Wednesday, 15 February 1995
Dáil Éireann Debate
Mr. O'Donoghue: I stated last night that the right of every person to protect and vindicate their own good name and reputation is a fundamental one which must continue to be protected. Any legislation which seeks to regulate or limit the law relating to defamation must have as its primary objective the protection of the good name of every citizen. Legislation directed at the reform of the law in this area must ensure that all citizens whose reputations and good names have been attacked have readily available to them a suitable means of redress. That involves an accessible, speedy means of having the issue considered and  resolved in court. To this extent the proposal in the Bill which would allow declaratory orders to be made is helpful.
There is also a need to ensure that the law is clear and rational. There is no doubt that the existing law is in need of reform. Some procedures and the nature of certain defamation pleadings are undoubtedly and unquestionably arcane. However, the extent of the reform necessary must depend on the nature of the balance it is sought to achieve between a number of competing interests.
The apparent conflict which can arise between competing constitutional rights to which I have already referred, such as the right to freedom of expression guaranteed by Article 40.6.1º, the right to communicate protected by Article 40.3.1º and the right to one's good name and reputation, must be resolved in a manner which protects the individual. Legislation should not seek to condone or reward unacceptable carelessness at the expense of the individual. It must not seek to encourage or protect the type of tabloid journalism that unfortunately has now become common in the United Kingdom. All rights carry a corresponding duty. It has been wisely said that rights and duties are two sides of the one coin.
In the same way the right to freedom of expression carries with it a corresponding duty. It is an onerous duty and one which the court must be permitted to police. It must be remembered that freedom of expression is not a licence to print money. It is not an invitation to publish without being damned and does not give a right to express a damaging untruth as a fact.
I agree with the conclusion of the Law Reform Commission that the sensible course would be to repeal the existing 1961 Act and replace it with a new Act. I acknowledge that this Bill put forward by Deputy McDowell is an attempt to address the difficulties presented by the existing law. However I am not convinced that it strikes the  correct balance. It would put unnecessary obstacles in the path of aggrieved citizens and would allow the careless unwarranted protection from the consequences of their actions. In general we are fortunate in having high journalistic standards. In reforming the law of defamation we must ensure that we do not encourage a lessening in those high standards and a devaluation of truth and accuracy.
In this regard there is a strong argument, in tandem or in conjunction with this Bill, for the establishment of a press complaints council. This would be of advantage not just to an individual who feels aggrieved but also to the press. Many people do not want the bother of going to court with their complaints; others cannot afford to do so. The existence of a press complaints council would serve not just the general public but the media in that in all probability it would result in fewer actions and the speedy resolution of complaints.
The question has arisen as to whether an action in defamation should lie in respect of published material about a deceased person which is untrue. Families can be extremely distressed and very upset by published material. In this respect the recommendation of the Law Reform Commission that an action should lie is correct. I do not say that such an action should result in damages; the correct procedure is that the personal representative of the deceased should be allowed to take the action in order to obtain a declaratory order to the effect that the material printed was untrue. The reputation of a deceased person can be of the utmost importance to their family and subsequent generations.To that extent this provision should have been included in the Bill.
I am concerned about section 22 of the Bill because it would establish a defence known as comment based on fact which is intended to replace the defence known as fair comment. It would provide valuable protection for the expression of genuinely held opinions where those opinions are  based on facts and would further provide that where a defendant fails to establish the truth of the facts on which the comment is based he or she may still avail of the defence if reasonable care was exercised in ascertaining the truth of those facts.
The reason I am concerned is that subsection (3) states that failure by a defendant to establish the truth of sufficient facts to support the comments would not by itself deprive him or her of the defence of comment based on fact if the defendant shows he or she exercised reasonable care in ascertaining the truth of the facts alleged to support the comment.In short it appears this would allow freedom not just to publish a falsehood but to make a derogatory comment about the individual about whom the false material was originally published. The Bill does not contain a definition of “reasonable care”, which can mean just about anything.
In justice to the press and broadcasters, there is hardly ever an occasion when they set out deliberately to destroy a person's reputation. I sincerely hope that this proud tradition will continue but while it attempts to address the problems relating to the law of defamation the Bill would in all probability lead to a lessening in those standards on the part of a minority. People are as entitled to be protected against the actions of what may well be established to be an unscrupulous minority as they are against an unscrupulous majority. I am thinking in particular of the possibility of the probability of certain British tabloid newspapers here being in a position to lower their standards.That would not be in the interests of the Irish people.
Reform of this area of law is necessary but further consideration is required before we achieve the objective of a correct balance between the right of a citizen to his or her good name and the right of freedom of expression.
Mrs. Owen: I would like to join other Members of the House in commending Deputy McDowell for the work he has put into the preparation of this measure. The Minister for Equality and Law Reform explained last night the approach the Government is taking to the Bill and why we are not in a position to support the measure at this stage. I have no doubt that both the Bill and the debate we are now having on it in the House will be of great value to the Government in reaching its ultimate decisions on the approach which should be taken, in the public interest, to the areas covered by the Deputy's proposals.
While most of the Bill is taken up with reform of the civil law on defamation there are two areas covered by it which fall into my areas of responsibility: Part III, which deals with criminal defamation and Part IV which deals with contempt of court.
As the House will be aware, there are three Law Reform Commission reports dealing with the areas covered by the Bill: the report on the civil law of defamation, the crime of libel and contempt of court. These must be read in conjunction with the very detailed consultation papers which the commission published in each of these areas in advance of finalising its recommendations. Consideration of the reports on criminal libel and contempt of court in my Department will be completed in the context of bringing forward legislative proposals in these areas. It is in the context of the development of those proposals that I am particularly interested in what is said in this debate by Members on all sides of the House and, by the same token, I am sure Members will appreciate that what I have to say about the detail of the Bill, in advance  of the Government finalising its own proposals, will inevitably be tentative.
It is fair to say that both in law and practice defamation is largely a civil matter and one in which the criminal law becomes involved only rarely. Indeed, in the Law Reform Commission's report on the crime of libel it considers in some detail whether a criminal offence of libel should be retained. Before going into that I should say I do not envisage any difficulty with the proposal in section 37 of the Bill to abolish the common law offences of seditious libel and obscene libel. The commission recommended their abolition primarily on the basis that other legislation deals adequately with these matters and, subject to any views which Members of the House might have on the matter, I am inclined to accept that view.
The Law Reform Commission also dealt with the crime of blasphemous libel. Certain constitutional considerations arise in this area to which Deputy McDowell referred last night and I can well understand why he chose not to deal with this matter in his Bill.
The remaining category of criminal libel is defamatory libel and the rest of Part III of the Bill deals with this. While I might have difficulties with some of the detail of these sections, which I will mention, I do not foresee any great difficulty for the Government in accepting the underlying approach of both the commission and Deputy McDowell to changes in the law in this area.
The key question is whether the criminal law should be involved in libel cases and, as I mentioned, this matter is considered in some detail by the commission.The “abolitionists” in relation to this offence argue that retention of criminal liability does not sufficiently recognise the value of free speech; the offence should be eliminated because it is virtually obsolete and the civil law is sufficient to provide a remedy for anyone who has been defamed.
I can see merit in each of those arguments but from my preliminary examination of this issue I would attribute  more weight to the case which is made to the effect that civil remedies are not always sufficient, for example, where the victim may not have the money to pursue a civil case or where, realistically, there would not be any prospect of the person who did the defaming being able to pay any damages which might be awarded. I believe the central consideration must be that some forms of behaviour are so despicable and unacceptable that they should be the subject of criminal sanctions.
While there have been few criminal libel cases since the foundation of the State that, of itself, does not mean that the offence should not be retained in some form in our criminal law, albeit in the knowledge that it is likely to be used only rarely.
In this context, it is useful to consider the Fleming case which was a prosecution for criminal libel in 1989 and, as far as I know, the most recent prosecution for the offence. The defendant in that case believed that the victims, who were a married couple, were in collusion with the Agricultural Credit Corporation which had seized his land. As some form of retaliation the defendant wrote obscene graffiti about the couple in a variety of public places all around the country. The graffiti gave the telephone number of the couple as one to be called to arrange sexual intercourse with the persons living at the address. For about four years the couple — who had three children — received nuisance calls. At one stage the number of calls each month was approximately 160 and they were generally received in the early hours of the morning.
I could not accept the proposition that that type of behaviour should not be the business of the criminal law and, while I accept that hard cases may make bad law, I also believe that bad law cannot deal with hard cases.
 Under Deputy McDowell's proposal, the new statutory offence of criminal libel would involve the publication of a statement which is both false and defamatory; the publication must be done maliciously and the person publishing the statement must know the statement to be false.
The Law Reform Commission made a number of other recommendations relating to the offence which do not appear to be addressed explicitly in Deputy McDowell's Bill. The commission recommended that the prosecution should be required to show that the matter was false and defamatory and that the burden should also be on the prosecution to show that the necessary mental element for the commission of the crime existed. I know it might be argued that given the way the offence is framed and the general legal rules which govern the burden of proof on the prosecution, there may be no need to make explicit reference to these matters in the legislation but this is something which I will consider further in the course of my examination of the Law Reform Commission report.
The commission also recommended that the prosecution should be required to show that the person knew the statement to be false or was recklessly indifferent to the question of truth or falsity. In the offence as drafted by the Deputy there would have to be actual knowledge that the statement was false — reckless indifference is not included. I can see some merit in the argument that there should be actual knowledge and that reckless indifference should not be sufficient for an offence to have been committed but, again, this is something which needs further consideration.
It is important to note in terms of freedom of the press that under the Defamation Act, 1961, a prosecution against newspapers for defamatory libel cannot be taken without the consent of a High Court judge. Established case law suggests that a court would not consent to a prosecution unless it was satisfied that the libel was a serious one and  that the public interest required the institution of criminal proceedings.
The Law Reform Commission recommended that the requirement of consent by a High Court judge be dropped but that, instead, a prosecution would require the consent of the Director of Public Prosecutions. Deputy McDowell goes half way down this road in that section 38 would require either the consent of the Director of Public Prosecutions or a judge of the High Court. The Law Reform Commission argues quite strongly that retaining the High Court procedure is a uniquely anomalous exception to the general principle vesting the discretionary power to authorise a prosecution in the Attorney General or the Director of Public Prosecutions and that it should be removed. I know Deputy McDowell has strong views on this matter and, indeed, the Law Reform Commission in its report refers in detail to an article which the Deputy wrote for The Irish Times about this and other matters. The commission strongly rejects Deputy McDowell's arguments and, while I am reluctant to interpose myself in a debate among such eminent legal luminaries, I would have to be satisfied that there are good and substantial grounds of public policy for retaining a role for the High Court as envisaged in Deputy McDowell's proposals.
Deputy McDowell's Bill also reflects his unhappiness with the commission's proposal that the Director of Public Prosecutions should have the right to opt for summary disposal of an offence of criminal libel in the District Court. Again, as evidenced in the commission's response to the Deputy's arguments in this regard, the Deputy and the commission are poles apart on this issue. All I will say at this stage is that I recognise that complex and difficult questions  arise in relation to this matter, and I will address them fully in my consideration of the commission's report.
There are just two other points which I would like to make briefly about Part III of the Bill. The first is that the Law Reform Commission recommended that there should be no defence of statutory or qualified common law privilege in proceedings for criminal defamation, but section 40 of the Deputy's Bill provides that any defence based on privilege under common law, statute or the Constitution will be available to the defendant in a prosecution for criminal libel to the same extent as the civil defamation proceedings. It seems on the face of it, given the way the offence is framed in the Bill, that there are no circumstances in which a defence of qualified privilege could succeed as it would have to be shown that the statement in question was made maliciously, was false and defamatory and was known to be so. In those circumstances the better approach may be to take on board the commission's recommendation that the defence should simply be not provided for.
The second — and last — point which I want to make on this Part of the Bill is that while it abolishes the common law offences of seditious libel and obscene libel, it does not abolish the common law offence of defamatory libel even though the whole point of this Part of the Bill, as I understand it, would be to place the offence on a statutory footing albeit with a more restricted definition. While it is the case that the Law Reform Commission did not explicitly recommend the abolition of the common law offence I believe that it is implicit in its recommendations. I cannot see that its  proposals on defamatory libel would make much sense otherwise.
The Government's policy agreement contains a commitment that the Government will examine the possibility of legislating to enable journalists to protect the confidentiality of their sources in certain circumstances. That examination is being undertaken particularly in the context of the Law Reform Commission report on contempt of court which was published towards the end of last year.
There is no point in pretending that there are easy answers in this area of the law. What we have to do is strike the right balance between competing and important rights and, as the Law Reform Commission report itself makes clear, there are differences of view — even in the commission itself — as to how exactly that balance should be struck.
I have no doubt that all Members of the House would recognise the vital role which the media have to play in a democracy and it is fair to say that we have been well served in this country in this regard in that the media have avoided the types of excess which have arisen in some other jurisdictions. It is clearly important that we do not include in our laws needless restrictions on the ability of the media to fulfil their role. The Government's commitment in this regard is clear from the approach which the Government policy agreement takes to issues such as freedom of information.
It is, however, the case that occasions can arise where the understandable priority which journalists give to the protection of their sources can conflict with the fundamental rights of others. That reality is recognised in Deputy McDowell's Bill because it does not propose that there are no circumstances in which a journalist must reveal his or her sources. Instead it sets out to define  the circumstances in which a court or tribunal could require the disclosure of journalistic sources.
While related, the approach which should be taken in relation to court proceedings and that which should be taken in relation to tribunals give rise to somewhat different considerations, and I will deal with these separately. In relation to court proceedings, it is a fair summary to say that our law at the moment means that while a court will have regard to the importance of freedom of speech it is ultimately a matter for the court, rather than the journalist involved, to decide whether the interests of justice require that a source be revealed in a particular case.
A majority of the Law Reform Commission expressed themselves satisfied that the broad powers available to the court under the Constitution, particularly as decided in the O'Kelly case, should not and cannot be limited or restricted in any way. A majority of the commission did not recommend legislation and instead wanted the law to be developed by the courts.
A minority of the commission recommended that legislation should be introduced to provide that a court would not be permitted to order disclosure unless it was established that disclosure was clearly necessary to prevent injustice or in the interests of national security or to prevent disorder or crime. They felt that this approach, while not conferring absolute privilege, would give appropriate recognition to the public interest in the protection of journalistic sources. This is the approach which Deputy McDowell has enshrined in Part IV of his Bill.
I have not yet reached a conclusion as to which of the two approaches I have mentioned is the better one and I suspect that in reality there is not much to choose between either of them. This arises particularly because it may well be that the law as applied by the courts would not differ from what others suggest should be included in a statute. Before reaching a conclusion in this regard I propose to consult widely and  I will have particular regard to what is said during this debate.
In relation to tribunals, it would be unreal to ignore the context of what happened in relation to the beef tribunal.While it would not be appropriate for me to comment on the outcome of a particular court case, those proceedings underlined the need for us to have a fresh look at the law in this area and we are doing that.
The Law Reform Commission in its contempt of court report recommended that legislation should provide that a person may only be required to disclose the source of information contained in a publication for which he or she is responsible if it is established to the satisfaction of a tribunal of inquiry that disclosure is absolutely necessary for the purpose of the inquiry or to protect the constitutional rights of any other person.Deputy McDowell's Bill, instead, would apply the same test as would arise in contempt of court cases — that disclosure was necessary in the interests of justice or national security or for the prevention of disorder or crime.
Proceedings of a tribunal are not judicial proceedings and I am not sure that the best solution is simply to graft the rules which would be set for court proceedings onto tribunals as well. This House has never lightly used its powers in the past to establish tribunals of inquiry and would not do so in the future. They arise where matters of grave public importance are at issue and we need to ensure that tribunals have all the appropriate powers to fulfil the functions which the House confers on them. As against that, it would be at the very least ironic if we were to do anything which impinged on the freedom of the press to the extent that they were inhibited in reality from bringing such matters of grave public importance into the public domain in the first place. Again it is a question of striking the right balance and that is what my consideration of this issue over the coming months will be aimed at.
Before concluding I would like again to commend Deputy McDowell for  bringing this Bill before the House. While I appreciate that he is disappointed it has not proved possible for the Government to accept his proposals at this stage I hope this will be tempered by the fact that the Bill itself — and this debate — will have a significant influence in the formulation of policy in these areas.
I welcome Deputy McDowell's initiative in seeking to reform the law. Six years after his party entered Government promising to change the law, the parties opposite have undergone a late conversion in several areas. It is particularly ironic that Fianna Fáil should be supporting this Bill, given their former Leader's fondness for scattering libel writs about him like snuff at a wake.
In December 1991 the Law Reform Commission published a report on the civil law of defamation. This is just one of a number of reports that were allowed to gather dust on Government shelves. Much of the legislative heritage with which we are wrestling has its roots in English common law as well as in a vast body of legislation enacted during the 18th and 19th centuries and the 1961 Defamation Act. The citizen's right to his or her good name is further buttressed by the Constitution. The result is that the media, individuals and society as a whole are struggling under the burden of outdated laws which take no account of new technologies or of developments in the media as a whole.
Laws which were considered appropriate in the age of coffee house news sheets are scarcely appropriate today when newspapers are crippled by libel insurance premia rendering small newspapers even more uncompetitive in a market distorted by monopolies and foreign penetration. At the same time individuals are able to protect themselves from justified inquiries into their doings — even when such inquiries are clearly in the public interest — by simply slapping a writ on the offending medium. The mere threat of a writ will  generally do the job as certain prominent Members can no doubt testify.
Few can have failed to note the decline of investigative journalism in recent years. While that cannot be laid solely at the door of our defamation laws, there can be little doubt that some editors, and their publishers, may recoil from sensitive issues for fear of being held liable for defamation. Ironically, the law offers scant protection to some individuals; to those without means and influence who, for whatever reason, are suddenly exposed to media scrutiny. In this regard I urge the Minister to consider the need for a form of privacy legislation to protect individuals from intrusive reporting by the telephoto-lens school of journalism — something which is becoming increasingly common and which is not necessarily covered by our defamation laws.
We need to ensure that private and public interests are vindicated and I believe that the implementation of the Law Reform Commission's recommendations will go a long way towards achieving that goal. While I welcome the recommendations of the Law Reform Commission, I have a few problems with Deputy McDowell's Bill, for example, I am baffled by the non-inclusion of the commission's proposal that defaming the dead be actionable. I am sure Members and people generally have unpleasant memories of the plethora of tawdry stories which were published following the death of Fr. Michael Cleary. Under the law as it stands, a dead person is fair game for every muckraker in town and this must be rectified as soon as possible.
However, I appreciate the difficulties which a blanket provision in this regard could pose to historians, biographers and serious journalists and I hope that any legislation which may be introduced will address these difficulties in a balanced way. We need to strike a balance between the public and the private interest.
The remainder of the Law Reform  Commission's proposals are straightforward and I would like to see them on the Statute Book. I welcome the provision that distributors and printers should be immune from defamation actions. Their current liability has its roots in the 18th and 19th centuries at a time when defamation laws were used mainly as a means of political repression something to which none would wish to revert.
Kathleen Lynch: Deputy McDowell had an ally in me long before I came into this House. This will certainly dissuade writ happy individuals from scattering defamation actions. I appreciate the concerns expressed by the Minister for Equality and Law Reform, Deputy Taylor, and in general I do not see the reversal of the burden of proof being accepted as the norm. In this case, however such a reversal will redress the current imbalance between influential aggrieved individuals and an increasingly vulnerable media and once again we must strike a balance between the public and private interest.
It is only by raising an issue, without sufficient proof at the outset, that matters of public interest can be fully investigated.In this regard, Members need only cast their minds back to the passports for sale scandal, where the truth emerged drip by painful drip in spite of many of the facts having been common knowledge for some time. A few weeks ago we were faced with the appalling vista — and I use this phrase advisedly — of a journalist being imprisoned for contempt. Until the case against her collapsed, it appeared that Susan O'Keeffe would be the only individual prosecuted and jailed as a result of her exposure of the Goodman débâcle. Bearing this in mind I welcome section 21 of Deputy McDowell's Bill, providing for qualified  privilege in certain media reports of public interest and section 41, enshrining the principle that refusal to disclose the source of public information should not be construed as contempt of court except in exceptional circumstances.
While welcoming the Law Reform Commission's proposals and the provisions in the Bill, we have to place them in a broader context. In recent years the diversity of the Irish media has fallen victim to a number of factors such as increased media concentration, we now have the highest concentration of print media ownership in the European Union, this is rapidly squeezing out the smaller players and those who survive are battling with unsustainable insurance premia. Our libel laws have, in effect, combined with media monopolies to restrict freedom of expression. For far too long we have engaged in sticking plaster politics, plugging legislative gaps while turning a blind eye to the broader picture.
Deputy McDowell's Bill has given rise to valuable debate and now that it has begun it must continue and be broadened out to look at the way we govern ourselves and society. However, I believe that any moves to update our civil law of defamation must be accompanied by a through examination of issues ranging from media concentration to our outdated censorship laws which, as my colleague Deputy Eric Byrne recently pointed out, ban authors such as Bertrand Russell and films such as “Monty Python” although I do not believe there is a person who has not seen the film or read the book. It is about time that Irish society grew up. I would like to see this debate broadened to include freedom of expression, a freedom upon which our democracy depends. Only when these hot potatoes have been grasped will a reform of the civil law of defamation be fully effective.
Mr. O'Dea: I was intrigued to hear that Democratic Left has suddenly become worried about the right to privacy, apparently Fianna Fáil is not the only party that has suffered a conversion since the seating arrangements were changed. It was intriguing to hear Democratic Left shedding crocodile tears about the rights of the dead who have been libelled. Anybody who has been in this House up to the recent change in Government will know that Democratic Left never hesitated to libel the living, especially when doing so under the cover of the privilege of this House.
Mr. O'Dea: ——the Bill represents a regurgitation of the proposals of the Law Reform Commission which, naturally, he could not accept without deep reflection. There is a weakness in that argument in that it would be quite valid if the Law Reform Commission had reported contemporaneously with the publication of this Bill but its report has been with us since 1991. We are now moving rapidly through 1995 and the Minister tells us that some time towards the end of this year or perhaps early in 1996 he will be in a position to come in here with proposals. Every objective observer will agree that the law in this area is out of line. The law is tilted against the defendants, generally speaking the media but, of course, there can be other defendants and there is a need for reform.
We might not agree with every recommendation in the report of the Law Reform Commission but it does present us with a challenge. Choices must be made sooner or later. We have a body of experts, the Law Reform  Commission, which is funded by the taxpayer to propose law reform and make recommendations on difficult legal problems. It does so following learned research and study. The Minister has promised that the matter may be dealt within nine months time. That is not good enough, though I welcome the fact that the Minister has accepted the Bill in principle.
I am somewhat dubious about the Minister's promise to accept the Bill on Committee Stage in nine months time. My suspicion is based on the reply to a parliamentary question which I asked two weeks ago regarding the intention to reform the law in this area. My understanding of the reply was that the Minister had so much business on hands this matter would not be reached during the lifetime of the Government, even if it lasts its full time which is becoming increasingly unlikely.
Mr. O'Dea: It imposes a timetable on the Government and on 14 November I expect this legislation to be dealt with on Committee Stage. There are a number of desirable proposals in the Bill which could be taken on board immediately.They could be detached from the main body of the Bill and implemented in law now. I have not heard any satisfactory explanation as to why the Government will not do so.
The Bill proposes to abolish the distinction between libel and slander. That is an uncomplicated, simple proposal. The only function of the present definition is to cause confusion. I do not see why the distinction cannot be abolished. Deputy McDowell proposes, in line with the Law Reform Commission, that there  be a new definition of the term “defamation”.The only aspect of the proposed definition which might cause difficulty is the phrase “tends to injure”. The use of the phrase “material which tends to injure someone's reputation” can be criticised on the grounds that the plaintiff need not necessarily show actual injury to reputation. Having said that, it must be borne in mind that there is a presumption that damage flows from a statement which is itself defamatory.The common law definition of defamation on which we are relying at present includes the phrase “tends to injure” so there is nothing exceptional or revolutionary about it.
The Bill proposes that it should be made quite clear that an apology is not an admission of liability. Section 17 of the Defamation Act, 1961 enables a defendant in a defamation action to give evidence that he tendered an apology in order to mitigate damages. Despite that, because of uncertainty as to whether it constitutes an admission of liability, an apology is rarely tendered where proceedings are likely to be taken. It is sensible to make it quite clear in legislation that an apology does not constitute an admission of liability. We should make it quite clear that a judge has an obligation to give proper weight to an apology in this charge to the jury. That is not a revolutionary or exceptional proposal. It would not pre-empt the more difficult choices which must be made or damage the impending legislation or the law as it stands.
In any civil action a defendant can lodge money in court. Certain consequences flow from that from the point of view of cost. It is a regular procedure. If a defendant lodges money in court he must at the same time state whether or not he is admitting liability. However, in a defamation action the lodgment of money in court means the defendant must admit liability. That is unfair and wrong. I do not see why defendants in defamation cases who wish to lodge money in court are discriminated against vis-à-vis defendants in other civil actions. After all, it is a tort and we are  talking about the general law of tort. The Minister stated we must find the origin of this rule which is peculiar to defamation cases. A similar rule existed in the UK but was abolished in 1933, more than 60 years ago, on the basis that it was discriminatory and there was no logical basis for it, yet it exists here. If the Government is serious it could take this proposal on board in advance of a more detailed consideration of the legislation. It would be of benefit to both plaintiffs and defendants and would be likely to result in a considerable reduction in the number of cases which come to court.
The proposals in the Bill for declaratory judgments and declaratory and corrective orders are based closely, if not exactly, on the proposals of the Law Reform Commission. Declaratory and corrective orders are quite unexceptional and should be added to the judgment a person receives for defamation or for libel. The proposal for declaratory judgments is sensible. It allows a plaintiff a speedy, cheap remedy.He can proceed by way of special summons to get a declaration that he has been libelled or defamed. The proposal appears to be logical and should be incorporated into law. In many cases if a person feels their reputation has been injured it is sensible that they have a speedy way to correct the injury and limit the damage caused rather than having to wait for three or four years before the matter is rectified. Much damage can be caused to their reputation in that time and they can collect a pile of cash to cure it. When the Government decides to deal with the Bill on Committee Stage there will not be much opposition to that proposal. The proposals in the Schumer Bill in the United States which proposed that certain defendants should have the right to convert an action for damages into one for a declaratory judgment were rejected by the Law Reform Commission and the parliamentary draftsman, who were wise to do so. It goes too far. In the United States the law on defamation is not balanced.
 I consider the Law Reform Commission and the draftsman of the Bill were wise to reject that proposal because it clearly goes too far. Even in the United States where the law on defamation is also out of balance, it is titled the other way, against the plaintiff, that particular rule being confined to certain types of plaintiff only. The Law Reform Commission took the view that, as it were, plaintiffs will rush out all over the place to seek declaratory judgments when that option is introduced, claiming there will be a substantial reduction in the number of actions for general damages. While I hope that will be the case, I am not sure. Declaratory proceedings, to some extent — and this is a matter for debate — should be open to the defendant. For example, at present there is a procedure where somebody is allegedly libelled and seeks an apology. Usually, they get their solicitor to draft an apology, one which is almost invariably out of line with the alleged libel. They send this into a newspaper saying it is the form of apology they want printed, the newspaper will say it is clearly going too far and effectively, the libelled person can maintain that they sought an apology but did not receive any. A speedy procedure should be devised whereby a court can declare on that.
More seriously perhaps — I put this forward merely as a suggestion — a defendant should be allowed to institute declaratory proceedings on the basis that this would not prevent a plaintiff subsequently seeking damages, the result of the declaratory proceedings being taken into account ultimately when damages are being awarded to the plaintiff.
I am worried also about the rules of court on pre-trial discovery in relation to declaratory proceedings. In many such cases it would be very unfair to expect a defendant to defend these proceedings without discovery. Journalists get their information from third parties, tip-offs and so on, and may be unable to  properly defend an action for a declaratory judgment without pre-trial discovery.The plaintiff may have documentation of great significance. Surely the defendant should not have to defend a case against such a plaintiff without discovery?
A court should be obliged to take a correction order into account when assessing damages. I note there is no provision for costs in the section dealing with declaratory actions. It should be made quite clear that, if and when anybody succeeds in getting a declaratory judgment, he or she will also get costs.
The Bill contains a number of provisions in relation to defences. For example, it is proposed that the defence of justification be replaced by a new defence of truth. This appears to be clear, unambiguous and reflects the wording in the pleadings and the charge to the jury. It should not be necessary for a defendant to prove that what was published was literally true in every detail. “Partial truth” is dealt with in section 25, I have grave difficulty with its wording even though I know it comes directly from the Law Reform Commission proposal but, as we will not be taking the Bill in Committee for some nine months, I shall express my reservations then.
The areas of absolute and qualified privilege have become unnecessarily complicated and are in need of clarification.The proposals here at least carry the merit of clarity. While I could quibble with their individual details, they constitute a vast improvement on the present position.
Section 22 replaces the defence of fair comment with a new defence of comment based on fact. From a reading of this section it is clear that if the defendant cannot sufficiently establish the truth of the fact on which the comment is based, he can still be liable, even if he showed “reasonable care” in trying to ascertain the truth of the facts on which the comment is based but the sanction will be confined to either special damages or a declaratory or corrective  order. Therefore, perhaps it is not as bad as it appears at first sight. Nevertheless, there should be some explanation in the Bill on what constitutes “reasonable care”; the criteria should be clearly specified.
Section 26 affords a general defence in relation to stated facts, not comment, to a claim for general damages where an allegation of fact is made if the defendant exercised “reasonable care”. While an alternative remedy is provided in section 22, section 26 says it is a defence to a claim for general damages. I take it the intention is that there would still be provision to recover special damages there, and provision for a declaratory and correction order, but that has not been spelled out. Again, in section 26 — it is a fairly radical, revolutionary concept — the circumstances in which “reasonable care” will be held to exist should be clearly and fully spelled out.
The most revolutionary aspect of the Bill is the proposal to change the burden of proof. Defamation is the only area of the law of tort where an essential ingredient of the plaintiff's case does not have to be proved by the plaintiff but rather disproved by the defendant. The general position in tort law is that the person who brings the case, namely, the plaintiff, must prove each and every ingredient of his or her allegation. Defamation stands as an exception to that because, in the overwhelming majority of cases — because it is often quite clear what is and is not defamatory — the most important ingredient in what the plaintiff has to prove does not have to be proved by him at all but rather disproved by the defendant. That seems to me to be quite illogical, wrong and unfair. There is an onus on those who seek to support its continuation to clearly explain why; so far, it has not been explained to my satisfaction and I think it should be changed.
The Minister referred to the views of the minority of the Law Reform Commission about proving negatives etc. That is really more relevant to criminal law where one must prove something  beyond reasonable doubt. We are talking here about the civil law. In the civil courts, every day of the week, people have to prove that something is true, false, is right or is wrong.
There is also a misconception that getting rid of the presumption of falsity is in some way shifting, creating another presumption, a presumption of truth. Of course, that is not the case. Removing the presumption of falsity does not imply that there will be a presumption that what was said was true. What is proposed is that the law would merely take a neutral stance and, as in all other areas of tort law, compel the plaintiff who is bringing the action to prove all the ingredients of the tort he or she is alleging. The present position has caused some difficulty for defendants; here I am not thinking in terms of multinationals or conglomerates but rather of the small, provincial newspapers who may be quite sure, on some occasions, that what they publish is true but may have difficulty in establishing it in court. I know of cases of plaintiffs, who knew very well that what was said was true but who knew also that the defendant could not prove it, have taken an action to court and got settlements; they took the action in the full knowledge that they would not have to give evidence or face cross-examination. Surely, that is not satisfactory?
I welcome the provision in the Bill in relation to printers, publishers and so on. As far as I can recall, the proposal of the Law Reform Commission was that no liability should attach thereto. That proposal has been modified in the Bill to some extent — they can be liable if they publish the matter intentionally, knowing it to be defamatory, or if they are “recklessly indifferent”. I welcome that provision. Given the technological advances in printing and distribution it is unreasonable to expect printers and distributors to check all publications which come into their hands for alleged defamatory matter. I shall conclude because I am sharing my time with two colleagues, to whom I apologise,  because I had forgotten until I saw them behind me.
I congratulate Deputy Michael McDowell on having introduced his Bill but I should have liked to have had more time to consider its wide-ranging proposals and the changes in the law they attempt to address. Unfortunately, I did not hear the Minister last evening; there was a monitor in my room carrying a picture but no sound. Indeed, if that applied in most cases, probably there would be an awful lot less defamation proceedings.
Mr. Hughes: I will endeavour to get a copy of his remarks in the intervening week. Some of the provisions of this Bill are radical, requiring careful consideration and examination to ensure that the correct balance is struck, that they do not unduly upset the delicate balance struck in the 1937 Constitution.
The Law Reform Commission's wide-ranging consultative paper and subsequent report are detailed. The report suggests changes to our law as the law of defamation is based, in the main, on English common law as it evolved over four centuries. As the report suggests, the law of defamation is out of date in many respects and fails to respond to the needs of modern Irish society. That raises the question of what those needs are and what rights and obligations are required to be protected to allow for the constitutional right of freedom of expression.
 The media have changed considerably not only since 1937 but from the passing of the 1961 Defamation Act. Not only has the number of periodicals and newspapers increased, but the expansion of the telecommunications media particularly has been explosive. With sophisticated marketing techniques and media proprietors targeting various sectors of the population, the drive for more sales and deeper penetration is intense. For a small section of the media that success can only be achieved by being sensational and going for the lowest common denominator.
I do not have the figures for the number of defamation actions commenced on an annual basis in our courts but it is reasonable to presume they are ever increasing. I do not put that down to us, as a race, being more litigious, but rather individuals ensuring that their good name and character are vindicated under the law.
Our Constitution under Article 40.3 states: “The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”. It further states: “The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen”.However, Article 40.6 guarantees subject to public order and morality certain rights to include the rights of citizens to express freely their convictions and opinions subject to certain limitations.Accordingly, a balance must be struck in our laws to reflect the balance in our Constitution.
One of the concerns I have about this Bill or any other Bill dealing with defamation is that we do not become victims of the same type of abuse as our counterparts in the United Kingdom. While I am aware that the majority of Irish newspapers would never stoop to the same level as the United Kingdom tabloids, we must ensure that those tabloids sold here comply with the highest integrity that is common place in the  Irish newspaper industry. While I do not wish to give the impression that all Irish journalists are saints and should be wearing halos, I want to emphasise that they are a good deal more compassionate, conscientious and considerate than their counterparts across the water. If there was a way of copperfastening this position, I do not believe anybody here would object to it.
I wish to comment on some of the provisions of the Bill. The section that abolishes the distinction between libel and slander is non-controversial and accords with the Law Reform Commission's proposal. As the explanatory memorandum states, section 9 is one of the more wide-ranging proposals of the Bill, namely, that the burden of proof that a statement published was defamatory rests on the plaintiff. That was a matter of much consideration in the Law Reform Commission's deliberations and no unanimous view prevailed.The decision was three to two in favour of shifting the burden of proof. There is an expression “never let the truth stand in the way of a good story”. Fortunately, that maxim is not subscribed to by the vast majority of the media. I agree with the minority position that it is for the defendant to establish the truth of what has been published.As the report states, the person, namely, the defendant who asserts, from his sources of information, that a particular state of affairs exists should bear the burden of proving his assertion. Otherwise a reversal of the onus of proof as suggested in the Bill would result, in effect, in a presumption that anything said of the plaintiff, no matter how damaging, is true.
Mounting a defamation action for the ordinary layman against an adversary, usually a media proprietor, is not an exercise taken lightly, not least because of the enormous legal costs that would befall an unsuccessful plaintiff. As is often the case, the balance of establishing a standard of proof is often a very fine line. As the minority report states, if there is substantial uncertainty  on the issue complained of, the provisions of this Bill would ensure that the plaintiff would fail in his efforts to protect his good name because he would not have discharged the onus of proving the falsity of the allegation against him or her on a balance of probabilities.
Allowing further time for reflection on this most fundamental point is desirable and hopefully will allow for the further generation of suggestions, ideas and reasons for changing the burden of proof.
I agree with the thrust of sections 13 and 14. Most people are satisfied with a retraction or correction. The provisions, as drafted, appear balanced and reasonable.However, on reading the Bill I do not know if the proviso suggested in the report of the Law Reform Commission is retained, namely, it shall not be a defence to a claim for general damages in a defamation action that the defendant made a timely and conspicuous retraction of the alleged defamatory allegation, but the court should be entitled to take the publication of any such retraction into account in assessing the damages to which the plaintiff is entitled. That needs to be clarified as in many instances, despite correction or retraction, the damage to a person's reputation cannot be undone and damages are a proper remedy. Possibly section 27 covers that point.
I welcome section 8 which provides a speedy remedy to a person who wants his or her good name vindicated without the additional remedy of damages. While most people will want damages, section 8 provides a speedy remedy to put the record straight and waste no more time or money in pursuing a full defamation action.
Section 26 provides that damages shall not be paid where a defendant establishes to the satisfaction of a court that before publication of the matter complained of he or she exercised reasonable care in attempting to ascertain the truth of the allegation of fact. In that section the burden of proof is on the author of the alleged defamatory statement. According to the way the  section is drafted, if he or she proves that he or she took reasonable care in attempting to ascertain the truth of that which was published, the onus shifts to the plaintiff to attempt to prove that the author did not take reasonable care. Much of the criticism of the present law is that defamation is a tort of strict liability, that is, at present it is generally no defence for the person who publishes a defamatory statement to show that he or she exercised reasonable care in relation to the publication.
In the main, I am satisfied with journalistic standards in this country and I do not feel they have been suppressed in any way that is detrimental to the common good and the constitutional rights of citizens to express freely their convictions and opinions.
Mr. Browne: (Carlow-Kilkenny): I compliment Deputy McDowell and the Progressive Democrats on introducing this Bill. Having said that, I want to repeat what the Minister said last night for the record.
I have to say that not for the first time I am surprised by the speed at which proposals for reform can leapfrog to the top of the Progressive Democrats agenda. In July 1989 when the Progressive Democrats were entering Government, the Fianna Fáil-Progressive Democrats Programme for Government stated that “new laws ... changing the libel laws ... will be introduced”. Deputy McDowell's Bill now presumably fulfils that promise of six years ago, but unfortunately he did not motivate his party to introduce any legislation on the subject during the period when they actually held office.
Mr. Browne: (Carlow-Kilkenny): Am I my brother's keeper? Perhaps the Deputy is saying that the boys across the way will not like that, but I cannot help that. I say this because people have been praising the Progressive Democrats for introducing this complicated Bill.
I have tried to brief myself on libel and defamation and have got advice on it. I am glad there is a nine month gestation period which should produce some type of baby at the end of the day. We will all have time to read the Bill. A definition of defamation is the wrongful publication of a false statement about a person which tends to lower that person in the eyes of right-thinking members of society or tends to hold that person up to hatred, ridicule or contempt or causes that person to be shunned or avoided by right-thinking members of society. In Opposition we were constantly told how hopeless some of our Bills were.
Mr. Browne: (Carlow-Kilkenny): Who are the wrong thinking members and who are the left thinking members of society? To understand the definitions one needs to be advised on what defamation and libel is all about. A balance must be struck on the question of libel. If the Constitution gives the right to free speech it also gives the right to protect one's name. Where falsehoods are published about a person it is difficult not to feel sorry for that person. On the other hand if the newspaper is publishing the truth, fails to get witnesses to back it up and ends up in court paying a huge sum in compensation, then the law is wrong in the other direction.
Irish newspapers in general are good and correct in the way they treat people but one wonders, if freedom is given, whether what happens across the water would eventually creep in here and people would write what they liked, taking away a person's good name. We should worry more about local newspapers struggling to present a very important facet of life in reporting the local happenings. Certainly they cannot cope with claims which might be brought against them. The bigger newspapers, the multi-millionaire group, may be able to stand up to long running claims and people may even forget about proceeding with them.
We have to maintain a balance in protecting people. There has to be a huge distinction drawn between the publication of falsehoods and the truth. When newspapers publish the truth they have all my sympathy; if they publish a falsehood they have to accept the consequences.In Ireland we are inclined to seek compensation for almost everything; when we trip on the pavement we go to court. We want compensation for our good name. Subjectively we all feel that is right. On the other hand, the system of declaratory action is a help in that one can have one's name vindicated.If the paper refuses to publish an  apology one cannot seek a declaration and is barred from getting compensation.I wonder about that. If a newspaper refused to apologise and correct a mistake they put themselves in a position where they should compensate a person.
Mr. Browne: (Carlow-Kilkenny): That is because one does not want to wait perhaps two to three years to go to court to seek compensation. I would take the example given by Deputy O'Dea where somebody writes out an atrocious apology which the newspapers could not publish. There should be an onus on the newspaper to publish a correction unless it is prepared to stand over what it has published and then if it comes to a court case and it is fined for publishing incorrect material it must take the consequences. I wish to share my time with Deputy Michael Ferris.
Mr. Browne: (Carlow-Kilkenny): How does one manage to get the balance right? The American system which newspapers here are keen to adopt has been referred to. If they can prove an article is of national or public importance they can defend their case. It is very difficult to figure out what is in the public interest but there are probably examples in legal books in the American courts. American newspapers are allowed to publish information that normally would not be acceptable if they publish it for the good of the public. The public should be entitled to know certain information about individuals, groups or, perhaps, companies to protect themselves and not be conned. If that system was introduced here I am sure newspapers would not feel so threatened. That a person does not have  to prove a statement is false puts pressure on newspapers. It gives an advantage to a person who wishes to sue a newspaper. He can say he was defamed and produce people who say they identified him and his character was lowered in their eyes and, therefore, the newspaper may have to pay compensation. On the other hand how does one prove one's innocence? If the obligation is on me to prove I am not a liar and a cheat how do I do it? It can be quite difficult if you go from one extreme to the other where newspapers have to prove what they say is true and the plaintiff has to prove he is innocent. It depends on the accusation. I do not know how to strike a balance but it will take all of nine months to get that balance right. In the end I hope the newspapers and investigative journalists will be able to do their work and individuals will have their good names protected. I realise the issue of balance is very difficult.
Mr. Browne: (Carlow-Kilkenny): That is the danger, it could be much ado about nothing, but I hope not. One newspaper was slightly critical of the Minister for not accepting the Bill. In fairness to him he did what many other Ministers would not do: he accepted it but put a waiting period on it. This Government is putting a great deal of legislation through, but no matter how much is introduced everyone is asking for more. The Minister could have shot down the Bill as other Ministers would have done. I am glad he did not because I realise its importance and what it means to the newspaper industry. Newspapers have to survive and put their resources into modern technology rather than pay compensation to people who claim extreme damages.
I am not sure compensation is needed when a person's character has been damaged and an apology is published rapidly unless it has done extreme damage.It does not do much for one's character if one has to wait three years  for compensation. There should be a quick method of dealing with such matters.If the newspaper accepts it made a mistake and apologises that is fair enough. If you get declaratory action rapidly, although courts can be slow, that should be sufficient. If a newspaper refuses point blank and causes serious damage to a person's character by publishing a malicious falsehood as distinct from the truth, but the person cannot prove it, how can he prove the newspaper did not make a reasonable effort? It may be it telephoned somebody in Timbuktu and got a negative response.
A question to be considered is whether newspapers should pay out huge sums in compensation. For a very important person whose business or profession is destroyed compensation is vital. There should be a quick and fair system for dealing with such issues. I hope in the nine months remaining we will come up with a detailed study. I intend briefing myself well now. To date I did not have an opportunity to weigh up everything.
Mr. Ferris: I compliment Deputy McDowell on the work he put into the preparation of this Bill which deals with complicated issues that are in urgent need of attention. Provincial newspapers, in pursuing a story, are concerned that they may be sued for libel and defamation and it is in that context the Progressive Democrats Party is addressing this matter. Most of us agree that stories published should be at all times as close as possible to the truth if not the absolute truth.
Some stories in daily and evening newspapers leave a lot to be desired, particularly when referring to politicians.A typical example was the way a member of the European Parliament, while away on business, was recently photographed by the seaside, with no explanation as to the time of day or how many hours the person had worked before going for a swim. The view was created that this person spent all his time at the seaside. There is nothing wrong with a person going for a swim after a day's work, but newspapers  create the wrong impression and sadly that is what the public believes. Even though newspaper headlines and photographs may be far removed from reality, people have to live with the consequences.One wonders how people, particularly public representatives, could defend themselves against such media attention.
We live in an era of technology, when it is possible to fax messages and photographs worldwide. Libel laws vary from one country to another and the acceptable publication and reporting of cases in America may not be acceptable under our laws. Recent events here have brought this issue to the fore. Section 43 deals with the question of contempt of court. It introduces into the law the principle that refusal to disclose the source of published information is not contempt of court except in circumstances where the disclosure is necessary in the interests of justice or national security, or for the prevention of disorder or crime. It provides that the court has power to compel disclosure only in those limited circumstances. This section deals with an anomaly whereby previously the messenger was taken to task. It is a pity a journalist was recently taken to court and was released only on a technicality.
The Progressive Democrats Party is to be congratulated on preparing a Bill on the basis of various reports from the Law Reform Commission. We are all aware that the existing position is unsatisfactory.Present law on defamation draws a distinction between libel and slander. If a defamatory statement is made in so-called permanent form it is libel and if it is made in an impermanent form it is slander. The idea is to strike a balance between two competing interests, protection of reputation and freedom of speech.
Judgments in defamation cases are influenced by more than one type of law. First, they are influenced by the commonly used definition of defamation as quoted by Deputy Browne, that is, the wrongful publication of a false statement about a person which tends to lower that person in the eyes of right-thinking members of society or  tends to hold that person up to hatred, ridicule or contempt, or causes that person to be shunned or avoided by right-thinking members of society. Second, they are influenced by the provisions of the Defamation Act, 1961, and third and most importantly, by Bunreacht na hÉireann which guarantees that the good name of every citizen will be protected from unjust attack and guarantees freedom of expression.
The Law Reform Commission report on defamation makes a series of recommendations on the subject, many of which are incorporated in the Bill. They include a proposal to abolish the distinction between libel and slander and the adoption of a more detailed definition of vital terms such as defamation and publication. It is noteworthy that they also include a vital shift of responsibility from the defendant to the plaintiff in defamation cases. This created problems for the Minister, Deputy Taylor, and many of us have had an opportunity to discuss the matter with him.
At present the plaintiff has only to prove that the statement complained of is defamatory; he is not required to prove that it is false. The law presumes that a defamatory statement is false and it is up to the defendant to prove the statement is true. The Law Reform Commission was divided in its recommendations on this issue, and that is a matter of concern to the Minister. A majority felt that the plaintiff should be obliged to prove the falseness of the defamatory statement as well, but a minority objected to this on the grounds that a person should not have to prove his or her innocence in this way. In the light of this difference of opinion I welcome the Minister's proposal to defer a decision on this Bill for nine months by a proposal that the Bill not be read a Second Time. This would allow the Minister, and his Department, to carry out extensive research on the matter while giving immediate priority to the vital reforms of family law, a matter which takes up much time of the Department at present.
I note with interest the way the definition of defamation has been widened by the Law Reform Commission  report. “Publication” is given the broader definition of “the intentional or negligent communication of defamatory matter to at least one person other than the plaintiff”. In an age when communications are becoming increasingly sophisticated our laws must cover every possible outlet for publicity. Technology advances beam sounds and images around the globe every second of the day, and the law should be flexible enough to protect citizens from infringement of their rights.
I agree with the Minister, Deputy Taylor, that it is appropriate to consider alternative remedies in defamation actions, the principal one relating to damages. The current awards of damages paid in defamation cases are high and new legislation should outline clearly the circumstances where such awards should be made. I understand — perhaps someone will clarify this for me — that the Progressive Democrats Party has agreed to accept the Minister's motion. I am glad the Bill was not voted down, that there will be further discussion on this matter and that we will have an opportunity to amend the Bill on Committee Stage.
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