Defamation Bill 2006 [Seanad]: Report and Final Stages.

Wednesday, 8 July 2009

Dáil Eireann Debate
Vol. 687 No. 4

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An Ceann Comhairle: Information on John O'Donoghue  Zoom on John O'Donoghue  Amendments Nos. 1 and 28 to 33, inclusive, are related and may be discussed together.

Deputy Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  I move amendment No. 1:

Apart from the major amendment made by the Minister on Committee Stage, I welcome the Bill. This amendment will ensure that the press council is placed on a better footing than currently provided for. The Bill merely provides for the recognition of a press council which will be voluntarily supported by the media. I look forward to seeing how that will work.

The proposed composition of the press council is flawed. It allows for five directors representing the interests of media owners but only one representing the interests of journalists. A press council should have statutory powers, media membership should be mandatory and the press council should establish and enforce a code of standards having regard to the needs [735]of small publishers and not just the large conglomerates. Press council decisions should be binding. An ideal press council could be composed of seven independent public interest directors, three representing media owners and three representing the interests of journalists. A press council would be much more effective if it were weighted in that way rather than as proposed in the Bill, with little representation of journalists and none of the public interest.

Large media groups should be prohibited from having more than one director of the press council. Its composition should ensure the representation of various media types. It should publish annual reports covering important topics, such as the filing of complaints procedures, balance in reporting and coverage and other matters, as directed by the Minister and the Houses of the Oireachtas. An Oireachtas committee should have responsibility for press council matters.

The amendment tries to ensure that the press council is established on a statutory basis and reflects the interests of society as a whole while protecting the interests of media owners and the journalists who operate in that media.

Minister for Justice, Equality and Law Reform (Deputy Dermot Ahern): Information on Dermot Ahern  Zoom on Dermot Ahern  I am advised by the Parliamentary Counsel that the words Deputy Ó Snodaigh proposes to insert are superfluous and, therefore, unnecessary. The definition of “press council” is framed on the basis of the meaning assigned to it by section 44. That section, in turn, already refers to the minimum requirements of the press council, as detailed in Schedule 2. It is not considered necessary to make reference to Schedule 2 in the definitions section in the manner proposed by the Deputy.

Section 44 lists the minimum requirements for the press council. The legislation sets down the parameters of a press council. It will be a non-statutory and self-appointed organisation with seven directors who represent the public interest, five who represent the interests of owners and publishers and one who represents the interests of journalists. I think we have got the balance right. I cannot accept the amendment.

Deputy Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  The Minister may say the amendment is superfluous. However, it is required to allow for the other amendments grouped with it. They propose that the minimum requirements outlined in Schedule 2 be changed to reflect the composition of the press council which I outlined. We should aim for a statutory rather than a voluntary press council.

However, I will not press the issue. I have made the point and the Minister is not inclined to accept it.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  We discussed this matter previously. The idea of the Bill is that membership of the Press Council would be voluntary, but the Deputy’s amendment suggests that it be obligatory. While we would all like every media organ to be a member of the Press Council, it would not be correct to force it. I cannot accept the amendment.

Deputy Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  Given the time, I will withdraw the amendment to allow the discussion of other amendments.

Amendment, by leave, withdrawn.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  I move amendment No. 2:

[736]

On Committee Stage we inserted a new section 5, which provides for a review of the operation of the Act to commence no later than five years after its enactment. Deputy Charles Flanagan proposed that this review of the Act should be completed within a three-month period, but this was too short a limit. He would appreciate that a reasonable period for consultation with relevant interests would be required. I am proposing that the review should be completed not later than one year from the date of commencement. This is a realistic approach to the Deputy’s concerns. The Parliamentary Counsel has provided a text that provides section 5 with a new subsection (2) containing the time limit.

Deputy Charles Flanagan: Information on Charles Flanagan  Zoom on Charles Flanagan  I do not intend to oppose the Minister, but I am disappointed that his amendment will extend the period of time for review by a further year. If he or his successor is so minded, it could be six years before a matter is revisited in any meaningful sense. I accept that a timeframe of three months was ambitious, but a review could be embarked upon within a reasonable period of, for example, six to nine months.

It is important that these laws favour the protection of the citizen, which is at stake. Much of the legislation will affect the operation of the Press Council. I welcome the council’s code of standards, its raison d’être, but the code is voluntary. For this reason, matters may change in certain circumstances. The council will be self-financing. The current running cost is approximately €750,000 per annum. The situation may change rapidly. For example, the economic situation might mean that membership of the council will not be as permanent as people believe.

It is important that we have opportunities to review within certain timeframes. A six-year timeframe is less than circumstances might warrant, given that we might need to revert to issues. I am optimistic and believe that the council’s operation is in the public interest. Its two annual reports to date have given confidence that matters are working in a way that will be protective of the citizen rather than the media, which is as it should be. I hope that whatever review is undertaken will be done without the passage of an inordinate amount of time.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  The amendment states: “The Minister shall, not later than 5 years after the passing of this Act, commence a review of its operation.” As a review could commence after one year, it is wrong to suggest that the time might be six years. I would hazard a guess that six years would be at the outside.

I accept that, since the Press Council is a non-statutory organisation, it is important to pass this legislation so as to underpin the council’s workings. The majority of reputable media organs are participating well, but the organisation is untried and untested in effect. This is one of the reasons I wanted to introduce a review mechanism. The Deputy proposed three months to allow consultations to occur, but one year is better. The review could occur after a relatively short period, but it would need to be completed within one year of its commencement.

From my anecdotal examination of newspapers and from what I have picked up from my officials, the Press Council has worked well. As the Deputy stated, it is meant to defend the public rather than the particular interests on the council. In last week’s Sunday Times, I read an article in which the chairman of the Press Council criticised two newspapers for not publishing negative judgments made against them. According to Professor Tom Mitchell, “it showed a disregard for the rules for newspapers not to publish full details of complaints that have been upheld”.

[737]Deputy Pat Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  Which newspapers are those?

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  According to the article, “The Irish Times and the Sunday Tribune are refusing to publish Press Council judgments that partially upheld complaints against stories written by their journalists”. Professor Mitchell stated: “Failure to do so not only flies in the face of the articles of association under which the Press Council has been established, but also may fall to be considered under the Code of Practice, to which all newspaper editors have signed up”.

The article made the point that, while the newspapers are not under a legal obligation, Professor Mitchell stated that the council “never compromises on the requirement that all publications must publish in full all decisions in relation to complaints that had been upheld”. One of the newspapers made the point that it was unhappy that it must publish the entire findings, given the fact that two complaints were only partially upheld. It is necessary to have a review mechanism, as there will be media organs that may be unhappy with the council’s rulings. Since this area is evolving daily, it is important that we keep everything under review.

Deputy Thomas Byrne: Information on Thomas Byrne  Zoom on Thomas Byrne  I was annoyed and concerned that two newspapers — in polite society, they are considered to be two of the more respectable newspapers, although I do not always agree with this description of any newspaper — refused to print the findings of the Press Council. The Minister’s message that he will have five years in which to review the operation of the Act is important, but the Oireachtas must also send a message to the effect that newspapers must comply with the voluntary code of practice. Non-compliance is not acceptable, as it would be the thin edge of the wedge.

Amendment agreed to.

Acting Chairman (Deputy Noel O’Flynn): Information on Noel O'Flynn  Zoom on Noel O'Flynn  Amendment No. 3 in the name of Deputy Rabbitte arises out of committee proceedings.

Deputy Pat Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  I move amendment No. 3:

The Minister knows my arguments. Due to the shortage of time, I ask him to put his note on the record.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  We discussed this matter on Committee Stage. We believe the amendment to be unnecessary as we are unaware of any instance of a person who had only a secretarial involvement in the handling or preparation of a statement alleged to be defamatory being the subject of a defamation action. My advice is that it would be unwise and impractical on the basis proposed to exempt any party as a possible respondent in an action for defamation. Each case will turn on its own merits.

Amendment, by leave, withdrawn.

Acting Chairman: Information on Noel O'Flynn  Zoom on Noel O'Flynn  Amendment No. 4 in the name of Deputy Rabbitte arises out of committee proceedings.

[738]Deputy Pat Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  I move amendment No. 4:

I outlined on Committee Stage why I believed the reference to “in particular” is unduly restrictive. I asked the Minister to excise the reference and I repeat that request.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  The advice from Parliamentary Counsel is that the proposed deletion of “in particular” would remove the requirement that a possible defamatory statement should be clearly understood to refer to a particular person within a class of persons. As I pointed out on Committee Stage, the proposed deletion could conceivably allow a multiplicity of actions by all members of a particular class of persons. It would result in a completely undesirable and unworkable extension of a potential defamation action primarily on the basis of membership of a group rather than on the basis of one’s being a readily identified person within a particular group. I oppose the amendment.

Amendment, by leave, withdrawn.

Acting Chairman: Information on Noel O'Flynn  Zoom on Noel O'Flynn  Amendment No. 5 is out of order.

Amendment No. 5 not moved.

Deputy Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  I move amendment No. 6:

The amendment is self-explanatory and is to ensure that Members of the Oireachtas made bankrupt by virtue of court action in the event of being defamed will not lose the right to remain in public office. The danger of being made bankrupt is an additional restriction on Members in that there is a danger of being debarred from elected office.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  I have some sympathy with the Deputy in respect of the amendment. Naturally one would say I would say that. The Deputy proposes to insert, “Proceedings taken pursuant to this Act shall not have the effect of excluding persons from elected public office by virtue only of their being made bankrupt”. He is trying to suggest that if any Member of the Oireachtas sues or is sued for defamation and is made bankrupt under the legislation, he or she will not be subject to the provisions that prevent bankrupt Oireachtas Members from remaining in office. The advice I received is that it would be better to address the conditions attached to holding elected public office in other legislation. Perhaps we could consider this in the context of the ethics in public office or electoral legislation.

Deputy Pat Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  The way things are going, a lot of us might need it.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  I have been in national public life for 22 years and in that period there were occasions on which I felt inclined to take legal action. I can well recall an article in respect of which a senior counsel told me there were eight different instances of clear libel against me. I was advised by my brother, who is also a solicitor, and he asked me whether I believed the people of County Louth would change their vote from a No. 1 to nothing or a No. 1 to No. 2 at the next election as a result of the article. This was very good advice. My experience and history indicate that Members of the Oireachtas should not take libel action [739]against the media because they generally lose. That is not to say they cannot be sued themselves. This is partly what the Deputy is trying to address in his amendment.

I have some sympathy with the Deputy’s argument in so far as it brings itself to bear on people in public life, particularly in the context of widening the possibility of action being taken against people in public life, not just Members of the Oireachtas but others in the public eye, given the changes in the other sections, particularly in respect of the defence of fair and reasonable publication. In this respect, it is conceivable that somebody in the media could say something very slanderous against one and plead a defence under this legislation when passed, even though there would no truth in their contention. The change proposed is fairly significant. At the same time, the benefit of the legislation is that it will allow an apology to be given shortly or quickly after the event without admission of liability. Over the years, this issue has constituted one of the biggest blocks to having matters sorted.

Deputy Pat Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  It does not require the apology to be made more quickly.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  I accept that — I mean it can be made relatively quickly. My experience of dealing with clients over the years shows that the media clam up when there is a potential action against them. They clam up and deny everything because they must take legal advice. Under this legislation, the media will be able to make a judgment themselves and issue an apology. Many people, because they are afraid of meeting the costs associated with a loss, do not want to take legal action.

I have some sympathy with Deputy Ó Snodaigh’s amendment. It could be considered in the context of other legislation. Perhaps I will ask a colleague, probably the Minister for the Environment, Heritage and Local Government, Deputy John Gormley, to do so.

Deputy Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  I take the Minister at his word and withdraw the amendment. It definitely needs to be considered given that the public elect us to office. Ours is not a job that is given to us automatically. If we lose our job, we are disenfranchising those people who elect us. It is not like losing another type of job, in which case one can seek another. I refer to the process whereby a Member could be made bankrupt as a result of his or somebody else’s effort to defend his good name.

Amendment, by leave, withdrawn.

Deputy Pat Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  I move amendment No. 7:

The straightforward net point is that the Bill does not include defences under a statutory instrument unless the instrument is made to implement an EU law. I am advised that using the [740]definition of “enactment” in the Interpretation Act 2005, which includes statutory instruments, would be more appropriate.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  Section 15 was inserted on Committee Stage as a consequence of an amendment made to section 3 of the Bill. The section was inserted for the avoidance of any doubt following consultation with the Office of the Attorney General and Parliamentary Counsel. The new section abolishes any defence that might have been pleaded in a libel or slander action under common law immediately before the commencement of this Bill. The Bill provides for a range of defences in defamation actions in Part 3, which defences will apply to causes of action that might arise following the enactment of the Bill.

Deputy Rabbitte proposes the substitution of subsection 15(2) with a new subsection which seeks to improve on the construction used in the current text. However, I am advised by the Office of the Attorney General and the Parliamentary Counsel that the text proposed by Deputy Rabbitte does not improve on the text they have provided. The existing text is more comprehensible as it stands and I do not propose to accept the amendment.

Amendment, by leave, withdrawn.

Deputy Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  I move amendment No. 8:

This amendment is to delete subsection 16(2). The section allows for a flawed defence of truth. It implies that “if the words not proved to be true do not materially injure the plaintiff’s reputation”, the publisher gets away with it because it may be difficult to prove that material damage has been done to the person’s reputation. This provision as drafted still allows the publication of statements that are false, without remedy. The suggestion is to delete subsection (2).

  1 o’clock

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  Section 16(2) is essentially a restatement of the existing law in respect of the defence of justification which is now known as truth. It is an important provision in that it provides that a defence shall not fail if some of the details of this statement are found to be untrue as long as the substantive issue is proven to be true. The defendant must prove that the defamatory imputation was in substance true, or not materially different from the truth. The Deputy’s concerns about this provision as stated on Committee Stage are unfounded. The Law Reform Commission stated in its report that it considered it very important that the law should make clear that a failure to prove minor details would not necessarily be fatal to the defence. It emphasised, however, that the test applied to each defamatory imputation. This view was reflected in the recommendations of the legal advisory group on defamation which formed the basis for this Bill. While I can understand what the Deputy is saying it probably would leave everything strictly to be proved and reflects the existing law of justification. Subsection (2) states:

Ultimately it is for the court to decide on these issues and to balance the substantive part of the allegations and whether it is defamatory.

Amendment, by leave, withdrawn.

[741]Acting Chairman: Information on Noel O'Flynn  Zoom on Noel O'Flynn  Amendments Nos. 9 and 10 are related and may be discussed together by agreement.

Deputy Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  I move amendment No. 9:

This is intended to ensure that where an apology is being offered or is to be published, rather than publish it in a way that ensures it is given “the same or similar” prominence it should be “greater” prominence because the apology needs to be upfront given that time will have passed since the original headline. One sees, for example, a blaring front page headline one day and then months later an apology buried in a corner on an inside page, rarely on the front page. We should ensure that it should have the same or greater prominence. If the article was on page 4 or 5 of the newspaper people might have read and discussed it, whereas an apology on the same page might not receive the same attention especially if it is published on a quiet news day or during the summer months when newspaper sales are low.

Amendment No. 10, in my name and that of Deputy Rabbitte, is based on an amendment that Deputy Rabbitte tabled on Committee Stage, to ensure that if a newspaper is allowed to use the fact that it issued an apology to mitigate the level of damages it should have published that apology at the earliest opportunity, rather than on the steps of, or the day before going to, court. It should not be a grudging apology published at the 11th hour. It should be made properly, in line with my amendment No. 9.

Deputy Pat Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  I support Deputy Ó Snodaigh’s amendment No. 9 and want briefly to speak to my amendment No. 10. The Minister referred earlier to one of the novelties in this legislation being the facility to make an apology without liability. I agree that is important and is an overdue reform of legislation that is not generally controversial. The Minister described circumstances in which a gap could transpire because as the law stands the media owners or the editors of newspapers must clam up, take legal advice and do this and that because if they publish an apology there is an implication, at a minimum, of liability and so on. This a new situation. What is the excuse now for not requiring the publishers to, as soon as practicable, publish the apology? Part of the problem is that the Minister is right that many would make do with an apology and would be happy with that for a variety of reasons, partly because they are not gold-digging, partly because they are fearful about the cost of a court action and so on, but they merely want an apology and to have the record corrected. Why should we not require the media organisations to do that as quickly as possible after the event?

My amendment No. 10 would require the publisher to publish the apology “as soon as practicable after the plaintiff makes complaint to the defendant concerning the utterance to which the apology relates, or after the bringing of the action, whichever is earlier”. It is not very helpful, not least if one is in public life, if one finds oneself in these circumstances and gets an apology some nine or 18 months later. Most people will have long forgotten the incident, it only rehashes why one was insulted or defamed in the first place. There is not much value to it. If one is in public life and faces the awesome decision that the Minister faced in Louth where he might get second rather than first preference votes, an election might intervene and the apology come afterwards. I am not sure I understand why the Minister resists requiring the apology to be advanced as early as possible.

Deputy Charles Flanagan: Information on Charles Flanagan  Zoom on Charles Flanagan  We debated this on Committee Stage and maybe the Minister will put me right but my understanding is that this deals with a defamation action that has already commenced.

[742]Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  Yes.

Deputy Charles Flanagan: Information on Charles Flanagan  Zoom on Charles Flanagan  The definition of an action in the interpretation section makes clear that an action means after proceedings have issued or an application has been made to the court. The speed with which an apology may be forthcoming is important.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  Yes.

Deputy Charles Flanagan: Information on Charles Flanagan  Zoom on Charles Flanagan  Could the requirement to confirm it in printed form be included in the code of practice as an accepted norm? It is difficult to see how an immediate apology must be published within a certain early timeframe when we are dealing with what happens after an action has commenced. That will be after a considerable delay in any event because proceedings will not issue within a week, unless the circumstances are so grave that a party would seek immediate leave to go into the High Court on the basis of a sudden and grave offence against a person.

The Minister should consider this important issue, although I do not have an immediate solution as to where it may best fit into the legislation. I am not sure if this is the place.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  The issue being addressed by amendment No. 9 from Deputy
O’Snodaigh is the prominence of the apology. This was debated very significantly, particularly in the Seanad, and my predecessor as Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, introduced amendments on Report Stage there which ensured that where an apology is made and published by a defendant, the apology would be given the same or similar prominence as was given to the original defamatory statement, or that the defendant would offer to publish the apology in that manner. That is regarded as a fairly significant change from the original Bill as published.

The current construction sets a minimum standard with regard to the prominence of the apology and ensures that an apology will not be hidden away in the back pages of a newspaper, which is something many people complained about. The current wording does not prevent an apology from having an even greater prominence than the original defamatory statement. My view is that the current wording is preferable.

Amendment No. 10 relates to when an action is in being. Section 24(1) states:

It is a matter of tactics, in effect, and the amendment is forcing the hand of a media organisation or individual who may be a defendant. It may put more onus on the defendant to publish an apology much earlier than was envisaged. For tactical reasons, particular circumstances in a case may mean that it is not in a defendant’s best interest to make an apology. We tried to frame the issue in such a way as to achieve balance.

[743]I have some sympathy with what the Deputies say and I would be of the mind to accept the amendment, which deletes lines 36 to 38. I stated previously that there is a tactic in this for somebody defending an action. I made the point earlier that people are much more inclined, if something injurious is done to them, not to go into court because they are in jeopardy of having to pay costs. Some people may never have been in court before and would rather get an apology with similar prominence to the injurious statement.

There may be circumstances where the defendant may have reasons not to publish an apology as soon as is being suggested in the amendment. I am prepared to accept the point, subject to the review. What is beneficial to society in general is that an apology will now be made in circumstances where there is no admission of liability. Up to now an apology being made was an admission of liability, and in that case the game would be up for the defendant involved.

Deputy Michael Kennedy: Information on Michael Kennedy  Zoom on Michael Kennedy  I want to raise an issue with the Minister relating to the rights of deceased people.

Acting Chairman: Information on Noel O'Flynn  Zoom on Noel O'Flynn  Does this relate to amendments Nos. 9 and 10?

Deputy Michael Kennedy: Information on Michael Kennedy  Zoom on Michael Kennedy  I revert to the Acting Chairman’s judgment on where I can fit this in. It is a case where a member of a family was murdered but within hours of his death in suspicious circumstances, the media made all sorts of allegations of gay activity and sexual connotations. One newspaper ran the story and this was followed by half a dozen others. The family took a case and lost it, unfortunately, and had to pay out €110,000 in costs for just that one case. The newspaper concerned has never seen fit to issue an apology, although the coroner’s report proves this man was murdered.

I am not sure which section of the Bill would be relevant and I beg the indulgence of the Chair. Perhaps the Minister could help in this. Family members do not have any rights when mistruths are deliberately put out, with no apology given afterwards. If this family received an apology from the media concerned, it would be happy at this stage. The family went to court and paid €110,000 in costs when they lost the case. This stopped them taking any action against other media.

No apology has been issued in this case by any of the media. We must try to address that issue and I welcome the Minister’s comments on it. I appreciate the Acting Chairman allowing me to mention it.

Acting Chairman: Information on Noel O'Flynn  Zoom on Noel O'Flynn  That is relevant to section 39 and I am advised there are no amendments down for that section. It comes in loosely under the section dealing with apologies.

Deputy Michael Kennedy: Information on Michael Kennedy  Zoom on Michael Kennedy  I only received the e-mail yesterday and the amendments would have been arranged last week. I appreciate the Acting Chairman allowing me mention the issue.

Deputy Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  The Deputy voted to guillotine the Bill so we will not have time to discuss section 39.

Deputy Pat Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  Unfortunately, it is unlikely that we will get to section 39. I know of the case which the Deputy has raised, and it is a terrible experience for any family to have endured. Unfortunately, it is virtually impossible to libel the dead and, as a result, this family finds itself in these appalling circumstances. The media outlets in question are not prepared to offer an apology.

I agree with the Minister’s comments on the innovation of the apology and so on. To consider the defence of fair and reasonable publication, that is a major change in ease of the media organisations. Against that background, it seems the section we are discussing only presumes [744]a position where an apology is likely to be made. If an apology is likely to be made, it can be inferred that the original piece was inaccurate, wrong or defamatory.

I take the Minister’s point that it could be a matter of tactics but since the apology is contemplated, it has to mean that an apology is forthcoming because what was written was untrue or defamatory. Under the new dispensation, where it does not carry an admission of liability, why should there not be a requirement that an apology be provided as speedily as possible? There is no doubt that 99% of those involved in public life would make do with an apology but it is important that such an apology be provided quickly. I accept that we are discussing cases where actions have commenced, etc. However, it seems that inclusion of the term “as soon as practicable” would be a reasonable imposition in respect of those on the media side.

Deputy Charles Flanagan: Information on Charles Flanagan  Zoom on Charles Flanagan  It is important that an apology should be forthcoming at the earliest possible opportunity, otherwise the damage will be compounded. If the Minister does not propose to accept the amendment, he should set about finding an alternative that will meet the very valid point to which it relates.

I received correspondence similar to that to which Deputy Kennedy referred. I accept that a constitutional difficulty arises but I would defer to the Minister on the issue. I understand that in order for a publication which defamed a deceased person to be held to account, such a defamation would have to amount to a criminal libel. The burden of establishing such a libel is quite significant and I believe one must show that there was an element of malice and a deliberate intent to inflict damage, not only on the deceased person or on his or her memory but also on the surviving family members.

This issue was debated before the courts during the course of a case brought not so long ago by the widow of a deceased former Member of the House. I do not know whether the Minister wants or is in a position to explore the constitutional issues involved prior to the enactment of the legislation. I suggest, however, that reference be made to the matter or that consultation take place with a view to discovering what action might be taken. This is a real problem. It appears, as the case outlined by Deputy Kennedy shows, that a voluntary code, regardless of how laudable it might be, does not appear to be capable of dealing with this problem because such a code does not carry with it any legal sanction in the form of redress.

Deputy Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  I do not intend to belabour the point in respect of amendment No. 9. However, use of the word “greater” would encourage certain media outlets to publish more prominent apologies. I accept that the way the section is currently worded does not prevent them from publishing such apologies but including the word “greater” might encourage them to do so. This would ensure that particular cases do not go to court. As Deputy Rabbitte stated, the vast majority of people would be satisfied with receiving an apology rather than being obliged to pursue a defamation action through the courts and having the entire matter revisited as a result. Even though the court might find in one’s favour, such actions can cause untold damage because, in some people’s view, mud sticks. That is probably why many of those who are defamed or libelled do not take the required action.

It is a pity we are limited by time constraints because the Minister seems to be inclined towards accepting amendment No. 10. If additional time had been available, the Bill could have been recommitted in respect of this amendment in order that the Minister might produce an alternative amendment which would meet our concerns.

Deputy Simon Coveney: Information on Simon Coveney  Zoom on Simon Coveney  I wish to comment on the right of deceased persons to have their good names cleared. The House recently brought its deliberations on the Broadcasting Bill to a close. One of the long discussions in which we engaged on the various Stages of that Bill [745]related to whether a deceased person’s legal representative or a member of his or her immediate family would have a right of reply if an inaccurate, incorrect or libellous story relating to him or her was broadcast. The case of Liam Lawlor springs to mind in this regard. Most people would accept that Mr. Lawlor’s family was treated disgracefully by the media in the context of inaccurate accounts relating to the circumstances surrounding his death, who he was with at the time and so on.

Once a person is dead, he or she no longer has a constitutional right to protect his or her good name. In that context, we should take action to ensure that deceased persons are not fair game for inaccurate coverage in respect of what they did while alive or regarding the circumstances surrounding their deaths. There is a need to ensure that immediate family members or legal representatives of a deceased person should have the right to protect his or her good name. A person’s right to his or her good name should remain intact regardless of whether he or she is alive or dead.

There have been some very cruel instances where family members have not been able to clear the good names of their deceased relatives. There is no doubt that a gap exists in this area. The Minister for Communications, Energy and Natural Resources, Deputy Ryan, was obliged to deal with a challenge similar to that faced by the Minister for Justice, Equality and Law Reform in the context of how one protects the good name of someone who is not longer with us. I appeal to the latter to give consideration to this issue.

It is debatable as to whether a voluntary code of practice can work. I am of the view there should be some bias in law towards protecting the good names of those who are no longer around to do so. If these people cannot protect their own good names, then a member of their family or a legal representative should be able to do so on their behalf. This is one of the anomalies in the Bill with which I have a personal issue. We have a responsibility to try to address this matter rather than merely stating that, as a result of the way the Constitution is constructed, it is not possible to deal with it in law. I appeal to the Minister, even at this late stage, to try to respond to our concerns.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  I cannot accept amendment No. 9 because the matter to which it relates is already comprehended in the legislation. However, I would be prepared to accept amendment No. 10 in the names of Deputies Ó Snodaigh and Rabbitte. It must be emphasised that this amendment relates to an action.

Deputy Pat Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  I appreciate that.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  The section states that in a defamation action, a defendant may give evidence that an apology has been provided. However, the amendment places a slightly stronger onus on a defendant to make an apology sooner than might otherwise be the case. In certain circumstances, there may be a reason for tactics to be employed with regard to how a defendant might address this issue, particularly in the context of whether an apology should be issued prior to or during an action. As already stated, I will accept the amendment.

On the issue raised by Deputy Kennedy and other Members in respect of a particular case — Deputy Coveney referred to a different case — since becoming Minister I asked my officials to give consideration to the issue in question in the context of whether we could take action on it in this legislation. We did not come across a precedent in other jurisdictions with legal systems that are similar to ours. As a result, we asked the legal advisory group on defamation to examine the matter.

I also raised the issue with the chairperson of the Press Council and the Press Ombudsman. Moreover, principles 4 and 5 of the Press Council’s code of practice are of particular relevance. [746] Principle 4 sets out the standards to be met in respect of the respective rights and the protection of one’s good name. Principle 5 sets out the standards in respect of respecting the privacy of individuals and paragraph 5.3 sets out the standards to be adhered to in respect of the matters relating to situations of grief or shock and the respects to be afforded to grieving families. I am informed that the Press Ombudsman and the Press Council are taking a proactive stance with media organs to ensure the print media adhere to these standards.

Acting Chairman: Information on Noel O'Flynn  Zoom on Noel O'Flynn  While I am obliged by Standing Orders to suspend the sitting for the sos, only three minutes remain for this Bill.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  Perhaps, with the consent of the House, Members will finish with these three minutes.

Deputy Pat Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  While I am prepared to consent, I wish to make a point.

Acting Chairman: Information on Noel O'Flynn  Zoom on Noel O'Flynn  Is that agreed?

Deputy Pat Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  It is agreed. Three hours have been allocated tomorrow morning to debate a Bill that proposes to cut the pay of former Ministers. I am not aware of opposition in the House to this Bill and do not understand the reason three hours are required. However, Members badly need more time on this Bill and I suggest the Minister should talk to the Chief Whip about permitting this debate to continue tomorrow morning. Members do not need three hours to discuss a measure that, whatever one may think about it, will be accepted in the House.

Deputy Charles Flanagan: Information on Charles Flanagan  Zoom on Charles Flanagan  This is highly unsatisfactory as important issues arise.

Acting Chairman: Information on Noel O'Flynn  Zoom on Noel O'Flynn  This is by order of the Dáil today.

Deputy Charles Flanagan: Information on Charles Flanagan  Zoom on Charles Flanagan  I know. Notwithstanding this, an important issue is at hand, which was raised by Deputy Kennedy and which requires reassurance from the Minister. Moreover, there are also other issues pertaining to this debate, to which Members will make no reference. The manner in which this legislation has been treated is disgraceful.

Deputy Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  The only mechanism available to facilitate further debate is for Members to adjourn now, thereby allowing the Minister to return whenever the House is scheduled to resume and announce whether additional time has been allocated.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  The House divided on this issue this morning and it was decided that debate would conclude after an hour. Moreover, were any more time to become available tomorrow, my priority would be to allocate it to the Criminal Justice (Amendment) Bill rather than to the Defamation Bill. Members have debated this Bill endlessly and it now is time to pass it.

Deputy Charles Flanagan: Information on Charles Flanagan  Zoom on Charles Flanagan  The word “endlessly” is unfair.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  There is an understanding that it will and should pass before the summer. Many of the following amendments are simply a regurgitation of what Members discussed on Committee Stage ad nauseam and of what has been debated in the Seanad and the Dáil over the past two years.

Acting Chairman: Information on Noel O'Flynn  Zoom on Noel O'Flynn  Is the Aire accepting amendment No. 10?

[747]Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  Yes. Moreover, I suggest that Members finish the allotted three minutes and simply get on with it.

Acting Chairman: Information on Noel O'Flynn  Zoom on Noel O'Flynn  I am obliged to put the question.

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  Do Members consent to go on or do they wish to come back for three minutes?

Deputy Seán Connick: Information on Sean Connick  Zoom on Sean Connick  The three minutes now have expired.

Deputy Charles Flanagan: Information on Charles Flanagan  Zoom on Charles Flanagan  The time is up.

Acting Chairman: Information on Noel O'Flynn  Zoom on Noel O'Flynn  As the time permitted for this debate has expired, I am required to put the following question in accordance with an order of the Dáil of this day:

Question put and declared carried.

Acting Chairman: Information on Noel O'Flynn  Zoom on Noel O'Flynn  The Bill, which is considered by virtue of article 20.2.2° of the Constitution as a Bill initiated in Dáil Éireann, will now be sent to the Seanad.

Deputy Charles Flanagan: Information on Charles Flanagan  Zoom on Charles Flanagan  I wish the Seanad better luck with the Bill than Members had in the Dáil.

Sitting suspended at 1.35 p.m. and resumed at 2.30 p.m.


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