Defamation Bill 2006 - Committee Stage. - 20th February 2007
Mr. Norris: I welcome section 5. In my opinion, abolishing the distinction between libel and slander and placing both in the category of defamation is a useful development. My soundings with people in the Law Library suggest that the Minister is very much in tune with the thinking of lawyers who operate in the area of libel. I wanted the opportunity to say that because it is probably the only complimentary statement I shall make this afternoon.
Mr. M. McDowell: I expect that further compliments shall flow in the course of the afternoon.
Mr. Norris: I do not think that will be the case. However, if he accepts my amendments, the Minister will be deluged with compliments.
Mr. M. McDowell: It is interesting that slander is not actionable without proof of special damage and except in certain cases. One of the latter instances is imputing dishonesty or criminality to a person, while another is imputing unchastity to a woman, a man or whomever. I am following the recommendations of the Law Reform Commission in merging the two torts. There is, however, a slight reluctance on my part in that regard because I am of the view that people make verbal statements in the heat of the moment and these should not be dealt with on the same basis as those which appear in written form or which are broadcast. The old distinction between slander and libel was not completely antediluvian or lacking in substance. People say things in the heat of the moment which, even after only 20 seconds, they would retract. People listening to conversations know that individuals say things that they do not really mean or over which they would not stand.
Mr. Cummins: We accept the Minister’s apology
Mr. Norris: It is interesting that my colleague on the Government benches is hesitating about this; I am too, for a number of reasons. First, it places a considerable burden on somebody who is trying to take this type of action. Bear in mind that this is generally an individual who is up against powerful vested interests. I note that at the Tánaiste’s party conference, a great rally which was held last weekend, a gentleman there spoke against the privacy Bill. I hope the Minister will tell us later what is happening with that Bill. The gentleman was objecting to the Bill on various grounds, but he did not disclose the fact that he is the principal partner of a solicitors’ firm whose major client is Mr. Anthony O’Reilly. That little bit of information might have been helpful.
I am on the side of the small person against big vested interests. What I most dislike about this Bill is that it is produced at election time, just as the Fine Gael Party launched its version in 2001 in advance of an election. With regard to the rights of the small person, this is a situation where somebody is expected to make not just one affidavit but perhaps a series of them as the trial process continues. One could end up with a trial within a trial. It is possible, for example, that somebody could swear an affidavit, there is a gap of two years before the trial is held, they make an honest mistake in the witness box and they are found guilty of a criminal offence. That is not a good idea.
This section is analogous with the provisions of another Bill, the name of which I cannot recall, dealing with personal injuries and insurance. I believe it was a mistake at that point, and now the mistake is being widened by its introduction in this legislation. It is to the disadvantage of the ordinary person who might make a genuine mistake. It does not trust the individual. The assumption behind the provision is that a considerable preponderance of people will perjure themselves. That is rather insulting to the Irish people. I do not believe a majority of people will do that and there is no need to deal with it in this way.
The Minister, unusually, does not appear to take into account the corrective system of the court in analysing this evidence. I share Senator Walsh’s reservations but mine are stronger. It would be better to remove this section.
Mr. M. McDowell: The point about somebody making a mistake and being criminalised is absolutely without foundation, I regret to inform the House.
Mr. Norris: Would the Minister like them to be guilty?
Mr. M. McDowell: No. Subsection (6) provides that if a person makes a statement in an affidavit under this section that is false or misleading in any respect and that he or she knows to be false and misleading, he or she shall be guilty of an offence. That has nothing to do with making an honest mistake. It must be proved that the person knew it was false and misleading at the time they made it. The notion that something might have happened over a period of two years which might make one’s recollection wrong would not be correct.
The genesis of this section was the Law Reform Commission’s suggestion, in its famous document on defamation, that we should put the onus of proof on a plaintiff in defamation proceedings, that is, one should prove that the allegation against oneself was false. The commission said that this is the only area of tort law where there is no onus of proof on the plaintiff. When the Government considered this, there was a strong view that it was not an acceptable approach. We did not agree with the Law Reform Commission that the onus of proof should shift unreservedly to the plaintiff in defamation proceedings.
However, we were also confronted with another situation. It is not fanciful because it has happened. Somebody who has done something wrong but feels that the newspaper cannot prove that it is wrong, can sue the newspaper and get away with it without ever exposing themselves to any form of liability. This has happened and people have extracted money, apologies, contributions to charity and so forth, knowing well that the newspaper was spot on but calculating that it could never prove the matter and would have to back down. A Member of the House of Commons, Tom Driberg, sued the pants off a few newspapers, if I may use that phrase——
Mr. Norris: An appropriate image in the circumstances.
Mr. M. McDowell: ——for stories which everybody knew to be right. He never even had to testify in the cases. He simply demanded that they prove the case and then walked away from it. This provision simply requires that somebody swears an affidavit saying that what is in their pleading is correct. In other words, if the pleading is false and they know it to be false, they commit perjury or expose themselves to being proven to be committing perjury if they proceed with the trial.
Senator Norris drew the analogy with the Civil Liability and Courts Act. Since the Personal Injuries Assessment Board and that Act came into operation the volume of litigation has plummeted. Furthermore, insurance premia have plummeted. The compensation culture is in full retreat. That happened because it was usual for people who, for instance, had broken their leg in a car crash to announce that they could no longer play golf and that they had to employ nurses and childminders. These particulars were put into pleadings, regardless of their truth, to pad out a case against the insurance company. There was never a requirement for someone to say it was true and to put their reputation on the line if it was not true.
The purpose of adversarial justice is that one is asking a court to believe one. If matters are put down in writing without any belief in their truth in the hope of bluffing the other side, and someone profits from that in personal injuries or defamation cases or if someone frightens someone off with an assertion in their pleadings, they might as well go a little further and expose themselves to a criminal liability if they are just cheating the other side.
Senator Walsh asked if the plaintiff can call anybody they want. They can but if my newspaper has written an article about somebody and I call that person as a witness, that person is my witness but if he or she gives evidence, I am bound by the answers. If I said he did beat his wife on the occasion and he says he did not, I cannot suggest to him that she had 13 bruises, that she said he did it and so on. One cannot cross-examine one’s own witness. That is the crucial difference. A witness who is called by one side is giving evidence in chief and one cannot cross-examine one’s own witness, except in rare circumstances if that person gives evidence that is against one’s case. Under this section, if somebody swears an affidavit, they can be cross-examined.
There is another aspect, going back to the Driberg instance. The idea that somebody could, fully conscious of the fact that what was said about them was true, go into a court, have their counsel open the case to the jury, not even walk up to the witness box but simply say to the other side that they must prove that whatever was said is true, knowing that it is true, offends justice. We have introduced balance in that regard. We decided not to follow the suggestion of the Law Reform Commission, which was that the onus of proof should always be on the plaintiff. We have said the onus of proof is not on the plaintiff but if the plaintiff claims he has been defamed, he must swear an affidavit saying that he truly believes he has been defamed and outlining the reasons.
He does two things in that regard. First, he renders himself liable to prosecution for perjury if he lies at that point and, second, he exposes himself to cross-examination in the witness box. The idea that somebody could sue for a large sum of money without ever exposing themselves to cross-examination is unjust. That is the reason for that balance. The Government took the middle course. It ignored the Law Reform Commission’s proposals.
Mr. Norris: I support the Minister on this point. It may not cover a case in which I was involved but it comes close to the point. Over the airwaves I stated that the situation pertaining to the selling of alcohol in Dublin is outrageous. Every huckster’s shop is stuffed to the gills with gin, beer and wine and no licence application is turned down. On RTE I said I did not know who gave out the licences or where they lived. I said it was probably Killiney or Howth because they do not live around me and I asked what kind of lunatics they are. RTE was sued because it turned out there was only person awarding the licences. The guff that came from the solicitors was to the effect that I had called their client — a most distinguished citizen — a lunatic and a madman. It was simply a turn of speech. I said on the programme that I did not know who “they” were, suggesting I did not know how many were involved or where they lived. I used a commonly employed turn of speech but RTE was grilled and filleted by his lordship not once but twice. It should be clear that a claim is particular and that there is malice and intention. It was disgraceful that this action was taken.
Mr. M. McDowell: I am amused that Senator Norris seems to leave a trail of wreckage behind him every time he goes into a studio.
Mr. Norris: They still love me, however, as they do the Minister. There is a fair amount of wreckage in his case as well.
Mr. M. McDowell: The provisions of section 9 are based on what was in the Whelan report and probably also the Law Reform Commission report. The particularity idea is not a random thought of my own. The purpose of this provision is to bring reason to the definition of a class of persons. We must be reasonable in this. I would prefer to cut down these types of inferential libels to the minimum. If a person is to be found to be defamed, it should be clear to everybody who reads the newspaper in which the defamatory statement is made, for example, that an act of defamation has taken place. The notion that even the maker of the statement could have no idea who he or she is defaming and that more than one person could claim to be the person defamed strikes me as contrived.
SECTION 11.
Question proposed: “That section 11 stand part of the Bill.”
Mr. Norris: I oppose this section because it seems extraordinary to claim that a body corporate is the same as a natural person. I do not believe that for a minute. This defect is compounded by the provision that a body corporate may bring a defamation action under this Bill in respect of a statement concerning it that it claims is defamatory “whether or not it has incurred or is likely to incur financial loss as a result of the publication of that statement”. If there is no financial hurt, one is left only with feelings. I contend, however, that corporate entities are not entitled to feelings. The ability to feel is a human attribute that does not attach to the collective in the same way.
I again plead the interest of the ordinary person in this. If I were to say that Guinness or Mars bars are bad for us, should the corporate entities that manufacture those products be allowed to land on me? There may well be reason for a corporate body to be allowed, as is the current situation, to take an action where it can demonstrate financial loss. We should not be expected, however, to compensate a corporate identity for an injury to its supposed corporate feelings.
The language is clear in specifying that the provisions of this Bill apply to a body corporate as they apply to a natural person. This revolts common sense. It is perfectly reasonable that a business enterprise that can demonstrate a financial injury should have recourse. It seems, however, that what is left when one removes financial damage is bruised feeling. Perhaps I am missing something here that the Minister may be able to clarify. I do not give a damn about the bruised feelings of Mars, Guinness, Tesco or, in particular, Dunnes Stores. Nor do I care about the feelings of Independent Newspapers, a company in which Senator Maurice Hayes has declared an interest.
Dr. M. Hayes: It is pleasing to discover that any type of feelings are imputed to such bodies. I strongly support Senator Norris in this. It is a supreme example of what is called a pathetic fallacy: the idea that inanimate bodies have feelings. This provision carries the notion of legal personality further than logic would bear it. Like Senator Norris, I do not believe bodies corporate have feelings to be hurt. They are entitled to damages if they suffer financial losses as a result of defamation, but this section goes beyond that.
I am concerned about the damage this provision might do to honest investigative journalism, especially to the work of journalists who examine the activities of pharmaceutical companies, for example, or companies that produce genetically modified foods. These are the corporate entities that will move in quickly with writs to close down that type of investigation.
Mr. Norris: Absolutely.
Dr. M. Hayes: This provision is against the public interest and I ask the Minister to withdraw it.
Mr. J. Walsh: I am not in full agreement with the previous two speakers. I take their point, however, about the supposed feelings of corporate bodies. Where a statement is made, either through sloppy journalism or some other reason, that defames a corporate body and causes it to incur significant financial loss, that body must be in a position to take action. In extreme circumstances, job losses might arise in a company as a consequence of irresponsible reporting. Where there is no financial loss, however, I cannot offer any reasons a defamatory statement might be actionable, although there may be circumstances where such is appropriate.
Mr. Cummins: Where there is a financial loss, nobody would disagree that a corporate body is entitled to claim. I take on board what Senators Norris and Maurice Hayes said. This section seems to go a bit overboard. I look forward to discovering whether the Minister agrees that its provisions may go too far.
Ms Tuffy: The issue of financial loss is not key to this. If one allows that a body corporate can be defamed, one must also allow all the provisions of this Bill to apply to it, including apologies and so on. This section merely sets out that a body corporate can be defamed and that the body corporate does not have to prove financial loss to take advantage of the other provisions of the Bill. That is my understanding of the section.
Mr. M. McDowell: I am grateful to Senator Tuffy for coming to the aid of the section. I am beginning, however, to experience a slight sinking feeling about it.
Mr. Norris: The Minister should get rid of it.
Mr. McDowell: A body corporate could be a county council or, even worse, the fellows and scholars of Trinity College Dublin.
Mr. Norris: Absolutely.
Mr. M. McDowell: It could be many things. I agree with Senator Norris that the idea of a body corporate having feelings is far-fetched. The good name of every citizen requires to be upheld by the Constitution——
Mr. Norris: Except public figures.
Mr. M. McDowell: ——but companies are not citizens. I will reconsider the matter between now and Report Stage. It may be better to recast the section to state that a body corporate can only bring a defamation action in respect of a statement made where it has incurred, or is likely to incur, financial loss or where the statement was made with malice. A person could say something about a company or group which was pure malice. The fact that a company trebles its profits in a following year should not be a licence to say anything one likes. People should not, for example, be allowed to say that a very successful and expanding company was poisoning its customers but escape punishment by showing a jury the company’s next three years’ accounts and saying that, although they may have tried to damage the company, they were not successful in doing so.
Mr. Norris: I thank the Minister. He points to an interesting case in which a company may make a profit after being the subject of adverse comments, which can happen, as it does in political life. Serious allegations were made against the Taoiseach, following which his popularity boomed. Negative comments sometimes have an unpredictable effect and I am grateful to the Minister for agreeing to take another look at this section.
Mr. J. Walsh: One issue struck me which eluded me when I spoke earlier. It is much easier for the corporate veil to be lifted than it was under previous legislation. Directors and managers of companies may find themselves, as a result of their company being defamed, in the eye of the storm. It might be suggested that individual managers who feel defamed by unfair and unfounded criticism take a case themselves but, given the prohibitive, exorbitant legal costs that apply in the Four Courts, the corporate body might be in a better position to do so. I ask the Minister to give consideration to that as it might justify the proposed legislation.
Mr. M. McDowell: I am concerned that leaving the Bill untouched in this regard would allow a large company to take an individual to court to prove slander or to use the legal process to punish or humiliate a person. I will, accordingly, take another look at it.
Question put and agreed to.
SECTION 12.
Question proposed: “That section 12 stand part of the Bill.”
Mr. J. Walsh: This proposes a significant change to what pertains at the moment. The Minister might clarify the situation but my understanding is that if a case is appealed to the Supreme Court, the latter can refer the decision to the lower court. There have been famous examples of increases in awards but I am concerned about the Supreme Court being able to override a case which has been prosecuted through a lower court, such as the High Court. Evidence has been given and people have been cross-examined, which does not happen in the Supreme Court, yet the latter can override the decision of the jury. I know the media sought this provision but I question whether it achieves balance in favour of the citizen. I take the point made by the Minister on the previous section about the smaller person damaging a large corporation but in these cases the large corporation is on the other side, rather than the ordinary citizen with limited resources.
I am disappointed that discussions on a press council do not consider an independent system, similar to what the Minister for Enterprise, Trade and Employment brought about in the insurance industry by establishing the Personal Injuries Assessment Board. The PIAB formula for deciding upon personal injury claims can act as a yardstick for agreeing compensation levels without incurring legal costs. The recent report of that body was very significant. It stated that cases were being addressed much more expeditiously and that justice was being dispensed for a fraction of the legal costs. I do not see why we cannot develop a similar system for this area. It would mean an independent press council or a separate assessment board but we should put such an organisation in place. If a person is defamed, they are entitled to a lawful adjudication but they should not have to risk whatever bit of wealth they have to restore their reputation, as happens at the moment and will happen under this legislation.
Mr. Norris: I am struck by the common sense in the approach of Senator Jim Walsh. His instinct is correct. I am astonished by the inclusion of this provision, which seems to be perverse and illogical. However, there is no doubt it is what the media wanted and the Minister has given it to them.
I believe Deputy Michael McDowell was the Minister for Justice, Equality and Law Reform in June 2005. Bloomsday is 16 June and is a date dear to my heart. On Bloomsday 2005, counsel in Europe defended a position on his behalf which he now proposes to undermine. I will put on the record of the House what the Minister thought in June 2005, which is in direct opposition to this section. It is surprising that such a distinguished lawyer would impugn the sanctity of the jury, a subject on which Ms Justice Finlay Geoghegan in the Supreme Court has waxed eloquent on more than one occasion.
The case, which was unreported but is available, was Independent News and Media plc and Independent Newspapers (Ireland) Ltd. v. Ireland and was related to the case of De Rossa v. Independent Newspapers. The newspaper group lost in Ireland so sued in Europe, where it was again put in its box. Arguments made by the Minister on Second Stage in defence of this section were dismissed out of hand by the European Court of Justice so why are we considering it now? We all know why. It is because a general election is imminent and every time there is an election every party gets involved in an auction to see how best it can kowtow to the press.
The Government’s response to the prospect of allowing the Supreme Court to second-guess a jury was to say that it underlined the cherished nature of the principle that lay persons were considered the most effective arbiters when deciding not only what was defamatory but what was the appropriate level of compensation. That was the argument made by the Minister’s representatives in 2005. It continues:
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 proportionate 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.
That was the Government’s argument two years ago. What has happened since? Why this extraordinary volte-face?
The court also addressed the question of guidance at first instance and recalled a series of cases, stating the case was whether the domestic protections against disproportionate awards sufficed. It subsequently stated, and this is the situation before the enactment of this Bill, and I hope this section of it will not be enacted, that in Irish jurisprudence:
The jury assess damages following its finding of defamation. The Supreme Court can review and quash the award of a jury of the High Court. It does not substitute its own award but rather refers the matter back to the High Court for a further trial on damages before a different jury. The second jury will not be informed that an earlier award was quashed nor, consequently, of the decision or reasoning of the Supreme Court.
In its finding, the European Court found the domestic remedies were perfectly sufficient and found against Independent Newspapers Limited and for the position then adopted by this Government, this Minister and his representatives. It is interesting and astonishing that there should be such a remarkable about turn on this issue by the Minister.
I would have instinctively made these arguments myself, and they have also been made by Senator Walsh to an extent, but I did not have to rely on my own inadequate fumblings. I was able to rely on the expression on behalf of the Minister by Irish lawyers at Strasbourg which was successful in defeating what the Minister is trying to introduce here at the behest of the press barons.
I tabled an amendment to this section but I want to oppose it in its entirety. The entire section should be removed.
Mr. Cummins: I also have concerns about this section. I compliment Senator Norris on his research, especially on the case two years ago. It appears to be a complete U-turn on what happened under the same Minister and Government.
We were brought up to believe a jury’s decision was sacrosanct but in this section we are saying the Supreme Court can overrule the decision of any jury on damages. It is a dangerous road to travel because if we do it about damages the Supreme Court might be called upon to overrule court decisions on other matters.
I would like to hear the Minister’s comments because the Government has done a complete U-turn within two years on this. If it were another Government that had taken this stance, it would be understandable but the same Government is adopting a different stance. We see it regularly but on this occasion an explanation is needed.
Mr. M. McDowell: Senator Norris’s tone and volume are in direct proportion to the lack of substance in the point he makes. On this occasion he was quite excitable talking about something which he fundamentally misunderstands.
When Ireland is brought before the European Court of Human Rights in Strasbourg, as the Senator knows, the purpose is to say an Irish law is inconsistent with the European Convention on Human Rights. The Irish legal team argues that we are entitled to make a particular law, our membership of the Council of Europe and adherence to the convention notwithstanding. It does not mean that an argument made in Strasbourg that something is lawful for Ireland to do means it is therefore the best law and an Irish Parliament cannot change it. That is an absurd logical leap and if the Senator reflects on it, he will save himself an increase in blood pressure.
Mr. Norris: I will and I will not.
Mr. M. McDowell: If someone argues before the Supreme Court tomorrow that something is unconstitutional, and the Attorney General states it is constitutional and that we uphold the right of the Oireachtas to legislate in this fashion, he does not mean that he is binding the Government never to change the law. He is simply upholding the sovereignty of the Irish State and its institutions to have the law the way they want it, notwithstanding their adherence to the convention or, in the Supreme Court case, the provisions of the Constitution.
There is a profound difference between saying the Irish people are entitled to do something in their own good judgment because, under the Council of Europe convention, there is a margin of appreciation that individual countries can decide where they want to strike the balance, and coming out with Senator Norris’s legal and logical non sequiter that if we have the right to do something, we must be bound at all times thereafter to do it. That is a nonsense.
Mr. Norris: It is not.
Mr. M. McDowell: He said it was a U-turn.
Mr. Norris: It is and I will prove it.
Mr. M. McDowell: There is no U-turn in saying it is not inconsistent with the European Convention on Human Rights to have the law one way and then saying we are perfectly free to have it another way. There is a difference between something which is in contravention of the convention and something that is open to a decision, one way or another, by the Irish people having regard to the margin of appreciation. That is where the Senator has been completely derailed.
Ireland defends its laws in Strasbourg and states it is for the Irish people through their sovereign Parliament to decide an issue. This is not an issue for a group of judges appointed by the Council of Europe; that is the difference. There is no hypocrisy in saying we are entitled to have the law this way but we are also perfectly entitled to change it if we want to. It is sad, however, that someone would not make that distinction. At the moment the law states that if a person appeals a decision to the Supreme Court on the grounds that the damages were excessive, it can agree and send the case back to the High Court where another jury would be empanelled. As happened in a celebrated recent case, the jury could award even more money.
Mr. Norris: Yes.
Mr. M. McDowell: It then goes back to the Supreme Court and because it is a court of law, it must in logic say it must be reversed. If it was wrong the first time it must be twice as wrong the second time. The case then goes for another jury to consider it. That brings the law into disrepute. This is not fanciful; we have seen it happen in recent months when a person appealed to the Supreme Court and was told his damages were excessive on day one and went back there sometime later with damages of twice or three times having been awarded. The Supreme Court could not state that because a second jury did this, the Supreme Court must be wrong——
Mr. Norris: Why not? It is because it is infallible, I suppose.
Mr. M. McDowell: ——because that would be effectively conceding it was wrong to send it back on the first day.
Mr. Norris: And it was.
Mr. M. McDowell: The point is that if it was excessive on day one it cannot become reasonable on day two simply because a second jury has had another canter at it and has handed out damages, assuming the evidence is the same or roughly the same in both cases. There needs to be some sense in all this. It is extraordinary that if, for instance, Senator Norris writes a food critique of some restaurant and a jury awards €500,000 against him, if he appealed to the Supreme Court, which stated the award was absurd and could not stand and sends the case back to the High Court and the next thing is that €750,000 is awarded against him. At some stage the Senator would ask when would the circus end and when would somebody intervene to suggest the award should be of the order of €100,000 or €150,000.
Mr. Norris: No review of mine was ever worth €150,000.
Mr. Cummins: We could do away with juries altogether.
Mr. M. McDowell: The point is that if the Supreme Court is entitled to find that the award is excessive it must at some stage make sense. By the way it is not directory in this case; it is not obliged to do it. However, it can in some cases. It has a choice to suggest the critique of that restaurant in that magazine could not have been worth €150,000 and to substitute that amount for the €500,000 verdict given against Senator Norris. That is a reasonable course of action. We do not need to raise our blood pressure arguing the contrary.
At one stage in my career I was peripherally involved when the initial award was made in the De Rossa case — I happened to be counsel in the case. I believe the European Court of Human Rights decided the award of £1.5 million in the Tolstoy Miloslavsky case was excessive. It also decided that the fact the jury could not be talked to was in breach of the convention. In the De Rossa case, on different evidence, it found that Irish law and procedure were not wrong by reference to the conventions.
However, all we are dealing with are two propositions. While I was not involved in the Strasbourg case, I understand it was contended there should be some direction to the jury as to the appropriate amount of damages and-or the right for the newspaper to make some submission to the jury on the amount of the damages. That proposition was advanced. The learned team of Irish counsel stated this was for Ireland to decide, that we have a complex system here with checks and balances and this was not a breach of the European convention on the facts of this case. It is stretching and distorting matters to suggest that meant the Irish Government bound itself to keeping that in existence. It would be grotesque to suggest the implication of defending a case in Strasbourg was that we could never then change the law at home having stood it up at Strasbourg.
May I say this? No, I will not go any further.
Mr. Norris: Do. Go on, go on, go on.
Mr. M. McDowell: I will simply say there is absolutely no connection between on the one hand preserving the right of these Houses to make a decision on this issue and saying it is a matter for these Houses and not for Strasbourg to decide and on the other hand later deciding to amend the law within our own margin of appreciation under the Strasbourg convention.
Mr. Norris: I am in very poor condition indeed. I have been derailed. I have misled myself. My blood pressure is rocketing. However, I console myself in the thought that the Minister is not in too good a condition either because he has tied himself in such knots of disingenuousness that his blood pressure is about to go out through the roof. Minister, I will send you a copy of the judgment. How could you know what it did when you did not even read it?
Mr. M. McDowell: The Senator should address the Chair.
Acting Chairman (Mr. Leyden): The Senator should make his comments through the Chair.
Mr. Norris: I am through the Chair. He is through his tumbler.
The representatives of the Minister, representing his point of view at that time in Strasbourg on behalf of the people of Ireland, ranged far wider than the narrow confines he suggested and mounted a very comprehensive address covering the principles underlying the whole situation pretty comprehensively. They certainly did not say we were just exploiting the margins of appreciation. They did not make the case that we only wanted to legislate in our own way in whatever way we like. That was not the case that was made. They addressed the Tolstoy Miloslavsky v UK case and on the Minister’s behalf the following was what was said by our representatives in Strasbourg:
The Government objected to the applicants’ overall approach. A balance had to be struck between protecting expression and reputations so that, once there was a finding of defamation, the weight of Convention support shifted to the protection of reputation. This latter right, guaranteed by Article 8, had been infringed to a devastating extent in the present case. The only remaining Article 10 issue was to ensure that the damages’ award was proportionate to the harm done to that reputation, bearing in mind any chilling effect on further similar publications. The applicants’ approach, on the other hand, reduced the Convention issues and the Tolstoy Miloslavsky judgment to simplistic mathematical formulae as if the only right at issue was freedom of expression without regard for the underlying values and contextual complexities of the matter including the power of the media, the devastating effects of defamatory allegations on reputations, the consequent destruction of the “human potential” which Article 10 supports and the respective roles of the domestic and European courts.
The Government considered “indirect and remote” any possibility of a chilling effect on political commentary by the press by the present or other damages awards.
This is what the press barons are saying. They are saying that if we do not have this change, against which the Minister defended us in Strasbourg, it will have a chilling effect and will kill off investigative journalism. The Government representatives did not restrict themselves to saying we reserve the right to legislate any way we want. They actively denied the possibility that retaining the situation as we have it would have the chilling effect about which we have heard editors bleating in every newspaper. It is pathetic to see Irish politicians so craven in their attitude towards the press barons. They continued, “No such causal link had been demonstrated in the present case and, in any event, awards in libel cases were inherently and unavoidably uncertain.”
Finally there was a general argument. The Government was not arguing that it had the right to do whatever the blazes it wanted in its own back yard. It argued in defence of law and against the kind of change the Minister is introducing. They said, “The Government argued that the domestic safeguards against disproportionate awards were adequate.” I do not fool myself on that. That is what the Government’s representatives said. Less than two years ago the safeguards were adequate and now suddenly they are grotesquely inadequate. I agree the Supreme Court can be wrong. Does the Minister not appreciate that? It is not infallible. It would be blasphemous to suggest it was. Of course it can make a mistake. It is a poor day for democracy when the Supreme Court, which I greatly value and respect, sets out not only to second-guess a jury but also to third-guess it.
5 o’clock
The Minister has put something very interesting on the record. A jury of 12 people found that this was a libel and they awarded considerable damages, quite deliberately and quite specifically, having heard all the evidence. They decided to teach the newspapers a lesson, and about bloody time in my opinion. The Supreme Court in its wisdom considered this was excessive and referred it to a new jury which was then empanelled. The new jury not only agreed with the first but decided the offence was so grave, it would double the damages. Then the Supreme Court second-guessed why and the Minister said it was because it could not possibly admit it was wrong.
Has the Minister any recollection of the late Lord Denning? The late lord would have sympathised with this view. It is the appalling vista. The Supreme Court cannot accept that it could ever be wrong because that is too appalling a vista even though two juries made this clear decision. What happens if the third does the same? Let us suppose it trebles it and it goes on like Alice in Wonderland where every time she takes a bite of the mushroom, she swells? What will we do? Will we undermine democracy totally?
Acting Chairman: I remind Senator Norris that we are on Committee Stage.
Mr. Norris: That is correct. I thank the Acting Chairman for congratulating me on my clarity. I really appreciate his positive comment. I am absolutely on the section and I am addressing it directly.
Acting Chairman: The section has had a considerable innings already.
Mr. Norris: No, it has not. I have not repeated myself. I shall put on the record something from this case that I have put on it yet and I will end, at least temporarily, with that.
Acting Chairman: I thank the Senator.
Mr. Norris: The Irish Government argued:
Most importantly, they underlined that the Irish Constitution expressly protected freedom of expression and one’s reputation. Central to striking a balance between these two rights was a fundamental notion of constitutional law, namely that of proportionality. It was a notion which was equivalent to the Convention concept: the applicants disagreement with this amounted to saying that the Supreme Court was mistaken or that it did not mean what it said. It was a notion which was an important aspect of Irish libel law and a significant safeguard at first (jury) and second instance in libel cases. It was consequently a key factor distinguishing the present case from the Tolstoy Miloslavsky case. The Government also emphasised that its choice of how to provide adequate safeguards fell within the State’s margin of appreciation.
Mr. M. McDowell: That is what I said at the beginning and the Senator said it had nothing to do with it.
Mr. Norris: Exactly, but I am saying that in what they said, they agree with what apparently was the position of the Department of Justice, Equality and Law Reform less than two years ago. Something very remarkable has happened in the interval to change the Minister’s mind so completely, and I am not being disingenuous in saying that. The Irish barristers did not merely represent the case that we should retain the right in these Houses of the Oireachtas to frame whatever laws we please. Of course we retain the right but we have to test them for constitutionality.
When we discuss a later section I will suggest to the Minister that part of the core of the Bill is unconstitutional because, again at the behest of the press barons, the Ministers appears to be creating two classes of persons, those in public life who have a lesser right to the protection of their name, and the public. The Minister quoted in one of his replies the right to the vindication of the good name under Article 40. That is one of only four enumerated rights in the Constitution. When has the State acted legislatively to guarantee the good name of all citizens? If the Minister tries to make a distinction between ordinary members of the public and public figures under this qualifying interest provision, he will violate the Constitution and I and other people in this court house will call for this entire Bill to be referred to the President for signature to vindicate the good name of every person. As a person in public life and a public representative, I believe the Minister should vindicate my good name and that the law should vindicate my good name just as it does any other ordinary citizen.
Mr. M. McDowell: Section 12 allows a person who has gone to the High Court to sue a newspaper to say that the damages he or she was awarded were inadequate, and then to go to the Supreme Court and say he or she was accused of being corrupt, that the jury heard the evidence over ten days and awarded him or her €10,000, that he or she was a politician, that this was a serious allegation and that he or she was clearly entitled to more. One is entitled to say to the Supreme Court, and it does happen on occasion, that the damages awarded were inadequate. In those circumstances the Supreme Court is entitled either to say that one should go back to the High Court and empanel another jury with a view to being awarded higher damages or, in this case, if this was the law, to say that in its view those allegations certainly merited much more money.
I do not see that it has to have the construction Senator Norris has suggested. The Supreme Court, if it has the right to say that a particular award of damages is excessive, at some stage surely is entitled to ask by how much it is excessive. That is the point being discussed here. It is not a great point of high principle. As I understand the De Rossa case, and I was not involved in it in Strasbourg, what was at issue was that the court was saying that effectively the jury was left without direction, counsel could make no submission and, in consequence, the Irish law was deficient having regard to the European Convention of Human Rights. The Irish Government’s lawyers said no, that this was the law as it stood and that it did not necessarily contravene the European Convention of Human Rights and that it was within our margin of appreciation to determine how we would have our law in this matter.
Mr. Norris: That is if we tinkered with it in the way the Minister is doing. That is what they said.
Mr. M. McDowell: It said it did not need to be tinkered with to make it convention compliant, which is a different proposition. It is great when there is a case with which one cannot see any problems. The case the Senator is addressing here is that because the Irish Government successfully upheld the status quo in Strasbourg, it was somehow bound never to amend it. That is simply not a runner.
Mr. Norris: I am not saying that.
Mr. M. McDowell: It is not a runner.
Mr. Norris: Of course, it is not. I did not say that.
Mr. M. McDowell: I am making the simple and straightforward case that this is not mandatory. It does not say that the Supreme Court shall impose its own will. It simply says it may do it. It may well be that, in most cases, the Supreme Court will decide not to do it and send it back. At some point, as in the recent case, the Supreme Court should surely be in a position to say that this is ridiculous; that a case cannot keep going up and down like a yo-yo between the courts; that it believes the case is not worth more than €350,000, €250,000 or whatever the amount is; and that it is awarding that amount. I do not see anything wrong with that proposition.
The other proposition, which is that the Supreme Court can keep saying an amount is excessive but can never say what would be reasonable, is a very difficult one to defend. That is not a tenable point of view. If not for recent events, I would be in a weak position to make this point, but I can point to a very concrete and important case where the second jury was kept in the dark as to what the Supreme Court had decided. That is part of the existing regime. The second jury then sat down in good faith, listened to a trial for a long period of time and made what the Supreme Court had already ruled to be another error. This is not a good way to do business.
Section 12 does not direct the Supreme Court to substitute its own views. It empowers it to do so. I have no doubt that if the Supreme Court thought it was dealing with a case in which the damages were clearly inadequate, it could make a choice and ask the plaintiff whether he or she wanted to go back down to the other court or wanted the Supreme Court to decide what adequate damages were. It could inform the defendant that it believed he or she was right and that the award was excessive and ask him or her whether he or she wanted the court to decide on it or go down to the other court. In those circumstances, one is empowering the Supreme Court to break the log jam and reducing costs, which are fairly significant.
Members should remember that the ordinary person whom the Senator claims to defend cannot really afford two outings in court. His or her lawyers, who would normally do these cases on a no foal, no fee basis, cannot really afford incessant hearings on the same issue. One is dealing with the use of court time and High Court time is valuable as well.
I would fully accept the proposition from the Senator if the law at the moment stipulated that no matter what a High Court jury decided, the Supreme Court always said that it respected the jury’s decision and that there was no question of the court ruling it excessive. If a Supreme Court does have a corrective function to say that an award is excessive, at some point, it seems illogical to say it cannot correct it in a more practical way and say an award is excessive because it is €300,000 too much and that it is awarding a plaintiff €200,000 instead of €500,000. I do not understand what is the huge objection to this.
I once represented a person who was assaulted by two members of the Garda Síochána. He got very heavy punitive damages and the matter went to the Supreme Court. It ruled that the punitive element of the damages was so disproportionate, having regard to the assault on the plaintiff, that it exceeded some kind of ratio of reasonableness. The court sent the case back to the High Court to be determined again. We then had another hearing which I believe took place in the High Court. I cannot recall whether a second jury decided the case or whether the case was eventually settled. In that particular case, whose name I remember but in which I will not now get involved, the Supreme Court said there had to be some relationship between punitive and general damages in the case and that the jury had got it badly wrong, a proposition with which I did not agree because I represented the plaintiff.
All I am saying to the Senator is that this is not a case of kowtowing to the media magnates. It is a case of trying to bring some rationality to the law. One could not possibly put Denis O’Brien in any category other than that of somebody with a growing interest in the media. I do not think it is kowtowing to the media magnates to say that at some stage, the Supreme Court in this kind of situation can break the log-jam and decide the amount of money that is reasonable in those circumstances. I do not think it is a terrible infringement of people’s constitutional rights.
Mr. Cummins: I take the Minister’s point. However, it appears the section is there to curb and restrict the powers of juries. It appears that juries are not being given the credit for making a rational decision, based on all the evidence that has been put before them. We appear to be saying that the Supreme Court has the power of overruling those juries.
It is a sad indictment that the Minister has admitted that it would cost an individual a fortune to go to the High Court and the Supreme Court. This is a problem we have in respect of costs. We will not go into that because the Minister has already had problems with them this week.
I am concerned about curbing and restricting the powers of juries. Perhaps the Minister could reconsider it and see if he can come up with a better wording on Report Stage.
Mr. Norris: I will not delay the House on this matter, but I will say one or two things. The first is that this is an attempt to second guess juries. The machinery we already have is adequate for addressing the situation so effectively outlined by the Minister. This was the Government’s position. The explanatory memorandum to the Bill states at the outset: “The purpose of the Bill is to revise in part the law of defamation and to replace the Defamation Act 1961 with modern updated provisions taking into account the jurisprudence of our courts and the European Court of Human Rights”. It is not just a question of a margin of appreciation. We are taking into account the opinion of the European Court of Human Rights.
Does the Minister accept the will of the people or does he wish to elevate the Supreme Court above their clearly expressed will? Is it not a possibility that can be contemplated without bringing about the ruin of the institutions of the State that the Supreme Court could make an error? It could misread the public mind. If there is one thing that is clear, it is that the public has a mind on this and is very clear on it. I not sure but I believe it was unanimous in those cases. It would be worthwhile looking at that.
What this means is that there is a dangerous opposition, that should not be politically fostered or encouraged, between the Supreme Court on the one hand and the will of the sovereign people on the other. This is unhealthy and wrong. If the people wish to deliver salutary judgement and punitive damages and if having been told that this is not appropriate, they go and double the amount, the message could not be clearer. The Supreme Court and the establishment of Ireland may not wish to hear that message and newspapers certainly do not wish to hear it, but it is a very clear message delivered by the Irish people to unresponsive institutions. By enacting this section of the Bill, we will be making those institutions even less responsive.
Mr. J. Walsh: I fully accept the logic of what the Minister said. If a case is appealed to the Supreme Court, it cannot be referred back to the High Court interminably until a decision is reached with which the parties are satisfied. That would be a bad use of court time and is neither in the interests of the defendant nor the plaintiff.
I still have great difficulty in accepting the outcome of some cases. In the context of a plaintiff who is awarded €500,000 in damages in the High Court, even if it has been established he or she has been defamed, if the case is referred to the Supreme Court on the grounds of the award being excessive and it, in its wisdom decides the plaintiff should get only €100,000, he or she may well have to pay the cost of taking the case in the Supreme Court, which could amount to €400,000 or €500,000. We should guard against circumstances where even when it has been proven a person has been defamed, he or she may emerge in a negative financial position. I do not know if we can intervene by preventing people appealing, but is it possible to prevent this occurring if a High Court judge gives a direction as to what the parameters should be and the award falls within them?
Mr. M. McDowell: One solution would be if the power to make a decision was circumscribed so that the Supreme Court might, where it is of the view it would be unjust to remit the matter to the High Court, or where the parties consent, then it would deal with the question of damages. It has to deal with its own award of damages. Clearly, at some stage the cycle has to stop.
I take Senator Norris’s point that a jury’s verdict has to be given some weight but it also has to be reasonable. If, at some stage, the Supreme Court arrives at the view that two juries in succession have acted totally unreasonably, that in a trivial restaurant column by Senator Norris——
Mr. Norris: Mine were never trivial. I said they were not worth €150,000 but they were not trivial.
Mr. McDowell: Let us imagine it from the point of view of somebody getting an award of €500,000 against Senator Norris and he or she is coming up North Great George’s Street with the order for possession. Not having done so spectacularly the first time around, instead of going back down to the High Court for a second outing, Senator Norris might be pleased——
Mr. Norris: I would hope to secure the services of the Minister as a barrister.
Mr. McDowell: He might be much happier to have the Supreme Court state this was never worth more than €20,000 and that one should forget about the €500,000. I imagine if an individual were concerned rather than an institutional defendant, it could be very punitive to send the case back to the High Court for a second trial. It could be very onerous. For example, if a politician were being sued for a remark he made and he was told the award was too high but he could have another trial in the High Court, many people would go into the library and take out the pistol at that stage and shoot themselves in the head.
There are two sides to this story. I will examine the matter again to see whether a precondition must be either the parties consenting to it or the party appealing the award. Sometimes both sides appeal. One says it is too much and the other says it is too little. Putting aside the issue of liability, if only one party appeals the quantum, if that party says he or she is happy for the verdict to be substituted, that should be a position with which I presume nobody could argue.
Second, the Supreme Court may independently come to the view that it would be unjust to send a case back to the High Court, either because this was the second time it had been before the Supreme Court or because it was a grotesque award for a trivial matter and the view is that more money should not be wasted bringing it back to the High Court again. If the award was totally out of line with a piffling libel, in those circumstances I can see an argument for making it another precondition that the Supreme Court could decide it would be unjust to remit such a case. I will take a look at those two propositions but I cannot accept the general proposition that at some stage the Supreme Court is totally capable of saying an award is excessive but utterly incapable of saying what would be an appropriate award and doing something about it.
Mr. Norris: I very much welcome the Minister’s open-mindedness and that he has taken on board some of the ideas I have been expressing. I will consider tabling an amendment but I look forward with great interest to what the Minister may propose on Report Stage. I thank him for his open-mindedness on this matter.
Question put and agreed to.
Sections 13 and 14 agreed to.
SECTION 15.
Mr. Norris: I move amendment No. 3:
In page 12, subsection (2), lines 3 and 4, to delete paragraph (f).
I wish to delete the phrase referred to in the amendment. The next section is more important so I do not wish to waste much time on this matter but I am very interested in hearing the Minister’s response.
Mr. M. McDowell: The effect of this amendment would be to deprive judges of absolute privilege when they administer justice. This would be a very far-reaching change. It would be extraordinary if a judge were liable to be sued because he said he thought somebody was the lowest piece of work that ever came into his court or he believed somebody murdered his wife or whatever else. I do not think we should vary the law and make judges liable for remarks they make on the Bench. Let us remember these remarks are made by a judge or another person performing a judicial function. If a judge were to suddenly shout out a few random thoughts in a court which had nothing to do with his or her judicial function, that might be a totally different situation, but if he or she is performing a judicial function, then it would be a huge intrusion on his or her independence for him or her to be sued for remarks made. Many people would spend their lives suing judges for their conclusions, remarks, etc., and we would have a very quiet and cowed Judiciary if we allowed that to happen.
Mr. Norris: That is exactly what I was thinking. There were some notorious judges who used to make the most outrageous, hurtful and sometimes slanderous remarks about people. I saw it in the Dublin District Court. I do not see why they should be immune. We should move on, but I reserve the right to table an amendment about remarks made by a judge or other person in the proper performance of his or her judicial duties. As the Minister indicated, there are moments when judges do step outside this in a manner that is not in the performance of their judicial duties.
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;”.
The House will be aware that yesterday for the first time, relying on the provisions of section 40 of the Civil Liability and Courts Act 2004, which relaxed the in camera rule, a series of reports were prepared and published by Ms Carol Coulter on the operation of the family law system. It is intended to confer a privilege in regard to a fair and accurate report of family law proceedings. This was a lacuna we discovered in the law.
Section 40(3) provides that nothing in a relevant enactment shall operate to prohibit the preparation of a report on court proceedings in family cases or the publication of the decision of a court in those proceedings. It goes on to state that the identity of the parties to the case, or any child to which they relate, must not be disclosed. That is of particular importance. However, it has become clear that reports under section 40(3) of the Act would not attract absolute privilege, and for the purpose of reporting proceedings or publishing the decision of a court it is unclear whether a reporter may have access to documentation in the proceedings such as pleadings and settlements. I am addressing the issue of absolute privilege with this amendment to the Defamation Bill. I propose to make further provision in the Civil Law (Miscellaneous Provisions) Bill to clarify the issue with regard to access to documentation.
Acting Chairman: By order of the House we must move on to other business.
Progress reported; Committee to sit again.
