Defamation Bill 2006: Committee Stage
(Resumed).
Mr. Norris: I wish to point out that the Order
Paper is misleading. It states Committee Stage of
this Bill resumed at amendment No. 4, but it
should be amendment No. 14. I left to make a
quick telephone call because I did not realise we
had reached this point.
The point I would like to make falls in between
sections 14 and 15. Will the Minister consider the
possibility of inserting between these sections a
new subsection which would state: ”Where the
defendant relies upon truth as a defence, he or
she should be obliged in the pleadings containing
the defence to set out the facts upon——
Acting Chairman (Mr. U. Burke): I am sorry
to interrupt the Deputy but I point out that
amendment No. 14 has not yet been discussed.
We will come to it.
Mr. M. McDowell: The Senator is thinking of
section 14.
Mr. Norris: I see. My point falls between the
two sections and this is presumably the only time
when I will have a chance to make it. I was indicating
that a new subsection should state: “Where
the defendant relies upon truth as a defence, he
or she should be obliged in the pleadings containing
the defence to set out the facts upon which
they will rely in the defence.”
I will make two points which should appeal to
the Minister. This would enshrine in legislation
what is a reasonably general practice in the
courts. It also gives the verifying affidavits, about
which the Minister spoke so eloquently on the
previous occasion, considerably greater relevance
regarding trial.
Will the Minister consider inserting between
sections 14 and 15 a new subsection containing
this stipulation, essentially that there should be a
recital of the facts upon which the defence will
rely? It is fair practice and it occurs regularly in
the courts. It would also strengthen the case made
by the Minister, which I queried, about the verifying
affidavits.
Progress reported; Committee to sit again.
Question again proposed: “That section 15, as
amended, stand part of the Bill.”
Mr. M. McDowell: Senator Norris is seeking a
new provision requiring people, where they plead
what used to be justification, to set out the facts
upon which they will rely with regard to such justification.
I will look at that between now and
Report Stage. I believe it is already covered by
rules of court but I could be wrong, and I do not
know if it is necessary to put it into primary
legislation.
On Senator Jim Walsh’s point, I am aware that
some people do or do not have absolute privilege
in respect of statements made in committee.
From memory, the Constitution confers absolute
privilege on Members of the Houses of the
Oireachtas in respect of statements they make,
but non-Members are in a slightly different
situation. I will look at the matter and see if we
need to tidy it up.
I am aware that the legislation dealing with the
privilege of people testifying before committees
means such people are dealt with on a sub-constitutional
basis, if I can use that phrase. As I understand
it, both Houses have now enacted Standing
Orders which give people the right to contradict
defamatory statements made about them in
either House. That is to some extent a countermeasure
to the absolute privilege conferred by
the Constitution.
Mr. J. Walsh: I thank the Minister for agreeing
to consider the issue. I was unaware that
Members affected by defamatory remarks could
contradict them. There is a time lapse and the
concern would be that an initial publication could
be very damaging or injurious to the affected person.
Perhaps the Minister could consider the
matter to see if action could be taken. I would
appreciate it.
Dr. M. Hayes: Related to Senator Jim Walsh’s
point, perhaps if the Minister could insert a
phrase such as “and not subsequently corrected
or withdrawn by that Member”, it might cover it.
The publication is in good faith once it comes,
but if there is a retraction or correction in good
faith, it should be taken account of as well.
Question put and agreed to.
SECTION 16.
Acting Chairman: Amendments Nos. 6 to 8,
inclusive, are related and will be discussed
together by agreement. Is that agreed? Agreed.
Government amendment No. 6:
In page 14, subsection (6), line 8, to delete
“social duty.” and substitute “social duty;”.
Mr. M. McDowell: Amendment No. 6 to
section 16 and amendment No. 7 to section 18 are
technical drafting amendments. Amendment No.
8 to section 18, which provides for the defence of
honest opinion, ensures that the reference in that
section to section 16 on the defence of qualified
privilege should be in accordance with all of
section 16 and not limited to subsection 16(2).
Mr. Norris: I am opposing section 18 because
the notion of honest opinion seems to be a libeller’s
charter, as it was known for some time. One
must be careful about allowing someone to put
something in a newspaper because he or she
believes it to be true when it is untrue. It would
not be fair, particularly when combined with the
extraordinary distinction drawn later in the Bill,
implicitly if not clearly stated, between public figures
and ordinary citizens. This follows an
American judgment some years ago. It is not
enough that people believe something is right.
They should be required to prove the sting of the
libel to prove they are right.
Could the Minister return subsection 18(3)(a)
to the draftspeople and ask them to draft it in
comprehensible English? It states:
Where a defendant pleads the defence of
honest opinion and the opinion concerned is
based on allegations of fact to which subsection
(2)(b)(i) applies, that defence shall fail unless
the defendant proves the truth of those allegations,
but the defence shall not fail by reason
only of the defendant’s failing to prove the
truth of all of those allegations if the opinion is
honest opinion having regard to the allegations
of fact the truth of which is proved.
How in the name of God could an ordinary person
or a qualified lawyer understand this collection
of gobbledegook? If I read that in a Trinity
essay, I would fail the student. It is a collection
of suspended clauses and deferred premises. It is
ghastly. Perhaps some of my brighter colleagues
know what the subsection refers to, but I lost the
principal clause by the time I was half way
through.
Could the draftspeople insert an occasional full
stop as a courtesy to the weary reader and to
break up the sentence? It would give one an
opportunity to know what the law is about. Good
law is understandable by the citizen and does not
require a legal Einstein to know what is happening.
I am not blaming the current draftspeople
because I have a feeling this wording was lifted
from the 19th century and stuck into the Bill.
When we lift these archaic paragraphs, they
should be expressed in plain English.
Mr. M. McDowell: I was about to point out that
Senator Norris’s arcane views on the law of libel
and on freedom of expression would jar in the
minds of most people from north America, but I
will not say that now. I wonder about the
situation in the Czech Republic, but I will not
speculate.
Subsection 18(3)(a) is based on the terms of
section 23 of the 1961 Act.
Mr. Norris: I thought so.
Mr. M. McDowell: It states:
In an action for libel or slander in respect of
words consisting partly of allegations of fact
and partly of expression of opinion, a defence
of fair comment shall not fail by reason only
that the truth of every allegation of fact is not
proved, if the expression of opinion is fair comment
having regard to such of the facts alleged
or referred to in the words complained of as
are proved.
Perhaps this would be a better wording. I will
examine the matter to determine——
Mr. Norris: It is obscure.
Mr. M. McDowell: ——whether the old version
is better than the new one.
Mr. Norris: Perhaps it is the way the Minister
read it, but I could follow what he said while I
could not understand the proposed subsection.
Mr. M. McDowell: I was quoting the older
section. The new subsection may be phrased less
eloquently.
Regarding the law in respect of fair comment
and the defence of honest opinion, juries often
believed that while someone held an opinion, it
was not a fair one. They misunderstood the nature
of the law. That juries needed to decide
whether something was an honest view rather
than a fair one needed to be hammered home to
them constantly. The issue of fairness did not
arise. “Fair comment” was a bad label for a
defence.
If one makes a defamatory comment by reference
to facts that are not in contest or can be
proven to be true, holding it as an honest opinion
is a full defence. It is an important part of freedom
of speech. For example, if I said that because
Senator Norris did A, B and C, he is unsuitable
to be a lecturer in Trinity College Dublin or a
Member of the Oireachtas and that he is a total
disgrace and a dishonest man, my opinions would
be based on facts. If people can refer my opinion
to facts in respect of which I am in a position to
prove or that are accepted as true, my statement
is an expression of opinion.
Opinion does not defame. That I have a clearly
identifiable opinion of someone does not damage
that person because people are entitled to say
that it is only an opinion. It is not a slander or a
libeller’s charter to distinguish between statements
of fact that are false and honest judgments
arrived at by people. If we were to trim down this
measure, we would make a serious mistake.
The concept of fair comment is often misunderstood
by juries and, once, by a non-jury Circuit
Court regarding a case in which I was involved.
There was an overriding feeling on the part of the
juries and the judge to ask whether something
was a fair opinion to have of someone, but that
is not the current law. One does not need to be
fair. If one is honest, one can be intemperate and
prejudiced. For example, someone in The Sunday
Tribune recently wrote the opinion that I should
be arrested. I do not know why, as I did not read
the article after reading the headline, but it was
published. It was a view of the world, but as long
as the person did not write something false about
me, he or she is entitled to that opinion.
Mr. Cummins: Was it fair comment?
Mr. M. McDowell: It was an expression of
opinion.
Mr. Norris: What if the person wrote that the
Minister should be arrested for driving his car
while drunk?
Mr. M. McDowell: That would have been a
different matter. The writer could have stated
that the facts of a particular case warranted my
arrest, but it looked like a statement of opinion
rather than a statement of fact that I had done
something unlawful. I tend to take these matters
with a grain of salt.
12 o’clock
It is important to have a system of law in which
people’s honest opinions are statable when they
are based on facts. People’s judgments on the
consequences of matters that are
proven or accepted to be true are
only judgments. I accept that a commentator
in the media gets much more currency
for his or her judgments than someone who has
to read some of this rubbish on occasions, and sit
on a barstool and give opinions to three or four
people who might or might not listen. I agree that
sometimes the media are in a far more powerful
position to express their opinions than an ordinary
individual. Even accepting that, we must
accept the proposition that honest opinion on the
basis of facts, proven or accepted, should be the
subject of a defence. We do not want to change
the law fundamentally to make it less restrictive
in this manner. I do not believe it is a defamers’
charter to leave the law substantially as it is in
that regard.
Mr. Norris: I thank the Minister for his clarification.
My objection is to the idea that at the
time of the publication statement, the defendant
believed in the truth of opinion or, where the
defendant is not the author of the opinion but
believed the author believed it to be true.
However, I see that is subject to subsection (3),
and that is the one I had difficulty with because I
do not believe it is sufficiently clear. Nonetheless,
the Minister makes a reasonable case as regards
opinion based on clear fact. That makes it somewhat
less obnoxious, even to me. Perhaps the
Minister might look again at redrafting subsection
(3), however.
Dr. M. Hayes: I agree with Senator Norris
about the clumsiness of paragraph (a) and I
believe the Minister should revise his opinion of
Victorian drafters. They were much better and
clearer than what we are getting now. Surely the
point of concern is covered by subsection
(2)(b)(i) and (ii). That clarifies the position
reasonably well in the way the Minister is doing.
Mr. J. Walsh: I shall deal with section 18 when
we get to it. On amendment No. 8, I did not catch
the reason given earlier for deleting “in accordance
with section 16(2)”. What effect does that
have on the interpretation by the courts of qualified
privilege? I should have thought section
16(2) gave some clarity as regards how that might
be interpreted. I wonder about its implications,
which are not immediately obvious to me. The
original referred to an opinion based on allegations
of fact in which the defence of qualified
privilege in accordance with section 16(2) would
apply. In effect, qualified privilege is being qualified
by section 16(2). Now we have removed that
reference to section 16(2) and I wonder that the
import of that will be.
Mr. M. McDowell: Section 16(2) is the general
defence of qualified privilege. This is to deal with
situations where somebody says something which
is factually untrue such as “You are a thief” or
words to that effect. However, if the person
thought on the occasion that he or she said the
words that the man in question was a thief, that
is an occasion of qualified privilege and as such is
a defence. For example if one says to a garda one
is urging to arrest another individual “This man
is a thief — he’s just stolen my car”, then regardless
of the fact that he is not a thief, that is an
occasion of qualified privilege as long as one did
not act maliciously by being reckless as regards
whether the assertion was true, or knew it was
false. One may see somebody outside one’s house
getting into one’s car, call a garda and say, “This
man has just tried to steal my car” when the
reality is that he had found the keys and was just
checking out whom they belonged to and is
wholly innocent. The fact one has totally misjudged
the situation and made a defamatory
statement to the garda to the effect that the man
is a thief is the subject of qualified privilege
because one honestly believed it was true. One
had a reason to say it at the time to the garda
in that one had an interest in communicating the
message and the garda had an interest in receiving
the information. That is what qualified privilege
is concerned with.
Honest opinion, however, is a different concept
here. Whereas the same test of malice applies in
both, honest opinion is a statement of opinion
based on facts which are either proved or
accepted. In section 19 there is an interesting test
as to what is opinion and what is not, in cases that
are, effectively, a mixed bag of opinion and fact.
I recall on one occasion a journalist writing about
a judge’s sentencing decision and the comments
he made in the context of it, where he said:
“What kind of judicial idiocy is this?” A question
arose in the High Court as to whether the
assertion that it was judicial idiocy amounted to
a statement of opinion or fact. I will not go into
the case but I remember it vividly because I was
involved in it.
Section 19 is designed to set out rules for distinguishing
between statements of opinion and
fact. The extent to which something may be capable
of being proved is one of the issues one must
bear in mind. The extent to which a statement
was made in circumstances in which it was likely
to have been reasonably understood as a statement
of opinion rather than a statement of conviction
and allegation of fact, is a second. The
words used in a statement and the extent to which
they were subject to a qualification or disclaimer
or accompanied by cautionary words must be
considered.
If one said Senator Norris or whoever was
totally disreputable and unfit to be a Member of
the Houses of the Oireachtas——
Mr. Norris: Hear, hear.
Mr. M. McDowell: ——and put in the phrase,
“in my opinion”, that would clearly have to be
taken into the equation in deciding whether this
was an occasion for pleading the defence of honest
opinion. Those three rules are set out there to
guide the court. If I just said, “Senator A is
wholly disreputable and should not be a Member
of the Houses of the Oireachtas”, out of the blue,
without any factual background for the statement,
that would be defamatory. However, if I
said this half way through his or her performance
in a particular debate or whatever, then people
would say it was obviously said having regard to
the circumstances. If I added, “in my opinion”,
that would bring the statement further across the
line into the realm of opinion. If one is trying to
distinguish between opinion and fact, for
instance, how could one prove somebody is
unsuitable to be a Member of the Houses of the
Oireachtas? Could one argue that there were
worse or better Members elected, or that the individual
in question is not the worst, the best or
whatever? Those types of things are mixed issues.
However, the defence of honest opinion is
designed to be one in which the factual basis of
the defamatory opinion is either understood or
proven. Either it is accepted there were facts
which could give rise to one’s honest opinion or
else one can prove the facts that gave rise to it.
Mr. Norris: Perhaps the Minister might like to
christen this the “Joan Rivers defence”, because
he may have heard, as I have, the advertisements
on radio for her forthcoming show, where she
worries about defamation. She is calling the show
“Allegedly” and after every defamatory comment
she makes about her neighbour she says, “...allegedly,
allegedly”. Perhaps the “Joan Rivers
defence” might be the new name for the Minister’s
section here.
Dr. M. Hayes: I must declare an interest and as
a writer in newspapers, thank the Minister for
free legal aid and advice and for an invaluable
exposition of the difference between one and
the other.
Amendment agreed to.
Section 16, as amended, agreed to.
SECTION 17.
Question proposed: “That section 17 stand part
of the Bill.”
Mr. Norris: I take it this is a codification of
existing practices and that there is nothing vitally
new or significant in it, or is there?
Mr. M. McDowell: This is a statement of the
law relating to malice. It is based on the Law
Reform Commission’s recommendations.
Ms Tuffy: Will the Minister clarify the meaning
and purpose of subsection (1)(c)?
Mr. M. McDowell: The concept in the provision
is that if the statement in question has no
connection with the purpose of the defence,
which is to allow people express honest opinions
on the basis of facts, the plaintiff can prove that
the defence of qualified privilege is being dragged
into the defence in a circumstance where it is
purely technical and should not substantially avail
a defamatory statement. That is the purpose of
paragraph (c).
Ms Tuffy: When I read that sentence I was not
sure what it meant and I immediately thought
that perhaps it meant the purpose of the defendant’s
defence, whereas the reference to defence is
meant in more general terms.
Mr. M. McDowell: It is not the defendant’s
defence; it is the statutory defence.
Ms Tuffy: I appreciate that, but I consider the
paragraph to be a little unclear. However, I do
not have an alternative.
Mr. Norris: With what section are we dealing?
It states section 17 on the monitor. Is that
correct?
Acting Chairman: Yes, we are now dealing
with that section.
Question put and agreed to.
SECTION 18.
Government amendment No. 7:
In page 14, subsection (1), line 37, to delete
“Act” and substitute “section”.
Acting Chairman: This is a technical drafting
amendment already discussed with amendment
No. 6.
Amendment agreed to.
Government amendment No. 8:
In page 15, subsection (2)(b)(ii)(II), lines 14
and 15, to delete “in accordance with section
16(2)”.
Acting Chairman: This is a technical drafting
amendment already discussed with amendment
No. 6.
Amendment agreed to.
Question proposed: “That section 18, as
amended, stand part of the Bill.”
Mr. J. Walsh: We have had a good debate on
this point. Senator Norris raised issues about the
amendments that pertain to the section and the
Minister gave an outline of honest opinion. From
the point of view of mounting a defence, given
that the legislation will obviously be interpreted
by the courts, the entitlements of the plaintiff and
the defendant will be tested in this respect.
Section 18(2)(a) states: “[Where] the defendant
believed in the truth of the opinion or, where the
defendant is not the author of the opinion,
believed that the author believed it to be true”.
How can the court establish that as a fact rather
than it being simply used as a defence? If an editor
or reporter states under oath that what he or
she wrote was his or her honest opinion at the
time, it appears it would be difficult for that to be
tested by a defendant.
I have a query about section 18(3)(a) which
probably is somewhat related. Senator Norris
referred to the convoluted language in it and I
understand the Minister said he will examine if it
can be simplified. The Minister may correct me
on this, but in regard to the affidavit that must be
presented at the start of a case by the plaintiff
and the replying affidavit that must be presented
by the defendant, it strikes me that in the case
of the plaintiff, the person who is being allegedly
defamed, there will be a clear-cut identification
of that individual. In the case of the defendant,
the article in question might have been written by
a reporter. In whose name will the affidavit be
presented? Will it be the defendant, the reporter
or somebody else within the organisation concerned?
If a defence of honest opinion is being
claimed, that should be clearly stated in the affidavit
by all the parties involved to ensure that if
it is tested and found during the case that the
defence of honest opinion is not upheld and that
the opinion is not held honestly, there would be
repercussions.
This comes back to the thrust of ensuring that
the legislation is balanced to ensure that the
defendant has certain rights under it as well.
From my reading of the section, it appears as if
this defence may not be supported other than
during the case. It would strengthen the issues
involved and it may even strengthen the settlement
of cases before they ever go through the
court process, which is cumbersome and expensive,
if it were made a requirement that such a
claim in a case would have to be stated in a sworn
affidavit at the outset.
Mr. Norris: Section 18(2)(a) states “where the
defendant is not the author of the opinion,
believed that the author believed it to be true”.
If a person says Joe Bloggs in the Evening Herald
said something with which he or she completely
agrees but which turns out to be defamatory, is
that the type of example contemplated in the provision?
Perhaps the Minister could give the
House an example of a situation in which somebody
makes a defamatory statement relying on
an opinion of somebody else? I take it that it is a
question of agreement with a statement being
made by some other party.
With regard to the question of honest opinion
and fair comment, it is probably difficult sometimes
to prove that it is not a fair comment or
honest opinion. There was a case some years ago,
which the Minister may remember, where a
journalist with Senator Maurice Hayes’s group of
newspapers wrote an article in the aftermath of a
situation in which a District Court judge had been
very snotty about the use of mobile phones in
court and gave a long diatribe from the Bench
about it.
Subsequently, another judge had a telephone
on the Bench which rang and the journalist wrote
an article exposing this, mocking and ridiculing it
and holding the Judiciary up to contempt over
this issue, suggesting that its members were not
practising what they preached. However, the
judge had a good reason for having the telephone
because there was no working telephone installation
in the court and he was awaiting information
which was germane to the hearing of the
case. It was in the professional discharge of his
duty that the telephone rang. It was able to be
proved subsequently that the journalist knew the
situation because he had read the original article,
and as a result, the defence failed. Perhaps the
Minister remembers that case. I presume this provision
would operate in the same way, namely, if
it could be demonstrated that a journalist
manipulated the facts while knowing there was a
good reason for what appeared to the public to
be a kind of contradiction.
Dr. M. Hayes: He should have turned it into
a play.
Mr. M. McDowell: I do not want to get dragged
into a retrospective evaluation of that kind of litigation
except to say that I have a strong view that,
irrespective of whether a judge or a witness had
a mobile telephone in court, it is not a matter of
huge consequence. We are all very prissy on this
subject. It is a passing thing. Five years ago,
people wrote letters to the editors of newspapers
claiming that they were outraged that others were
walking the streets talking into mobile phones. I
presume Senator Norris was one of those cranks
and went around accusing——
Mr. Norris: Say that outside this House.
Dr. M. Hayes: I still am one of them.
Mr. M. McDowell: People got very offended by
overhearing a conversation on a mobile phone,
but were not offended by hearing the conversation
of two people walking down the street.
They thought it was very rude to have a mobile
phone conversation on a bus or a train. Mores
change and while leaving a mobile phone
switched on in court is slightly irritating, it is not
a capital offence and should not be dealt with as
a contempt. It is prissy to get too worried about it.
It is also irritating when someone’s mobile phone
rings on Committee Stage of Bills in this House,
but it is not worth getting up in a heap about. The
dignity of the courts would be affected if everybody
wantonly disregarded the instruction to turn
off mobile phones. However, the dignity of a
court is not such that it must be protected by punishing
people who, in good faith, forget to turn
off their mobile phones. It happens to us all. I am
carrying a mobile phone as I speak, but it has not
interrupted us yet.
Where the defendant is the person who published
the statement and wrote it, the section is
fairly simple. However, where the defendant is
The Irish Times Limited or Independent News
and Media and the article in question has been
written by Senator Norris about the Polish President
or the Pope, it is not a matter for the newspaper
editor to say that he believes that the
Senator’s opinion is correct, or that he shares his
opinion. It is a matter for him to say that he
believes it is the Senator’s honest opinion and
that he is not writing it maliciously. That is a fair
standard. If the Senator wants to make a very
critical onslaught on somebody based on agreed
facts, the editor of the newspaper should not be
required to prove the state of his mind. The editor
should be entitled to say he believes the
Senator believed this was an honest opinion. It
would put an impossible onus on editors if they
had to share the opinion or else prove what went
on in someone else’s head, who might not even
be available as a witness. One could publish a
syndicated article and be in desperate trouble if
the author of the article lived in Australia. The
article could manifestly be an opinion, but the
editor could not prove the state of mind of the
author.
The verifying affidavit provided in section 7
deals with assertions or allegations of fact. I am
subject to correction, but I do not think one
questions of honesty of opinion.
Mr. J. Walsh: On that point, the issue is how it
is interpreted. I can see the distinction and the
Minister has clearly defined the difference
between statements of fact and honest opinion.
However, in my mind, there is not an established
and definite mark between honest opinion and
issues relating to facts that could be held as honest
opinion. Are there any cross-references that
can be made in that area? I am being critical of
this in defence of people who are defamed in a
system where the legal costs are very significant
and who are putting a lot at risk, something which
is not the case with defendants, which are often
corporations with very significant resources.
Equally, many of the newspapers and the vast
majority of our reporters and publications are
responsible and report very responsibly.
However, there is a small number that go in the
opposite direction, often driven by the profit
motive and an increase in circulation. There is
evidence of this happening in Britain and people
within the media have acknowledged that there
can be a race to the bottom in terms of standards.
Much pejorative terminology is used in newspapers
about “disgraced” individuals, but it is a
matter of opinion whether a person is disgraced
or not. That can be damaging to someone’s reputation.
There should be a clear distinction
between something that one can challenge as an
untrue statement and an opinion that can be damaging.
The casual reader of a newspaper may not
make a fine distinction between what is fact and
what is opinion. We need to have some safeguards
in that area, but I do not know how to do
it. There should be a threshold that must be
crossed to illustrate the distinction to the court.
In claiming the defence of honest opinion, one
can sometimes see the prejudice running through
the reporting. The old adage that the pen is
mightier than the sword is very true. I have concerns
for people, who may not be popular with
the media, being vilified purely for the sake of
vilification, rather than having to put up with a
genuine expression of honest opinion. I do not
know what can be done, but I would like to see
the Bill strengthened so that there is a strong test
for defendants to prove honest opinion. I do not
detect that from the section or from other parts
of the Bill. Perhaps nothing can be done, but I
would like to put my concerns on the record.
Question put and agreed to.
SECTION 19.
Question proposed: “That section 19 stand part
of the Bill.”
Mr. J. Walsh: Section 19 deals with distinguishing
fact and opinion. Sometimes a newspaper
can express an opinion in the heading, so
that is very clear. There has been a trend to inject
an opinion into reporting. It is rare nowadays to
read pure reporting of facts. We may be copying
the trend that is found in the British media, but
when one goes to other countries, there seems to
be a much finer definition between the reporting
of issues and opinions expressed in articles inside
the newspapers. Here, things are something of a
mishmash. I have concerns in that regard. We
seem to be putting our faith in certain sections
that standards will be maintained and, perhaps,
improved.
Legislation should defend the right of newspapers
to be an important component of democracy
and society by allowing them free speech.
On the other hand, we must balance this right
with the right of individuals not to be damaged
through reporting. We must not put a hurdle in
the way that will prevent them from getting correction
for a defamation or injury done to them.
We must be mindful of that. I am conscious the
newspapers are in favour of this section; I have
not heard any opposition to it. The people who
might be the victims in this area do not have a
voice and that is a concern.
Dr. M. Hayes: I have to agree with Senator
Walsh. Not every newspaper person thinks it is a
good thing that fact and opinion are mixed to the
extent they are. I belong to the C.P. Scott school
that facts are sacred but comment is free. It is
important to ensure that comment remains free
in this area. There have been slippages in journalistic
standards, not only in Ireland, but generally
and it has become increasingly difficult to distinguish
between facts enunciated and comments
put or sidenotes. However, the section is
adequate to allow the courts distinguish between
these and, to borrow a phrase, teach people
manners.
Mr. M. McDowell: I must agree with Senators
Walsh and Hayes. The section does not just deal
with basic standards of truthfulness and professionalism,
which, unfortunately are sometimes
lacking in media coverage of events. There is a
low standard set in some areas, which I must
deprecate.
I remember coming to the House once and
deciding, in order to promote the use of Irish,
that I would deliver a Second Stage speech in
Irish. I also provided the speech, in English, to
each Member. The following Friday, I was contacted
by a reporter from The Sunday Tribune
and was asked why I had made the speech in Irish
and whether I had an ulterior motive. I replied
there was no ulterior motive and that I had circulated
the speech in English. Although the newspaper
people knew that, on Sunday they wrote
an article implying I had an ulterior motive and
deliberately concealed the fact I had circulated
my speech in English.
The clear message of the article was that I was
up to no good using the Irish language and that
there was something suspicious about my action.
The one fact deliberately concealed in the newspaper
report was that I had circulated a translation
to every Member. This was done to prop
up a story that was fundamentally untrue, that I
had an underhand motive in speaking in Irish and
was trying to conceal from the public what I was
doing.
This kind of fundamental departure from
decent standards of plain, intellectual honesty are
to be deeply regretted. This case is just one that
stuck in my mind because of the deliberate excision
of a fact from the story, which the newspaper
knew about two days before publishing the story.
However, it decided the story would be better
and more coherent and impressive if the truth
was suppressed.
I agree with Senator Walsh that we cannot, in
defamation law, set standards for the whole of the
media. However, there are some areas of journalism
where people feel free to suppress facts. I
agree with Senator Hayes, facts are sacred but
comment is free. If The Sunday Tribune had
stated on its front page that day that I had circulated
my speech in both languages, the story
would have looked absurd and would not have
merited one column inch. This is the kind of thing
one must put up with.
Standards vary internationally. On one
occasion I spoke to a journalist from The New
York Times where internal standards are impressive
compared to many newspapers of which I
have some knowledge. If one of its journalists is
found to be inaccurate or unfair, the editor
requires a written statement from the said
journalist setting out why a particular fact drawn
to his attention was left out of the story. There is
internal accountability in the office to keep up
the high standard of the newspaper. I doubt that
happens much in Ireland.
Dr. M. Hayes: Some journalists get a Pulitzer
prize for such stories.
Mr. M. McDowell: That is true. If someone is
willing to lie in depth and be inventive about it,
he can get away with murder.
Mr. J. Walsh: I remember the incident mentioned
by the Minister and was here when the
Minister delivered his speech as Gaeilge. He was
commended by all sides for taking the opportunity
to use the Irish language, which should be
used more often. I also saw the subsequent newspaper
article. The article illustrates a certain
prejudice, by either the paper or the reporter.
That was not an isolated incident. Many times
people have opinions and use the press to promote
those opinions. They are entitled to do so
but that opinion may sometimes be defamatory
or damage somebody. If that happens, there is
nothing in the Bill to deal with that or to correct
or give consolation to the person damaged or
injured by those opinions. It is in that regard that
we are going too far.
I remember attending a conference in Belfield
which was initiated by the Minister on the area
of defamation and privacy. I found it interesting
and, if I recall correctly, the NUJ spokesman
stated there was a lowering of standards. A person
from our neighbouring island who was
present said standards there had demonstrably
been reduced over a considerable length of time.
How can we impose standards on the recalcitrant
elements of the media if this legislation makes it
almost prohibitive for anybody to pursue a case
on defamation? I have serious concerns in this
regard.
I accept there is a need to modernise the legislation
in this area. However, we should distinguish
between allegations of fact and opinion
and I agree with what Senator Maurice Hayes
said in that regard. Can we not get to a stage
where we provide for statements of fact in
reporting so that we will get reporting of the
facts? If somebody wants to give an opinion, let
it be in another article, but let it be known that it
is an opinion and let them be free to do that.
Where both fact and opinion are mixed, stories
are not generally in the interest of getting the
truth to the public, which should be the primary
objective of newspapers.
Dr. M. Hayes: Ba cho´ ir dom labhairt as
Gaeilge chun deireadh a chur leis an dı´ospo´ ireacht
seo. It might be helpful if we remember that
later we will discuss a press council and a code
of practice. Codes of practice are capable of and
include provisions which cover the matter of concern
to Senator Walsh. I would think that is the
section to deal with this concern.
Mr. Norris: The Press Council is a rather weak
body. It is not independent and is financed by
those whom it is supposed to police. Senator
Maurice Hayes ought not think people will be
fooled by that. I certainly am not, even though its
head is the former Provost of Trinity College.
Every time there is a problem in another profession
this is a group that calls for independence.
Independence suits for everybody else, but not
for the newspapers which finance the council. I
am not gulled by that rubbish.
I agree with Senator Jim Walsh’s point about
the impact of the British media which, by and
large, is a disgrace. It is worrying because market
forces operate and our own newspapers’ standards
are being driven down by their low standards.
For that reason, it is highly regrettable that
over the past two mornings the news programme
on Raidio´ E´ ireann between 7 o’clock and 9
o’clock has led with meretricious stories from the
tabloids, which are British not even Irish. Even
The Sun has been given prominence in the past
couple of days by RTE.
[Mr. Norris.]
I greatly regret I was not here when the Minister
made the speech in Irish to which he referred
because I would have enjoyed listening to his pronunciation.
Mr. M. McDowell: Senator Norris might not
have.
Mr. Norris: I am sure he has the blas mar ta´
Gaeilge flu´ irseach aige. Access by the majority of
the public to the ideas contained in his speech
would be through the broadcast media and issuing
a text to the House does not make those ideas
available in English to the wider public. That is
only a minor point but it must be taken into
account as well. I did not read the article and I
did not hear the speech. I am commenting, not
on that aspect but on the principle. It is not a full
defence for the Minister to state that he issued a
speech to the Members present in the House. The
speech was in Irish, would be recorded in Irish
and would be printed in Irish.
Mr. Cummins: I was here for the Minister’s
speech in Irish. When asked to comment whether
I thought there was an ulterior motive, I stated
that the text in English was available to the
Members. I thought that would be the end of it,
but obviously it was not.
Question put and agreed to.
SECTION 20.
Question proposed: “That section 20 stand part
of the Bill.”
Ms Tuffy: Does subsection (3), “An offer to
make amends shall not be made after the delivery
of the defence in the defamation action concerned.”,
preclude the defendant in the middle of
the case, after making his or her defence which
could include an offer to make amends, from
reaching a settlement with the plaintiff?
Mr. J. Walsh: Senator Tuffy’s question was one
I wished to raise also. Would the Minister also
outline in his reply the distinction between this
and making a lodgement under section 27, about
which I have certain misgivings? Does this arise,
as Senator Tuffy suggested, where the case is proceeding,
a party decides that he or she wishes to
make a settlement, and an approach is made, generally
through the lawyers, by which a settlement
is agreed?
I note also that in this section — distinguished
from section 27 by this — an offer to make
amends means an offer to make a suitable correction
of the statement and to publish that correction
and apology. These essential components of
this offer to make amends do not seem to apply
in the latter section, but I suppose we will come
to that later.
Mr. M. McDowell: Incidentally, this replicates
section 21 of the 1961 Act, where it is called unintentional
defamation. The purpose of this procedure
is to allow a person who has unintentionally
defamed somebody to make amends. It
is rarely used.
The kernel of it is evident in section 21(2) of
the Bill, which states:
Subject to subsection (3), it shall be a defence
to a defamation action for a person to prove
that he or she made an offer to make amends
under section 20 and that it was not accepted,
unless the plaintiff proves that the defendant
knew or ought reasonably to have known at the
time of making the statement to which the offer
relates that-
(a) it referred to the plaintiff or was likely
to be understood as referring to the plaintiff,
and
(b) it was false and defamatory of the
plaintiff.
If the plaintiff proves that the defendant knew
that, then the entire matter is inoperable. This
would deal with situations, which have arisen
from time to time, where a person writing a fictional
book or an article in a magazine, for
instance, would select a name such as Jim Walsh
from New Ross and place Senator Jim Walsh into
a context where many would say that it was he
when it might just be that the author selected a
name for the purpose of making a point.
There is no traction at all in this defence if the
person knows that first, it was likely to refer to
the plaintiff and, second, that on the face of it was
false and defamatory. It is fair enough if, in the
course of a television film, a person selected
Senator Jim Walsh of New Ross and stated subsequently
that he or she did not know that there
was a Senator Jim Walsh, but that defence would
not avail the person at all unless he or she establishes
that he or she was totally innocent and
merely picked the name out of the telephone
book one afternoon.
It is a fairly narrow provision and it has rarely
been used in the courts. One might even argue
that it could be got rid of, only for the fact that it
is part of the current law and I would be loath to
take away something for a totally innocent defamation.
For example, supposing a photograph of
a person accused of murderer coming out of court
appeared and somehow the reporter opened the
wrong page of the spiral notebook and put down
a name, or got the name completely confused, or
could not read his or her own handwriting, and
said it was James McNamara when it was James
Moriarty, that could be a totally unintentional
defamation of James McNamara because the
accused might have had a hood over his head and
it could be an innocent mistake. In such circumstances,
an offer to make amends would be
available.
641 Defamation Bill 2006: 28 February 2007. Committee Stage (Resumed) 642
Ms Tuffy: I am not sure it is clear in the section
that an offer to make amends applies so restrictively,
but I accept the Minister’s point in that
regard. Could subsection (3) have stated instead
that it will not be a defence to make an offer of
amends after the delivery of the defence?
Mr. M. McDowell: I apologise for forgetting to
deal with that issue. Subsection (3) is designed to
state that this is only available to a defendant at
the very beginning. One cannot submit a defence
stating that this is not defamatory, it is true or it
did not refer to the plaintiff, and then decide to
consider pulling the rug from under the plaintiff.
At a late stage in the proceedings when a person
has set out the defence, he or she cannot then go
back to the offer to make amends. However, it
does not prevent a person from settling an action
or from compromising an action on terms.
Ms Tuffy: Would that include doing something
along the lines of making amends as part of a
settlement?
Mr. M. McDowell: Yes. One could do all of
these things by way of a settlement of an action.
Ms Tuffy: That is not clear from the way it is
phrased.
Mr. M. McDowell: I suppose Senator Tuffy is
correct in that sense, but the purpose is that this is
a formal procedure which one must invoke before
submitting one’s defence. One cannot submit
one’s defence and afterwards state one is taking
a totally different approach to the case, such that
one will invoke the defence of an offer to make
amends. It does not stop one doing all the things
one could do to make amends in substance but it
would not be considered an offer or give rise to
the defence.
Mr. Cummins: Section 20(5)(b) states: “...to
publish that correction and apology in such manner
as is reasonable and practicable in the circumstances”.
Where a defamatory statement is made
on the front page of a newspaper, must the apology
not be accorded the same prominence as the
original article rather than placing it in a corner
of page 4, for example? Are these the circumstances
to which the subsection refers?
Mr. M. McDowell: It is implied that the apology
cannot be placed in the “Lost and Found”
column or in the small advertisements at the back
of the paper.
Mr. Norris: I welcome the Minister’s response
because he has satisfactorily answered a question
I had intended to ask. It has been very often the
case that, where a headline blackguarded an individual,
the apology was not accorded due prominence.
Let us not beat around the bush, this is what
newspapers do as a matter of course. I therefore
regard the provision as a corrective and the attention
of editors should be drawn to the fact that
they are required, under law, to give due prominence
to their apologies. It is not their practice to
do so at present.
Dr. M. Hayes: I agree that libellous comment
on a front page should be corrected on the front
page and not among the small advertisements or
the stop press. The formulation in the legislation
is acceptable in the sense that it seeks proportion.
It might actually dispose of concerns I have over
another section. As section 20 stands, I am satisfied
with it.
Mr. Norris: Is the section enforceable? Supposing
Senator Maurice Hayes is the subject of significant
libel on the front page of a newspaper
and the consequent apology is made in the Minister’s
favourite language, Irish, underneath the
advertisement for homes for stray dogs, for
example——
Dr. M. Hayes: Or under planning applications.
Mr. Norris: Exactly. Although the Bill states an
apology should be made in a reasonable way, how
can an offended citizen argue the manner in
which it is made to him or her is unfair and that
it should be printed on the front page? Is there
machinery whereby the citizen can have such
recourse?
Mr. M. McDowell: One must read sections 20
and 21 together. Section 21 states:
If an offer to make amends under section 20
is accepted the following provisions shall apply:
(a) if the parties agree as to the measures
that should be taken by the person who
made the offer to ensure compliance by him
or her with the terms of the offer, the High
Court or, where a defamation action has
already been brought, the court in which it
was brought may, upon the application of the
person to whom the offer was made, direct
the party who made the offer to take those
measures;
(b) if the parties do not so agree, the person
who made the offer may, with the leave
of the High Court or, where a defamation
action has already been brought, the court in
which it was brought, make a correction and
apology by means of a statement before the
court in such terms as may be approved by
the court and give an undertaking as to the
manner of their publication;
(c) if the parties do not agree as to the
damages or costs that should be paid by the
person who made the offer, those matters
shall be determined by the High Court or,
where a defamation action has already been
brought, the court in which it was brought,
and the court shall for those purposes have
all such powers as it would have if it were
643 Defamation Bill 2006: 28 February 2007. Committee Stage (Resumed) 644
[Mr. M. McDowell.]
determining damages or costs in a defamation
action... .
One must examine both sections together to see
what happens if there is agreement or disagreement.
Question put and agreed to.
Section 21 agreed to.
SECTION 22.
Ms Tuffy: I move amendment No. 9:
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.”.
Subsection 1, as it stands, allows an apology to
mitigate damage but the amendment is to encourage
early apologies. We suggest that apologies
made only within 14 days should be regarded as
effecting substantial mitigation of damage. Late
apologies could effect some mitigation, but not
substantial mitigation.
The term “apology” is not defined in the Act.
Should it be?
Mr. M. McDowell: I do not know. It is like trying
to define an elephant — one just knows what
it is. Similarly, one knows whether an apology is
an apology. A definition of an elephant might not
get one very far.
The section is purely in respect of the mitigation
of damage. It requires that it be done
either before the bringing of the action or as soon
as is practicable thereafter in circumstances
where the action was commenced before there
was an opportunity to make or offer an apology.
I do not know whether the 14-days rule would be
practical in most cases. The matter probably
should be decided by reference to the circumstances
of publication. For instance, if a book
with defamatory material were published, 14 days
might seem an irrelevance, but it might seem like
an age to a person defamed by a newspaper.
Section 22(3) 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 a new provision. The policy behind this
section is to encourage newspapers to apologise
rather than argue that doing so is putting their
heads in a noose and kicking the lever in respect
of liability.
Mr. Norris: That is a nonsense.
Mr. M. McDowell: I do not believe so because
there are occasions on which a newspaper will
admit certain circumstances look bad. For
example, a newspaper may say it did not mean to
treat Senator Norris very unfairly and wants to
apologise to him therefor. It might also say,
however, that it does not want to throw away all
its defences if it gets into a legal brawl. The philosophy
behind the provision, therefore, is that if
a newspaper’s instinct is to apologise, it should be
allowed to do so. Thus, the matter would not be
in the hands of lawyers who would state an apology
constituted an admission that the offended
party was defamed.
The provision is to try to encourage newspapers
to be generous in their approach. I agree
with Senator Norris on newspapers. It has been
almost universally my experience that newspapers
are ungenerous on the question of apologies
and always seek to minimise their extent or
effect, as if apologising were extracting teeth from
them. This is an unwise policy on their part.
1 o’clock
When I was a member of the Council of King’s
Inns, The Irish Times published an article stating
I had attacked King’s Inns and said it represented
bad value. I was horrified because I
felt all the judges and barristers
would think I had become cracked
and was vindictive and disloyal to an institution
of which I was a member. The truth was that
Senator Derek McDowell had made the remarks.
I kicked up quite a fuss and stated the matter
would not proceed any further if the newspaper
apologised the following day. However, obtaining
the apology was very difficult because the newspaper
wanted to apologise to Senator Derek
McDowell for confusing him with me. I stated I
would sue the newspaper if it did so. It would not
admit that it got the story wrong. Rather, it
wanted to fudge and confuse the issue to suggest
anybody could make the mistake that was made.
Rather than apologising to me, it wanted to bring
Senator Derek McDowell into the apology by
nefarious means so as to make it all a joke. It was
not a joke for me at the time.
Mr. Cummins: To reinforce what the Minister
is saying, 14 days may not be the right duration. It
is too late to leave it until an action is commenced
because the apology should have been made as
soon as the newspaper realised it was wrong to
print the allegation. It should not certainly wait
until as soon as “practicable thereafter, in circumstances
where the action was commenced”.
Ms Tuffy: While I accept what the Minister said
with regard to the definition, does “apology”
mean a written apology? An apology could be
also made personally. I would think a newspaper
should make a written apology.
Mr. M. McDowell: Generally speaking, the
apology would be written, although it might be
broadcast in the case of broadcast media.
Mr. J. Walsh: Reference should be made to an
apology being timely and prominent. The Minister
is correct with regard to the begrudging nature
of many of the apologies which appear in
newspapers. They are often late and small, and
printed in a little read part of the newspaper,
whereas they should be in a prominent position.
The more time that passes before a defamatory
article is corrected, the more damage it can do to
an individual’s reputation. There should be an
onus on a newspaper to correct reports immediately
on becoming aware they are untrue. It
should be stitched into the legislation that the
apology is printed on the same page as the
offending article. To be honest, I would prefer all
apologies to be printed on the front page because
there is nothing in this legislation to deal with serial
offenders. Newspapers which repeatedly go to
the wire in terms of defamatory articles will be
treated in the same way on a case-by-case basis
as a newspaper which offends for the first time.
That is wrong because sanctions are provided in
all other legislation for repeat or serial transgressions.
I welcome the provision that apologies are not
admissible in civil proceedings as evidence of
liability as a significant and justified move in the
favour of the press industry. Given that provision,
however, there should be no reservations on the
part of newspapers about taking a generous
approach to issuing apologies. I hope the Minister
will consider a reference to timely and prominent
apologies, although I am not sure about imposing
a 14-day deadline. If the Bill required apologies
to be printed on the front page, the deterrent
effect on circulation would give newspapers an
incentive to adhere to the code of practice to
which Senator Maurice referred. We need to
stiffen the legislation to ensure compliance with
proper standards and codes of ethics.
Dr. M. Hayes: Much can be said for the spirit
of the amendment, and perhaps the Minister will
consider it. Senators appear to agree that, as well
as being appropriate and proportionate, apologies
should be timely.
Mr. M. McDowell: I acknowledge the arguments
made by Senators and think the term
“timely and conspicuous” might address the issue.
Ms Tuffy: I appreciate the support shown by
Members and withdraw the amendment.
Amendment, by leave, withdrawn.
Acting Chairman (Mr. Daly): Amendments
Nos. 10 and 11 are cognate and may be discussed
together, by agreement. Is that agreed? Agreed.
Mr. Norris: I move amendment No. 10:
In page 18, subsection (3)(a), line 15, after
“not” to insert “automatically”.
The issue of apologies and their effects is troubling.
The Minister has substantially weakened the
interest of the ordinary citizen. I disagree that an
apology would not constitute an express or
implied admission of liability. It is plain common
sense that it would constitute an admission and
such is the interpretation in every other area of
law. If I were involved in a traffic accident and
apologised to the other party, that could be introduced
as evidence of an admission. In plain, clear
logic, it is nothing other than an admission if I
apologised for making a mistake or for committing
libel, and the Bill is incorrect to state that
such an apology does not constitute an express or
implied admission. It is like Alice in Wonderland
to claim that saying one was wrong does not constitute
an admission. The ordinary citizen’s common
sense should be respected. I made my
amendment weaker than I originally intended by
including the word “automatically”, and the least
the Minister can do is accept it because, otherwise,
the Bill revolts common sense.
Subsection (4) is an outrage. While I do not
know about the Minister, are we totally crazy as
politicians to say newspapers can introduce evidence
of an apology in mitigation but the claimant
cannot? It is the most extraordinary proposal
I have ever come across and it totally skews the
balance between newspapers and the individual.
By acknowledging an error and printing an apology,
a newspaper can mitigate a serious libel from
its point of view, even though it is not an admission
of liability or admissible in court. On what
planet do we live? The Minister should not think
my sentiments on the matter are not shared
because many of his Cabinet colleagues have told
me in the privacy of the Members’ bar that they
feel the same way. They have thanked God that
somebody has the balls to raise the issue because,
although they would love to raise it themselves,
they cannot do so. Few in this House, other than
Members with interests in the newspaper industry,
do not feel exactly the same. I can assure the
Minister that the citizens of Ireland share my sentiments.
What is being done here revolts reason
and outrages logic, and I ask the Minister to
accept at a minimum that an apology does not
automatically constitute an express or limited
admission.
The Minister should delete subsection (4). We
are always hearing about level playing fields, yet
a business organisation with enormous financial
resources and insurance coverage can libel Sea´n
and Moira citizen and then can apologise without
647 Defamation Bill 2006: 28 February 2007. Committee Stage (Resumed) 648
[Mr. Norris.]
admitting liability and introduce that apology in
court as mitigation. How does the apology mitigate
anything? The newspaper can introduce such
an apology but the unfortunate individual is not
allowed to do so. On what planet do Members
live? I would like to hear other Members’
opinions in this regard because, further on, it is
stated that people in public life should be subject
to less protection.
The Government has given in and has sold the
pass under pressure from the newspapers. This
happens each time there is a general election. It
is not simply Fianna Fa´ il and the Progressive
Democrats who do this; Fine Gael did so five
years ago. They are all at it and the turkeys will
vote for Christmas as long as they get a gob-full
of good publicity before the general election.
Mr. J. Walsh: It is difficult to argue against
Senator Norris’s logic in this regard. While I do
not disagree with his comments, the present
situation, whereby newspapers feel justifiably
constrained from issuing apologies because of the
inherent danger of subsequent court cases, raises
a dilemma. Subject to what the Minister will say
in this regard, the intention of this provision is to
allow newspapers that know they have made an
error to proceed freely and publish an apology
without it being part of a settlement with the
injured party. There is a certain logic to this. This
should be accompanied by the existence of an
independent body, such as an independent press
council, that could underpin the apology by
awarding some compensation to the individual in
question. However, this is missing from the
equation.
Mr. Norris: There will not be an independent
press council.
Mr. J. Walsh: I know.
Mr. Norris: Does the Senator agree with the
inclusion of the word, “automatically”?
Mr. J. Walsh: Yes. However I would have difficulties
in removing section 22(4). Its removal
would mark a return to the status quo. In other
words, newspapers would not publish an apology
because of the inherent risk of a case that they
would obviously lose as a consequence.
Mr. Norris: In that case, they should not be
allowed to use it as mitigation either. They cannot
have it all on one side.
Mr. J. Walsh: Most people would be satisfied
by an apology. There may also be a need to combine
an element of compensation with it, which is
missing at present. The establishment of an independent
body that could adjudicate in a reasonable
manner without all the attendant exorbitant
legal costs, as does, for example, the Personal
Injuries Assessment Board, would be something
of substance. It would allow an ordinary citizen
to make a complaint and have redress in a satisfactory
way without putting his or her livelihood
and that of his or her family at risk.
This should be done and perhaps Members will
have a debate on this issue on reaching the provisions
pertaining to a press council. In this case,
the removal of section 22(4) would be of some
concern to me because it affords individuals an
opportunity for an apology. In many instances,
those who are so offended do not have the
resources to take on the might of what are now
major corporations. There is a benefit to the citizen
that I am loath to strike out. However, I do
not have difficulty with the Senator’s amendment
regarding the word, “automatically”. It does not
affect section 22(4) which is the most beneficial
provision from the perspective of a defamed
person.
Dr. M. Hayes: I had thought the purpose of this
provision was to enable people to avoid litigation
if they did not want to enter into it and that
people who might be satisfied with an apology
could receive one. However, if people wanted to
go on to litigate thereafter, consequently both
sides would start from scratch as though, in a
sense, the apology had not been given. There has
always been a difficulty in that newspapers were
either reluctant to, could not or were advised not
to make an apology and have dragged people in.
I experienced a case of this nature myself. A
couple of years ago, a morning newspaper, which
was neither the Irish Independent nor The Irish
Examiner, carried an article suggesting that, in
pieces I had written about Northern Ireland, I
was acting as a spokesman for the Irish Government,
thereby destroying my independence. I
knew and respected the young man who wrote
the article and all I wanted was to get straight to
the point and get him to state this was wrong and
no more. Although we eventually reached this
point, to do so we were almost obliged to ignore
lawyers on both sides.
It is in both the public interest and in the
interests of those who simply want their names
cleared quickly or who want what was in error
cleared quickly and disposed of with an apology.
Mr. Norris: Such people are not compelled to
sue. They are not obliged to continue with their
actions.
Dr. M. Hayes: I am unsure whether including
the word, “automatically” makes any difference
from the point of view of drafting or interpretation.
However, the general tenor of this provision
should make things easier. If people subsequently
want to go on to litigation, nothing will prevent
them. The decks are cleared.
Mr. Cummins: Senator Norris has made some
valid points in this regard. It probably tilts the
balance too greatly in favour of the newspapers.
649 Defamation Bill 2006: 28 February 2007. Committee Stage (Resumed) 650
All Members want fair play for the ordinary Joe
Soap who is defamed. I have no problem with the
amendments tabled by Senator Norris that
include the word, “automatically” although I am
unsure whether that will make much difference in
interpretation. However, Senator Norris made it
clear that if Members are to prevent people from
continuing with litigation, we should not be seen
to be acting against the ordinary citizen. He or
she may not have sufficient money to fight a case.
I take Senator Maurice Hayes’s point that this
provision pertains to those for whom an apology
would suffice. While all would be well in such a
case, they should have the opportunity to proceed
with litigation. I do not consider the issue of evidence
of apology to be correct. More thought
should be put into it before Members proceed in
this regard.
Dr. Mansergh: At the risk of annoying some of
my learned friends, legislators should encourage
a culture of apology. By apology, I mean a proper
and full apology. I accept this may not always
mitigate the harm done, in which case further litigation
is possible. It is right that apologies can be
made without strict admissions of legal liability.
It would be desirable for Members to try to cut
down on libel litigation and for newspapers, without
putting their resources at risk, to be encouraged
to make proper and full apologies.
While I will not go into details, the Minister
will be aware that, a couple of years ago, I was
seriously libelled in respect of actions that, in
practice, I did not take as an adviser back in 1998.
Although I was prepared to go to law, if necessary,
after I had made my protest, the newspaper
concerned published a letter of mine that stated
the allegation made was untrue and the reasons
it was untrue in order that people could judge
for themselves adequately. Thereafter, I had no
interest in pursuing the case any further and am
glad to note the libel has not been repeated by
any source.
Mr. M. McDowell: Senator Norris is entitled to
his strong conviction but he should not attribute
motives to those who proposed to amend the law,
which are venal or corrupt. In 1991 the Law
Reform Commission, which at the time was
chaired by Mr. Justice Ronan Keane, published a
report on defamation law. On page 10 of that
report it is stated:
We referred in our Consultation Paper to the
representations we had received on this subject.
It appeared that, although s17 of the Defamation
Act 1961 enables a defendant to give
evidence in mitigation of damages as to the
making or offering of an apology, the section is
frequently not availed of by defendants
because of a concern that an apology will be
regarded as an admission of liability. We provisionally
recommended that s17 should be
replaced by a new provision making it clear
that an apology to the plaintiff is not to be construed
as an admission of liability. This proposal
was generally welcomed.
The report then sets out a recommendation. In
1991, therefore, the Law Reform Commission,
which had absolutely no snivelling or leg-licking
motivation regarding the media——
Mr. Norris: I am not sure I used those phrases
but I am grateful for the Minister’s suggestions,
as they will come in handy later.
Mr. M. McDowell: Regardless of the electoral
cycle involved, the Law Reform Commission,
which was established by the Oireachtas, took the
view that the all duck or no dinner aspect to an
apology was an inhibiting factor that drove
people to litigation and stopped them from acting
decently because they put their heads in nooses
when they did. I agree with Senators Mansergh
and Maurice Hayes that we would like people to
behave in a sensible way. If newspaper editors
think they have been excessive in what they have
said or if they think one of their columnists has
been unfair, for example, they should be able to
apologise without lawyers immediately saying the
liability issue is out of the way and the newspaper’s
bank accounts should be opened in order
that they can bring their shovels and barrows to
see how much they can get away with, which is
the other side of the equation.
The purpose of the provision is to create a circumstance
in which defendants can write to litigants
about apologies without all the time thinking
they are putting their heads in a noose and
kicking the lever on the liability issue. Ordinary
people would be better served if newspapers felt
they could safely apologise without handing a
blank cheque to the litigant whose lawyers can fill
in how much he or she will take on foot of an
apology. The more full the apology, if it is taken
as an admission of liability, the greater the
amount that should accompany it in damages. If
the newspaper states, for example, “We deeply
regret that Senator Hayes’s personal feelings
have been hurt in this way and we profoundly
apologise to him and acknowledge the hurt we
have done to him”, the decimal point will move
a few points to the right. That is the attitude in
some cases.
I agree, on a common sense basis, that to
apologise is to admit that one has done something
wrong by definition. The policy of the statute is
to encourage people to acknowledge an error.
However, if an individual makes an apology and
he or she can forget about defending the case,
checking the facts, qualified privilege and so on
because it is open season for the lawyers, inevitably,
newspaper editors and owners will say it is
not worth it. They will ascertain whether the individual
is serious about the case but they cannot
hand him or her a blank cheque and ask him or
her to fill it in. That is the underlying philosophy.
I fully accept Senator Norris’s comment that on
one level to say one is sorry is to concede an
651 Electricity Regulation (Amendment) 28 February 2007. (Single Electricity Market) Bill 2006 652
[Mr. M. McDowell.]
element of fault, for example, where following a
car accident the man or woman in the offending
car got out and said “I am terribly sorry”, and it
was relied on in court. The insurance companies
always said——
Mr. Norris: The people were in shock.
Mr. M. McDowell: No, they said they were the
servant or agent for the purpose of driving the
car because it was a vicarious liability implied by
statute. However, they were not authorised to
comment on who was to blame and it was not an
admission made by the defendant. For example,
in the case of an accident if a driver hops out of
a bus and says he is sorry, that does not mean
CIE has made an admission that it was to blame.
However, there are artificialities in all of this but
the question is what we are trying to achieve. Are
we trying to achieve a position where people deal
with each other realistically and decently?
The Law Reform Commission identified this as
a problem 16 years ago and this is not being done
as an act of abasement by electorally nervous
politicians to the media nor is it a case of turkeys
voting for Christmas. I would be much happier, if
I were defamed, to receive an apology rather than
making a trip to the Four Courts and putting
massive legal expenses on the hazard one way or
the other of obtaining a little decency from a
newspaper.
Mr. Norris: I accept it is better to cut down on
litigation and so on. I am glad the Minister has
conceded there is an artificiality about this issue.
Persons who are satisfied with an apology will not
continue the action further, which is correct.
Mr. M. McDowell: Unless their lawyers say,
“You have an open goal now. You can kick the
ball in as many times as you like”.
Mr. Norris: Is the Minister imputing impure
motives to his own profession? I am so shocked I
can hardly stand up. Somebody who wants only
an apology will be satisfied with that.
The concept of apologies being viewed as a
mitigating factor in settlements for damages has
been introduced. Nothing in the legislation
inhibits apologies. My amendment is weak, as it
states, “does not automatically constitute”.
However, will the Minister consider its inclusion?
With regard to the Law Reform Commission, I
am delighted the Minister is so enthusiastic about
its report because he has not invested in law all
of its recommendations. He is a bit of an a´ la
carte person where the commission’s reports are
concerned. He picks and chooses, which is fair
enough. However, when the debate resumes I will
point out other areas in which equally strong
recommendations were made by the commission
but the Minister chose not to take them on board.
I share the Minister’s high regard for Mr. Justice
Ronan Keane but because he said something in a
report 16 years ago in circumstances that have
been changed by earlier sections in the legislation
is not an overwhelming argument, although it
must be taken into consideration.
Mr. M. McDowell: It is not pure venal base
politics to accept his view.
Mr. Norris: The Minister should have a little
wordı´n in private with some of the colleagues.
Ms O’Rourke: Senator Maurice Hayes
requested an extension of the time for the debate
on Committee Stage but the House has discussed
only 11 of the 34 amendments tabled and, therefore,
there is no point in extending the time.
Another session will be scheduled.
Dr. M. Hayes: That is true but it is possible to
make progress.
Ms O’Rourke: Yes, but I am conscious the
Minister and his officials might want something
to eat.
Mr. Norris: That is a sensible arrangement. The
matters being teased out are serious and I hope I
am not wasting the time of the House. The Minister’s
replies have been interesting and clear.
Ms O’Rourke: He is always interesting.
Mr. Norris: It would be good if we could continue
the debate on another day.
Ms O’Rourke: I will schedule another session.
Progress reported; Committee to sit again.
Sitting suspended at 1.30 p.m. and resumed at
2.30 p.m.
