in section 29(4), and I will examine this matter prior to Report Stage.
Amendment No. 9 proposes to improve the text of the Bill for greater clarity. Having considered the points made by Senators on Committee Stage in the last Seanad and the current wording of this subsection, I agreed that the drafting could be improved on. The proposed amendment improves on the original construction and a simpler approach is taken to this rather complex issue. Amendment No. 10 is in the name of Senator Walsh.

Senator Eugene Regan: The substitution of “public interest” for “public importance” is——

Senator Alex White: I do not think that is part of this grouping of amendments. We are discussing Nos. 6, 7, 9 and 10.

Senator Eugene Regan: We are not dealing with No. 8 at the moment. That is fine, thank you.

Senator David Norris: I thank the Minister for having read the previous debate and for making this clarification. I was one of those who raised the question of the obscurity of the language and I am glad he is operating in this fashion.

Senator Jim Walsh: This part of the Bill deals with the defence of honest opinion. My amendment, which excludes part of subsection 3(a), is superseded by the Minister’s amendment, which removes section 3.

Deputy Brian Lenihan: We have helped the Senator to some extent.

Senator Jim Walsh: Yes, indeed. I welcome this change. The last time the Bill was discussed, I pointed out that the plaintiff must give an affidavit and the defendant is not defined in the Bill. I had some concerns that if one is suing a broadcaster or a newspaper — I will stick with the newspaper — it may be unclear who the defendant is. Is it the newspaper itself, the reporter or the editor? There may be a need to define who the defendant is under this section. If a defence of honest opinion is put forward, it comes back to whose opinion that was. I envisage difficulties and confusion in this regard and the possibility of obfuscation. As a consequence, there may be difficulties for the plaintiff in processing his or her case. I am not sure how this could be dealt with.
Let us say a reporter writes an article containing information which he or she believes to be true but the editor knows is not. Alternatively, a reporter may write an article knowing it to be defamatory and surmising it to be untrue, but the editor must defend the case. Are we leaving a lacuna that makes the processing of cases difficult? I ask the Minister whether there is a need to define the defendant and whether we might seek a responding affidavit from both the editor and the reporter in my example. Clearly, if the defendant is claiming the defence of honest opinion, this is being asserted to the court by both of them, because they both have a responsibility in the publication of the article — one writes it and the other decides to publish it, perhaps attaching a headline which puts a further spin on the issue. We know from reading headlines in newspapers that they often bear very little relation to the actual articles and can be very critical or defamatory in their language due to the focus on selling newspapers. We must be careful in this matter. Speaking as a non-legal person, perhaps we should tighten the provision. I welcome the Minister’s amendment in general, as it will improve the section immensely.

Senator David Norris: I welcome the Minister’s amendment. All sides of the House fought vigorously on this section because, as originally drafted, it seemed to come dangerously close to meaning “this is true because I say it is true or I think it is the case”. By prefacing something with “my opinion”, it seemed to mean everything would be all right. I categorised it as the “Joan Rivers defence”. At the time, she had advertisements on RTE for her show, which was called “Allegedly”. To protect herself, she made a joke out of the issue by prefacing every appalling comment on the stars of the entertainment firmament with the word “allegedly”. 1 o’clock
Senator Walsh’s concern regarding who should be responsible may be addressed by a later amendment if the Minister accepts it. I believe in the timeworn American phrase “the buck stops here”. The buck should stop with the editor and proprietor. Amendment No. 39 in my name states: “In the case of a successful defamation action, the Editor and Proprietor of the newspaper which published the defamatory statement shall be liable for damages.” This removes the journalist who may be vulnerable from the firing line and places the responsibility where it should be, as the editor is in command of the newspaper, the proprietor profits from it and they have legal staff.
Yesterday, a question was raised during the interview of a newspaper reporter who had been dealing trenchantly with the evidence given by the Taoiseach and the contradiction of that by Mr. Hynes, the former head of the national lottery. When asked whether he had further information, the reporter said that he had, but that his article had been “legalled”. Passing articles under the scrutiny of libel lawyers is something that responsible newspapers do routinely.
I sympathise with journalists on this issue because there can be inadvertent libel. I know of one case in which a dear, old friend of mine who is no longer with us made a humorous off-the-cuff remark in a column about a comic. The comic did not have much of a sense of humour and I know the stress and strain caused to my friend as a consequence. It would do no harm to clarify that in terms of these actions, the buck stops with the two principal elements who should be responsible with all of the relevant safeguards, namely, the proprietor and the editor. I do not know whether this would satisfy Senator Walsh’s situation.

Senator Alex White: We can return to this issue when it arises, but I am concerned on behalf of the plaintiff by Senator Norris’s proposal. If the potential plaintiff — the little man or woman as described — must face multiple defendants in one action and decide who is responsible——

Senator David Norris: That is not what I am saying.

Senator Alex White: I know, but it could be the unintended effect of what the Senator has in mind.
I welcome the Government amendment and the language in the Bill. Senator O’Donovan raised the question of justification and was concerned that we would move from it to truth. The Minister was right to state that they are the same. The 1961 Act uses the word “truth” in seeking to explain what it means by “justification”.
The terms “justification” and “fair comment” have other meanings in everyday language and it is right for this legislation to set them aside once and for all. When we use the term “fair comment” in everyday conversation, we mean something distinct in a colloquial sense. Over the years, we have imported that phrase into law, but it has unfortunately not helped. I know from direct experience of trying to explain to people what “fair comment” means that, from a legal perspective, it has always meant honest opinion. It is right to codify the meaning in legislation and refer to it for what it is, namely, the expression of an honest opinion or an opinion honestly held. We should remove the term “fair comment” from our descriptions of these matters in the same way we have replaced “justification” with what was always meant, namely, “truth”. I welcome the section’s clarity of language, which is carried through in the Government amendment.

Deputy Brian Lenihan: The defendant whose editor had one opinion about the honest opinion and whose journalist who wrote the article had a different opinion would be in a weak position in any court proceeding. The credibility of his or her case would be undermined by the conflict within the defendant’s command structure in respect of the publication. Regarding this practical matter, Senator Walsh’s concern is not real.
The section addresses the question of comment and opinion. It is important to bear in mind section 18(1) which 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.” In pleading the defence in defamation actions, the traditional defence of fair comment was to say of an article or statement that in so far as it contained statements of fact, it was true and, in so far as it was a statement of opinion, it was a fair and reasonable comment on matters of public importance. For the reasons outlined by Senator Alex White, this seemed to be a cumbersome way of describing the fact that an opinion cannot be proven as a fact, but that it needed to be shown as being fair and reasonable. The traditional law is being restated in the Bill in terms of an honest opinion.
Having examined the Bill and Senators’ opinions on Committee Stage in the previous Seanad, I agree with Senator Norris that the language in the original provision lacked clarity. The Parliamentary Counsel has devised a better formulation in respect of the defence of honest opinion, one over which we can stand as a codification of existing law without going beyond current law. In that respect, I am happy with the provision.
Senator O’Toole raised a matter that will arise when we address section 24. I do not want to anticipate discussion on the section, but an attempt has been made in the legislation to codify all available defences in a defamation action. This is correct because we as legislators have a duty to define in exact terms the scope of this particular civil wrong. We cannot leave matters to be determined by the courts or leave issues open. Consequently, the drafting of this legislation has been a difficult exercise because some concepts with clear meanings in text books and judicial decisions must be translated into statutory form for the first time. This matter is an example of that type of exercise.

Senator Eugene Regan: I ask for clarity on section 18(3)(b). It states:

[T]hat defence shall not fail by reason only of the defendant’s failing to prove the truth of those allegations unless -

(i) the opinion could reasonably be understood as implying that those allegations are true, or

(ii) the allegations are untrue and, at the time of the publication of the opinion, the defendant knew or ought reasonably to have known that those allegations were untrue.
Amendment No. 9 states:

(ii) where the defendant does not prove the truth of those allegations-

(I) the opinion could not reasonably be understood as implying that those allegations were true, and

(II) at the time of the publication of the opinion, the defendant did not know or could not reasonably have been expected to know that those allegations were untrue.
It is the use of the word “and” between the two subparagraphs that I query. Does it make sense to use it? The amendment also changes the wording from “the defendant knew or ought reasonably to have known that those allegations were untrue” to “the defendant did not know or could not reasonably have been expected to know that those allegations were untrue”. What are the Minister’s views on this wording?

Deputy Brian Lenihan: The purpose of the amendment is to give greater clarity to the provision. These are the circumstances in which the defence of honest opinion fails. It fails unless the defendant proves the truth of the allegations, which has to be there. If the defendant does not prove the truth of the allegations when dealing with a matter of opinion, the opinion could not be reasonably understood as implying the allegations were true. This is worded as “at the time of the publication the defendant did not know or could not reasonably expected to know the allegations were untrue.” These are cumulative requirements under this amendment.
I will examine the fact that the two requirements are cumulative on Report Stage. It is an imposition on a defendant.

Amendment agreed to.
Government amendment No. 7:

In page 15, subsection (2)(b)(ii), to delete lines 14 and 15 and substitute the following:

“(II) the defence of qualified privilege,”.
Amendment agreed to.
Government amendment No. 8:

In page 15, subsection (2)(c), line 19, to delete “public importance” and substitute “public interest”.
Deputy Brian Lenihan: This amendment provides that the new defence shall be known as the defence of fair and reasonable publication on a matter of public interest and not public importance. Having examined the debates on the previous Committee Stage, I am persuaded by the argument that for greater clarity it may be better to use the term “public interest” which is well understood and well established in case law.
It also reflects recent developments before the courts where Mr. Justice Peter Charleton referred to the concept of public interest rather than public importance. I do not want to open a debate yet on Mr. Justice Peter Charleton’s judgment. I would prefer to discuss this under another section.

Senator Eugene Regan: I welcome the change to the wording which is appropriate.

Senator Alex White: If we had continued with the term “public importance” the courts would have been adjudicating as to what constituted a matter of public importance. Controversy would have arisen with the inevitable and almost paternalistic sense as to what a court thinks is an issue of public importance. I welcome the substitution as the concept of public interest is known to us. Although it is not without its own controversies, it is much more attractive than the narrower notion of public importance.

Senator Jim Walsh: I have some reservations about this amendment as it may be lowering the bar. The thrust of my argument on this Bill is not to allow that to occur. I appreciate what was said by the legal Members about public importance. However, the terms “the opinion related to a matter of public interest” may not necessarily mean it is in the interest of the public. There may be a legal connotation. Public interest could just be a curiosity and, therefore, I am concerned a defence could be mounted with only a low level of proof.
I stand to be corrected but the term “public importance” is clear. In a legal setting it might not be as well defined as I interpret it to be. Public interest could be anything, however, even the result of last night’s match. I am not convinced by the substitution of the terms “public importance” with “public interest”. I do not want to split hairs on it but it is fundamental when it gets to court as to the level and threshold for the judicial assessment of whether it was correctly done.

Senator David Norris: I am glad the Minister has taken the arguments on the previous Committee Stage into account. I support the amendment because I believe the Minister has tightened up this provision. Public importance gives a free range for prurient interest, speculation and poking around unnecessarily in people’s dirty linen with no good real investigative point.
With so many lawyers around the joint, I am sure I will be told if I am wrong but I believe there is a definition in case law of public interest. It is similar to a phrase in the Constitution, alas rarely used, “the public good”. If I am incorrect, there may be a case for attempting a definition of public interest in the Bill. Public interest has been satisfactorily defined by the operation of case law.

Deputy Brian Lenihan: Public interest brings greater clarity into the law which is always desirable. Public importance does not have a term of art meaning in the law in the same sense. Apart from established case law in this area, a matter of public interest can be distinguished clearly from a matter of private interest. Public clearly connotes the concept of a zone of private interest and, therefore, increases the burden on a defendant who must demonstrate the matter is of public and not private interest. It is difficult to think of the term “importance” in the same light.
Matters not of public importance — public unimportance, so to speak — does not connote the same degree of public interest. This is an essential feature of the defence of fair comment. One cannot make an honest comment about a matter of private interest. It must be a matter of public interest for one to be entitled to express such a strong opinion. It is a more valuable safeguard to use the term “public interest”,. I agree with the views expressed by Senators on this matter.

Amendment agreed to.
Government amendment No. 9:

In page 15, lines 20 to 38, to delete subsection (3) and substitute the following:

“(3)(a) The defence of honest opinion shall fail, if the opinion concerned is based on allegations of fact to which subsection (2)(b)(i) applies, unless—

(i) the defendant proves the truth of those allegations, or

(ii) where the defendant does not prove the truth of all of those allegations,the opinion is honestly held having regard to the allegations of fact the truth of which are proved.

(b) The defence of honest opinion shall fail, if the opinion concerned is based on allegations of fact to which subsection (2)(b)(ii) applies, unless—

(i) the defendant proves the truth of those allegations, or

(ii) where the defendant does not prove the truth of those allegations—

(I) the opinion could not reasonably be understood as implying that those allegations were true, and

(II) at the time of the publication of the opinion, the defendant did not know or could not reasonably have been expected to know that those allegations were untrue.”.
Amendment agreed to.
Amendment No. 10 not moved.
Section 18, as amended, agreed to.
SECTION 19.
Government amendment No. 11:

In page 16, line 4, to delete “shall”.
Deputy Brian Lenihan: This is a technical drafting amendment to improve the text of the Bill. The word “shall” appears twice in section 19, in lines 1 and 4. The reference to “shall” in line 4 is superfluous and this amendment proposes to remove it.

Senator David Norris: I understand that the Minister is trying to make this section grammatically clear but would it not have been better in line 3 after the phrase “consisting of opinion,” to include the phrase “and shall include the following”? There is no grammatical proscription on using the word “shall” twice, particularly when it covers slightly different elements. I am not insisting on it but it seems to flow better with “and shall” so that the section would read:

The matters to which the court in a defamation action shall have regard, for the purposes of distinguishing between a statement consisting of allegations of fact and a statement consisting of opinion, and shall include the following:

Senator Eugene Regan: Senator Norris is grammatically correct because the clause has two purposes, “shall have regard” and “shall include”. This seems to be more elegant language.

Deputy Brian Lenihan: I have some sympathy with the views expressed. I will consider the issue and table an amendment on Report Stage. It certainly reads more elegantly with the insertion of the conjunction.

Amendment, by leave, withdrawn.
Question proposed: “That section 19 stand part of the Bill.”
Senator David Norris: Is there any necessity for me to table an amendment on this?

An Cathaoirleach: No, because section 19 will be part of the Bill as written, not as amended. The Minister will table an amendment on Report Stage.

Deputy Brian Lenihan: I am withdrawing my current amendment because of the Senator’s observations on it and revisiting the issue the Senator raised on Report Stage. There is no point in amending the Bill with the Government amendment now and coming back to it on Report Stage.

Question put and agreed to.
SECTION 20.
Question proposed: “That section 20 stand part of the Bill.”
Senator Eugene Regan: I am concerned about section 20(5)(b) which, referring an offer to make amends means an offer, “to publish that correction and apology in such manner as is reasonable and practicable in the circumstances,”. There is often a major dispute about the form of the apology. In many cases the apology is printed in the corner of page 10 whereas the defamation was published on top fold of the front page. Could the language in this subsection be tightened up, for example, by the inclusion of a phrase such as “commensurate with the prominence given to the original publication” or otherwise?

Senator Jim Walsh: I support Senator Regan’s comment.

Deputy Brian Lenihan: I may revisit section 20 on Report Stage, addressing the issue Senator Regan raised. It may arise on this section but not necessarily because this is an offer of amends procedure which has existed since the 1961 Act. The issue, however, will be better discussed in some of the subsequent sections and we should have a more detailed discussion on the issue of the prominence of an apology. If, as a result of that discussion, we decide to move in that direction an incidental change will be required in section 20 as well.

Senator David Norris: I have a note in the margin of the Bill that I intend to table an amendment to the effect that the apology shall have at least the same prominence as the original defamatory statement. That is only fair because it is not appropriate for a newspaper to have the defence of an apology if it sticks it on the back page, in Irish.

Question put and agreed to.
SECTION 21.

An Cathaoirleach: Amendments Nos. 12 and 31 are related and will be discussed together by agreement.

Government amendment No. 12:

In page 17, subsection (2), line 35, to delete “making” and substitute “the publication of”.
Deputy Brian Lenihan: These are technical amendments designed to improve the text to make it clear that the apology being made requires publication.

Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22.
An Cathaoirleach: Amendments Nos. 14 and 15 are cognate and are related to amendment No. 13. Therefore, amendments Nos. 13 to 15, inclusive, will be discussed together by agreement.

Senator Alex White: I move amendmentNo.13:

In page 18, between lines 8 and 9, to insert the following subsection:

“(2) The court may regard an apology as effecting a substantial mitigation of damage if, but only if, it is made within 14 days of complaint being made in respect of the utterance to which the apology relates, and if the defendant’s proposals for publication of the apology are reasonable.”.
This takes us into the area of apologies. I agree with the Minister’s earlier comment that to achieve the balance sought by this legislation it is a priority to ensure that media organisations publish apologies as appropriate and would do so “readily”. This is desirable.
My default position in this debate is to favour the widest possible latitude for freedom of expression, consistent with the protection of the good name of an individual. Where there is a clash it is for us to determine where to strike the balance. An apology when appropriate should be timely and expeditious. There is little point in giving protection to defendants who delay publication of an apology because the impact of a libel is felt most acutely in the hours, days or weeks after publication. The longer the aggrieved person has to wait the less impact the apology will have.
In this amendment we regard mitigation as substantial mitigation. If an apology is not published within the timeframe that we propose, we would not exclude the possibility of mitigation being associated with late apologies but it would not be substantial mitigation. We would be flexible in a discussion of the timeframe. There could be some mitigation for a late apology but not substantial mitigation. This is consistent with the Minister’s comment about apologies being published readily.

Senator Denis O’Donovan: I am sure the Minister is more capable of responding to this amendment than I but I support the gist of it. Defamation can cause a great deal of damage. I raised in this House the case brought by a Ukrainian interpreter against a number of newspapers after the death of our former colleague, Liam Lawlor. The accident happened at a weekend and that Sunday morning a most appalling story was told which was poorly researched and utterly untrue. The lady involved, of whom I had never heard previously, used Irish legislation to get a substantial settlement, plus costs.
I am not sure how many people in Moscow and the Ukraine read the Irish newspapers that Sunday and Monday. I do not aim to demean her case but Liam Lawlor’s widow and children suffered immense hurt. Irrespective of history, it was bad enough that he was killed but nobody deserved what followed. Not a single cent came to Mrs. Lawlor and no apology was tendered by the print media in subsequent publications. We must not lose sight of such incidents in this Defamation Bill because it could affect another colleague or a prominent public figure, such as a judge. We say that when a person dies that is the end but people who survive deserve respect.
There has been talk of a press ombudsman and a journalists’ council, run by the media, covering the area of defamation. This should be examined because we must be wary of giving carte blanche to the media in an area about which I feel strongly. As public representatives, whatever our political leanings, we must be vigilant of what is said about a person who has died, especially when it is untrue. I do not mean to detract from the woman involved in the Liam Lawlor case but it does not rest easy with me that she received a substantial sum using libel laws in this country. The pain she experienced in Moscow was probably far less than that suffered by the Lawlor family. If the Bill ignores this then it will not be as strong a piece of legislation as I would like.

Senator David Norris: I am not at all sure we should debate who was hurt most as I thought the woman in question had a very reasonable case. She suffered the traumas of the accident and was then told she had been in the car with Mr. Lawlor for the purposes of prostitution. It was indicated that she was a well known teenage prostitute and I think that is a shocking thing to say about a person. I think she is entitled to feel as hurt as anyone else in this case.
I agree with Senator Alex White’s argument in favour of the Labour Party’s amendment as I think the principle is correct, though I am not sure of the time. People closer to the newspaper trade would be better able to say but 14 days may very well be reasonable; I am not sure of this but I support the principle. I was pleased to hear the Senator speak of the sting of libel as it seems we are returning to the area of feelings, and Senator O’Donovan spoke in a similar way.
I will turn briefly to my own amendments, which sought to insert the word “automatically” in lines 15 and 17 on page 18, section 22. The changes mean the text would read:

In a defamation action, an apology made by or on behalf of a defendant in respect of a statement to which the action relates—

(a) does not automatically constitute an express or implied admission of liability by that defendant, and

(b) is not automatically relevant to the determination of liability in the action.
I suggest these changes because I understand the press interests the Minister is addressing. Editors and proprietors of newspapers are almost unable to print apologies because they constitute an admission of liability. Insurance companies tell those involved in car accidents to never admit liability at the scene of an accident and this is similar. People sometimes admit liability and are probably right to do so if they were in the wrong. However, I think it is unfair on the plaintiff that printing an apology automatically expunges all other redresses. I suggest there should be balance and the court should be allowed take apologies and admissions of liability into account when making judgments. This would give a greater scope for the operation of judgments. It might not have a great impact on damages awarded but it would leave it open to judges to acknowledge apologies and decide whether they constitute an admission of liability.
Apologies do amount to an admission of liability and we are, in my opinion, simply giving immunity to those who make admissions of liability. I do not think people who apologise should get away with what they said in every case thanks to the words “I am sorry”. That is like something out of the film “Love Story” where the tag line was “love means never having to say you’re sorry”. In this case it seems one can get away with murder if one says “sorry”. One can say the Minister is a well known murderer and bank robber only to disclaim liability by saying “I am sorry, I will read that again” afterwards. I do not believe this is necessarily a good idea and feel the insertion of the word “automatically” strengthens the Bill while retaining the protection so ardently sought by newspapers.

Senator Eugene Regan: The amendment proposed raises some very important questions. If one relies on this provision to mitigate the level of damages, time should run from the date of the complaint and I feel this level of specificity is necessary. This point is made in the amendment, though whether it should be 14 days is open to debate. It should be clear that time is of the essence when an apology is to be made. The date given may be the day before the action commenced when the aggrieved party has made all efforts to consider the matter. The form of the apology comes into question, which comes back to the point I raised on the previous section. An offer of apology should be reasonable in the sense that it should be as prominent as the insult was in the first instance.
Revision is required in this area, whether using the specific wording proposed by Senator White, because provision must be made for time being of the essence and running from the date of the complaint. The issue of the prominence of the apology must also be dealt with. Without these ingredients this provision should not be open to the publisher.

Senator Jim Walsh: I oppose the reference to “substantial mitigation” in Senator White’s amendment. If the article was defamatory and poorly researched in the first place those responsible should face the consequences. Senator Norris contended in an earlier debate that it should be a case of print the truth or pay the price. I fully subscribe to that. However, I have some support for the timeframes suggested by Senator Regan. Regardless of whether the time allowed should be 14 or 21 days, the important issue is that the apology should be offered as quickly as is reasonable. Some consideration should be given to this.
I fully support the comments made by Senator O’Donovan. The case he raised is a fine example of the issue at hand. It is extraordinary that no heads rolled within the offending organs of the media given that the article in question was clearly published with abandon and written without any research. That is astonishing and it tells its own story. The comparison Senator O’Donovan made is a good one. We have previously urged in this House that a provision be included in the Bill to ensure the next of kin of deceased persons have some redress when scurrilous articles are written about the latter. I am aware of the argument that we should be careful not to interfere with the proper conduct of the writing of history. However, it should not be beyond our ingenuity to afford a protection to which most people would subscribe as fair and reasonable.

Deputy Brian Lenihan: It is seldom that a Minister in the Seanad considers it a bad idea when several amendments are grouped together. In this case, however, there might have been merit in dealing separately with these amendments because Senators Norris and Alex White are addressing two entirely different issues.
Section 22 deals with the apology that may be offered by a defendant in mitigation of damages. A defendant can always offer such an apology to reduce the amount of damages to which the plaintiff is entitled. The ability of the defendant to point to an apology as a mitigating factor is an existing and appropriate feature of our defamation system. An apology can only be offered in mitigation of damages, however, not in extinction of damages. I agree with Senator Walsh that there is a danger in Senator Alex White’s reference in amendment No. 13 to “substantial mitigation of damage”. This would mean that the mere production of an apology would entitle the defendant to a substantial reduction in damages. That is not the law. Rather, the law is that the court can assess the quality of the apology in mitigation of damages.
This also addresses the issue of the time limit proposed by Senators Regan and Alex White. There is no need for a time limit if an apology does not effect a substantial reduction in the damages awarded. That is why no timeframe is written into section 22. To provide for such would prejudice the position of a plaintiff who could be told that, because an apology has been given within 14 days, for example, he or she is thus not entitled to damages. That is not the purpose of the first two subsections which deal with mitigation of damages by an apology.
Senator Norris’s amendments propose to amend subsections (3)(a) and (3)(b) by the insertion of the word “automatically”. If I had to go to the stake on this Bill, subsection (3) is the one subsection I would enact unchanged. It is essential we recognise the reality of what happens in court in libel actions. Newspapers are reluctant to issue an apology because they see it as an admission of liability. As a consequence, plaintiffs face the prospect of lengthy, expensive and traumatic proceedings in the High Court where they face the full battery of the legal armoury the defendant can afford to vindicate his or her reputation. There is no incentive for a defendant to apologise under the current system. Rather, the opposite is the case.
It is important that we provide that incentive. This is the purpose of subsection (3), which states:

In a defamation action, an apology made by or on behalf of a defendant in respect of a statement to which the action relates—

(a) does not constitute an express or implied admission of liability by that defendant, and

(b) is not relevant to the determination of liability in the action.
This is an important provision not only for litigants in the current system but for the operation of the press council. The council will not work until this subsection is enacted. The press ombudsman has little moral suasion with an editor of a newspaper or the controller of a broadcasting organisation in terms of procuring an apology. The editor or controller will decline to offer an apology because he or she believes the plaintiff in question will swallow the apology before suing the newspaper or broadcasting organisation and taking it to the cleaners. That is the advice the editor or controller will receive. The purpose of this subsection is to move this branch of the law away from that type of approach. We must recognise that media organisations are powerful and we must create a culture where apologies are much more readily given. I cannot accept Senator Norris’s amendments because they would introduce a considerable degree of uncertainty in this regard.
The question of deceased persons can be addressed in our discussion of another section. However, I will speak about it now because Senator O’Donovan spoke in strong terms about his concern that an apology is not given to the relatives or next of kin of a deceased person whose reputation has been grievously traduced in print or broadcast media. The Senator referred to the case of the late Liam Lawlor. The person who was travelling in the vehicle with Mr. Lawlor when he died sued before the Irish courts because of claims made against her at the time of his death. This case is a signal illustration of the importance of jury trial in defamation actions. I am not satisfied this action would have led to the same conclusion were the trial conducted by judge alone. The realisation by the newspapers involved that they would face a jury induced them to make a settlement of the proceedings.
It is a matter of record that, after my appointment, I consulted various media organisations, lawyers who acted for both plaintiffs and defendants, and academics in regard to this Bill. I indicated to all the media organisations that the issue of gravest concern to me was that newspapers in recent years had breached a fundamental Irish custom of respect for the dead, particularly at funerals and in the immediate aftermath of death. I indicated that this was an issue about which I had grave concerns. I conveyed my wish to the press ombudsman that the press council address this issue as its number one priority. The situation regarding Liam Lawlor is not the only example of this recent practice.
Whether we can deal with this issue in this Bill is a matter for consideration in our debate on another section. I do not want to anticipate the difficulties that are likely to arise but the writing of obituaries, for example, is clearly in the public interest. The freedom to make comment is important and it is a matter upon which action must be taken. I wish the press ombudsman and press council well in their work. There is a black hole in that certain matters can be published in Irish newspapers that cannot be published in British newspapers because of the operation of the press council in the United Kingdom. I am anxious to give the council an opportunity to plug that black hole. It is matter of public record that I was prepared to leave the Privacy Bill 2006 on the Order Paper of this House for a period to allow the council time to demonstrate its capacity. If that capacity is not demonstrated and this Bill cannot address the issue of the defamation of a dead person at the time of his or her funeral, it is an issue to which I will return in the Privacy Bill 2006. I am not prepared to let this black hole continue.

Senator Alex White: I agree with most of what the Minister said. In particular, I agree with his comments on subsection (3) and his contention that an apology should not constitute an express or implied admission of liability. I thank Senator Norris for his support of my amendment and I wish I could return the favour on this occasion. Unfortunately I cannot, as it would open up——

Senator Jim Walsh: The Senator is ungrateful.

Senator Alex White: I am hoping for a chance to support one or other of the amendments Senator Norris has tabled very carefully to this legislation. He has given much attention to it, both on this occasion and the last, as we can see from reading the transcripts.
If we introduced the word “automatically”, it would then give rise to a debate as to the circumstances in which an apology should or should not constitute an admission of liability. That would be unfortunate and would undermine the very laudable intention behind this. It seems to be an incentive for media organisations to furnish an apology and, importantly, it would bring about pressure for them to do so.
This leads to my amendment. I have heard the Senators’ concerned comments, especially those of Senator Walsh, regarding the use of the term “substantial mitigation”. Perhaps I might reconsider the term before Report Stage. We are in the business with this discussion of incentivising or pressurising media organisations into furnishing apologies in an expeditious manner. There is only a very short moment after the publication of a defamatory statement when it really makes a significant difference to an aggrieved plaintiff that an apology be published in respect of him or her. An impact is made only in that short time.
Putting a timeframe in place, be it 14 days or something marginally longer, will get people thinking. At the risk of personalising the matter too much, as a former journalist who worked in the field for ten years and as a lawyer working in the field, there is nothing that concentrates the minds of journalists and editors more quickly than the prospect of a libel action coming down the tracks that they know they cannot win or to which they have significant exposure.
We are not in the business of solving problems for the media as we have a wider interest here, but if we can pressurise them into seeing that the problem can be fixed quickly, within a period of 14 or 21 days, that would be entirely consistent with the argument made by the Minister. That is to say apologies would be given readily. It concentrates the minds and puts pressure on the editors and everyone else to deal with the problem now rather than delay the matter for six months or two years or whenever the issue goes to court.

Senator David Norris: I am not completely convinced either by the Minister or Senator White. They seem to be overly optimistic about the nature of the printed media in this country, particularly as it comes under very sustained pressure from the British market. I already referred to the way in which The Sun dealt with its apology under the press council. It made the apology and then repeated the offence. I am very reluctant to give an unqualified “get out of jail free” card, which is precisely what this is. I will wait and see. Perhaps the optimists will be proved right and I will be proved to have been too much of a pessimist.
I am very glad Senators O’Donovan and Walsh raised the question of the offence to the family of the deceased in regard to reputation. I again refer, with a slightly different emphasis, to the story I raised yesterday with regard to the relatives of the deceased. The story was just was bad as the Liam Lawlor case. The story concerned an inoffensive, gentle and decent man who met someone he thought would be a partner in at least some kind of perhaps casual sexual relationship. He was murdered by somebody with a track record in this area of attacking gay people. The man was killed by one stab wound which severed the carotid artery. The large headline in The Star was “Kinky Sex Horror”. The first paragraph stated: “Gardaí were last night probing whether a man was murdered or killed accidentally in a kinky sex game.” The Garda was not doing so as there was no kinky sex game. The man was killed by one stab wound which made him bleed to death very quickly. There were descriptions of the man being trussed up like a pig and it was suggested that he died in some kind of Michael Hutchence-style operation. The word “orgy” was used but it was a pretty modest orgy if there were only two people involved in it.
The idea was put about that this man had voluntarily engaged in a process whereby partial asphyxiation leads to an increase in sexual pleasure. That is completely untrue. After that the newspapers hounded the family and tried to ascertain funeral details so they could take photographs. The family has contacted the newspaper and nothing has been done. There has been no apology and this may be a case that falls into a gap between the passage of this Bill and the operation of the press council.
I agree with my colleagues on the other side of the House that this type of offence is intolerable and unsustainable. I am very ashamed that it happened in an Irish newspaper, not a British tabloid. The newspaper savaged one of our own who was killed under the most appalling circumstances.

Senator Eugene Regan: I return to the net issue of timeliness. In section 22(1)(b), the term used is “as soon as practicable thereafter, in circumstances where the action was commenced”. Section 22(1)(a) does not mention timeliness. I wonder if the insertion of the term “in a timely manner before the bringing of the action” would make that link between the mitigation and the fact that an apology was offered in a timely manner. Otherwise there is no real direction to a court to take into account the element of timing and timeliness.
We refer to timeliness in section 22(1)(b) and it seems we could usefully do likewise in the previous paragraph. I will leave that for the Minister to consider.

Senator Denis O’Donovan: Tá an t-am nach mór istigh. I do not want to labour the point but I concur with Senator Norris’s comments about the other example. I picked the case of the reporting of the late Liam Lawlor’s death.
I will clarify my point. I only met Liam Lawlor’s widow on one occasion and I would not know the lady very well. Responsible journalism should have reacted at editorial level in the aftermath of that saga. It not only affected the family but also politics in general because it could have been anyone who was involved. A Fine Gael or Independent Senator or Deputy could have been abroad and had the same allegations made. It should hurt us all.
What I have in mind does not mean Mrs. Lawlor or her family or grandchildren should get substantial damages. If on the following Sunday, however, the newspapers concerned were like-minded in their editorials and front pages and admitted they got the story wrong, I would have greater respect for the media in general.
For most of my life, Irish journalism in its tradition has been very fair-minded and balanced overall. In the past ten to 15 years, unfortunately, with the input of particular tabloid press, some newspapers are trying to out-do their British counterparts. There is almost a competition on how low they can stoop. If there were greater responsibility within the media, legislators could act accordingly. 2 o’clock
I am very pleased about the Minister’s comments about the Lawlor saga in particular. A Fianna Fáil Ard-Fheis took place that weekend and the incident was a body blow. The reporting was appalling. It might be five or ten years before such legislation will be revisited. I do not take away in any way from the lady in Ukraine who was an interpreter and was wronged. Thankfully for her she was able to use the Irish system to get substantial damages. I am sure in Ukraine or Russia she would not have got one cent. They would probably have told her to go away and get lost. Out of courtesy and respect the very least those newspapers should have done, including broadsheet newspapers — they were not all tabloids, was apologise the following Sunday at editorial level. That is where the Press Council of Ireland and the press ombudsman will have a leading role to play.
The Minister is right to stand back on the Privacy Bill. I listened to Mr. Horgan the other day. He is a very capable person with an interesting background. I hope the press council will be able to work without the need to interfere, prod or wave the stick if people step out of line. If the media can in some way self-regulate and be responsible, they will do a great justice and obviously will save themselves a great deal of money.

Deputy Brian Lenihan: On Senator Alex White’s technical amendment, I come back to my core point that the timeframe is supervised by the court. The newspaper or publisher has an incentive to give a quick apology because that will reduce the person’s damages. That is the best incentive. Senator Regan said the section refers only to actions and not to the promptness of the apology. It refers to an apology before or after an action has been instituted which may be well after the original offending article or broadcast. I will consider the issue. I signal to the House that on Report Stage I will revisit this section with a view to inserting some reference to the prominence of the apology in the section.
Following Government approval concerning the decision to restore the Bill to the House, the Government decided that the Defamation Bill should provide for equal prominence to be given by publishers of offers of apologies to make amends to persons defamed as to the original defamatory statement. I am working on the matter and I intend to introduce proposals on Report Stage. While considering that issue I will examine whether there is value in including a reference to the promptness with which an apology was given. On balance my instinct is that it is a matter better left to the courts. However, I will examine it.
On the wider issue raised by Senators Norris and O’Donovan about deceased persons, Senator Norris gave an example and I could give several more. I do not wish to do so, however, out of respect for the feelings of the families involved. They were all published in Irish newspapers. It is a deplorable tendency and is completely at variance with our traditions as a people. I am determined to deal with the matter as I have said to the media organisations. Mr. Horgan should be given an opportunity to address it as Senator O’Donovan indicated. However, if he does not, I do not intend to postpone the issue to some indefinite future date.

Senator Alex White: On the basis of what the Minister has said I will withdraw my amendment. However, I may revisit it at a later stage.

Amendment, by leave, withdrawn.
Amendments Nos. 14 and 15 not moved.
Section 22 agreed to.
Progress reported; Committee to sit again.
Sitting suspended at 2.05 p.m. and resumed at 6 p.m.