Defamation Bill 2006: Committee Stage - 4th December 2007
SECTION 1.
Question proposed: “That section 1 stand part of the Bill.”
An Leas-Chathaoirleach:
I welcome the Minister for Justice, Equality and Law Reform to the House.
Senator David Norris:
I disagree vehemently with the disgraceful way in which this Bill is being rushed and I would like an explanation from the Minister why it is being reintroduced on Committee Stage rather than Second Stage. Thirty-five out of 60 Members in this House have had no opportunity to speak on it, including some very eminent legal people such as Senator Regan, a senior counsel. They have been deprived of the opportunity to have a proper say on the second half of the Bill.
Matters have moved on since the previous debate, which may have served as a warning to the press. However, the press has gone on to commit worse actions in the interval between this Bill failing to complete Committee Stage on the previous occasion and it being introduced again. I am astonished at the alacrity with which the Government has rammed the Bill through in an undemocratic manner, which is effectively a guillotine on the operation of the House and an insult to Seanad Éireann. I have no doubt about that.
I believe a deal was done between the Taoiseach, Deputy Bertie Ahern, and the O’Reilly newspaper empire. This was made perfectly clear when Independent News & Media newspapers changed their tack in the same way The Sun newspaper did when it got Mr. Blair into power in England. Rupert Murdoch did a deal with Mr. Blair in that case.
I do not agree with the Bill being introduced on this Stage and I do not agree with section 1. I take it that section is the Short Title and commencement. Before we speak of the commencement of the Bill, may I ask when we will have the commencement of the debate? I will have certain matters to raise with regard to some other early sections.
Will the Minister explain why this Bill, in defiance of any sense of democracy, is being introduced on Committee Stage rather than Second Stage? Does he agree that doing this deprives more than half the Members of this House of an opportunity to speak on this important Bill?
What is the fate of the Privacy Bill? We were always told it was supposed to be the partner of this legislation. The Minister’s predecessor, Mr. Michael McDowell, instituted a group under Brian Murray, SC.
An Leas-Chathaoirleach:
That is not relevant to this Bill.
Senator David Norris:
It published a report which urged the creation of a new tort of privacy.
Minister for Justice, Equality and Law Reform (Deputy Brian Lenihan):
The section before the House deals with the citation and commencement of the Bill when enacted. In reply to the more general point, it is a matter for Seanad Éireann to regulate its procedures. The Government made a decision that the Bill should be restored to the Order Paper on the commencement of Committee Stage.
As Senator Norris is well aware, Seanad Éireann is a body with a continuous existence under the Constitution. It has approved this Bill on Second Stage and has considered quite a few of its sections, having almost completed Committee Stage. I recommended to my colleagues in Government that it would be appropriate to reintroduce the Bill on Committee Stage and the Government made that decision. I am anxious to hear the views of Senators on the detail of the legislation. I am open to any reasonable points made on that detail.
With regard to the principle of the legislation, the Long Title refers to it as: “An Act to revise in part the Law of Defamation; to repeal the Defamation Act 1961; and to provide for matters connected therewith.” Nobody could object to the stated aim of this Bill to reform the defamation legislation. Many reports over many years have documented the difficulties faced by the litigant brave enough to take a claim in court proceedings under our current arrangement. Any arrangement which improves the position for the person whose good name is infringed is to be welcomed. A balance must be struck in this area between the legitimate and constitutionally guaranteed right to freedom of expression and the right of a citizen to his or her good name, which also enjoys constitutional protection.
The Bill is simply to revise the law of defamation and we are beginning with the first section. I am quite open to amendments, hearing Senators’ comments and taking them into account when we come back on Report Stage. There is no intention of jackbooting this legislation through, so to speak, and I am quite amenable to hearing what Senators wish to say on it.
The suggestion that this is some implied contract in a complicated arrangement between the Taoiseach and a newspaper group is utterly without foundation. The provisions of this Bill have been dealt with, discussed and elaborated upon in reports over many years. Far from initiating this legislation, I am trying to close this chapter in the history of Irish legal reform.
Senator Ivor Callely:
I thank the Minister, my good friend and colleague, Deputy Brian Lenihan, for his explanation, which I support. I can understand equally the position of Senator Norris regarding the new Seanad and its Members. In light of the Minister’s comments, we should move forward in that spirit.
The law on defamation exists to protect a person’s right to their reputation against a false allegation. Society must balance the right to a reputation and the right to freedom of expression. In this jurisdiction the balance is weighted in favour of protection of reputation. The Defamation Act 1961, which we are replacing, was in effect confiding the common law which existed until then. While it has been debated on many occasions, as the Minister, Deputy Brian Lenihan, mentioned, this is the first time in a long time a Minister has tackled this much talked about issue. There unfortunately may be somewhat of a hiccough in the way in which it is before the Seanad on Committee Stage today. However, in light of what has been said, I hope you, a Leas-Chathaoirligh, will give Members freedom to discuss the issue under section 1.
The libel laws are particularly close to the hearts of journalists as nearly every journalist, in particular Paul Reynolds and John Waters, can testify. Political figures have not been so successful regarding defamation. There is one obvious exception, which was the case of Proinsias De Rossa MEP who pursued his constitutional right for unlimited damages and the jury decided in his favour. He was awarded what might have been deemed to be a relatively large award of £300,000 by the jury at the time. Few would begrudge him that award given that any political figure might have had to go to court, as I am sure most people in this House have probably been libelled at some time — some more than others. On one or two occasions I had a choice to make and decided not to go down the libel route. However, others have and have not been successful other than the one I mentioned.
My concern is not with any particular case or the one involving the MEP, but with what was addressed in the Supreme Court appeal of the De Rossa case, which, I understand, has now been addressed in section 29. I am inclined to support it. I ask the Minister to give more clarity to the section when he reaches it. Ms Justice Denham, in the course of her minority decision in that case, made the following observation——
An Leas-Chathaoirleach:
We are on section 1 now.
Senator Ivor Callely:
I understand we are allowed some liberty in light of what the Minister has said.
An Leas-Chathaoirleach:
We are on section 1.
Senator Ivor Callely:
I am dealing with that. In general I favour giving guidelines to a jury on the level of damages. Information does not fetter discretion. If this is perceived as a more active approach by the judge, it is in the interest of justice. While the Legislature could legislate, in the absence of more guidelines, it would help juries and the administration of justice. Guidelines would assist in achieving consistent and comparable decisions, which would enhance public confidence in the administration of justice. There is a benefit to the administration of justice in such an approach while maintaining the paramount position of the jury in determining the damages. Specific information would aid decision-making and the maintaining of an appropriate relationship with the award of damages in other areas. Such information as is deemed appropriate could be given more specific guidelines. Ms Justice Denham suggested that information of previous awards in libel cases made or affirmed by the Supreme Court should be given to the jury. She also suggested that the jury should be able to compare the value of what courts usually award——
Senator Alex White:
On a point of order, I understand the Senator wants to make his contribution on this matter. However, the Bill is set our in a systematic way. While I am not criticising the Senator, I ask the Chair whether we will be permitted to address such issues as we wish at any point in the debate or whether we will be asked or required to wait until that section. If Senator Callely is to be afforded that indulgence I will seek it also.
An Leas-Chathaoirleach:
We are dealing with section 1.
Senator David Norris:
We should be on Second Stage.
Senator Alex White:
It is one or the other.
Senator Ivor Callely:
I understand it was sought that we should have some liberty in the discussion of the Bill.
An Leas-Chathaoirleach:
We cannot have a Second Stage speech on the matter. We are on section 1.
Senator Ivor Callely:
I am making a point under section 1.
Senator Alex White:
It is not on section 1, but section 29.
Senator Ivor Callely:
The Minister indicated he would accommodate some flexibility.
Senator Eugene Regan:
It has been decided that this Bill is re-entered on Committee Stage and not on Second Stage. Senator Callely is arguing on the basis of Second Stage. That is a bone of contention on this side of the House. He cannot deny it, vote against it and then try to abuse the privilege of the House.
An Leas-Chathaoirleach:
I remind Senator Callely that we are on section 1.
Senator Ivor Callely:
Juries should be able to compare the value of what courts usually award to people.
Senator Alex White:
I am sorry to rise again——
An Leas-Chathaoirleach:
Senator Callely, that is not relevant to section 1. Section 1 deals with the Title.
Senator Jim Walsh:
I have listened to the points of order raised. Section 1 clearly states, “This Act shall come into operation...” I humbly put it to you, a Leas-Chathaoirligh, that anything anybody raises with regard to the Bill under section 1 is valid because it relates to the Act coming into operation. What Senator Callely is talking about is precisely what is in the Act and matters pertaining to the Act, and is valid under this section.
An Leas-Chathaoirleach:
The Chair’s reading of it is not——
Senator Jim Walsh:
The first few words of section 1(2) are clear in stating, “This Act shall come into operation...”
An Leas-Chathaoirleach:
Section 1 deals with the Title.
Senator Jim Walsh:
The substance of section 1 deals with the Act. While I know there is a timing issue, it deals with the Act and therefore what Senator Callely is saying is correct.
Senator David Norris:
The Senator’s own Members are acting as if we were on Second Stage.
Senator Maurice Cummins:
Let us have Second Stage.
Senator David Norris:
Let us have Second Stage. Let us have a vote.
An Leas-Chathaoirleach:
I call Senator Callely on section 1.
Senator Ivor Callely:
I thank Senator Walsh for his helpful intervention.
Senator Alex White:
What Senator Walsh said is wrong.
Senator Ivor Callely:
As Ms Justice Denham said, I believe the jury should be able to compare the value of what courts usually award to people in personal injury actions as compensation in a notional remedy in both incidences. The lame do not walk after an award of compensation and the defamed do not cease to have been defamed after an award of damages.
An Leas-Chathaoirleach:
I remind the Senator that a section of the Act deals specifically with that point and I ask him to address it at that stage.
Senator Ivor Callely:
I can deal with it at that stage if the Leas-Chathaoirleach so wishes.
An Leas-Chathaoirleach:
Yes.
Senator Ivor Callely:
However, it is equally covered here. While I will not read what section 1 states, it gives the standard provision as Senator Walsh said. May I continue a Leas-Chathaoirligh?
An Leas-Chathaoirleach:
On section 1, Senator.
Senator Ivor Callely:
Am I right in reading that section 1 deals with the Act?
An Leas-Chathaoirleach:
It does not deal with the Act.
Senator Jim Walsh:
It does.
An Leas-Chathaoirleach:
It deals with the Title of the Act and the commencement.
Senator Eugene Regan:
On a point of order, as the Leas-Chathaoirleach has made a ruling, the Senator should respect that ruling. It is the prerogative of the Leas-Chathaoirleach to make that ruling. It is not the Act at large regardless of the previous interpretation put on it. It is the ruling of the Leas-Chathaoirleach that determines the matter. As he has ruled on it, the Senator should respect the Chair.
Senator Jim Walsh:
I hope Senator Regan will always do that——
Senator Eugene Regan:
I do indeed.
Senator Jim Walsh:
——on the Order of Business when Opposition Senators flout the rules very conveniently.
An Leas-Chathaoirleach:
I call Senator Callely on section 1.
Senator Ivor Callely:
I am not too sure if I am being defamed myself, a Leas-Chathaoirligh, because you do not know what I am about to say. I understand that section 1 deals with the commencement of the operation of the Act and I am dealing with issues regarding the operation of the Act.
An Leas-Chathaoirleach:
The Chair has given the Senator some latitude up to now, but——
Senator Maurice Cummins:
On a point of order, as happened on the Order of Business, an allegation has been made that a Member of the House has been flouting the rules of the House. On the Order of Business, the Cathaoirleach judged that the Member had not flouted the rules of the House.
Senator Jim Walsh:
He has.
Senator Maurice Cummins:
I want that retracted at this stage. This is a recurring theme at this stage. The Cathaoirleach ruled on this matter on the Order of Business and it should be withdrawn again for ruling.
Senator Jim Walsh:
I wish to reconfirm what I said. It is flouted with impunity on the Order of Business every morning and this is wrong. I concur with what Senator Harris said.
Senator Maurice Cummins:
The Cathaoirleach ruled on the matter on the Order of Business.
An Leas-Chathaoirleach:
The Cathaoirleach is the sole judge of order within the House and his ruling is not permitted to be challenged.
I call Senator Callely on section 1.
Senator Ivor Callely:
Am I permitted to deal with aspects of the commencement of the Defamation Bill as an Act and the provisions and purposes contained in the Act?
An Leas-Chathaoirleach:
If it is relevant to section 1 of the Bill.
Senator Ivor Callely:
I am about to conclude my contribution as there is not much left of what I want to say. As I was saying before I was interrupted, an order of damages is an artificial form by which a court gives a remedy to an injured person. Juries no longer decide on the value of compensation in personal injuries actions. In the event of a person——
Senator Alex White:
A Leas-Chathaoirligh, if the ruling is to mean anything——
An Leas-Chathaoirleach:
Senator Callely, that is not relevant to this section.
Senator Ivor Callely:
I will raise it when I come to the relevant section. I ask the Leas-Chathaoirleach to let me know when we come to the relevant section.
Senator David Norris:
Is it possible to put a motion before the House that Second Stage be taken now?
An Leas-Chathaoirleach:
I have called Senator Regan.
Senator Ivor Callely:
I ask the Leas-Chathaoirleach when that part arises.
An Leas-Chathaoirleach:
We will be dealing with it section by section.
Senator David Norris:
It is clear that this side of the House wants a Second Stage debate but the Government has deprived us of the opportunity.
An Leas-Chathaoirleach:
I call Senator Regan on section 1.
Senator David Norris:
The rules are being flouted. They may not have been flouted by Senator Regan but they are being flouted all over the place by Fianna Fáil.
An Leas-Chathaoirleach:
I call Senator Regan without interruption, please.
Senator Eugene Regan:
On section 1, apropos of the question raised by Senator Norris, I read the record of the House on Committee Stage of the Bill in the last Seanad. It was a comprehensive debate and points of agreement were reached on a number of the sections. The return to the Bill on Committee Stage is an issue, as also is the issue of using and benefiting from that debate in order to revise the Bill and to return to this House with a new Bill which has taken account of the very useful, detailed and meaningful discussion which took place in the last Seanad. By returning with the same Bill and going over the same ground——
An Leas-Chathaoirleach:
Senator Regan, the House has decided to begin with Committee Stage and we are discussing section 1 of the Bill. I have no control over this as the House has decided.
Senator Eugene Regan:
I am sure the Minister has a good reason but this is a new Seanad and a new Bill would have been in order. The Minister might wish to comment. I fully understand the objectives of this Bill——
An Leas-Chathaoirleach:
The House has already agreed to the restoration of this Bill to the Order Paper.
Senator Eugene Regan:
I understand. Those are my commencing remarks on section 1.
Senator David Norris:
I wish to respond to some points made by the Minister. He stated that the Seanad was continuous under the Constitution and this is quite true but it is not continuous in terms of its membership. I wish that was the case. Why did I fight the last election if it is so continuous?
Deputy Brian Lenihan:
Dublin University has been fairly continuous to the Senator.
Senator David Norris:
If it is continuous why are there more people on the Government side who want to have a Second Stage debate? I reiterate what Senator Regan said. Has the Minister read the Seanad debate in full? There were various points at which his predecessor, the then Minister, Mr. McDowell, indicated that he intended to make changes or was thinking of making changes but none of those have been made. It is extraordinary that this Bill has not apparently been affected by the debate that took place in the House previously.
An Leas-Chathaoirleach:
That is not relevant to section 1.
Senator David Norris:
It is as relevant as anything that was said over there.
An Leas-Chathaoirleach:
That may well be but we are dealing with section 1.
Senator David Norris:
On that point, it is clear there is disagreement on this side of the House; it is also clear that there are Ministers who disagree with a great deal in the Bill and would have welcomed it being reintroduced on Second Stage. I believe the Minister knows this. Many of his colleagues do not want the Bill in this form but it is being rammed through. I have asked the question why and I have suggested a reason but the Minister has dismissed it.
Deputy Brian Lenihan:
It is not for me to talk to Senators about their own procedures but they are trying to have it both ways in their more recent comments on this Bill.
Senator Alex White:
The Senators on the Government side.
Deputy Brian Lenihan:
No, I mean the Senators opposite.
The Seanad has voted to restore the Bill which the Seanad voted for on Second Stage and not a different Bill prepared by the Minister.
Senator David Norris:
The Leader of the House said it would be the reasonable and sensible thing to introduce it on Second Stage; either that or he is talking nonsense. It was force majeure.
An Leas-Chathaoirleach:
The Minister without interruption, please.
Deputy Brian Lenihan:
If a new Bill was required then this would be a new Bill. However, this Bill was approved by this House on Second Stage. I appreciate the point made by Senators Regan and Norris that this is a Bill which may require amendment. It would have been open to the Government to have commenced the discussion on this Bill at section 20 but we did not do so; we have returned to the beginning of the Bill. Therefore, anyone who has any difficulty with the 43 different points of defamation law set out in this Bill has an opportunity to discuss the merits and demerits of each of those 43 points in the course of this debate. Neither I nor the Government opted for having the Committee Stage discussion foreclosed for that reason. The Bill before the House now of necessity must be substantially unamended to enable me hear the views of Senators. I will reflect on what is said and at that stage consider whether amendments can be brought forward on Report Stage. This is the reason the Bill is in this form and the reason we begin the procedure at this point.
Senator Joe O’Toole:
Much as I admire the Minister and defer to his greater level of knowledge on the Constitution and matters parliamentary, I have to gently correct him on a number of issues. Despite the fact that Senator Norris agreed with him that the Seanad is continuous, this is an incorrect belief.
Senator David Norris:
I did not agree with him.
Senator Joe O’Toole:
I beg the Senator’s pardon.
The Seanad in not continuous; it may be continual, which I doubt, but it certainly is not continuous. This is the reason we describe it as the “new” Seanad and the reason each new Seanad is given a new number.
Senator David Norris:
It is the reason we have to be elected.
Senator Joe O’Toole:
This Seanad is a new body. The House agreed for the Bill to be reinstated, as the Minister said, but in practical terms there are 35 Members who have never seen this Bill before. I supported the Bill and voted for it in the last Seanad and I still support it even though I will support many of Senator Norris’s amendments because they will improve it.
The Minister has an extraordinary way of communicating but he is incorrect when he says the Government could have reintroduced the Bill on section 40. The rules of the House are very clear and we can defer to the Cathaoirleach for a ruling if necessary. I know the rules of the House because I have been a Senator for 20 years and as this is a “new” Seanad, the Bill would have to be reintroduced at the beginning of Committee Stage. This was not a case of a choice being made by the Minister and beginning with discussion on section 1 should not be presented as a sort of gift from Government. The rules of the House state it must begin on section 1.
Deputy Brian Lenihan:
We were given the option.
Senator Joe O’Toole:
I ask for a certain amount of leeway. Members should be permitted to make points. It is a parliamentary convention rather than a rule that Members table amendments on Committee Stage which reflect and follow on from the points made on Second Stage. In this case, 35 out of 60 Members do not have this opportunity. It would be a gentle and open decision to allow a wider debate.
Senator David Norris:
I wish to raise a point of order. I ask for a ruling from the Chair as to whether Senator O’Toole is correct in this as the Minister is on the record of the House as having said that he was offered the option. If this is not the case, who offered him the option?
An Leas-Chathaoirleach:
I refer Senators to Standing Order 132. Senator O’Toole is correct.
Senator David Norris:
Will the Minister inform the House who gave him the option? He said he had an option.
An Leas-Chathaoirleach:
That is not an issue. I call Senator Alex White.
Senator Alex White:
The concern expressed by some Members for those of us who are new Members of the House is touching and much appreciated. However, I assure my colleagues that we are well able to look after ourselves and to take——
Senator David Norris:
Is the Senator now speaking for them all? His concern for his 34 colleagues is equally touching.
An Leas-Chathaoirleach:
Senator Alex White, please.
Senator Alex White:
——a view on what is being proposed. I agree fully with Senator Norris’s earlier proposal that this Bill should have reverted to Second Stage and I voted to that effect on the Order of Business. It is a pity the Government did not take that approach. Instead, there is what one could describe as a Fianna Fáil solution to a Fianna Fáil problem, whereby although one does not allow for a Second Stage debate, one conducts such a debate anyway. I object to this. Members are still debating section 1, which pertains to the Short Title and commencement, and it is now 4.40 p.m.
Question put and agreed to.
SECTION 2.
Question proposed: “That section 2 stand part of the Bill.”
Senator Eugene Regan:
Why is defamation not defined in section 2 under the list of definitions? It merely states that it shall be construed. Normally, such a definitions section would state that the words to be defined have a particular meaning. In this case, the section simply states, “construed accordingly”.
Senator David Norris:
I raised this matter during the previous discussion of the Bill and it has not been addressed. However, Members now have a distinguished legal authority pointing out this.
Deputy Brian Lenihan:
The new tort of defamation is defined in section 5 of the Bill. It states:
The tort of libel and tort of slander . . . shall cease to be so described, and . . . shall, instead, be collectively described, and are referred to in this Act, as the “tort of defamation”.
When one is transiting from a particular cause of action to another, it is desirable that it be done in clear language in a clear section and not referred to in an interpretation section of an Act and nor should it find its foundation in the interpretation section of an Act. Hence the definition section simply states that defamation ”shall be construed in accordance with section 5(2)” because this new tort is created by section 5(2).
Senator David Norris:
May I be of some assistance to the Minister? Had he read a little further, he would have come to section 2, in which there is a definition of the tort of defamation.
Senator Alex White:
Members are debating section 2.
Senator David Norris:
My point, which I also made on the previous occasion, is that it should have been included in the list of definitions.
Question put and agreed to.
SECTION 3.
Question proposed: “That section 3 stand part of the Bill.”
Senator David Norris:
I have a question on this section. I understand the principle that retrospective legislation is highly regrettable and vitiates many of the best principles of the law. While I may return to this issue later, I have been made aware of a case in which highly serious, unpleasant and completely inaccurate statements were made about a deceased person to the great regret of his family. Completely incorrect and gross accusations of sexual behaviour were published on the front pages of newspapers and the family had no redress because the man was dead. Moreover, attempts were made to invade the funeral. This was a really shocking business and the family has asked me to raise this matter although they do not wish their grief to be exacerbated by mention of the family name.
When the family wrote to the press ombudsman, they were informed that they were caught in a gap and that he would not be able to do much about it. This is extraordinary. While I do not seek retrospective legislation in terms of rewriting section 3, at some stage during the Bill’s passage, I ask the Minister to address this principle and this case in particular. I can make available its details to him directly and I believe he will be highly shocked when he reads what was printed, completely wrongly, about this unfortunate man who was murdered, to the great distress of his family.
The cause of death was reported wrongly. It was alleged that it was a sex game, in which he was involved and that he was trussed up like a pig. However, it was no such thing. He was killed by a single stab wound to the carotid artery and his teenage nephews and nieces are highly upset and traumatised. They have been asking their parents what was going on as they knew their uncle as an extremely gentle, decent and good man. Although this man became the victim of a brutal murder, the newspapers had a perfect right to splash all these lies about him all over the place, to the distress of his family. Obviously, retrospective legislation is not a good principle. However, I wonder whether these people will have an opportunity to receive some degree of redress and of real retraction of this material.
Senator Denis O’Donovan:
I agree that legislation should not be retrospective. Does the Minister believe there are instances in which it would be appropriate? I refer in particular to a recent High Court challenge on a case regarding the drink driving laws, which created havoc in district courts throughout the country. Certain aspects of a recent criminal justice Act regarding the term of suspension off the road came under the spotlight. Thankfully the High Court clarified that the legislation, despite the uncertainty of the language used, should not be retrospective and should not impose on or change directions made by a district court prior to its enactment.
Senator Eugene Regan:
The Minister should explain what he envisages as the scope of section 3(2), which provides for an element of retrospection in this Bill. It states that, “A provision of this Act shall not affect the operation of the general law in relation to defamation, in force immediately before its commencement, except to the extent that that provision provides otherwise”. What is the scope of this provision and how does the Minister view it? There is a general rule against retrospective legislation.
Senator Maurice Cummins:
Were retrospection to be introduced, I would have serious concerns. The Minister should comment on this matter. A colleague, who is a former public representative, has been seriously defamed in recent months. I hope no retrospection will apply from the commencement of the Act, which would have been whenever Members dealt with it on Second Stage. This series of retrospection must be clarified by the Minister because were it to be introduced, it would be a serious matter.
Senator Jim Walsh:
Senator Cummins makes a most interesting point with regard to retrospection and the fact that this Bill might apply to a former colleague who was seriously defamed. However, this raises the question as to the reason the Bill was supported by Fine Gael on the last occasion.
Senator Maurice Cummins:
I wish to respond on a point of order. I spoke on the Bill and supported it, as did my party, in principle. Fine Gael has no objection to supporting it in principle. However, we have other comments to make. We did not offer carte blanche to any Minister to proceed with a Bill as he sees fit. Fine Gael Members will oppose sections with which they do not agree. While we agreed in principle with the Bill on Second Stage, this will not prevent us from making valid points on Committee or Report Stages.
Senator Joe O’Toole:
The Minister should note that an important issue arises in this regard, which reverberates with the issue of provisional licences. While I had intended to raise this matter in the debate on section 1, all Bills that contain a variety of commencement dates should include a covering statement, namely, provided that the Act will be commenced fully by a particular date. An issue comes into operation in this regard regularly. I noted in legislation in the past year the commencement dates of certain sections were not in chronological order. They were not in the order in which the Act was intended to operate. For example, the Minister could commence section 9 officially, even though it would have no effect until sections 5 and 6 were put into operation. This type of situation occurred recently with the Education for Persons with Special Educational Needs Act, and I have seen it affect other legislation as well. We spent years discussing the Local Government Act 2003, yet large sections of it have not yet been implemented. No reason for this has been given. No cost or other difficulty is involved but somebody in the Department does not like it and it is not done.
It would be helpful to address this matter. Many of the issues raised could be dealt with if we knew the Bill, when passed, would be fully commenced by a particular date. Is the Minister prepared to accept an amendment to section 1 on Report Stage stating the Act would be fully commenced by a given date?
Senator Jim Walsh:
Senator Cummins may have misunderstood the point I was trying to make. His opinion is that if the Act were retrospective there would be implications in the case he has in mind for the person trying to rectify the defamation made and trying to re-establish their good name. If a similar situation were to arise when the Act was fully implemented, people would face the same problem. It is essential, therefore, we ensure the ordinary individual who is without great financial resources is in a position to establish his or her good name. That is an essential element of this exercise.
Deputy Brian Lenihan:
With the leave of the Leas-Chathaoirleach, I will return to section 1 with Senator O’Toole who asked a question about the commencement of the legislation. I appreciate we have moved on two sections but I am delighted to deal with the issue. This Bill could be enacted without a commencement provision. It could enter into force seven days after the signature of the President. I am open to an amendment deleting the commencement section, although with measures of law such as this which affect civil rights and liabilities in a reforming and changing way, it is generally desirable for the Minister to fix the first day of a certain month as the date upon which the measure will commence, if only for the sake of the legal profession which must have recourse to the dates to find out when legislation comes into operation. There is no intention to delay the enactment of the legislation.
While I agree with Senator O’Toole in the context of this Bill, having been the Minister charged with the implementation of the Education (Welfare) Act in the previous Administration, I would have reservations about that approach and whether it is necessarily a good idea always to have a cut-off point for the commencement of legislation. We can have that debate on another occasion. Suffice it to say that on this Bill that is my attitude to commencement.
On the point of substance raised by Senators about the retrospective nature of the provisions of the Bill, it is quite clear that what section 3 means is that the Act only applies to a cause of action which accrues after it comes into operation. It also proposes that the Act shall not affect the operation of the general law in force immediately before the commencement of the Act. Senator Regan inquired whether the form of words used went beyond that in some sense. I am advised it does not. It is the Parliamentary Counsel’s rather complicated way of saying this new cause of action reflected in this legislation does not affect the operation of the general law in force immediately before the commencement of the Act.
The crucial provision in section 3 is the reference to “accruing”. The accrual of this cause of action takes place on the publication of the material. It is publication which sets the timeline going in the tort of libel and slander at present and in the tort of defamation after the enactment of this legislation. If the libel or slander is written or uttered before the commencement date of this legislation, it is governed by the general law in force up to the commencement of the legislation. If the defamation is published after the commencement of the legislation, then it will be governed by what we may enact here.
Senator Joe O’Toole:
I appreciate very much the response the Minister gave on the timelines. I would be much reassured to have a “not later than” date or a commencement date introduced on Report Stage. I have a very good reason for doing this. On two occasions in the past year I have come across legislation where a Minister exercised a power under a subsection but where there was a qualification to that subsection in the following subsection which formed part of the same section. The qualification referred to other legislation. When I checked, the section in the other legislation had never been commenced. I accept I am being very theoretical but what was contemplated by the Houses in the passing of the first section in effect was never discharged.
I asked for a commencement date for the Education (Welfare) Act, to which the Minister referred. I also asked for a commencement date from the Minister on the Education Act, which I received. This made life very easy. An example of current legislation which makes life very difficult because there is no commencement date is the Education for Persons with Special Educational Needs where, for instance, a section has been commenced which sets up an appeals committee to something which cannot happen until a previous section is commenced. That is cynicism personified. That is the kind of stuff that bothers me. Is the Minister prepared to insert a commencement date? I do not care when it is as long as there is a commencement date or a “not later than” date.
Senator Eugene Regan:
Do we need the penultimate phrase, “except to the extent that that provision provides otherwise” in section 3(2)? Where are we providing for retrospective legislation? Do we really need that last clause?
Deputy Brian Lenihan:
I am happy to go back to the Parliamentary Counsel and have him examine the issue raised by Senator Regan. The matter will be examined but it has been included out of an abundance of caution.
On Senator O’Toole’s point, I would favour having a fixed date for the commencement of the Act and inserting that date in the legislation. The best solution is that one would fix a definite date upon which the Bill would commence. It is not a good idea to leave it to the presidential signature because it might be an arbitrary date. The first date of a month could be fixed as a commencement date. As this is a Seanad Bill, I will be in a better position to determine that when the Bill is at a later Stage.
Senator Joe O’Toole:
I appreciate that.
Question put and agreed to.
Section 4 agreed to.
SECTION 5.
Senator Alex White:
I move amendment No. 1:
In page 7, subsection (4)(b), line 24, after “person” to insert the following:
“or the publication to the second-mentioned person was in the course of the performance of duties of a secretarial nature by the second-mentioned person (being a person whose relationship if any to the first-mentioned person is primarily based on contract) and there were no reasonable grounds to believe that the first-mentioned person would suffer any significant injury by reason only of such publication”.
In the interests of brevity, I indicate formally that it is not my intention to pursue amendments Nos. 1 and 2.
Amendment, by leave, withdrawn.
Section 5 agreed to.
Section 6 agreed to.
SECTION 7.
Question proposed: “That section 7 stand part of the Bill.”
Senator Jim Walsh:
The aim of the Bill, as the Minister rightly put it at the outset, is to strike a balance between freedom of expression and the constitutional right of persons to their good name. Section 7 provides for an affidavit. It is mandatory for a plaintiff to swear an affidavit verifying the assertions and allegations made. Section 7(9) states it is open to the defendant to cross-examine the plaintiff on the statement and any matters sworn in the affidavit. Perhaps we are being overly prescriptive. When I raised this matter previously, reference was made to the Law Reform Commission putting the onus of proof unreservedly on the plaintiff. There may be a reason for that, such as persons fraudulently making a claim against newspapers. I wonder, however, if the inclusion of this provision goes too far in the other direction. The onus should be on members of the media, if they are publishing statements which are derogatory and possibly defamatory, to establish that they are dealing with facts. It is imperative that we do not dilute that requirement. I am aware that the learned lawyers present would, in cases before the courts, avoid going on a fishing expedition. However, this provision leaves it open to a defendant, who might well be on shaky ground with what they published, to use the affidavit to try and pick holes and perhaps find other avenues to pursue.
5 o’clock
Take the example of somebody who has been defamed specifically on an issue. The person takes the matter to court and it is found that the statement made was untrue. Let us say the person had committed an offence or even a crime in his or her teenage years. This can be introduced into the case and, as a consequence, it can be found that the person did not have a great reputation to defend in the first place. I believe there is an element of unfairness in that. I would prefer a situation where the defendant must deal specifically with the allegation and not be able to open it up to become an investigation of the individual and his or her life story, to see if there are skeletons in the cupboard to help support and underpin the case. That is unjust. It is not permitted in a criminal case; in fact, there are strong rules that prohibit a person’s previous record being introduced in a case or being brought before a jury. The case must be dealt with specifically on the nature of the offence involved.
We should not create a different set of circumstances in this legislation. It is manifestly unfair. The section should be re-examined from that point of view, despite what the Law Reform Commission said.
Senator Eugene Regan:
Affidavits are normally sworn for the purposes of the case in question. Will the Minister clarify how the affidavits which are sworn in an action could be viewed by the authorities, and an offence could be prosecuted? I support the principle of affidavits. However, section 7(13) states, “This section does not apply to an application for a declaratory order.” If we are to be consistent, I am not sure there is a justification for the exclusion of the declaratory order remedy. Perhaps the Minister will comment on it.
Senator Ivor Callely:
I support Senator Jim Walsh and I will not repeat what has been said. What is the specific timeframe referred to?
Senator David Norris:
Senator Walsh seemed to suggest that there was no reason to introduce a past record into the question of defamation. However, defamation deals principally with the loss of a reputation or injury to it, so it appears to be perfectly reasonable if a person could be deemed to have no reputation. If a person has engaged in criminal activity and has no reputation to injure, it is difficult to assess considerable damages for that person. It is perfectly logical that if somebody has no reputation, one cannot damage it.
Senator Jim Walsh:
I can offer an example, although I do not know whether it is a good or bad one. Let us say a person is defamed in the media as a rapist when he is in his thirties or forties. It transpires that the allegation is incorrect and without foundation. However, during cross examination — this is what concerns me — it emerges that when he was 17 he had sex with his girlfriend who was 16 years of age. That is statutory rape under the law. I do not believe it would be justifiable that it could be used as a defence by the defendant against the plaintiff. It would be wrong. There is also the example of a person who is accused of fraud or larceny and it transpires that as a teenager he or she stole something small and was brought to court for it. These issues can arise.
A Bill is before the Lower House at present which provides for expunging certain criminal offences from one’s record after a certain period of time. It would be wrong if such history is used to buttress a false, defamatory statement made in the media. That is my point. This legislation is about balance. We are talking about cases that will involve very unequal parties with, generally, huge international multimedia conglomerates on one side and, on the other, an individual with limited resources. We must err on the side of the individual with limited resources.
Senator Denis O’Donovan:
I am reminded of some old maxims by the comments of Senator Walsh and others, the first being, “He who comes into equity must come with clean hands.” I wonder where reputation starts if one is taking a case on one’s reputation and stating that one is a person of high integrity and honesty. Second, in the context of one’s reputation and history, the following is an old saying in the west Cork mountains about dogs killing sheep, “Give a dog a bad name and hang him.” Does that arise in the debate?
Senator Alex White:
With respect, it does not arise in the debate on this section. The Minister can clarify the issue in due course. The issue raised by Senator Walsh may be legitimate in terms of his concerns about cross examination, although I share the view of Senator Norris on that aspect, but I wonder whether it arises under this section. The section deals with verifying affidavits, which are quite confined. We are familiar with them in personal injuries actions. The plaintiff is simply required to swear an affidavit stating that everything in the pleadings is the truth. The reason the person can be cross examined flows from that because an affidavit is evidence. Such people are cross examined on the veracity of what they said in their main pleadings, which are the main documents in the action. A verifying affidavit does no more than simply state that what has been put forward is truthful.
Senator David Norris:
Senator White is correct. I am not sure that the points made by Senator Walsh are germane. I disagree with him. I will address the point of principle that was made and with which his distinguished colleague, Senator O’Donovan, agreed, that is, the issue of giving a dog a bad name and so forth. The example given by Senator Walsh was interesting, but unfortunate from his point of view. Where a 17 year old youth had sexual relations with a 16 year old and was convicted of statutory rape, he is a rapist under the law. It may be wrong and we might believe it should not have happened — I believe we have tinkered with the law somewhat — but if he was convicted of statutory rape, he is a rapist and the newspaper has a right to call him a rapist. In that case we should examine the law on statutory rape because the problem arises in that primary legislation. It would be a very different matter if a man was convicted of riding a bicycle without a light, and the Daily Mail called him a rapist and justified it on the basis that he rode his bicycle without a light. That is a good example. If a man is convicted of statutory rape, then he is a rapist, and if we do not like that we should change the law in that regard.
Senator Jim Walsh:
I wish to clarify one point.
An Leas-Chathaoirleach:
Senator Walsh has spoken twice already.
Senator Joe O’Toole:
I fully support this section as it is useful and necessary. In my experience as vice-chairperson of a body much beloved of lawyers, the Personal Injuries Assessment Board, I have come across legislation in which it is a breach of law to exaggerate a claim. I notice that the phrase used by the Minister here is “false or misleading”. I would like to hear his view on whether the word “exaggerate” or “exaggerated” could be added to this. That goes to the core of the matter. A statement can be grossly exaggerated. There was a time when we would have been slow to use that word as there was a chance it might not have been sufficiently precise in its interpretation, but now that the word has been used in legislation on personal injuries, there is a strong case for inserting it. It keeps manners on everyone. What we are dealing with is scale.
I agree with the point made by Senator Norris in response to Senator Walsh, but Senator Walsh’s point could have been made in a different way. There are minor items which might be unnecessary, but if something is irrelevant a good judge will point that out. The question of reputation is important and there is no gainsaying the point made by Senator Norris. If the primary legislation is wrong that is another matter.
I also support the point made by Senator Regan. I do not understand the need for subsection (13) which states: “This section does not apply to an application for a declaratory order.” This jumps off the page. Why does it not apply to an application for a declaratory order? If somebody gives information that is false or misleading, in that case it is equally unacceptable. I do not see any reason this should be specifically excluded, unless I am missing some point of relevance. The Minister is indicating that I am.
Senator Jim Walsh:
On a point of clarification, while I said the analogy was not a particularly good one, the point I was trying to make was that I had no difficulty with someone being accused, for example, of being a rapist if he or she committed the offence. However, I am trying to distinguish between this and a situation in which, for example, a man who has previously been convicted of rape is, with no foundation, accused by the newspapers of rape 15 years later when there is a string of rapes in a town. I am concerned that if the person in question took the newspapers to court, even if he were not involved in the latest incidents in any shape or form, he would be defenceless owing to the previous conviction and could not prosecute his case properly. As Senator O’Toole pointed out, however, perhaps a good judge would deal with this sympathetically.
Deputy Brian Lenihan:
In considering section 7, we must take account of the inner nature of the defamation action. Historically, the pleading stated that the defendant did falsely and maliciously say of and concerning the plaintiff matters which lowered the plaintiff in the eyes of upstanding members of the community. There was never an onus on the plaintiff to prove that the matters were false and untrue. The onus in this type of tort is on the defendant to establish the truth of the statement. There is, if you like, a presumption of falsity.
The media organisations which have lobbied for change in this area have opposed this presumption of falsity, saying that it puts an unfair burden on them that is not cast on any other defendant in our law of civil liability. In fact, as several Senators have pointed out, owing to the strength of the media organisations compared with the individual plaintiff seeking to vindicate his or her reputation, the Government decided to retain the presumption of falsity as a core element of our defamation code.
The one difficulty is that it is then open to a plaintiff simply to file a pleading, which is an unsworn document. I apologise to the House for entering into the technicalities of legal practice, but it is important in the consideration of this issue.
Senator David Norris:
It is very helpful.
Deputy Brian Lenihan:
A pleading, in law, is an assertion of fact which is not sworn to or verified on oath, so it is not evidence. It is simply a description of the framework within which a plaintiff wishes to present a case or a defendant wishes to present a defence. Historically, in the law of defamation, pleadings were exchanged between the parties, a notice of trial was served and a hearing took place. It is open under our current law, therefore, for a plaintiff to base a defamation action on something he or she knows to be untrue but cannot be demonstrated by the defendant to be untrue.
The Government took the view, with which I agree having inherited this measure, that the presumption of falsity is an important safeguard for the plaintiff in libel proceedings. That said, we investigated whether there was some system we could introduce that would ensure at least that truth is at a premium in these actions. The recommendation we came up with was that an affidavit should be sworn by the plaintiff verifying any assertions or allegations of fact in the pleading. A similar obligation is cast on the defendant with regard to any assertions of fact in his or her pleading. There is, therefore, no question of putting the plaintiff in a different position from the defendant.
The question of exaggeration was raised by Senator O’Toole. The issue of exaggeration arises in the context of the PIAB as the exaggeration of injuries in the context of a claim for damages was a major problem. In the type of action with which we are dealing here, however, the danger is not exaggeration but downright lies on either side. To guard against that, therefore, both sides are required to swear an affidavit verifying the matters set out in their pleadings.
The point raised by Senator Walsh about the extent of the matters covered by sworn affidavit, on which Senator Alex White corrected him, is a good one. It is confined to the pleadings. The plaintiff swearing the verifying affidavit is asserting, therefore, that his or her case is true, not that other collateral matters that may rise evidentially in the course of the libel hearing are true or false. He or she merely verifies that the case being put down on paper — the instructions given to solicitors that have been transmitted by counsel into a legal formula outlining the scope of the claim — is true as a matter of sworn evidence.
Senator Regan raised the issue of sanction for an untrue statement. The sanction is a prosecution for perjury, although this is not very common. The greater danger with this provision is that there will be extensive cross-examination of parties, both plaintiffs and defendants, on the basis that they have sworn to their assertions. There will be theatricals, therefore, especially in jury trials, involving the fact that the assertion has been sworn to. This is an action, however, in which truth should be at a premium. The reason we legislate for defamation and the reason we have damages and a battery of remedies available to plaintiffs is to ensure truth is at a premium. It is a reasonable legislative provision that the parties should swear to what they believe to be the case.
Senator O’Toole raised the question of declaratory orders. A declaratory order comes into operation after the lodgment of pleadings. If we examine section 26(5), we will see that a person who claims to be the subject of a statement he or she alleges to be defamatory can apply to the High Court for an order that the statement is false and defamatory of him or her. As I understand the position, this constitutes an existing libel action with a sworn affidavit. There is no need, therefore, to impose an additional obligation in the context of section 7. It should be noted that an application under subsection (5) “shall be brought by motion on notice to the respondent grounded on affidavit.” The application is grounded on a sworn document when the plaintiff opts to pursue the declaratory route. Section 7, which does not apply to the declaratory order, clarifies the law where one can arise.
Senator Joe O’Toole:
I thank the Minister for his clarification, which I accept because it makes logical sense.
Section 7(7) states: “A person guilty of an offence under this section shall be liable...”. As the affidavit would be lodged as part of the evidence, why is the offence not perjury? Is this a new offence or is it different to perjury? I have no objection to the intention of section 7, but is this a new offence and is it necessary?
Deputy Brian Lenihan:
I thank Senator O’Toole for his intervention because in my earlier reply I assumed the standard sanction applied to the affidavit, namely, that it was perjury. I will have the subsection examined to determine whether it can be deleted because it is as well for prosecuting authorities considering matters such as these to consider all perjury prosecutions under one rubric instead of having a separate section.
Senator Eugene Regan:
Now that any action will include verifying affidavits by all parties, will the losing party be guilty of an offence under this section, attracting the penalty——
Deputy Brian Lenihan:
Not at all. There is a great deal of difference between losing an action and committing perjury. The manner in which a court draws inferences from facts and resolves conflicts of fact does not necessarily involve the inference that one of the witnesses lied. A witness can be under a mistaken apprehension of the facts.
Question put and agreed to.
SECTION 8.
Question proposed: “That section 8 stand part of the Bill.”
Senator Ivor Callely:
Why does section 8 begin with the words, “A person has one cause”? There may be multiple causes in the statement.
Deputy Brian Lenihan:
As I understand the position on section 8, the person has one cause of action only in respect of the publication of a defamatory statement concerning the person even if more than one defamatory imputation in respect of that person is borne by the statement. This does not deal with the question of multiple publication. It deals with the issue of multiple meaning or imputation in one publication.
For example, if someone is described as a thieving murderer, the person could theoretically sue claiming the statement meant that he or she was a thief and, on another day, sue claiming the statement meant that he or she had murdered someone. That situation is not allowed under this section. One must sue in a single action on the basis of being accused of being a thief and a murderer.
Senator Alex White:
If one does not like either.
Deputy Brian Lenihan:
It does not deal with the question of multiple publication. Each publication constitutes a separate cause of action, which is well established law and is being addressed in a different section of this legislation. Not alone does the person who wrote the article commit the tort of publishing a libel under current law, but also the newspaper, for example, that printed the article and the newsagent who sold the newspaper. This section does not address that issue, but the issue of the number of meanings that can be read into a single defamatory statement. The plaintiff is obliged under this section to plead all of those meanings in one action. He or she cannot take a separate action in respect of separate meanings that can be read into one article.
Senator Ivor Callely:
I thank the Minister for his response but people may be caught. Regarding the multiple publication issue, section 8 states: “A person has one cause of action only in respect of a multiple publication.” I am somewhat confused. Perhaps the Minister or his officials will clarify this matter by way of a letter. I do not need clarity now.
Question put and agreed to.
SECTION 9.
Amendment No. 2 not moved.
Question proposed: “That section 9 stand part of the Bill.”
Senator David Norris:
I welcome this section because it seems to be travelling in the direction of a class action, which has been forbidden by Irish law until now. It is a good provision because a class of persons can be defamed.
According to the information I have been given, the provisions for the press council, while following the standard practice of referring to attacks on persons due to their sex, race, nationality, religion and so on, omit the Traveller community. I wish such was not the case. While it is only marginally relevant at this point in the Bill, I want to signal the Minister regarding the matter.
Were someone to write that I am a well known Sodomite, Sodomites cause disease and I am a well known spreader of disease, I would be covered by this provision, but I presume a gay person or a Traveller would not have a right of action if one attacks gay people or Travellers in general. Will the Minister clarify this matter? Must the attack be specific and name the individual? How will it operate? A sweeping, general statement of a highly dangerous and inflammatory nature might be addressed by the incitement to hatred legislation. I presume there must be a specific identification.
Senator Joe O’Toole:
On a related issue, the section does not allow for a class action according to my reading. Much that I wish there was an opportunity to take a class action, there would appear to be a requirement for a substantial burden of proof. For example, were Senator Walsh to make a sweeping, populist condemnation of the decent public servants around the country and I to take it personally——
Senator Jim Walsh:
I thought the Senator did.
Senator Joe O’Toole:
——I would need to prove that his statement referred to me in particular.
I want an answer to my next question more than that one. Could a person take a case on behalf of a group of lawyers, teachers or the Traveller community in the sense that a statement affecting all Travellers, for example, also affected the person? If the statement impugned the reputation of the group to which I belong, it would impugn me. What burden of proof is required? The section concludes with the words, “the statement could reasonably be understood to refer, in particular, to the member concerned.”
Senator David Norris:
Exactly.
Senator Joe O’Toole:
The term “in particular” dilutes my preferred intention. A significant protection for groups within society, such as those referred to by Senator Norris, could be built into the Bill. Would it be possible for someone to take a class action on behalf of gay people or another group?
Senator David Norris:
Hear, hear.
Senator Joe O’Toole:
In the event of someone being successful in putting forward a claim of defamation under section 9 — the defamatory statement would have had the effect of impugning a class of persons and damaging that class’s reputation — would every member of the class be covered and able to state a case or would each case be separate?
I have asked a series of questions on the matter of class actions. Is it possible to state a case on behalf of a class of persons? For instance, would I be able to state a claim on behalf of a class of persons and give myself and how I have been impugned as examples?
Deputy Brian Lenihan:
I am not sure the section has as wide a scope as suggested by Senator O’Toole. I do not believe it deals with the issue of class action. From what I understand from the report of the Law Reform Commission, the issue raised in this section is an attempt to put clothes on the definition on how one has proof of reference to a particular plaintiff, an issue arising in many libel actions.
For example, if a defamatory statement was made claiming a Member of the Seanad, who was a former staff member of Trinity College, Dublin, was seen in a corrupt transaction with a builder, clearly there is proof of reference to Senator Norris. I accept it may also include Senator Bacik but I am still becoming familiar with the new Members. That is the issue the section addresses. It is not addressing the more general question raised by Senator O’Toole. Our courts, and those in England, have been somewhat reluctant about this, while it has been resorted to more extensively in the United States of America.
Senator Ivor Callely:
Was the balance in the 1961 Act more towards reputation than freedom of expression? Have we shifted the goalposts in this Bill in recognising the importance of the free press first and then for action to be taken later? Rather than addressing this specific section, is the whole Bill changing the emphasis in the 1961 Act?
Deputy Brian Lenihan:
That will be addressed in subsequent sections. The legislation attempts to recalibrate the balance to ensure the press and other media organisations, as defendants, will have to create a culture where apology and admission of wrongdoing becomes more common than it is at present.
Question put and agreed to.
SECTION 10.
Question proposed: “That section 10 stand part of the Bill.”
Senator Eugene Regan:
The section defines “multiple publication”, as “publication by a person of the same defamatory statement to two or more persons ... whether contemporaneously or not.” If a defamatory statement is made in, say, the Irish Independent which is then made ten times in the Sunday Independent, will that constitute a multiple publication? Is the definition precise enough?
Senator David Norris:
Will the Minister consider using terminology such as “two or more occasions”, particularly in the same media outlet. I have personal experience of this.
I have consistently complained about the appalling way in which drinks licences are handed out willy-nilly and in most extraordinary circumstances all over this town. I said this on television, not once but twice. When the Minister speaks about exaggeration, I can assure him the letter I received from a well-known firm of solicitors was the most extraordinary piece of exaggerated nonsense I ever came across in my life. In exacerbation with every huckster’s shop in Dublin’s north inner city been licensed to sell as much as gin, beer and wine as it feels like, I asked what kind of idiots are handing out the licences. It turned out there is only one person, who took it very personally. I could not possibly have meant him; otherwise I would scarcely have used the plural.
I received a letter stating I had accused this eminent judge of being a well-known imbecile, idiot or person of low or restricted intelligence. The whole matter was blown out of proportion. My comments were not directed at the person. The humiliating and embarrassing aspect of this for me was that I was not aware of this person’s existence. The insult was worse but the libel did not exist, in my opinion.
I must also add that judges are allowed to libel with impunity.
Deputy Brian Lenihan:
So are we.
Senator David Norris:
Yes, but it is much more serious when one is handing down a judgment. We need to examine clipping the wings of the Judiciary when taking legal action. I am not talking specifically about my case. It is very difficult for the ordinary members of the public to sustain themselves against a libel action taken by a judge, a member of a close-knit fraternity.
I repeated my concerns on drinks licences in the same week on the same television station. RTE cravenly gave in and the learned judge, very happily, took the station twice for considerable sums. I warned RTE to tie his hands because I saw this coming down the line, but foolishly it did not.
For that reason, we should examine a process where we constrain the idea of multiple publication. If the same thing is said on two separate occasions in the same outlet, it is not appropriate, just or fair for somebody who has made large sums of money from the first statement to take another whack and get another bite of the cherry. The reputation, if damaged, was damaged once.
Senator Ivor Callely:
Regarding the one cause of action, which I raised on section 8, this section allows for a court to grant leave for a person to bring more than one case. Does an individual have to go through the same procedure again when bringing a second case?
If I might, because I have another meeting to attend at 5.30 p.m. in which I have a motion——
Senator David Norris:
Who is the Senator going to get into remission?
Senator Ivor Callely:
I unfortunately have to attend the other meeting.
Senator David Norris:
We could take a sos.
Senator Ivor Callely:
I note in a further section——
Senator Alex White:
On a point of order, I too have a meeting to attend at 5.30 p.m. and another at 6.30 p.m. but I am waiting to deal with the sections in which I am interested. Every Member should have to do the same or else we change the system.
Acting Chairman (Senator Cecilia Keaveney):
It is not in order to discuss other sections.
Senator Jim Walsh:
I am not clear whether the point raised by Senator Norris is covered by this section, particularly on the point of “contemporaneously or not”.
Senator David Norris:
I think it is.
Senator Jim Walsh:
I do not believe it should be covered. Senator Norris’s experience has influenced his thinking on this. However, I have a strong reservation about it. Let us take the example of a newspaper running the same defamatory statement for several weeks which is put on notice by the individual concerned that the statement is untrue. There is an inherent injustice in confining the individual concerned to taking an action on the one statement. I would like to see the definition elaborated. I look forward to hearing what the Minister says about the issue of confinement to the one publication.
Deputy Brian Lenihan:
The multiple publication in the definition in section 10(3) means a publication by a person of the same defamatory statement to two or more persons whether contemporaneously or not. It is the contemporaneity of the publication which is an issue in the subsection. In the circumstances Senator Walsh outlined of a newspaper or other media organisation running the same story day after day, each publication would be separate, with a fresh cause of action.
Senator Norris, however, asked whether the section implements its intent. I have some reservations about the expression “multiple publication” because in the textbooks, multiple publication traditionally referred to the phenomenon of having a separate cause of action in respect of each publication, although section 10(3) attempts to clarify the matter. I am open to revisiting the wording, especially in the context of the word “occasion” which Senator Norris used and might help to clarify the intent.
Senator David Norris:
The interventions of Senator Walsh and the Minister have been useful. We should contemplate also, however, the situation in which the newspaper or media company was served notice that the statement was inaccurate, damaging, misleading and libellous. If a newspaper campaigning against someone publishes a libellous remark, is put on notice but repeats the remark, there should be a second cause of action and even aggravated damages.
I would have been very happy to defend that case but RTE was not. My remarks were perfectly justified and were not attributable to a specific person. I also said that years ago I had been in court and seen the licences being rubber-stamped. I would put my hand on the Bible and say I was there. I can give a contemporaneous account of that incident.
Emphases vary according to different types of media. There is a difference, for example, between the instant nature of a live television broadcast and a prepared article that may be part of a policy. We all have known cases of newspapers hunting people down, and some groups are especially bad. If a person who makes a defamatory statement in a newspaper is served notice that the statement is incorrect but persists maliciously in repeating it, that is cause for aggravated damages. Conversely, however, there should be a different emphasis where there are multiple publications without this notice in live broadcasts. A person should get one bite of the cherry.
Senator Eugene Regan:
I welcome the Minister’s statement that he will reconsider this definition. His statement that separate publications give rise to different causes of action does not emerge from this section.
Deputy Brian Lenihan:
That is the point I wanted to make. This can relate to only one distinct item. In Senator Norris’s example of a newspaper organisation that wages a campaign against an individual, which is so common in public life and in some areas of private life too, each publication on separate days is a fresh and separate cause of action. I am open to considering whether this can be taken into account in respect of damages when we discuss them later in the Bill.
This issue is different, however, because it concerns publication to a multiple audience. The best example might arise in the broadcast media. RTE might make a documentary on the activities of a businessman which is defamatory about the person’s business practices and that person might launch promptly a defamation action and, more surprisingly, bring it promptly to hearing and obtain damages. This should occur under this new legislation and we must legislate for what we envisage. If the person calls various persons with whom he did business to show how the defamatory statement impacted on him and obtains an award of damages but the same programme is re-broadcast 18 months later on the basis of a privately made video, is that a fresh publication for libel purposes? Can the person sue a second time on the same libel because a fresh set of merchants have emerged who distrust him as a businessman as a result of seeing the programme and are unaware that he had already taken a libel action in respect of it? That is the mischief the section tries to address. I agree with Senators Regan and Norris that we must consider the wording more carefully to confine it precisely to those circumstances.
Senator Eugene Regan:
Is there a mischief there? As the Minister describes it, if a defamatory programme is re-broadcast, that seems to be a separate cause of action. Is the section needed at all because it seems there is a mischief worthy of protection in those terms?
Deputy Brian Lenihan:
If it were the same newspaper article it would not be a separate publication. The Senator is right and I must correct myself. That is why I used the example of a video recording because if the same recording were used on two occasions I am not sure it would be a separate publication on re-broadcast. If, however, a newspaper article were to be picked up 18 months after publication by another reader who took an unfavourable view and proceedings had already taken place, this section would appear to bar a fresh set of proceedings on it. I accept the section lacks a degree of clarity and I would like to see it made clearer.
Senator David Norris:
I am not convinced that people should harvest damages in this absurd way. If a case is closed in respect of one organ of publication which may assume the matter has ended, it would not be fair that someone should be able to accuse it of doing the same again the minute the matter is closed. People should not make a profession out of libel. I am all on the side of the small person but there should not be harvesting of damages if there is not a malign intent.
I do not always believe that one is not aware of it after the libel action and someone rings up out of the blue and says that two and a half years ago on Tuesday, 14 November so-and-so said something on television. It is pure hogwash from people who are in it to milk the system. On this occasion I am inclined to be against the plaintiff.
Senator Rónán Mullen:
I wish to add my voice to those of the Minister and my colleagues because this requires clarification. The distinction requiring to be made concerns the situation in which several people hear or read defamatory comments, which is the basis of most defamation cases, and appears to be what the phrase “multiple publication” seeks to convey. There is also, however, a legitimate concern about whether the re-broadcast of a television programme or the publication of another edition of a newspaper with the same article reprinted at another time are separate acts of defamation which should give rise to separate causes of action or at the very least to the award of aggravated damages.
Senator David Norris:
I think the question of intent ought to be written into the legislation. Aggravated damages should apply if something is done as part of a campaign but if something is innocently re-broadcast or re-published, damages should be limited in the absence of a complaint from a member of the public. One should not be able to go on endlessly receiving the same amount of money in those circumstances if there is no malicious intent and the second publication took place in the absence of a complaint. A certain level of innocent re-publication can exist in the absence of the knowledge that matter was deemed defamatory.
Senator O’Toole referred to exaggeration of injuries and the Personal Injuries Assessment Board suggesting people try to milk the system. I do not believe people should harvest damages in this manner.
Deputy Brian Lenihan:
Many of the questions on damages will be discussed when we reach the section that covers that matter. Regarding this section, I will discuss with the Parliamentary Counsel whether a more exact definition can be given to address this issue. I accept that broadcasting involves a separate publication every time an item is broadcast but, in respect of one publication to an audience, the fact that a subsequent person publishing can lead to a fresh cause of action must be excluded.
Question put and agreed to.
SECTION 11.
Question proposed: “That section 11 stand part the Bill.”
Senator David Norris:
I oppose this section because it is nonsense. It states:
The provisions of this Act apply to a body corporate as they apply to a natural person, and a body corporate may bring a defamation action under this Act 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.
Businesses are corporate bodies and the difference between a corporate body and a natural body is that a natural body has feelings.
Senator Rónán Mullen:
Some natural bodies do not have feelings.
Senator David Norris:
Are we really suggesting that Renault or Rolls Royce have feelings and should be entitled to compensation? I could understand, perhaps, if a financial loss was incurred and I gave a series of examples on the previous occasion. The former Minister for Justice, Equality and Law Reform, Mr. Michael McDowell, stated:
I am grateful to Senator Norris for coming to the aid of the section. I am beginning, however, to experience a slight sinking feeling about it.
Senator Rónán Mullen:
I think the sinking feeling referred to something else of which he was having a premonition.
Senator David Norris:
It did not. On that occasion the Minister suggested a situation wherein one might make a negative comment about a company only for its profits to rise.
In the financial world a company’s reputation can be assessed in financial terms and it is extraordinary that in several sections this Bill we are weakening the defences of ordinary people, the “natural person” that was referred to in the Bill. This section will enable corporations to take actions. I cannot see the logic of this and, a fine lawyer though he is, Mr. McDowell did not ultimately seem to see it either. Perhaps some additional reasons have arisen in the meantime and the Minister can produce them for us but I cannot see them.
The language of this section is also absurd, for example, the words, “apply to a body corporate as they apply to a natural person, and a body corporate may bring a defamation action under this Act”. Are we talking about a body corporate experiencing hurt feelings?
Senator Eugene Regan:
If this section is to be included a definition of defamation with regard to a corporate body would have to be included as it has been with regard to the natural person. This matter of defamation of a corporate body must be considered but the clause “whether or not it has incurred or is likely to incur financial loss as a result of the publication of that statement” is certainly over the top.
How does one define the defamation of a corporate body? The fact that directors of a small corporate body may be identified with it can affect them, but we must be clear on how this provision would operate.
Senator Lisa McDonald:
Some definitions are required in this section. For example, as Senator Regan said, a definition of defamation is needed, but also the term “body corporate” is not defined in the Bill. One would wonder where organisations such as the GAA and Irish Farmers Association, IFA, would stand in this regard. Some jurisdictions allow class actions beyond bodies corporate.
Obviously, companies do not have feelings but the people working in them do and the reputation of companies, particularly small businesses, can be damaged by false statements. We need to know where we stand in terms of a definition of “body corporate”. Does it go beyond a typical company to include associations and so on?
Senator Joe O’Toole:
I register disagreement with my distinguished and much esteemed colleague, Senator Norris, and with the two speakers subsequent to him on this matter. I could give countless examples of why this section is necessary.
I mentioned the Personal Injuries Assessment Board earlier and about a year ago I read in the Irish Independent three pages of inaccuracies relating to its board of directors, of which I am one, which I raised in this House. The inaccuracies hurt many people, though more so those working for the board than its directors. All sorts of allegations were made and I would have welcomed it had the writer been asked to swear the accuracy of the report’s contents because they could have been disproved.
I could give examples all day in this regard relating to other bodies corporate. When I was president of the Irish Congress of Trade Unions, ICTU, and chair of its executive council I read in the newspaper of people in whose dismissal I was alleged to have colluded. I felt my reputation was damaged by this and it happens regularly that people feel anything can be said about a group of people. I could give ten more examples and I wish I had my day in court to argue about this issue and force these individuals to give their points of view. This legislation would be greatly weakened if this section were not included because instead of pointing at a person, people can point at a body corporate and get away with murder.
I agree with Senator Norris’s point on financial loss but this is a case of reputational loss where no financial compensation is required. In the situations I mentioned all I would have sought was a correction of the inaccuracies.
An article by Gene Kerrigan on the entire back page of the Sunday Independent was a diatribe suggesting I was involved in the sacking of the general secretary of a well-known union because of a disagreement I had with him. There was not a scintilla of truth in the article but the ICTU, of which I was president, was supposed to have done this.
6 o’clock
Things like this happen and this section is about setting the record straight and having corrections made because damage can be done to the reputation of a body corporate. I watched a television programme last night on something that happened in west Cork 30 years ago and I was part of the making of the programme. Last night’s programme was very fair but 30 years ago I felt the body corporate involved, the Irish National Teachers Organisation, INTO, of which I was then an executive member, was badly treated in the media. At the time I wanted to take action.
I have lived all my life with people hiding behind the fact that one can say anything about a body corporate. Bodies corporate have no defence and are not able to state a case and, therefore, I welcome this section of the Bill, unless I have missed something about it. I feel it is a hugely important section because public participation and involvement in life are suffering. Increasingly, people will not become involved in voluntary bodies and other organisations because of the possibility of reputational damage. I agree with the points made by Senator Norris but I contend they are parallel to the argument I put forward. This section does not detract from the remainder of the Bill. Rather, it offers the possibility of the articulation of a hurt or sense of offence as experienced regularly by persons who are members of corporate bodies.
I could pick up a newspaper every week and point to an article rubbishing some particular group. For example, I do not hold any brief for the FAI but if I were a member of that organisation’s executive council, I would be greatly offended by some of the articles that have been written. I am a member of the national management committee of the GAA. I assure Members that I have regularly wished to have a go at those who have made negative comments about our role in agreeing a deal with the Gaelic Players Association, despite our having worked to the best of our ability for two years to get it right. As far as I am aware, all the organisations to which I referred are bodies corporate and, as such, have a legal personality and are registered and so on. Section 11 is helpful in this context.
Senator Rónán Mullen:
I never cease to be impressed by the quality of Senator O’Toole’s CV. It is fine, however, for Independent Senators to disagree with each other from time to time. On this occasion, I disagree with both my highly esteemed colleagues. I am sure that does not surprise them.
Deputy Brian Lenihan:
Senator Mullen is taking the third way.
Senator Rónán Mullen:
I am strongly convinced of the importance of this section. I suggest to Senator Norris and others that it is not simply a question of feelings nor is it merely a matter of reputational damage, as my colleague, Senator O’Toole, described it. Incorporated bodies have been protected in our laws for a long time. The notion of the veil of incorporation in company law exists for a reason — to allow people to do business. It recognises that business is important for society by giving employment to people and so on.
I am reminded of the words of Thomas More in “A Man for All Seasons” in which he says he would give the Devil himself the benefit of the law. We must put aside our feelings about ruthless fast food companies and so on. I will use the example of a fictional company called HyperMax. If it were claimed that all the beef produced by this company was contaminated with BSE, the ensuing damage would consist not only of the hurt or reputational damage suffered by individual employees but also the commercial damage the organisation would suffer. Such acts of defamation should be actionable per se. Otherwise, it would be difficult to prove that a decline in sales, for instance, was due to the intemperate comments in a newspaper of a set of mad activists. This is why it is appropriate that this protection should be in place, not only for natural persons but also for bodies corporate. I strongly support section 11.
Senator David Norris:
I am grateful to Senator Mullen because he has solidified my opposition to section 11. I recall the case of a middle aged couple in the United States who made statements about McDonald’s. That company harassed them through the courts to such an extent that although they felt justified in their claims — and, in my view, every word they said was true——
Senator Rónán Mullen:
If it was true, it cannot have been defamatory.
Senator David Norris:
——McDonald’s was able to use its financial strength against these people and they eventually ran out of money and were absolutely banjaxed. I sympathise with Senator O’Toole but I understood the issues he raised are covered under section 9 which deals with the defaming of a class of persons.
Senator Joe O’Toole:
No.
Senator David Norris:
I would have thought so but I am not sure. Perhaps the Minister will clarify this.
I wish to defend my right to say in public that I would not, even under the most severe physical pain, read any publication of Mr. Rupert Murdoch. I nearly said “the late Rupert Murdoch”, but that was wish fulfilment.
Senator Rónán Mullen:
He is undead.
Senator David Norris:
I have often said that The Sun is a tawdry publication with which I would not wipe my backside.
Senator Rónán Mullen:
I thought the sun shone from there.
Senator David Norris:
I see no reason I should not be allowed to say that. I should be able to make such comments with impunity. I stress the imbalance between huge corporations, such as McDonalds, and the ordinary person. These entities can often exhaust the financial resources of the individual who is thus deprived of justice. I maintain my objection to this section.
Senator Jim Walsh:
I support fully section 11. The debate is interesting. Senator McDonald raised the issue of the definition of bodies corporate. It is an issue that should be examined because she referred to organisations that may require protection. I agree with Senator Regan that much of the business activity in this State involves small companies, the directors and owners of which are well known locally. Any aspersions or defamatory statements in regard to the body corporate reflect also on them.
A growing cause for concern in our global economy is industrial espionage. It is not beyond the bounds of possibility that there may be some domestic activity in this area. We do not want to leave open a situation where one corporate body can pay, with impunity, a reporter to do a scurrilous job on a competitor. The section refers to the likelihood of incurring financial losses, and we must be mindful that significant losses can be involved. We must afford the same protection to bodies corporate as is provided to individuals. As Senator Mullen said, it is not a matter of feelings. If a press reporter or feature writer decides to write an article of that nature, the facts should be correct. If they are not, he or she must bear the consequences.
Senator Eugene Regan:
The connection Senator Norris has made with sections 9 and 10 is correct. Perhaps section 9 should be revisited in this context. Senator O’Toole observed that he believed himself to be personally identified in criticism of the corporate body of which he was a director. This falls under section 9 rather than section 10. Senator Norris’s concern that there is potential for an abuse under section 11 is justified.
There is also the issue of freedom of expression. I am not clear as to the precise legal status of the Health Service Executive but I assume it is defined as a body corporate. As such, anyone who criticises that organisation might be subject to action on the grounds of defamation. I am not sure what is the overriding justification for this provision. Will the Minister outline whether he attaches great importance to it?
Deputy Brian Lenihan:
The point of departure in this debate was struck by Senator Norris when he said that companies do not have feelings. However, they do have personalities.
Senator David Norris:
That is a fiction of Madison Avenue.
Deputy Brian Lenihan:
Some Senators seem to be under a misapprehension about the defamation law in that it somehow serves to protect our feelings. It is true that the law of delict in continental countries protects the feelings of the hurt individual in the context of the publication of statements. There is a famous story about a professor in civil law in a continental university who screamed and roared at one of his students and claimed subsequently that this behaviour would not be actionable in a common law country. The student in question replied: “True, it would be mere vulgar abuse.” The point is our law of defamation does not protect people in respect of their hurt feelings, much as the prospective plaintiff may think that to be the function of a libel action. The purpose of our law is to protect the reputation of persons.
A number of interesting points have been made on the section. There is the extent to which a corporate body, as distinct from a natural person, is entitled to have its reputation protected. Senator O’Toole instanced an example of an organisation of which he was a part, which I take was the INTO. He suggested a statement was published which was defamatory of him, meaning it was defamatory of him as a person. It was not defamatory of the organisation.
Senator Joe O’Toole:
No, it was defamatory of the organisation.
Deputy Brian Lenihan:
It would have been along the lines of, for example, a statement that the INTO at its head office systematically defrauds teachers in deducting subscriptions in union dues. That clearly would be a serious defamation of the INTO as an organisation. The question arises whether a corporate body, of itself, can take an action for that. I presume damages then accrue to the profit and loss account in the case of a private company or to the general fund in the case of a trade union.
That is the question arising for decision on this section. There is no precise decision in point in this jurisdiction, and the section was included in the Bill to clarify the law. The issue has arisen for decision in our immediate neighbouring jurisdiction where the highest court has ruled that a trading company can sue for libel and claim damages without the need to prove actual financial loss as the result of the libel.
I accept that if an artificial person can sue for libel, it is difficult to insist that financial loss should have to be proven. The plaintiff does not have to do that in a libel action. It was recognised in English law that a damaging libel could have severe implications for a company and it may lower its standing in the eyes of the public or even its staff. People may be less ready to deal with it or less willing or proud to work for it. These are the difficulties arising from not recognising this.
Difficulties would be placed on businesses if they had to prove a specific loss, not least because specific losses arising from defamatory statements can be difficult to quantify, as demonstrated in previous cases of this nature. We must decide the issue of whether a body corporate of itself has a reputation, which I believe it does.
The more technical issue was raised by Senators McDonald and Walsh, which was how to define bodies corporate. It is a wide definition in the legislation. I reassure Senators that three of the greatest institutions in Irish life, Fianna Fáil, the Gaelic Athletic Association and the Catholic Church——
Senator David Norris:
One cannot defame Fianna Fáil as it has no reputation.
Deputy Brian Lenihan:
None of these is a body corporate.
Senator Rónán Mullen:
One can say anything about all of them.
Deputy Brian Lenihan:
That was precisely my point before Senator Norris engaged in mere vulgar abuse. If we are going to recognise bodies corporate, we would cover the entire span of incorporated entities under the companies legislation. That includes commercial and some, but not all, charitable bodies. It also includes older bodies established under Latin letters patent, such as the University of Dublin and other such places.
I do not have a very strong view on that but there is a point of view that can be expressed on either side. One danger I see in this is if the protection is not provided against the abuse of power by media organisations, articles can be worded in such a way as to defame companies rather than individuals. On the other side there is a danger identified by Senator Norris that very wealthy companies can use this as a method for chilling comment about themselves.
I am not disposed to delete the section as there is an issue to be addressed.
Senator David Norris:
Will the Minister look at the wording?
Deputy Brian Lenihan:
I will reflect on it before Report Stage.
Question put and agreed to.
SECTION 12.
Question proposed: “That section 12 stand part of the Bill.”
Senator Jim Walsh:
This deals with Supreme Court hearings of appeal arising from a jury award, which can vary. It is a significant change from the current situation. The matter may be relevant because of certain headline awards given by juries in cases in recent years.
Where the Supreme Court would hear an appeal and damages in the High Court could be varied, would it have to have regard to section 29 which details the issues the High Court must have regard to when assessing damages? That would be important. The decision of a jury can be considered in the High Court anyway but I have some sympathy with those who argue that a jury hearing the case and granting awards could be set aside by the Supreme Court. Do we need to add to section 29 if the Supreme Court becomes the adjudicating body on the level of damages?
I subscribe to Senator Norris’s comments regarding people looking for money and taking cases for that purpose. On the other hand, it can be said equally that the awarding of damages is a deterrent and a policing of standards within the newspaper industry. I would be concerned about anything which could undermine or dilute that as it could have a similar effect in diluting standards within the media.
Senator David Norris:
I agree in large measure with Senator Walsh. We discussed this on the previous occasion. One would accept that the Supreme Court comprises highly intelligent and wonderful people, except when I took a case there some years ago. Those people are unlikely to make bad decisions. With regard to democratic principle, one should be loath to second-guess a jury, especially if it decides, on appeal from a lower court, to triple damages. That would suggest the ordinary people are outraged and that is what they want. They are entitled to their pound of flesh. We should be very careful before we circumscribe this.
I am inclined to agree with Senator Walsh that it is right for us to draw attention to the fact that the Supreme Court usually deals only with matters of law. It does not review any new evidence and it deals in very technical matters. If we keep the section, it might be no harm to include a reference that the Supreme Court shall have regard to the evidence given at the earlier trial. This would be relevant especially when there is a series of cases before it.
I am sure the Minister remembers a certain case, to which I am sure Senator Walsh is referring, in which a newspaper appealed the first decision and got rightly whacked the second time, so to speak.
Senator Jim Walsh:
That is right.
Senator David Norris:
That suggests two separate juries considered the matter and indicated they were not taking such action from the newspaper, which they were perfectly entitled to do. It goes against the strain of democracy to second-guess not one jury but two.
Senator Alex White:
Perhaps the Minister would clarify the section, as it seems the most important word is “may” in the phrase “the Supreme Court may, in addition to any other order that it deems appropriate”. It is already a long-standing element of our law that the Supreme Court can make a finding or conclude that damages awarded in the High Court are excessive. Cases go back to the High Court for that reason.
This appears simply to introduce an important additional provision allowing the Supreme Court to substitute itself in the award for damages in the circumstances of the case instead of sending the matter back to the High Court. That would appear to be the net difference introduced by the section. We all are familiar with cases where the Supreme Court has indicated damages to be excessive and sent them back to the High Court.
On the issue whether it is appropriate, Senator Walsh raised an interesting question in respect of section 29 and whether the Supreme Court would be required to have regard to all the matters to which the High Court was required to have regard. As people are aware, the matter is not opened again in the Supreme Court in terms of evidence and that could not be so. It would seem appropriate that the Supreme Court would have regard to the issues before it on appeal. It would not be appropriate, however, for evidence to be reintroduced and that would not happen in the Supreme Court. As matters stand, if I am right in my interpretation of section 12, it simply obviates the necessity to send every case back to the High Court, empanel new juries, etc. to allow the Supreme Court in the circumstances to substitute its own award, which I remind Senator Norris could be higher, although it could be lower too. If I am right in my
interpretation of the section, it is appropriate.
Senator Eugene Regan:
This is an important provision designed to provide for finality to litigation in that remitting it back to the High Court for further determination is a very costly process. On balance the provision is probably well based. The main finding in the lower court is one of defamation and regarding the inferences drawn in the High Court, the Supreme Court could draw different inferences from the determination of the facts. On balance this is a worthy provision.
Senator Rónán Mullen:
On a sheet of paper distributed in the House, certain sections have been very helpfully grouped together for our consideration. I see that section 12 is linked with section 31. I wonder if it should not in fact——
Deputy Brian Lenihan:
They are amendments and not sections.
Senator Rónán Mullen:
I apologise. I was going to say that section 29 is very much connected with section 12. In considering the issue of the Supreme Court having the power to adjust the award of damages, what consideration has been given to the question of whether it should be a jury that awards damages at the level of the High Court, as is provided for in section 29? If one considers the analogy with the criminal law, the jury is the trier of fact and the judge is the trier of law. In criminal law cases the jury does not decide the sentence. I am sure we would agree unanimously that it would not be desirable for it to do so. Why do we not give consideration to the question whether the judges would be the best people to decide the amount of compensation to be awarded, the fact of defamation having been established to the satisfaction of the jury? Has the Minister given the matter any consideration? I reserve the right to table an amendment on Report Stage on the matter.
Deputy Brian Lenihan:
We can return to the function of the jury when we come to discuss that section of the Bill. In a High Court action the plaintiff always has the option to serve a notice of trial for judge alone or a notice of trial with judge and jury. The Senator’s proposal would deprive the plaintiff of a right existing in Irish law if we abolished the plaintiff the right to have recourse to a jury in a case of this type. At present a plaintiff in an action of this type has the right to insist that his or her reputation, or its reputation if we accept bodies corporate, can be judged by his or her fellow Irishmen and women in a jury. The Supreme Court has often adverted to the fact that in its view the jury is the correct constitutional tribunal to determine the reputation of a person in the community.
Following from that the Supreme Court has always taken the view that the jury’s verdict has a unique character in libel actions. It is very difficult if not almost impossible to appeal a jury verdict of no libel. For the same reason, the Supreme Court has been reluctant to interfere with awards of juries in libel actions. While there is no statutory regulation or exception to it, under the Constitution the Supreme Court has jurisdiction to deal with all appeals from the High Court. Historically the Supreme Court has had an attitude that it is reluctant to interfere with the size of a jury award in these matters. However, there has been a well-advertised case in our courts, the particular facts of which I do not wish to mention, in which the Supreme Court ruled that the sum of damages was excessive and ordered a retrial in the High Court. The plaintiff won a sum in excess of the original court award. Where that happens there must be some reality in the position.
We must at least draw the attention of the Supreme Court to its power to substitute a verdict. If there is an outer limit on what the Supreme Court considers reasonable in an award of damages, the court should be in the position to award that. Defamation proceedings are lengthy, costly and dangerous for plaintiffs as well as for defendants. It is desirable in the interests of the State that the Supreme Court as the ultimate court of resort can have the power to substitute its own verdict as to damages at a certain stage in the proceedings and bring finality to matters. It is the court of ultimate resort in this jurisdiction.
Senator Norris was concerned that someone might have appealed to the High Court. A case that is heard in the High Court with a jury is a case of original jurisdiction. The only other tribunal before which a plaintiff can sue is the Circuit Court where the judge sits without a jury in such cases. An appeal of a decision of the Circuit Court would be by way of rehearing by judge alone in the High Court. The only circumstance of having a jury in such cases is in the High Court and the only appeal there is to the Supreme Court, which is the ultimate court of resort. If it believes that there is an outer limit beyond which an award has gone, then surely the Supreme Court should be free to award that outer limit and bring an end to the litigation rather than subjecting the parties to the expense of another High Court action. That is the purpose of this section.
Having said all that, I would like to revisit one matter in the section. As Senators are aware, lodgements are often made in defamation actions. One of the purposes of the Bill is to make it easier to make a lodgement. Were a plaintiff, for example, to defeat the lodgement in a High Court action but not defeat the lodgement in the substituted verdict of the Supreme Court, I believe there would be an injustice to the plaintiff in that circumstance. If the plaintiff had been lucky enough to beat the lodgement in the High Court, even though the Supreme Court took the view that he was outside his outer limit, that should not make the lodgement effective against that plaintiff. I want to revisit that issue in the context of this section.
Senator Jim Walsh:
I very much welcome the final comments of the Minister. I hope when we come to it we will find a way to address it. In all this we need to have a level playing pitch. This matter has arisen because of the case involving Mr. Denis O’Brien, where the Supreme Court referred the matter back to the High Court and there was an increased award of damages the second time around. Everybody felt the damages were very high. In recent days the newspapers referred to Mr. O’Brien’s involvement in a €200 million deal. While I would not argue this case normally as these people are well able to look after themselves, for a person operating at that level, the financial implications are very high if his reputation is tarnished as a consequence of published articles.
Regarding what Senator Alex White said, while I am aware the Supreme Court does not take any new evidence, it would be very important that all the evidence presented in the High Court should be considered and taken on board.
My main point to the Minister is as follows. I have serious concerns about the matter and I am glad that he is to revisit it. As I interpret this provision a scenario could arise that an individual could go to the High Court, be found by the jury to have been seriously defamed and be awarded, for example, €100,000. Subsequent to the case in the High Court, the defendant might decide to appeal only the extent of the awarding of damages, which would be his or her right. The Supreme Court might decide the award should not be €100,000 but might agree the person was defamed and might award damages of €80,000. As I understand it, the costs would follow the decision. The defendant having been successful in the overall case and successful in his or her application to the Supreme Court in having the damages reduced, the award of costs would go against the plaintiff and perhaps put him or her at a financial loss, even though he was awarded €80,000. This is manifestly unfair, if my reading is correct.
I fully subscribe to the sentiments expressed by the Minister with regard to the lodgement and those same sentiments must be applied because this should not be allowed happen. I know this would be at variance with what normally happens when appealing a case to the Supreme Court but it shows the complexity of what is being undertaken in this Bill and how a defamed person could be disadvantaged by a technicality in the case where a jury makes an award which is reduced marginally on appeal to the Supreme Court. As a consequence, the defamed person is out of pocket in an attempt to protect his or her reputation and this is wrong.
Progress reported; Committee to sit again.
