Wednesday, 22 February 1995
Dáil Éireann Debate
Ms O'Donnell: Section 22 clarifies the law on a statement of opinion. This is another extremely important provision and this defence is intended to protect expressions of opinion on matters of public interest. It is crucial that the law should vindicate the freedom to hold and express opinions.
The Bill proposes to rename the defence of “fair comment” and call it “comment based on fact”. It sets out in clear language what the defendant must prove to avail of the defence. In particular, the defendant must show that the comment was on a matter of public interest. It further relaxes the strict liability that has hitherto prevailed by making it clear that if a defendant has exercised reasonable care to ascertain the facts on which the comment was based, he will not forfeit the defence if he cannot prove the truth subsequently in court. That will considerably assist responsible journalists to do their job properly, but will not assist journalists and others who have bandied about  false and unfounded allegations in a careless or reckless manner.
The Bill replaces the defence now known as “justification” with a new defence, “the defence of truth”. It makes clear that where truth is pleaded and the plaintiff proves sufficient facts to extract the sting or substance of the matter complained of, a failure by the defendant to prove the truth of minor and irrelevant details should not be fatal.
It makes it a defence to a claim for general damages that the publisher took reasonable care to ascertain the truth. That relaxes the position of strict liability that has hitherto prevailed. Currently where a defamatory statement is published regardless of how innocently or how much care is taken the publisher is liable. It is important to note that the defence of “reasonable care” is not available as a defence in applications for a declaratory judgment, nor will it be a defence to a claim for special damages, such as financial loss.
There is no difference at present in libel law between an honest mistake and a malicious lie. A person who is accidentally photographed coming out of court may be connected visually with two other people who were being photographed.That can give rise to an accidental libel. Some distinction should be made between an accidental defamation and a malicious publication which would injure the reputation of the person.
The Bill also includes provisions for guidance to the court in making awards for damages. In some cases the manner in which defendants try to defend a statement or alleged libel claim can turn a jury against them. If in trying to defend themselves they end up slinging more mud at the plaintiff, the jury can turn against them and exacerbate the damages for which they will be liable. In the case of Jeffrey Archer there was so much mud flying due to the efforts of the defendants to prove their allegations the defence exacerbated the original libel, and he ended up getting £500,000. The Bill clarifies the roles of the judge  and jury and provides a right of action in certain circumstances where a group or class of persons is defamed.
It is not widely known that one can be sued for libel without having written a word. Printers and distributors are regularly included in writs. In 1980 when Magill magazine prepared to publish an account of the arms trial a solicitor's letter threatening a writ was sufficient to frighten the printer. That part of the magazine had to be printed in England because the solicitor's letter threatened a civil bill although the article was not libellous and nobody sued on foot of it.
In a separate part the Bill implements the recommendations of the Law Reform Commission on the crime of libel by setting out in statutory form the ingredients of the offence and abolishing the crimes of seditious and obscene libel.
It deals also with the subject matter of a Bill we published around the time of Ms Susan O'Keeffe's trial and incorporates its provisions which were circulated by my party before Christmas. It provides limited protection for journalists who refuse to disclose in court the sources of their information. The judge may only order disclosures where it is necessary in the interests of justice, national security or to prevent disorder or crime and journalists may only be prosecuted for contempt in circumstances where the disclosure was necessary in those interests. The clearing of Ms Susan O'Keeffe's name was largely due to the fancy and elegant intellectual “footwork” of her counsel rather than any sense of justice in our present law as it applies.
I outlined last night how the fear engendered by a civil bill in relation to libel can stop matters of public interest being brought into the public domain and has unnecessarily stifled the freedom of the press.
Mr. Penrose: I will examine the Bill from the point of view of the current law on defamation and my colleague, Deputy Kemmy, will consider some practical applications of the law as it stands. Like many other Deputies, I have been consulted on this by the newspaper industry. I do not consider that the law currently restricts the freedom of the press as much as members of the press would like us to believe it does.
I am aware of problems and I have had discussions with representatives of the provincial and regional newspapers who indicated they are experiencing particular problems with the current libel legislation. Many of them indicated they could not afford libel insurance even when it is available because of prohibitive premia. They have also indicated that about 95 per cent of claims arise from accidental typographical errors or minor defamations, mainly from problems in the area of court reporting. That is a significant statistic and one the Bill tries to address. They have indicated also that the right to have a defamation or incorrect report corrected expeditiously cannot always be done speedily because of the methodology applied and insistence on agreement to corrections and apologies. These would be the concerns of regional newspapers. I have listened carefully to them because I know of three or four who employ about 200 people. That is a fairly significant group and it is important to disseminators of vital information in rural areas.
The tort of defamation represents the law's considered response to a number of competing interests. The idea behind defamation law is to strike a balance between two competing interests, namely, the protection of reputation and the protection of freedom of speech. A defendant who has told the  truth has nothing to fear from the law of defamation.
Mr. Penrose: He should not put himself into such a position. If a newspaper comes into possession of information about a person and is not sure whether it is true it should not be published. That may sound basic but that is how I would interpret how a newspaper should act. Up to the time of the publication of this Bill by Deputy McDowell of the Progressive Democrats there was no statutory definition of defamation. Section 6 of the Bill sets out to rectify what I perceive as a major problem in the area of defamation. We had to rely on the common law. The Irish Law of Torts by McMahon & Binchy, page 609, states:
Defamation is committed by the wrongful publication of a false statement about a person, which tends to lower that person in the eyes of rightthinking 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.
This definition derives its authority from judicial pronouncements, and unlike a statutory definition which Deputy McDowell proposes, is capable of extension and further extrapolation and is not rigid. The problem arises as to whether a matter is to be considered defamatory because of what right thinking members of society in fact think or because of what they ought to think. It involves a consideration of the standards of the community and the position of the plaintiff in that community.
It would appear from the judicial decisions that courts must apply community norms rather than apply its value judgment as to how right thinking members of society ought to regard the plaintiff. Section 6 of the Bill deals with these problems and the statutory definition of defamation serves as a useful starting point. Publication is obviously  an essential ingredient of the tort, and communication must be to a person other than the plaintiff, as the kernal of the action for defamation is that the false statement tended to lower the plaintiff in the eyes of right thinking members of society.
Usually the normal communication method of publication is language, i.e by words, spoken or written. Section 14 (2) of the Defamation Act, 1961, explicitly recognises that there are other forms of communication, and refers to “visual images, gestures and other methods of signifying meaning”.
The present law draws a distinction between libel and slander, and essentially the position is that if the defamatory statement is made in permanent form it is libel, but if it is made in an impermanent or transient form it is slander.The Bill before the House seeks to abolish the distinction between both but it is an important saving point to which I will refer later. It should also be noted that a libel may be a crime as well as a tort, and may thus be the subject of criminal proceedings and further from a tort point of view, libel is actionable per se, whereas in general the plaintiff in a slander action, must prove special damages.
The time frame analysis in relation to the current mores of society and indeed the location of the society in which the plaintiff participates in defamation actions are important, as social values change from time to time, from place to place and from society to society. In an examination of the current position applicable to defamation law the functions of the judge and jury are worth examining. It is for the judge to say at the outset whether the words uttered are capable of defamatory meaning in law. If he so decides, it is for the jury to decide whether the words in fact have a defamatory meaning in the circumstances as presented before the court. Unlike my senior colleague here I have been involved only in a few defamation cases.
Section 21 of the Defamatory Act, 1961, made provision whereby a person  who innocently published defamatory material about another could have an opportunity to make an offer of amends. Under this section the offer must be expressed to be made for the purposes of the section and must be accompanied by an affidavit of the facts relied upon to show the defendant's innocence. It was tight and rigid in that respect. The Bill would attempt to examine that aspect in a wider context.
There is a number of defences available to a defendant in a defamation action as follows: justification, privilege — absolute and qualified — fair comment, consent, apology and offer of amends. I will deal briefly with a few of the foregoing defences.
The justification defence obliges the defendant to prove the truth of the alleged defamatory statement. Deputy McDowell said that was the real problem.Where this defence is available, it is a total defence and cannot be destroyed even by showing malice on the part of the defendant or that the defendant believed that statement to be false when he made it.
It is for the defendant to plead the truth of the statement and not for the plaintiff to show that the defamation was false. Once the plaintiff shows the statement to be defamatory the presumption arises that it is false and the onus is on the defendant to justify. This is where I would have difficulty with section 9 and the thrust of the Bill — a matter to which I will refer later. Accordingly, if the defendant fails in his defence to justify the statement, and in effect has persisted with what amounts to a lie, he may well have to pay aggravated damages for having done so. I agree with that and would differ from Deputy McDowell here, as the defence is established by the defendant if he can prove that the defamatory statement is substantially true, even if it is not true in every detail. The defendant has a reasonable opportunity to establish the veracity of what he is saying and that is as far as it should go.
 In some circumstances the law considers that the public interest in the freedom of speech can be best served by ensuring uninhibited expression. Such an occasion is said to be privileged in law. Privilege is either absolute or qualified.When it is absolute, the defendant is totally protected in respect of any statements made by him. I note that section 17 abolishes the rule of law that communications between members of the executive are absolutely privileged. I support the inclusion of that section in any forthcoming Bill on defamation.
Malice destroys qualified privilege but not absolute privilege. A person who makes a statement on such occasions is protected provided he or she was not motivated by malice in making the statement. If you make a statement because you have a duty to speak or because you are obliged to protect an interest, those statements are privileged provided no malice is involved.
It is against the foregoing background that the Law Reform Commission in 1989 was given a wide brief by the then Attorney General to submit proposals for reform of the law of defamation, both civil and criminal, and contempt of court. The civil law aspects of Deputy McDowell's Bill which we are debating draw heavily upon the Law Reform Commission recommendations, but his Bill also deals with the criminal defamation area and contempt of court.
The main changes which it proposes in the existing law of civil defamation include the following: (a) the distinction between libel and slander would be abolished; (b) plaintiff would have to prove that the allegedly defamatory material was false, whereas at present, if the material is proved to be defamatory it is for the defendant to show it is true; (c) new remedies are proposed which would aim to shift the focus away from high damages awards and (d) the defences available in defamation actions would be recast with the aim of making them clearer and more comprehensible. That is a laudable provision which should be supported.
 It should be clear that this is a complex area of law to which much time must be devoted to tease out the various issues which have the potential to be controversial. There are different interests which need to be reconciled. On the one hand, the media in particular would be anxious to see some liberalisation of defamation law. It has been said that they find themselves constrained by unduly harsh defamatory laws. On the other hand, individual citizens are concerned that the law should offer them the appropriate mechanism to vindicate their reputation should they feel that their character has been impugned.
The complexity that arises in this area involves striking a balance which necessitates a review of constitutional law, statute law and common law. Accordingly, I am in total agreement with the procedure adopted by the Minister for Equality and Law Reform in tabling an amendment to allow the Bill to be read a Second Time in nine months' time. This will allow an opportunity for debate, critical analysis and evaluation of this complex subject.
The proposal to abolish the distinction between libel and slander is in accord with the Law Reform Commission report which advocated that there should be a new cause of action in defamation in which proof of special damage is not necessary. This proposal is worthy of support. I would not be happy to support the change in the law proposed in section 9 which places the burden of proof on the plaintiff to show that the matter contained in the publication was defamatory which necessitates the establishment of its falsity, and that the defamatory matter concerned the plaintiff. Currently, as I said, the burden is on the defendant in a defamation action to establish the truth of the statement if the defence of justification is raised.
I note that the proposal now included in the Bill was the product of a majority decision of the Law Reform Commission who supported the abolition of the presumption of falsity of defamatory  statements. The current legal position where a defendant must substantiate the defamatory statements which they are alleged to have made should be retained.
I agree with the thrust of sections 11 and 12 which respectively deal with offer of apologies and lodgement in courts. The provisions of section 12 allow for the same procedure concerning lodgements which is currently pursued with other civil actions in tort to be adopted in cases of defamation. It is right and proper that this procedure be standardised in the fashion set out in section 12.
Currently the main remedy available in defamation actions is damages. The Bill attempts to address this approach by providing for alternative remedies. In particular it focuses on applications for declaratory judgments in lieu of damages as set out in section 8 and declaratory and corrective order as set out in section 13. These procedures undoubtedly have the aim of providing a plaintiff with a cheap and speedy mechanism for vindicating their right to a good name. These proposals should be carefully examined and explored during the course of this debate and in the intervening time proposed by the Minister for evaluation of the matter.
There is a view abroad that the level of damages is too high. Section 27 sets out various factors which a court should take cognisance of in making an award of general damages. This is a useful starting point, but I anticipate that the factors enumerated in section 27 are not exhaustive and would focus on acts and omissions on the part of the defendant in the assessment of damages.
As I understand it, section 26 effectively deprives a person whose reputation has been damaged of any award of general damages if the defendant newspaper manages to satisfy the court that it tried to get it right, and that it exercised reasonable care before publication of the material. The problem with this — I am open to correction — is that the court might well accept that the plaintiff has suffered substantial  damages, some of which cannot be quantified, which are in effect intan-gible, such as loss of financial opportunities.Perhaps this provision could be considered before the Bill comes back to the House.
Section 10 provides that a single publication will only give rise to a single cause of action. This has the effect of abolishing the rule of law under which each legal innuendo in a single publication gives rise to a separate and distinct cause of action. This is a sensible streamlining provision and is in accord with recommendation 14.4 of the Law Reform Commission report.
Deputy McDowell, and his party, have served a useful purpose in bringing forward this Bill. I appeal to them to accept the amendment put forward by the Minister to allow a period of time for due consideration and debate of the subject. I am sure the Minister will consider a number of the worthwhile proposals in the Bill and will note my reservations and those of other Deputies about aspects of it. I hope he will bring forward a Bill that will meet some of the problems experienced by the newspaper industry. I do not agree that current defamation laws have restricted freedom of the press in reporting and investigation.
Mr. Kemmy: The press and other sections of the media made a good case in lobbying all Deputies for a Bill such as this. It certainly created an awareness among politicians, if not among the public, of the need to bring about changes and progressive reform in this field. Deputy McDowell responded to the case made by the media by introducing this Bill.
Mr. Kemmy: I still publish material. I have been defamed and libelled but I never took an action against any publication.The purpose of the Bill is to clarity the law on defamation. It proposes a number of reforms which include making a distinction between libel and slander.The plaintiff will have to prove that allegedly defamatory material is false. There is an old saying in the newspaper industry, the greater the truth, the greater the libel. I think it is Deputy McDowell's intention to make changes in that regard and I agree with that.
The Bill proposes that where the court is satisfied that reasonable care has been taken before publication of material, no damages will be awarded. It also proposes changes in regard to contempt of court. If the Bill is passed cases such as that involving Susan O'Keeffe may not arise. Without putting words in his mouth, I think Deputy McDowell might also have had such cases in mind.
The Bill follows on from the Law Reform Commission reports on defamation and libel. A balance must be struck between freedom of expression, freedom of the press, fair comment and justice for individuals and associations. As Deputy Penrose said, this is not all one way traffic. We have heard very little from newspapers about their obligation to look at their own record and put their house in order. They have been very loud in their campaigns and in lobbying us — and we have responded to them — but they must also put their house in order.
The legal profession also needs to put its house in order. It has been stated by newspapers that some members of the legal profession are constantly on the look out for libel and defamation cases which are normally settled out of court. We have seen many examples of such cases. One or two Members of this House have become fairly wealthy as a result of settling cases out of court. During their campaign for a change in the  law, the newspapers said they could not do their duty and were being inhibited and handicapped by the law. They also said that the threat of being sued inhibited them from publishing certain information and making free comment. I will refer to this point later.
Local and national newspapers have paid out much money in settling cases which they do not consider were scandalous, libellous or defamatory in nature. However, there have been disturbing trends in newspapers which have not been alluded to by them. I am not squeamish about newspapers; I am a robust performer and I can give as good as I get. However, I am worried about some of the changes in the newspapers, especially the Sunday newspapers.Many editors now favour headlines which will cause hype and sensation and to boost circulation and they push freedom of expression to new limits. I wonder about these new limits and question whether the use of four letter words and salacious material does anything to help freedom of expression in our society.
I am not attacking journalists, many of whom are paid a modest wage to do a difficult job which, as we have seen in recent times, has a certain element of danger attached to it. Rather I am talking about the so-called personality columnists who are paid as much as £500 per week to write an article. I have been told that one celebrated journalist is paid £1,000 for her article. I do not begrudge her this money but it seems to be out of line with the salary paid to ordinary journalists who work from nine to five and sometimes work antisocial hours. Personality columnists use provocative and controversial language and make attacks on individuals. It is a personalised form of journalism, a new form of journalism in Ireland. These articles are spattered with abusive language and four letter words.
I read all the Sunday newspapers and for the past two years the Sunday Independent has had a bias against the Labour Party, including me. One of these  columnists is a Senator with a stockbroking background. Even though his party is in Government, he is still intent on attacking the Labour Party. I hope he will desist from making these attacks.
Mr. Kemmy: I do not have any shares and do not get too many votes from the stockbroker belt. That is why I can stand up in the House and speak about it with impunity. I am against this kind of invective and scurrilous abuse of innocent people. I am not against banter but some of the people who engage in this type of tirade are no paragons of virtue. Their record would not stand up to much scrutiny and their selfrighteousness does not impress me at all. One would think that butter would not melt in their mouth, but if one checks their background one will find that they have had chequered careers. I am not talking about typographical errors, banter, innocent mistakes or honest criticism, all of which are healthy for society. Neither am I referring to a journalist's right to comment freely on issues of the day. Rather I am referring to innocent people who are wronged by newspapers and who ask for an apology which is often less than fulsome. These are the people we should be defending.
This is not a black and white issue. It is very easy to talk about a free press, but what does it really mean? More wealthy people and monopolies are taking control of the newspapers. Does this represent a free press? This issue needs to be re-examined. Nothing will be lost by waiting another few months to ensure a proper balance in this area. I support the Bill by and large. The Deputy has done a good day's work and if the measures proposed by him in the legislation are carried through by the media then we will have a better and healthier society.
Dr. Woods: Deputies Penrose and Kemmy said they had been heavily lobbied by the newspapers in regard to this matter. I was not lobbied by anybody and perhaps the newspapers are giving special attention to the Labour Party. I can, therefore, speak on the issue in a totally pure and unconnected way.
Dr. Woods: I am as pure as the driven snow. I welcome the Bill in principle as a genuine effort to modernise and reform the law on defamation. Centuries of judge-made law, intertwined with the Defamation Act, 1961, has led to this area of the law being perceived as too complex. There is a heightened perception in the media that the scales of justice are tilted against them. I presume that that is what the lobbying was about.
A former Member of the House used to ask if his name was spelt properly in the newspapers and whether it was in large print — that was what mattered to him at the end of the day. Not everybody would agree with that view. I had the unpleasant experience whereby something which was innocently said in the House was carried in the media and almost led to the extinction of my family, so to speak. I had a particular belief at that time and I maintained my position and things worked out all right. I therefore have some understanding of the fears and concerns of ordinary people who find themselves in this position.
The reports of the Law Reform Commission were both necessary and timely. Deputy McDowell's Bill is mainly based on the recommendations of the Law Reform Commission. While the Commission undoubtedly devoted a great deal of time, energy and expertise to this topic and produced an excellent report, we should reflect deeply before enacting all the provisions in the Bill. Many of the provisions are uncontroversial and merit speedy enactment as worth-while reforms.
 It has to be remembered that the basic strategy of the law of defamation is to strike a balance between two important constitutional rights — the right of the individual to the protection of the law for his or her good name and the right of everyone to freedom of expression. Reconciling these two rights to the maximum degree possible has to be the goal of the law of defamation and it is against this objective this Bill must be considered and judged.
The abolition of the old torts of libel and slander and their replacement with the new tort of defamation is good. The distinction between libel and slander is no longer of sufficient relevance to justify maintaining the two different types of defamation. Confusion and unnecessary complexity are the only obvious results of maintaining these two old versions of defamation.
As is apparent from the report of the Law Reform Commission and this debate, the proposed damage and the aspect of the Bill has given rise to greatest concern and controversy is the shifting of the burden of proof of defamation.In this Bill this change arises from the combined effect of the definition of defamation as contained in section 6 together with the burden of proof imposed on a plaintiff by section 9. The results of the interaction of these sections is that, inter alia, a plaintiff must prove that the publication which is alleged to be defamatory is untrue.
This would undoubtedly be a radical change in our defamation law. The burden of proof would be transferred to the plaintiff. The media very strongly advocated this change arguing that under existing law it is open to a plaintiff who knows a published statement is true to, nonetheless, sue successfully for defamation because the plaintiff knows that the defendant will not be able to bring into court admissible evidence which is of sufficient weight to prove the truth of the statement concerned. They argue that this present state of the law is an unfair and unjust fetter on them in the discharge of their role.
 There can be no doubt there is considerable merit in this point of view in light of the experiences of cases over the past 20 years or so. It must be asked whether the proposed change results in striking a fair balance between the right of an individual to his good name and the right of the media and, indeed, all citizens to freedom of expression.
To resolve this question a consideration of what is likely to happen in practice if this change is enacted is helpful. I accept the view that in most cases there would be very little difference in practice.Under existing law, even where the truth of the allegation is not at issue, a plaintiff in his evidence usually deals with the fact that the statement is untrue and how that untruth has affected him. In so doing he will normally present a portrait of himself or herself to the jury or to the judge which illustrates the untruth of the alleged defamatory statement.Under the proposed change, in most cases proving that the alleged defamatory statement is untrue will, in all probability, come down to the same thing, namely, the plaintiff in his own evidence denying the truth of the allegation and asserting his own good name in the context of the alleged defamatory matter.
If a defendant wishes to pursue his contention that the statement is true he will have to produce admissible evidence of sufficient weight to convince the jury or the judge that the plaintiff's case should not be accepted. If the defendant is unable to produce such evidence the plaintiff's case will prevail. While this may be so in most cases there will be a small but significant number of cases where the burden placed by this change on a plaintiff might be too heavy and, thus, injustice could result.
I have in mind cases where the alleged defamatory statement or statements are part of or a result of an extensive investigation conducted by either the print or broadcast media into the affairs of an individual. In such circumstances it is foreseeable that the individual might lack the resources, skills and experience to deal effectively with the  situation and might, for that reason alone, be unable to protect his or her good name. Having to prove that the alleged defamatory statements were untrue could be too heavy a burden for a person of modest means to bear against the might of the media.
Before going ahead with this change careful thought should be given to such a situation which, as we all know, is a familiar and worth-while part of modern media activity. It is essential to ensure that the proposed change does not simply replace one injustice with another, the latter being perhaps worse than the first.
Section 11 which provides that making an apology cannot be construed as an admission of liability is welcome. It should encourage defendants in cases where it would be appropriate to make an apology without the fear of being penalised. Provisions in section 12 which enable a defendant to lodge money in court on the same basis as in other civil actions will enable defendants to meet cases on a basis which limits their risk or exposure and, as such, is to be welcomed.This section should also have the effect of ensuring that fewer cases go to trial thereby saving costs.
The reform envisaged by section 8 is an excellent idea. Under this section a plaintiff can make a speedy application to a court and can obtain a declaration that the statement was false and defamatory. This is a valuable procedure for someone whose only concern is to clear their name as expeditiously and quickly as possible, and is not interested in recovering damages. The downside of this procedure from a plaintiff's point of view is that if it is availed of a claim for damages cannot be pursued later. This in itself may not always be bad. As the Bill stands, however, it is open to two practices on the part of defendants which could seriously damage the effectiveness of this proposed reform.
The first is where a plaintiff is pursuing a claim for damages which, in the circumstances, could be meritorious. He is likely to be attacked for not availing  of the procedure under section 8 and to be accused of being interested only in money and not in the protection of his good name. In a meritorious claim for damages this kind of attack would be very unfair to the plaintiff. A suitable amendment is required to prevent defendants during a trial where damages are claimed from mentioning that the plaintiff has not availed of the procedure under section 8.
The second problem under this procedure is that where a plaintiff decided to opt for it on the basis of clearing his name as fast as possible but foregoing the prospect of claiming damages later, it is open to a defendant under the Bill as it stands to mount a full defence to the plaintiff's application. This would put the plaintiff in the worst of all worlds — he would not get his speedy vindication and he would have forfeited the prospect of damages as a means of clearing his name.
This defect has the potential to ruin the effectiveness of this remedy and, to save the section from this, it would be necessary to amend it to add a provision to the effect that in an application under section 8, where the defendant puts in a defence which raised some or all of the defences available to the defendant, the court should have discretion on the application of the plaintiff to convert the application under section 8 into a full action for defamation, including, if the plaintiff so wishes, a claim for damages.
Dr. Woods: Sections 22 and 26 give rise to real concern for the protection of a right of a person to his or her good name. These sections provide a defendant who has been found by a court to have published a defamatory statement with a defence to general damages where the defendant shows that reasonable care was exercised by the defendant in ascertaining the truth of the defamatory statement.
 The problem with this defence is that it will be so difficult for a court to decide what is “reasonable care”. Presumably, a reporter takes “reasonable care” by checking a story with various sources to satisfy himself or herself of the truth of the story. It is to be anticipated that journalists, being true to their own ethics and replying to section 43 of the Bill, will refuse to reveal the identity of their sources. If this defence were to be available in these circumstances it would, obviously, be a grotesque failure to vindicate the right of a person to his or her good name.
As a minimum this defence could not be available to a defendant in a situation in which the defendant was unwilling to reveal the identity, in advance of the trial, of the sources on which he or she relied in putting the story together. Apart from this it is, at the very least, arguable that where a defendant has been found by a court to have published a defamatory statement, that having taken it on themselves to publish, they should be obliged to compensate for the damage that has resulted to a reputation where the initiative in publishing was entirely that of the defendant's.
I am unhappy with section 27 (5) which permits both plaintiffs and defendants to address a jury on the amount of damages. It seems to be undesirable in principle. The purpose of a jury in these cases is that they bring their knowledge of life and, in particular, monetary values to bear on the question of damages unfettered by any overbearing pressure or control by either contending lawyers or the judge in the case. If the contending lawyers were permitted to mention and argue about particular figures and if the judge had the obligation to give the jury guidance on specific amounts, it would defeat the purpose of a jury in the first place. This provision might also open up the prospect of an unseemly option before the jury.
As I said, this Bill is a move in the right direction. Certain parts require more reflection before they can be comfortably accepted, in particular the  change in the onus of proof. A number of other provisions can, as I indicated, benefit from some amendment and we will put these forward on Committee Stage.
I endorse remarks made by my colleague, Deputy O'Donoghue, in regard to defaming the dead. We, on this side of the House, are firmly of the view that the law should be reformed in this regard and a legal remedy provided to the next-of-kin of a deceased person who has been defamed. This remedy should be in the form of a declaration by a court and we will table an amendment to achieve this on Committee Stage.
We are in favour of a new defamation Act to replace both the common law provisions and the Defamation Act, 1961. We generally favour the new scheme of defamation law put forward by the Law Reform Commission and in this Bill. We are concerned about the proposed change in the burden of proof of the untruth of a statement from the defendant to the plaintiff who claims to have been defamed. We want to see this crucial issue teased out in greater detail on Committee Stage. We favour a new proposed quick procedure for clearing a person's name in the form of a declaration in lieu of damages. The present proposal would need at least two important amendments to make it acceptable and effective.
We are in favour of the new process for an apology without an admission of liability but we are not in favour of a defendant escaping liability on the basis of taking reasonable care, especially where disclosure of sources is refused. In principle it may be unfair to a person who is the victim of a defamatory publication over which they have no control to be deprived of proper compensation on the basis that the publisher may have taken reasonable care, but at the same time published an untrue statement.
We support the proposal to give the Bill a Second Reading in principle but it needs substantial amendment on Committee Stage. In addition to remedies in the Bill, there should also be a  remedy in the form of a declaration that a statement concerning a deceased person is false. I suggest that there should be a media Ombudsperson, funded by the media, to deal with complaints about unfair treatment by the media. If these steps are taken it would lead to a fair balance between freedom of speech and the protection of the reputation of the individual. May I share my time with my two colleagues?
Mr. B. O'Keeffe: This Bill is like a bag of liquorice all sorts — one may like some parts, but not others. That is why it is important that we retain sections which need to be reformed and which must be addressed by the House. The State goes out of its way in its laws to guarantee, respect and vindicate the personal rights of the individual. It goes even further to protect the individual from unjust attack, to vindicate their good name and the property rights of each citizen.
As politicians we should keep that in mind because we are buffeted every day by attacks. At the same time we must be conscious of our immediate families and protect them from any transgressions which might befall them. Over and above that we have a duty to those we represent to ensure that any legislation we enact does not diminish their rights should they be wronged, particularly by the media. The question we must tease out is how can we maintain a balance between the right of the media and the right of the individual? In my view this Bill seeks to change the balance which has existed in favour of the media. That is something which requires careful scrutiny.
The Bill proposes that if a newspaper publishes a column which is seen by an individual to be false, incorrect or, indeed, damaging, the onus is transferred to the individual to prove that he or she has been sinned against. This is a dramatic transformation and begs the question as to whether the plaintiff and  the defendant should be on a level playing pitch if an action is taken. I ask that because it was not a level playing pitch when the attack was made on the individual.
The Law Reform Commission report on which the Bill is based suggests that one right should not necessarily give way to another. As a layman who is not imbued with an acute legal knowledge, it seems to me that a person is innocent until proven guilty and that if the media makes a charge it is natural justice that we demand that it justifies that claim. A further difficulty arises in the present legislation where an erroneous claim has been made against an individual and retractions are made. Unfortunately, the retraction often does not get the same prominence as the original claim. Those in political life could argue that when aspersions, false or otherwise, are cast about two thirds will stick to the individual concerned.
An individual would be entitled to damages if, for example, a journalist said they did their best to get at the truth and that their usual source was extremely reliable and must be protected.Under the Bill no damages would be paid in circumstances where it is deemed that reasonable care has been taken. The difficulty I have is that reasonable care is not defined in the Bill and this could encourage the emergence of the gutter press. Many speakers who defended the press said it has been extremely responsible and, indeed, it has.
Punitive damages are normally high and carry with them the consequences of the gravity of the allegation. Section 28 places barriers in the way of the plaintiff obtaining punitive damages. Surely this is not natural justice. Who will determine what is meant by reckless indifference? Again, why should the plaintiff be asked to establish reckless indifference? Why should this be so where no thought is given to the falsity of the situation? Would it not tempt the author to run the risk and let the plaintiff try to prove reckless indifference?  Surely this cannot be seen as natural justice. In dealing with this Bill a further problem is posed when one considers that 80 per cent of the print media may soon be owned by multinational firms.
Mr. Justice Flaherty recently suggested that politicians should not sue. It is only right for politicians to claim that they are as entitled to their good name as anyone else. In promoting the Bill those politicians who contribute to the press are conscious of the fact that they could be accused of pandering to the press. I make no accusations in that regard.
In two articles in a Sunday newspaper last week allegations were made against a prominent businessman which were subsequently proved to be correct. As the research for the articles was soundly based the newspaper in question should have stuck by its story knowing that it was in possession of the facts and that the counter claim was inaccurate. It did not have the courage of its convictions and backed off rather than go to court. The newspapers, like local authorities, are a soft touch and need to be more aggressive in defending stories which they believe are accurate.
The soft option is to transfer the onus to provide proof, to minimise the opportunity to obtain realistic damages and the newspaper becomes the winner. There is room for a change in the law. Printers and distributors should be excluded from libel actions given that there is no malice, intent or wrong-doing in fulfilling a contract which does not involve scrutinising the contents closely.
Mr. Nolan: I welcome the opportunity to speak on this Bill. It has been clear for some time that the law on defamation is in need of reform. It is a complex law and there are constitutional issues which would have to be addressed in changing the legislation. A balance must be struck between the right to freedom of expression and the right to protect one's good name and reputation.In changing the law one would have to seek to protect the newspapers but in so doing one should not condone or reward unacceptable carelessness at the expense of the individual.
Many of our newspapers are feeling the chill wind of falling circulation. The provincial newspapers in particular are finding it difficult to survive because of the advent of local radio and the aggressive marketing campaigns of the national newspapers and the English tabloids. I am not suggesting that the threat of litigation has contributed to the fall in circulation but editors and sub-editors are now acutely aware of the need to be careful in printing stories.
The provincial newspapers have made a submission to the Minister on the current position in relation to libel legislation and their experience in this regard. During the past five years their profits have been halved and many of their members cannot afford to take out libel insurance, even when this is available to them, because the costs are prohibitive.Legal costs attached to settlements and judgments are so high that it is now the norm for members of the provincial newspapers association to agree settlements even when there is a strong indication the claim might not succeed in court. The danger of the remotest risk of court damages and costs, protracted settlement negotiations and the consequent costs and the failure of current legislation to meet changing circumstances in society are seriously affecting the viability of their businesses.
The provincial newspapers claim that the national newspapers can carry the cost of several substantial defamation awards and still survive because of their  large circulation and profitability while one substantial defamation payment could put any provincial newspaper out of business. In recent years 30 members of the provincial newspapers association have paid out over £2 million in defamation settlements and legal costs. Up to six or seven years ago the bulk of these cases would have led to the publication of a correction or apology without damages being sought. Nowadays a correction or apology may be used as evidence in court to support a plaintiff's case. The provincial newspapers claim that this forms part of the new compensation culture but it is not confined to the newspapers. Evidence can be found in the local authorities and in recent motor accident claims which ended up in court.
I am informed that there are issues which are crying out for attention and need to be highlighted but the newspapers will not deal with them because of the fear of litigation and claims for defamation. In their submission to the Law Reform Commission and the Minister the provincial newspapers made a number of recommendations, some of which are worthy of examination. They suggest that payment to a court should be allowed and this should not be taken as an admission of liability. They further suggest that the circulation and the extent of the publication of the defamation should be taken into account; that there should be a limitation period of one year in which to institute claims; that juries should determine guilt or otherwise and that judges should measure the damages to be awarded; that the distinction between slander and libel should be abolished; that there should be a definition of “defamation” and that in measuring damages a distinction should be made between malicious and irresponsible defamation and accidental defamation.
Dr. Upton: I welcome the Bill and compliment Deputy McDowell and the Progressive Democrats for drafting it. I share the Minister's view however that what is at issue is not a national priority. I can see why he ranks it well down his list of priorities, given the material he is trying to deal with in the run-up to the referendum.
The present law tries to strike a balance between conflicting interests — the freedom of expression and the right of the individual to protect his good name and privacy. The Bill has been influenced by the reports of the Law Reform Commission. We should not overlook the fact that these reports contain recommendations. We should not be influenced excessively by recommendations even if they are made by distinguished people. In the last analysis the Houses of the Oireachtas have to have the final say.
I am concerned about two sections of the Bill in particular, sections 9 and 26. I would find it hard to accept the fundamental changes proposed in section 9. It would be wrong to impose the burden of proof on an individual who has been libelled. This radical change would be quite wrong. We have to bear in mind that it is difficult to prove or disprove many propositions or statements. If the obligation or onus was shifted to the plaintiff, in many cases false statements would stand as the plaintiff would not be able to prove that they were false. It is unfair that citizens should be placed in a situation where the burden is on them to prove their innocence when somebody, for whatever reason, takes the initiative to libel them.
The second part of the Bill about which I am concerned is section 26. This relates to the concept whereby general damages would not be available in the event of the defendant having exercised reasonable care before publication. I  agree with Deputy Batt O'Keeffe that there is not any definition of “reasonable care” in the Bill. I am not a lawyer and I share some of the views expressed by other Members of the House in relation to lawyers but I presume a definition of what amounts to “reasonable care” will become available when a variety of future court cases have established its definition. However, if a person takes what amounts to “reasonable care”, are they then in a position to libel other people even when they know that what they are doing is false? If that is the case it represents a fundamental change and it is an area that should be examined.
There are many commendable aspects to the Bill. I agree that where an apology is given it should not necessarily be taken as an admission of liability.I can see why the differences between libel and slander can be merged in the one Bill although if one libels a person, there is a little more to it than saying something which is slanderous.On many occasions such comments are made off the top of the head but if one goes to the bother of writing something a little more effort is involved.
Mr. Flanagan: I am grateful to Deputy Upton for sharing his time with me. I do not have time to address all the issues in the Bill. I congratulate Deputy McDowell and his party for the opportunity to debate this matter. It is long overdue and I hope, in the context of the forthcoming committees, that we will be able to discuss in committee many of the important Law Reform Commission reports. I doubt if we would be discussing the law of defamation in the context of the Law Reform Commission consultation paper and its final report if it were not for the Progressive Democrats.
On the question of the burden of proof, referred to by earlier speakers, the provision in the Bill represent a major change that is far too sweeping in the circumstances. At present, one must prove a statement is defamatory and  show loss in the form of damage. Perhaps we are infringing the rights of our citizens by requiring them to prove their good name in a court of law on foot of an allegation of alleged slander. We should not place such a burden on a person.There should be a presumption that a person's name is good unless the contrary can be shown. The constitutional protection given to an individual is the type of safeguard we should retain.
I realise I do not have sufficient time to deal with my other concern. I look forward to the Minister's legislation in the coming months and I hope we have an opportunity to deal in some detail with the important matters contained in the Bill.
Mr. M. McDowell: I thank the Deputies from the various parties for the thoughtful contributions they made in the past two weeks to this Bill. I did not come into this House with this Bill saying that I had a peculiar insight into these issues which is more valuable than that of other Members of this House. The reverse is the case. Nor do I come into this House as the cat's-paw of the newspapers trying to produce a libel law that suits them because if anyone compared this Bill with what the national newspapers produced by way of their own model Bill, there are significant differences.Nor do I accept without criticism the Law Reform Commission's view on any issue because, as pointed out in the past few minutes, it is not any more qualified, in the last analysis, to come to judgments on matters of public policy than elected public representatives.I take its views seriously however, and I take any arguments it makes on deficiencies in the existing law with a considerable degree of seriousness. I found, looking at much of the contents of this Bill which is based, admittedly, on what is recommended, that its arguments were persuasive for the kind of changes it proposed. The majority of Deputies in this debate have said that they would not have any difficulty with most areas of the Bill and that was a positive aspect of the debate.
 There are a number of areas which were controversial and it is to those that I will now address myself. The question of the onus of proof caused some difficulty to the Law Reform Commission and to many Members of this House. It is a question on which it is possible to have different and strongly felt view points. I am persuaded by the majority view of the Law Reform Commission. which it reached having heard a debate which it generated. The Law Reform Commission was of an opposite point of view. It wanted to leave the onus of proof as it was and put that out for discussion.The majority of people who commented on its discussion paper said it was wrong to have, in defamation cases as opposed to other cases such as assault, personal injury and other forms of personal civil litigation, a different standard of proof whereby the plaintiff could go into a court and say that something is defamatory, that they rebut it and that it is up to the defendant to prove it is false.
I will give a simple example. If a newspaper printed an article about me to the effect that I accepted a bribe for a vote or for a decision I took in my political life, the very least I must do is go into a witness box — if I want damages from that newspaper — and say that I did not take a bribe. If I want damages for a broken leg, false imprisonment or for a variety of other things, the very least I must do is prove that the elements of the wrong committed to me were committed. In my view it is wrong — I agree other people have a different view and the minority in the Law Reform Commission had a particularly strong and virulent view that it would be wrong to change the onus of proof——
Mr. M. McDowell: ——to go into court and say that it is defamatory of me to say I took a bribe, I am the person named in the article and I want to hear the evidence that I took a bribe. That is wrong and I know many Deputies in  this House take a strong view to the contrary. They believe that the person who alleges that should prove it to be true. One must bear in mind that the person with most peculiar and special knowledge as to whether anything is true or false is the plaintiff in a defamation action. If I took a bribe it is something which I know to be true or false and it offends my reason that I could go into a witness box, take an oath as a plaintiff in a defamation action, not address that issue as a matter of choice and obtain vast damages without at least committing myself to the proposition that what was said about me was false.
Mr. M. McDowell: I do not accept that proposition. The Law Reform Commission hit the nail on the head when it said that in the vast majority of cases plaintiffs are quite happy to go into the witness box and say that whatever was said about them of a defamatory nature was untrue. It is very difficult to envisage circumstances where a plaintiff would get by a jury, in particular but perhaps he could easily get past a judge without actually asserting the falsity.
Mr. M. McDowell: I believe the onus should be firmly on the plaintiff to prove falsity of the issue and in most cases a mere denial is quite sufficient. For instance if a newspaper knew that before I made a decision of a particular kind £50,000 has appeared in my bank account the night before, I could go into the witness box and not advert to that fact and not be cross examined on it for whatever reason and still get damages. Even if a newspaper knew that I was the only person who knew where this money had come from, I think I should be in a position of at least saying that money does not represent a bribe.  Others may disagee and I accept that others have a different point of view——
Mr. M. McDowell: I accept that but all I ask is that Deputies look at the Law Reform Commission's report on this matter. It was of one view but changed its view, and for good reason. If this House in its wisdom comes to Committee Stage on defamation law and takes the opposite view, I will live with it because, frankly, as the Law Reform Commission said, it does not really matter where the onus of proof lies because in the vast majority of cases a jury will look with slit eyes at a plaintiff who does not actually deny the truth of the allegation that was made against him. That is my strong view but I will not go to the stake for it. If other Members take a different view, so be it.
It has been canvassed that the present libel law is all that is keeping the media in Ireland from becoming the same as the media in England. The English media operates under the exact same law as Irish newspapers. Many Deputies share the very strong view that there should be a mechanism to protect privacy.Whether there should be an Act, as the Law Reform Commission has canvassed to protect people's privacy or alternatively a press counsel, which I favour, which would conserve where necessary decent standards in journalism is a separate question. Defamation and privacy laws are concerned broadly with the same issues but I do not believe  we should make the mistake of believing that it is the defamation law that keeps Irish newspapers from turning themselves into the Sun. If an Irish newspaper wants to print something about some one they can prove to be true, no matter how intrusive it may be to the person's privacy, for example if they can prove anything about a Deputy's private life, no matter how irrelevant it is to his or her function as a legislator or as a public representative, they can print it if they can prove it. It is wrong to confuse privacy law, which I believe needs to be addressed in Ireland and England, with the question of defamation, which is taking away someone's character by saying something that is untrue about them. The two things though related are first cousins and not brothers, or sisters, to be politically correct.They are not the same and we should not confuse them.
Deputy Kemmy thought I would be surprised at how positive he was about the Bill. I am not surprised that the great majority of Deputies were positive about the general thrust of the Bill because generally speaking it is obviously aimed to achieve changes that most Members consider fair and right. I do not claim the credit for the Bill itself because it comes, as I have said, largely from the Law Reform Commission report. The Deputy went on to discuss the issue of the press and suggested by implication that someone like me had a rose tinted view of the media. I do not. Like most Members of the House I am worried by the increasing concentration of the Irish media in the hands of very few people. Deputy O'Malley, the former Leader of my party, took a stance against such concentration and believed it was necessary that the media should be spread and should not be in the hands of a few powerful individuals. I am deeply concerned that the entire media in this country may fall, like the sets on a monopoly board, into the hands of one or two powerful individuals.It would be wrong if such development were to go unchallenged. Frankly I would prefer to see competition of a  multinational kind, in the shape of Rupert Murdoch, rather than have all our newspapers owned by one Irish man whoever that person might be.
Under the present scheme and under the proposed Act there will be no provision for legal aid in libel and slander cases or defamation cases, should the law change. I think that is correct because we should not go down the road of considering all litigation to be good and that everyone should be assisted to bring every case he possibly can. I do not believe in that proposition or that litigation is a necessary good — it is good for a few people, especially lawyers, but it is not necessarily good in a society where there is more and more litigation. I have never heard of anyone who had been seriously defamed being put off commencing proceedings on the basis that no lawyer would act for him on a no foal, no fee basis.
Mr. M. McDowell: Therefore I do not think there is any need for legal aid. Two gentlemen who were convicted by the Circuit Court in Dublin of receiving the proceeds of an armed robbery on a lorry carrying cigarettes were convicted and sentenced to prison and from their prison cells they sued the newspapers that inadvertently published suggestion that the pair were charged with the armed robbery which produced the cigarettes they received. They recovered damages. We live in a strange world where people who are in a prison cell convicted of an offence of dishonesty can recover damages from a newspaper in circumstances where most people would raise their eyebrows.
I do not believe that many of those who sue for defamation have really been damaged. A great many sue because a mistake was made about them and they have got into a state about their reputation to an extent that is unreasonable. I have seen a great many defamation cases and proposed defamation cases in court and instances  where people were encouraged to bring defamation cases where honest errors were made by the media. We do not want defamation law, reformed or unreformed, to become an easy kill for people who are the victims of genuine error. We should have a balance on this issue. It was suggested in the contribution made by the Minister for Justice and the Minister of State that the crime of defamation is committed by a person who is reckless as to the truth or otherwise of a statement he made. This Bill abolishes the distinction between libel and slander. It would be a mistake — I say this after some consideration — to make every reckless spoken word the  subject of a possible criminal offence merely because the person is reckless as to whether it was true. The Bill is preferable in this way to the proposal of the Law Reform Commission.
I commend the Bill to the House. I do not believe we should wait nine months for further action. Now is the time for a Second Reading. If a Committee Stage debate was imminent the Government would address this important issue urgently. The nine month postponement is likely to be a postponement of action rather than an opportunity in which the Government could genuinely arrive at a view.
Browne, John (Carlow-Kilkenny).
Dukes, Alan M.
Durkan, Bernard J.
Higgins, Michael D.
Noonan, Michael. (Limerick East).
Aylward, Liam. Browne, John (Wexford).
de Valera, Síle.
Hilliard, Colm M.
Kitt, Michael P.
Briscoe, Ben. McDowell, Michael.
Noonan, Michael. (Limerick West).
Ó Cuív, Éamon.
O'Malley, Desmond J.
Amendment declared carried.
Question, “That the Bill be read a Second time this day nine months” put and declared carried.
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