Seanad Éireann - Volume 185 - 06 December, 2006

Defamation Bill 2006: Second Stage.

Question proposed: “That the Bill be now read a Second Time.”

  Mr. M. McDowell: I am pleased to have the opportunity to introduce the Defamation Bill 2006 and to outline its main provisions. We have had a number of very good debates in this House, most recently on 9 February 2005, on the reform of our current defamation legislation which dates from 1961. I took note of the contributions that day and promised Senators not only to take them into account when drafting the legislation, but also that I would launch the new defamation Bill in this House. I am glad to be able to keep that promise today.

The purpose of the Bill is to provide for a modern statutory framework for defamation law by replacement of the current legislation which dates back to 1961, and the common law which goes back even further in some cases. The Bill provides for a comprehensive reform and gives statutory expression to developments in the jurisprudence of our courts and elsewhere, including the European Court of Human Rights. The agreed programme for Government in 2002 contained a commitment that the Government would, in the context of a statutory press council and improved privacy laws, move to implement reforms of libel laws designed to bring them into line with those of other states. This Bill delivers on the commitments in that programme.

There is no doubt that the reform of our defamation legislation is long overdue. A review of the legislation on defamation was conducted as far back as the early 1990s, which culminated in the publication of a final report by the Law Reform Commission in December 1991. The report contained over 50 detailed proposals for reform in this area of the law. Subsequent to the publication of the LRC report, a draft defamation Bill was commissioned by the national newspapers of Ireland in 1994 and I published a Private Members’ Bill in Dáil Éireann the following year. Both of these proposed Bills were influenced by the recommendations made in the LRC report. In 1996, the report of the Commission on the Newspaper Industry also made recommendations for some changes to the law. In responding to the need for reform of the defamation legislation, the Government approved a Bill for drafting in December 2001 which was proposed by my predecessor, the then Minister for Justice, Equality and Law Reform.

Following on from the commitment in the programme for Government, I established a legal advisory group on defamation in September 2002 [1048]to report on the implications of fulfilling this commitment. The group also reviewed any other relevant developments which might need to be taken into consideration since the Government decision of December 2001. There has been extensive consultation in preparing this Bill. Subsequent to the publication of the advisory group’s report in June 2003, I initiated a public consultation process on the report and also held a major conference in December 2003 to facilitate an exchange of views from a wide cross-section of interested parties. The Bill takes into account that extensive consultation process.

The extensive consultations included those with the Irish press industry steering committee. That committee yesterday published its proposals for an independent press council, a press ombudsman and a code of practice or standards. At the launch, I welcomed this important development. From my initial perusal of the code of practice, I believe that it contains valuable and sensible provisions to govern the conduct of journalists and editors in their work. I am sure that these proposals will be studied carefully not only by Members of this House, but by all persons with an interest in the matter.

The current legislation on defamation is deficient in a number of areas. An apology, which might often be all that is required, cannot be made to an aggrieved person without having that taken as an admission of liability. Unlike in other civil actions, no lodgement can be made in court against a defamation action without admission of liability. There is an insufficient range of remedies other than damages available, such as clarification and rectification.

There is an absence of clarity about the role of the court in giving directions about the level of awards. Plaintiffs do not have to swear affidavits to corroborate their complaint. Plaintiffs are not compelled to take the stand for cross-examination. Defamation actions can be taken up to six years after the publication of the alleged libel. A defence of reasonable publication on a matter of public importance is undefined in statute law. There is a particular silence on the question of encouraging alternatives to the court proceedings such as a complaints system and code of standards operated by the press. The existing legislation lags behind the requirements of the European Convention on Human Rights and developments in jurisprudence in other jurisdictions as regards the appropriate balance between freedom of expression and protection of one’s good name.

The new provisions introduced in the Bill will give plaintiffs a better sense of their rights under the law. For those interested in obtaining speedy redress when they have been defamed, new forms of remedy will be available to them in future. The new legislation will also provide greater clarity for publishers and will facilitate responsible publishers in avoiding defamatory statements as well [1049]as providing guidance as to the limits of the various defences which are open to them.

It is useful to consider the other elements in the commitment set out in the programme for Government. Foremost in content and discussion has been the issue of a press council. The legal advisory group in its 2003 report recommended the creation of a statutory Government appointed press council. I clearly indicated that while this was one possible approach, it was not my favoured approach. My proposals for reform, as agreed by the Government, differ from the group’s recommendation.

The Bill supports the concept of an independent press council — such as that launched yesterday — which can be afforded statutory recognition by both Houses of the Oireachtas on foot of a motion by the Minister for Justice, Equality and Law Reform subject to the motion meeting certain basic and obvious criteria set out in Schedule 2 to the Bill. This is the most acceptable outcome in this regard and should gain the support of the House. This approach will allow the print media to put into practice its self-proclaimed determination to bring forward an independent, effective and industry-funded press council operating a proper code of practice. The code must provide an added protection to citizens’ privacy and dignity from media intrusion and violation. Nothing less will be expected by the public. The proposed press ombudsman service must be properly empowered to deal with complaints from those affected by breaches of standards as set out in such a code.

A code of practice to which the print media organisations can subscribe and adhere is a critical element of independent regulation of the press. We now have that code, which will bear careful consideration. It should not fall to the Minister or the Government to dictate the exact detail in such a code of practice or standards.

  Mr. Norris: Why not?

  Mr. M. McDowell: I have many attributes, but infallibility is not yet one of them.

  Mr. Norris: I am surprised.

  Mr. Cummins: The Minister could have fooled us.

  Mr. M. McDowell: However, the Bill in Schedule 2 provides, in the public interest——

  Mr. Norris: The Minister is accepting that the industry will regulate itself.

  Mr. M. McDowell: —— some guidance as the basic standard expected in such a code. I am not against self-regulation, either by the universities or by the professions.

  Mr. Norris: The universities do not regulate themselves. I thought the Minister knew that.

[1050]  Mr. Dardis: I look forward to the Senator’s contribution on this issue.

  An Leas-Chathaoirleach: The Minister, without interruption.

  Mr. M. McDowell: One of the primary benefits of a statutorily recognised press council, as provided for in the Bill, is that qualified privilege would attach to its reports and decisions or to those of a subsidiary body, such as the press ombudsman service it would operate. Subscription to the press council and adherence to its code of practice by a current affairs publication would strengthen its entitlement to avail equally of the defence of reasonable publication in any court action, which is a new defence in the Bill. Non-members of the press council will be required to have in place an equivalent fairness regime, or to operate an equivalent and publicised code of standards to avail of that defence.

Self-regulation in many areas functions very well and the State does not have to control everything in society.

  Mr. Norris: Is it a surprise that the newspapers call for it in every other profession?

  Mr. M. McDowell: However, self-regulation must carry with it the notion that there are some rules to which injured parties can point in seeking redress from abuse of press power. There is no point in having an independent press council which can do nothing and is ignored by its members with complete impunity. I am conscious of the danger in arguing that all press activity should be capable of regulation in the interests of good taste or conventional mores. That is not and never will be my approach. It is not the business of a press council to start telling columnists what they should or should not say. The public is the best judge of these matters and it does not need a press council to speak on its behalf.

In the context of libel reform, the Bill puts on a statutory basis a new defence of fair and reasonable publication on a matter of public importance. This defence is subject to certain conditions and is designed to facilitate public discussion where there is both a benefit and an interest in such discussion taking place. This new defence takes cognisance of jurisprudence from the European Court of Human Rights and from certain decisions in the UK courts. The genesis of this defence first arose in these islands in the decision by the UK Court of Appeal in 2001 in the case of Reynolds v. The Sunday Times. In September 2006, the Court of Appeal in the UK refined and clarified its nature and purpose in the case of Jameel and others v. The Wall Street Journal Europe. The court overturned an award against that paper and allowed its defence of reasonable publication on a matter of public importance. The UK Court of Appeal ruled that the defence of reasonable publication was in a new jurispruden[1051]tial category. It is not the same as a defence of privilege. It has to have a number of conditions to be fulfilled before a responsible publication could plead it. Interestingly, the court in the introduction to its judgment noted the balancing factor between the development of this new defence by the English judiciary and a strengthening of the law on privacy.

However, it should be clear that this new defence is designed to facilitate responsible journalism. It is not a charter to engage in casual defamation or character assassination. It is not a licence for sloppy or vindictive practice by journalists or editors. It will be for the courts to decide what credence to give to an editor or a journalist who tries to cloak himself or herself in such a defence without proper regard for its purpose.

The matter of the process of awarding damages in defamation actions has been much in the news of late, especially in the case of O’Brien v. Mirror Group Newspapers and others. Since the legal representatives of the Daily Mirror have indicated an intention to consider some form of appeal of the High Court award of €750,000 to the Supreme Court, it would not be appropriate for me to comment on that case in particular. However, the Bill as it stands makes it clear that a judge in a High Court defamation action shall give directions to the jury in relation to the matter of damages; it sets out a wide range of factors to which the court shall have regard to in awarding damages, and provides that the Supreme Court, on appeal, may substitute its own level of damages for that awarded by the High Court.

I wish to highlight certain of the main provisions of the Bill at this stage. The present torts of libel and slander will cease to be so described and will instead be collectively described as the tort of defamation. Plaintiffs and defendants in a defamation action will be required to submit a sworn affidavit verifying assertions and allegations and to make themselves available for cross examination. That is not necessarily so at the moment. One could know one had done something infamous and simply tell a newspaper in effect, “Your article suggests I have done something infamous — prove it”. One might not even get into the witness box at any point of the trial, yet force the newspaper to prove something was defamatory. That is a strange aspect of our law at the moment. However, without reversing the onus of proof, which was suggested in the Law Reform Commission paper, what is provided here is that somebody must swear that he or she has been defamed and then make himself or herself available for cross-examination as a condition for bringing an action. I believe that is a reasonable position.

It is an offence for a person to make a false statement in an affidavit in support of an action and this mirrors the approach taken in the Civil [1052]Liability and Courts Act of 2004. An offer of apology shall not be construed as an admission of liability. The current legal situation effectively precludes this and impedes the giving of a speedy apology which, in some cases might result in a decision not to proceed with court action. The defendant in defamation proceedings may in future lodge in court a sum of money without admission of liability. This mirrors the present position with regard to nearly every other civil action where damages are sought.

Provision is made for new remedies which a court may grant in lieu of, or in addition to, damages. These remedies will, in the ordinary course, be predicated upon a plaintiff having requested a timely and conspicuous retraction of the defamatory matter in circumstances where the defendant has failed to accede to that request. A declaratory order, for which a plaintiff may apply in lieu of damages is intended to offer a speedy means of redress where the only issue is the wish of a plaintiff to have an acknowledgement that the matter in question was defamatory of him or her.

A correction order is envisaged as an additional remedy to declaratory judgments, as it allows the possibility of damages, that may direct the terms of any correction in which a court order is to be made in favour of a plaintiff. A range of factors intended to guide the court in making an award of general damages is specified in section 29. Juries are being retained for High Court proceedings but the trial judge shall give directions as regards the matter of damages. Aggravated and punitive damages are maintained but are limited to specific instances by section 30. The defences available in defamation proceedings are rationalised and clarified in sections 14 to 25, inclusive. A list of occasions where absolute privilege arises is provided in section 15. The defence of qualified privilege is given a statutory basis for the first time and it will attach to the reports and decisions of the Press Council, recognised under section 43.

The defence of fair and reasonable publication on a matter of public importance is created in statute form for the first time in Ireland. It is designed to facilitate public debate where there is both a benefit and an interest in such discussion taking place. The availability of the defence for publishers of relevant periodicals is subject to conditions, notably membership of the recognised Press Council and adherence to its decisions and code of standards. Non-members must have in place an equivalent “fairness” regime so as to avail of the defence. The exact provisions in relation to the recognition of an independent Press Council are set out in section 43 and in Schedule 2. The conditions with regard to the making of an offer of amends are updated, along with the consequences for acceptance or non-acceptance of the offer are provided for in sections 20 and 21.

The common law position with regard to the liability of distributors for defamatory material is [1053]being given a statutory basis as “the defence of innocent publication”. The defence develops in a more comprehensive way the common law defence of innocent publication which has traditionally been available to distributors, in particular for such as Internet service providers in recognition of the speed with which modern technology works.

Bodies corporate are to be allowed to sue for defamation irrespective of whether they have incurred special damage. A limitation period of one year will apply to the bringing of defamation proceedings unless the interests of justice so require, in which case a court directs otherwise and may allow a period of two years. A special jurisdiction limit for defamation actions in the Circuit Court of €50,000 is provided. The current Circuit Court limit for damages claims is €38,092.

Provision is made for the abolition of the common law offences of criminal, seditious and obscene libel. The issue of blasphemy is under consideration by the Oireachtas All-Party Committee on the Constitution. I am inclined to the view that the committee is well placed to reflect the range and depth of opinion on that complex subject and it would be better for us to get on with this legislation rather than dealing with that particular area.

A new offence of publication of gravely harmful statements has been created. This applies where a false statement is published causing grave injury to the reputation of a person and intended to cause that grave injury. Where a person is convicted of such an offence, the court may issue a warrant authorising a member of An Garda Síochána to enter and search a premises and seize copies of the statement in accordance with the terms set out in the warrant.

The Bill does not provide for the defamation of the dead, an issue which arose during the consultation period. It does, however, provide that on the death of a person, a cause of action for defamation vested in him or her immediately before death should survive for the benefit of the estate. Similarly, it also provides that a cause of action in defamation subsisting against a person should survive his or her death and lie against the estate.

Schedule 1 is divided into two parts and provides for statements having qualified privilege. Part 1 provides for statements privileged without explanation or contradiction. The list includes determinations or statements by the press council or ombudsman. Part 2 of the Schedule provides for statements privileged subject to explanation or contradiction.

Schedule 2 provides for the minimum requirements in relation to a body seeking recognition as the Press Council for the purpose of the Act. The Minister will have to satisfy himself or herself that these criteria are being met prior to making an order declaring the applicant organisation to be the press council for the purposes of the Act. Once recognition is granted, there could be only [1054]one such body. An order of recognition granted to the press council may be amended or revoked, should the Minister form the opinion that the council no longer meets the minimum requirements set out in Schedule 2.

However, in that event, before the moving of any order to this effect the press council must be afforded the opportunity to address the issues of concern. The Schedule also provides for the appointment of a press ombudsman who will investigate, hear and determine complaints made to the press council concerning the conduct of its members and the complaints procedure. The Schedule also outlines the potential scope of the code of standards to specify the standards to be adhered to, as well as the rules and practices to be complied with by the members of the press council.

The Defamation Bill 2006 will bring about a very significant and long awaited reform and modernisation of the law regarding defamation. I believe it is a reform that can be welcomed by all persons, be they journalists, editors, publishers or ordinary citizens. It will respect the necessary balance between the equally important but sometimes competing rights of freedom and expression and of respect for the good name and reputation of citizens. The Bill will replace the now outdated Act of 1961 with modern updated provisions while also promoting better regulation and fairness.

In addressing this House during its debates on defamation in 2003 and 2005, I said that I came with a personal prejudice in favour of free speech and against unnecessary regulation, and as a constitutional republican with liberal values I still hold that point of view. I wish to ensure that we have a vigorous and inquiring media functioning in our society. The legislative proposals I am presenting today will, on enactment, bring forward a reform which is sufficiently balanced to gain the necessary acceptance both politically and in the community.

I commend the Bill to the House and I look forward to the contributions by Senators to the debate on its provisions.

  Mr. Cummins: I welcome the Minister to the House and commend him on this good albeit long overdue Bill which has been in the offing for a considerable time. For example, it has been effectively ready for almost two years. I regret the Minister’s Fianna Fáil colleagues have seen fit to hold it up in such a selfish fashion, in order to force into existence the Privacy Bill. Even if one considers this delay to have been lengthy, it is shocking to note the issue of reform of the law of defamation was mooted as long ago as 1992, or almost 14 years ago, a point to which the Minister has alluded.

The Privacy Bill 2006, which is often mentioned in conjunction with this Bill, is dangerous and unnecessary legislation that must be shelved. While the Minister has stated it has not been [1055]shelved, he is aware it will not reach Áras an Uachtaráin in the lifetime of the present Government. I can assure the House that if Fine Gael is elected after the general election, it will not place the Privacy Bill on the legislative programme.

While finalising this Bill, the Minister established a committee, under the chairmanship of Mr. Brian Murray SC, to prepare a report on the appropriate legislative basis for the protection of privacy that would be consistent with freedom of expression. The Defamation Bill is based largely on the report from a committee chaired by the former chairman of the Bar Council, Mr. Hugh Mohan SC. However, one of its key recommendations, to which the Minister has alluded, is notable by its absence. While the committee’s report recommended a statutory press council that would have been appointed by the Government, obviously the Minister has decided it was not a runner after strong lobbying on the issue. However, I am pleased to note the press industry has taken upon itself the establishment of a press council. I welcome the establishment of a non-statutory press council and an ombudsman, which will allow members of the public a new avenue with which to pursue grievances without having resort to libel proceedings.

Fine Gael has called for the creation of a press council for many years. My colleague in the Dáil, Deputy Jim O’Keeffe, has commended the press industry and the National Union of Journalists on setting up this council and has expressed his confidence that it will provide an adequate and cost-free avenue of redress for individuals or organisations who feel aggrieved by the media. However, it is essential that the council, which will be funded by the industry, will be properly resourced and that its recommendations regarding individual grievances will be adhered to by all media outlets. I hope it will provide independent analysis of genuine problems between the interests of newspapers and those who appear in them from time to time. It is incumbent on the industry to establish a truly independent body and not a group that will always see eye to eye with the editors’ point of view. The new press council should have the power to bring to bear heavy sanctions when required and the media should co-operate fully with its rulings. The question as to whether the press can regulate itself remains to be answered.

I will turn to the Bill’s contents, rather than its omissions. It is long overdue and I broadly welcome it. However, the legislation could have been better had it stayed closer to the report of the legal advisory group on defamation, which was drawn up by the media law experts who considered this issue in March 2003. For example, the advisory group’s 129 page report recommended a new defence of reasonable publication, which made its way into the Bill in section 24. However, in its transition, such a defence appears to have been substantially watered down and defendants [1056]must now fulfil far more criteria before being able to rely on it. Similarly, my examination of the Bill suggests that the demonstration of any level of malice, however small or insignificant, will debar a publication from availing of the defence of reasonable publication.

Section 24(4)(b) states the defence of fair and reasonable publication shall fail unless “he or she did not act in bad faith or out of spite, ill will or improper motive”. Hence, if a complainant can prove any bad faith or ill will, the newspaper in question has no defence under section 24. This section should include some level of assessment of malice.

One of Fine Gael’s greatest criticisms of the Privacy Bill is that effectively, it will stifle investigative journalism. I believe the Defamation Bill will also stymie some efforts to air clandestine problems. This is particularly evident in section 24(2)(g), which allows the court to consider “the extent to which the plaintiff’s version of events was represented ... [or] to which a reasonable attempt was made ... to obtain and publish a response from that person”. Will it now be necessary for a reporter to put every allegation to the subject of a story before it can be published? The Bill is unclear as to how hard the reporter should try. While Members agree the right of reply should be maintained, the Bill should be more specific if they intend to legislate for it. What constitutes an effort to get another person’s side of the story? I am interested to hear the Minister’s viewpoints in this respect.

Nevertheless, the Bill allows the media a number of defences against being sued, apart from the defence of fair and reasonable publication on a matter of public importance, that were not previously available, which is to be welcomed. I also welcome the provision in section 6 that will require litigants to swear affidavits verifying their claims and assertions on which they can be cross-examined. This is an entirely reasonable requirement that could be introduced usefully in other areas of the law of torts.

Those who campaign for plain English will be also pleased to note the removal of the distinction between defamation in permanent and impermanent forms, that is, libel and slander. It is time to merge both terms into a single tort of defamation as this would simplify matters for the ordinary citizen.

Lodgments are also a welcome part of the Bill and under section 27, a sum of money can be lodged in court by a defendant without admitting liability. Instead of damages, a plaintiff who successfully sues will be able to seek a declaratory order or a correction order that would force the publication to publish a correction or statement that the information published was untrue and was defamatory. I believe this will be a useful mechanism for the avoidance of protracted legal actions.

One of the most shocking legal matters to have appeared in the news recently has concerned the [1057]discrepancy between the level of awards for different torts. It is entirely unjust that a private businessman should receive a larger payment for a defamation award than a young man whose life has been destroyed by the negligent removal of his stomach. Although I am aware it was not a factor, the businessman is a multimillionaire and the reward he received is barely noticeable to him. However, the young man of whom I speak cannot work a full day, can never enjoy his food in the future and must survive on the comparatively meagre settlement awarded to him. Hence, I welcome the reform of the libel remedies outlined in Part 4 of the Bill, particularly those included in section 29, which can only improve justice for civil plaintiffs. The apparently arbitrary nature of libel awards may become somewhat more consistent in their application by allowing the parties, including the court, to address the jury on damages and for an apology to be published without any admission of liability.

Broadly, I welcome the Bill and Fine Gael will support it. I look forward to Committee Stage and the Minister can be assured I will table several amendments in an effort to improve the Bill.

  Mr. J. Walsh: I join in welcoming the Minister to the House. He is probably the most frequent ministerial visitor to the House with much legislation which keeps all justice spokespersons in the House fairly busy. I also welcome the publication of the Bill before the House and the Second Stage debate on it. As the Minister stated, we have had debates on this matter previously.

12 o’clock

In examining the content of the Bill, I tried to establish the principles by which we should assess and evaluate a defamation Bill. First, it need not be overemphasised that we need a free press. Objective comment and reporting and the contribution good investigative journalism makes to society is indispensable, and freedom of speech and a free press are a fundamental aspects of our democratic system. The second criterion I would apply would be that such a Bill should try to encourage responsible reporting, and I will allude to that. We have evidence from others that there are question marks over journalistic standards. The third criterion that I would apply would be the right of an individual to his or her good name. That is essential. It is enshrined in the Constitution and, indeed, elsewhere. The fourth criterion would be the right to privacy, with which Senator Cummins does not seem to find any great favour but which to me is an important principle by which we should judge and evaluate the Bill.

When this matter was debated in the House previously, somebody — it might have been the Minister — quoted Abraham Lincoln, who stated: “Let the people know the facts, and the country will be safe.” That quote, dating back a couple of centuries, illustrates quite clearly why one needs a free press in a democratic society. Article 40 of Bunreacht na hÉireann also clearly [1058]underpins the right to express views and opinions in society.

Senator Cummins mentioned the 1961 Defamation Act and it is extraordinary that it has lasted 45 years without amendment. The Minister needs to be complimented in this regard. Senator Cummins expressed surprise that legislation containing various amendments was not brought forward previously. I recall the Minister, in his role in Opposition, bringing forward a Private Members’ Bill and being told by the then Taoiseach, John Bruton, that it was not a priority of his, and the Bill floundered as a consequence. That might explain to Senator Cummins why there has not been any amendment to the 1961 Act in the interim.

  Mr. Cummins: We will table amendments to this Bill.

  Mr. J. Walsh: The Minister embarked on wide consultation on this entire area. He mentioned the conference which he arranged in UCD in 2003. In fact, I did not realise it took place that long ago. It was an interesting conference. I stated previously in the House that it was illustrative for Members, if only there had been more present, on the views of the press about politicians, prejudicial and all as such views were. It also emphasised clearly the need to take a balanced approach to this. If one comes down totally on the side of protecting the individual, obviously one impinges on freedom of expression and the freedom of the press, but if, as Senator Cummins has suggested, one goes the other way and allows no checks and balances on what the media publish and one takes a publish and be damned approach, one will definitely cause serious consequences for individuals.

  Mr. Cummins: Senator Walsh is misrepresenting what I stated.

  Mr. J. Walsh: I welcome the significant component for the media which is the new defence of fair and reasonable publication on a matter of public importance. The important criterion there is that it be fair and reasonable, and that is the yardstick by which it will be measured if somebody subsequently takes offence and brings the issue to court.

It is interesting that the Minister stated that both the plaintiff and the defendant must bring forward an affidavit and be subjected to cross-examination. I will not object to that but I see a certain incompatibility with the rest of our legislation where there is no onus on a criminal, for example, to put himself or herself in that position. I acknowledge it is a feature of some of our terrorism offences and I have argued previously that perhaps it should be extended to all legislation. I will not object to it in this Bill, therefore, but it is a little ironic that it is in it. If it is worthy of being included in this Bill, we should review other legis[1059]lation when it comes before the House to ensure a similar stipulation is put in place.

No doubt the Bill is a major step in the right direction and will be welcomed by most reasonable and fair-minded people. Good investigative journalism needs to be encouraged. There are many fine examples of such journalism. Indeed, there have been some fine examples of public service journalism, not just those which gave rise some of the tribunals but also in other areas, both in broadcasting and in the print media. Even the media seem to acknowledge that the Bill meets the criteria in respect of freedom of expression.

Whether the Bill will encourage responsible reporting and journalism is probably a more pertinent question. Freedom brings responsibility and not everybody always exercises that responsibility. In general, society needs regulation to maintain a good balance and that is why the various laws concerned are on the Statue Book. There are a few reasons for this need, one of which is human fallibility whereby freedom of any sort will invariably be abused unless there are effective checks and balances in place. There is also increased competition within the media. The increased emphasis on the bottom line and on getting a return on capital has to some extent given rise to a lowering of standards.

It was interesting that at the conference the Minister held in Belfield a few years ago, to which I referred earlier, a Queen’s Counsel in his paper clearly acknowledged that standards within the media in Britain certainly had reached quite a low level. I was interested and impressed to hear the then secretary of the National Union of Journalists in similar terms acknowledge that journalistic standards in Ireland had declined as well, and we need to be cognisant of that. One would hope that with the new mechanism in place, especially the press council, there will be a thrust towards improving standards within the media.

Many years ago I, as president of a national organisation, became conscious quickly that if we wanted to get coverage for our point of view, we had to be critical of the Government or of the Minister. That was a sure way of hitting the headlines because the media wanted controversy and criticism. If, however, something was done that we wanted to praise or acknowledge, one could rest assured that we could certainly make the comment but we would not read about it in the newspapers.

The fifth criterion, which to me is important, is the right of an individual to his or her good name. The present position in that regard is unsatisfactory for the following reason, examples of which we have seen, that it is only people with considerable financial wealth who can afford to take the issue to the High Court or the Supreme Court or, for that matter, to the Circuit Court, and the legal costs are a significant barrier to people being able to re-establish their good name where it has been taken from them.

[1060]Many people would concede that going to court is something of a lottery. Even lawyers will say, “If you want justice, don’t go to court”. What one gets in court is the clinical interpretation of the law. In that regard, I welcome the proposal for a press council which will provide an avenue for redress without having to incur big costs. As the Minister has rightly said, in many cases people are just seeking a correction and an apology.

It is proposed that the press council will comprise 13 members, including seven public interest directors who will be appointed by an independent selection process. The Minister has been quite innovative in coming up with this idea because there was much debate and criticism in the media that the Government would be appointing the press council. There will also be one journalist and five council members representing newspaper owners.

I do not fully share the Minister’s confidence in self-regulation. We have too many examples, including the legal profession, of where self-regulation does not work as effectively as it should. The Minister is, however, laying down a challenge. For a long time, the media have been seeking a press council as a means of self-regulation. Why is this only coming to pass now, however, given that the media could have introduced such a process voluntarily at any stage? It is only now when they are faced by a statutory press council that this is happening. Having said that, I wish the press council well. It will be interesting to see how it works in practice.

Yesterday, I heard some national newspaper editors on the radio. In one instance, they prevaricated as to whether or not findings of the press council would be published. It was only under pressure that they acknowledged this would happen. It would be a travesty——

  Ms O’Meara: Hear, hear.

  Mr. J. Walsh: ——if some of the decisions of the press council did not find their way into print because they were considered embarrassing for newspapers. That would be wrong.

I often see newspaper apologies printed in some corner of an inside page, whereas they may refer to articles which were splashed across the front pages with offensive and defamatory headlines. Common sense should prevail in this regard and apologies should reflect that. They may even have to be published over a number of days so that a correction of the defamatory remarks can be achieved.

I have reservations about the proposal for a court lodgement, although I can see that it will encourage people to settle cases which, in itself, is not a bad thing. What will happen if the court lodgement is offered to an individual who feels that he or she has been genuinely defamed, but the offer is not accompanied by an apology or an acknowledgement that an apology will be pub[1061]lished? If the individual subsequently continues to pursue a case and then finds that the award of damages is less than the court lodgement, where will they stand? My view is that if the court lodgement does not include a published apology it should be disregarded by the court. In some cases, court lodgements can be a lottery because one does not know what the level of damages will be. We have seen examples where damages have been way ahead of what anyone might have guessed. In other situations, however, people who have been the subject of clearly defamatory remarks have received insignificant damages as a consequence.

I will not labour the point, but the Circuit Court’s award limit of €50,000 is too low. It should be €100,000. We should encourage people to use the Circuit Court rather than going to the High Court to pursue such issues. That would give greater scope to the Circuit Court regarding the level of damages to be awarded. If an amendment is tabled to that effect on Committee Stage, the Minister might consider it.

I have great difficulty with the fact that deceased people cannot be defamed. I note the Minister’s comments regarding people who may have been defamed prior to their demise. We have seen such examples and it should be open to the bereaved family to pursue a case. There is another issue concerning the subsequent writing of history, but we should find a middle way. It is neither fair nor reasonable that lies should be published about somebody simply on the basis that they are dead and, therefore, cannot pursue a case for defamation.

With regard to the right to privacy, I remind Senator Cummins that the European Court of Human Rights has ruled that all persons are entitled to a personal sphere of privacy and non-intrusion. I agree that it should not be an obstacle to good investigative journalism but I hope the Privacy Bill, which will be fought tooth and nail by the media, will see the light of day and be enacted. It should be amended to ensure that on the one hand it does not interfere with investigative journalism, while on the other hand it should underpin people’s rights to privacy.

  Mr. Norris: I welcome the Minister to the House but I do not really welcome the Bill, although I will probably be a lone voice in the latter respect. As long as I have been a Member of this House, there has been pressure from newspaper proprietors and editors to make life easier for them. I can understand that because they are human beings and have their own interests, but it would be a great pity if we gave in to them. I know it is the Christmas season but this looks very much to me like turkeys queuing up to vote for Christmas.

I am not impressed either by the Bill or the proposal for a press council. The Minister has a reputation in the Lower House of being a rottweiler, and has been described as such. This [1062]is not the work of a rottweiler, however; it is much more like the work of a chihuahua. I know the intention is to rebalance towards newspapers so that they can do more investigative journalism. That is the pious aspiration that comes along with it. I am all in favour of investigative journalism and the exposure of hypocrisy and evil, but let us look across the water and see what has happened there since Rupert Murdoch acquired The Sun newspaper. It has been driven by profits and that is what we will get here.

The press council and press ombudsman will be toothless. The proposed press ombudsman does not deserve that title. The Minister knows well that the post will be quite unlike that of any other ombudsman. For example, it will lack all significant powers to compel, produce witnesses or impose financial penalties. In addition, the ombudsman will be appointed by this wonderful new press council, which is not independent. Is that not an irony?

The Minister may take a principled position with regard to whether or not a council of this kind should be independent and whether various groups should be self-regulating. He is entitled to do that and he is a man of intellectual honesty and consistency, but the newspapers are not like that. There is not a newspaper in this country that has not called for independent regulation of every other profession, except themselves. What is sauce for the goose is sauce for the gander, so I would like the newspaper editors to tell me what is so precious about their little profession. I am a fully paid up member of the National Union of Journalists, although I may not survive its next annual general meeting. As a journalist, I have seen both sides of the libel issue. I will put some of my experiences in this regard on the record in due course.

Under the terms of the Bill, we will have a press council established by the industry. There will be a figleaf comprising five industry representatives and six representing the public interest. The five will include a representative of newspaper owners and editors, while journalists will also be represented, in addition to six people representing the public interest. There will be a majority of one on the amorphous side but, as anybody familiar with juries will know, it is easy to sway the others if one has a block. Therefore, the situation is not as balanced as it seems to be.

We are told that publications which sign up to the code of practice will be governed by it, but what about the ones who do not sign up? How useful is a practice that governs only those who sign up to it? Murdoch-style newspapers are filthy little rags and some of them are printed in this country. They are not subject to the code of ethics of the National Union of Journalists because their proprietors make damned sure their journalists are not allowed to join the NUJ and their houses are non-union in the manner of Mr. Rupert Murdoch. How will we control the newspaper proprietors with weak and fluffy legislation?

[1063]The general secretary of the NUJ is a decent and honourable man who has done Members some service by producing a document which, while it puts the best possible face on the proposed press ombudsman and press council, is none the less weak. It states, for example, that when a significant inaccuracy, misleading statement or distorted report or picture has been published, it shall be corrected promptly with due promise. That is fine. It also states that while comment, conjecture, rumour and unconfirmed reports shall not be reported as if they were fact, newspapers and periodicals are entitled to advocate strongly their own views on topics. This is also fine. It continues: “In reporting news and information, newspapers and periodicals shall strive at all times for truth and accuracy”. There is a great deal of this.

The Press Complaints Commission in Britain is useless. After it was established, The Sun newspaper deliberately and grossly libelled Elton John. It was fined £1 million but did not give a damn because its circulation increased. British newspapers do not give a damn because the Press Complaints Commission is toothless. They invade people’s privacy, lay siege to their houses and name and shame them. Perhaps the Minister will remember an example of naming and shaming when a man who shared the same name with a convicted paedophile had his address published and was subsequently killed. This is the kind of extremely dangerous behaviour in which a certain type of newspaper engages.

In 1993, Sir David Calcutt in Britain stated:

The Press Complaints Commission is not .... an effective regulator of the press. It has not been set up in a way, and is not operating a code of conduct, which enables it to command not only press but also public confidence.... It is not the truly independent body that it should be.

This is the type of organisation we will get. The British body even has much stronger elements than the proposed body.

The code of conduct of the National Union of Journalists states:

A journalist has a duty to maintain the highest professional and ethical standards. A journalist must at all times defend the principle of the freedom of the press and other media in relation to the collection of information and the expression of comment and criticism. He-she shall strive to eliminate distortion, news suppression and censorship.

Distortion occurs throughout the press. Last week, Independent Newspapers, on foot of a serious political report from Europe, deliberately distorted and lied about the entire document. It was perfectly clear that rendition aeroplanes had regularly landed at Shannon Airport. The question was not whether they were full of torture vic[1064]tims, yet the headline in one of the Independent Newspapers titles was: “Torture planes did not land at Irish airports”. How close is that to the truth?

Let us examine the way the company dealt with the Shell to Sea campaign. It falsified statistics from a commissioned report and personally vilified a Member of the other House, Deputy Cowley, who was singled out and details of his income printed on the front page. It would have been remarkable had the Deputy been the highest earner in the health system but his earnings were ranked down the table. What relevance is this information? It was published to discredit the Deputy.

Does the Minister remember the way Eamon Dunphy was treated when he left the Irish Independent? One could not pick up a newspaper without reading details of the colour of his hair, how much hair he had and the kind of shoes he wore. Former President, Mary Robinson, appeared in every part of the Irish Independent, from the weather forecast to the social column and fashion reviews. In other words, powerful interests target people they do not like. This behaviour may not be coverable by the legislation but it is the ethos with which we are dealing. I am not saying that these newspapers are not good at times in other respects — the quality is very mixed — but the motivation involved in them is disgusting and contemptible. People are afraid to say this because they know they may well be the next target.

I remember when a colleague of the Government Members, an MEP, won a libel action against a newspaper, which then waited for 18 months before it got him.

  Ms O’Meara: The electorate got him if I recall correctly.

  Mr. Norris: The electorate is perfectly entitled to get him but one must consider the degree of malice sometimes shown by newspapers.

I am worried that the proposed press council will not be independent. A group that calls for independence for everybody else does not like independence for itself and is governed by weak guidelines. Let us operate a code similar to that applied by the British NUJ whose code of conduct states: “A journalist shall mention a person’s age, race, sex, colour, creed, illegitimacy, disability, marital status, or sexual orientation only if this information is strictly relevant.” I do not see such a stipulation in the Bill. Some newspapers continually refer to the sexual orientation of individuals.

I am not impressed by the proposed press council or press ombudsman, as they will not be fully independent. I accept, however, that the Minister has appointed good people to both bodies, starting with the former Provost of Trinity College Dublin, Tom Mitchell. Who knows who will be appointed chairman under the next [1065]Administration? To answer the Minister’s question, Tom Mitchell could tell him that Trinity College has a fully independent regulator, the appeal to the visitor. I am always happy to supply information to address deficiencies in the Minister’s knowledge. As I do not often get the opportunity, it is a particular pleasure for me to do so when the occasion arises.

The defence of reasonable publication worries me. Reference was made to a celebrated case in which a jury of the people awarded a significant amount of money. This is not what happened. The newspaper in question returned to the courts for a second cut and continued to defend all the lies being told. We are supposed to be in sackcloth and ashes because the jurors, in their wisdom, tripled the original award. I will not second guess the people.

Qualified privilege will be given a statutory basis in the Bill. An English court held that Albert Reynolds was libelled on this basis and he was awarded a farthing or shilling.

  Mr. Dardis: It was a penny.

  Mr. Norris: The figure was repeatedly adjusted. Everything was done to humiliate him, after which he was not awarded his costs. I would be very careful in this regard.

It is fair that one cannot libel the dead. We all use this when we tell stories. In one particular story I refer to the late Sir Laurence Olivier. The only reason I name him is that I know he is dead and cannot take a libel case. It is a funny story and as he has been dead for a long time, no one at a dinner party will be overly concerned. We should examine the possibility of introducing a limited period under which a dead person can be libelled. Libel is particularly painful for people in the immediate aftermath of death. Why not provide that the right not to be libelled will not be extinguished for a year after death in the interests of the family of the deceased? Liam Lawlor, who was not, God knows, a saint, comes to mind. He did not deserve the kind of lies which were told about him to the grief of his family. What about the case of a well-known murderer — I will not mention his name — whose son was photographed while cycling through Trinity College where he was studying for a degree? His name and association with the murderer were then published in a newspaper. Was that in the public interest? Will this type of practice be addressed in the legislation?

Let us look at the ethos of newspapers. They do not give a damn about the damage they do. I have consistently raised the point that every single newspaper, including the most reputable in the land, routinely publish the name, address, occupation and photograph of accused persons who may or may not be found guilty. If they are found innocent they have already been very severely punished but no editor has taken up this issue. That is the prevailing ethos in the press.

[1066]I am pleased to have an opportunity to address some of the provisions of the Bill in more detail. The Bill provides a curious protection of a judge. It states: “Without prejudice to the generality of subsection (1), it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought was .... made by a judge, or other person, performing a judicial function”. The Minister should remove this from the Bill. For what reason should a judge be allowed to defame a citizen in giving a judgment? I refer the Minister to Nell McCafferty’s reports from the District Court and the outrageous and disgraceful things the judges got away with saying. Are judges to be allowed under this provision to humiliate with no substance distressed persons appearing in court before them and to be granted an immunity? Why should judges be granted an immunity?

I suggest the Minister consider carefully circumstances in which judges can take libel actions. I have been involved in such circumstances — although not personally — for saying that the licensing situation in Dublin had gone out of control and that every second-hand newsagent’s shop was being licensed. I said I did not know who were the judges responsible and whatever kind of lunatics were handing out the licences. The station was sued because of my use of the word “lunatic”, which is in common usage in England. Substantial sums of money were gained by that judge, not once, but twice. I am not sure that judges should be protected in this way.

I regard one section of the Bill as appalling and I want the Minister to remove it. I refer to section 18, the defence of honest opinion. Section 18(1) states:

It shall be a defence (to be known, and in this Act referred to, as the “defence of honest opinion”) to a defamation action for the defendant to prove that, in the case of a statement consisting of an opinion, the opinion was honestly held.

It seems one can say whatever one likes about a person so long as one can say in court that one thought that was the case and that it was one’s opinion. This is ridiculous.

Section 18(2)(a) states:

[A]t the time of the publication of the statement, the defendant believed in the truth of the opinion or, where the defendant is not the author of the opinion, believed that the author believed it to be true,

This is kowtowing to editors.

This Bill is a dreadful day’s work. There are a few good points in it. I support a balanced approach and I support investigative journalism but I do not for one minute accept that people in public life should be subject to a lower standard of proof. They should be held to their views if they say one thing while passing laws and their private behaviour goes in another direction. I [1067]agree this should be exposed. However, to go after their children by photographing them and listening to their telephone conversations is abhorrent. There is nothing in this Bill that will prevent it because we have given up on privacy. This was supposed to be the balancing act. The newspaper editors would be given this free charter but the private citizens were to be protected by privacy laws and they have now been dropped because we have given in. That is the measure of the fear, not only of the ordinary citizen in this country, but even of the legislators. They are afraid to squeak.

  Mr. Dardis: I welcome the Minister of State, Deputy Tim O’Malley, to the House. I welcome the legislation and disagree with much of what Senator Norris has said.

One of the satisfactory aspects of the Bill is that it is being introduced into this House which has quite a good record with regard to speaking on these matters. I recall several debates about the question of defamation, privacy and the rights of a free press. The work of the Law Reform Commission has been very valuable in informing this debate.

It is obvious that the legislation needs to be updated to deal with the pace at which media and society has developed and to have regard to publication on the Internet and by electronic means outside of what the newspapers might publish. Those of us of a particular generation are inclined to focus exclusively on the newspapers and on radio and television but the area has expanded so dramatically that some form of regulation is required.

I am a member of the All-Party Oireachtas Committee on the Constitution which has been examining freedom of assembly, freedom of speech and the matter of privacy. Within the past week a group of us visited Berlin and Vienna. We had quite detailed discussions with newspaper editors and leading constitutional lawyers and parliamentarians about these issues. We also visited Norway, Denmark and Sweden. There are some instructive lessons to be learned from these countries. In Norway, Denmark and Sweden, the matters of freedom of the press, freedom of assembly and freedom of speech are part of their culture and of which they are very protective.

A free press is a basic characteristic of any democracy and any civilised society. That press should be unfettered to a degree which would almost lead to the balance in terms of protections for groups, whatever about individuals, being regarded as being somewhat infringed.

Senator Norris referred to the matter of opinion and fact. It was the editor of The Manchester Guardian who said that facts are sacred and opinions are free. I do not think the legislation treats opinions in the way that Senator Norris has treated them. It is quite legitimate for any newspaper to say, for instance, that the Government [1068]should go, that it is incompetent or that it should be re-elected. Such types of opinions are perfectly legitimate in a democratic society. The newspaper in that instance is not saying that in its opinion, citizen X is an idiot and citizen X has behaved illegally and has done X, Y, and Z which is wrong. The Bill makes this distinction between fact and opinion and it makes it well.

There is a different standard for public persons and for private persons. The section in the Bill dealing with matters of reasonable opinion or with matters of public importance is correct, in my view. During our discussions in Austria, we considered the scenario of a government Minister who is homosexual. There is nothing wrong with that and that person’s privacy should be protected. However, if that person, as a result of that sexual orientation, starts to make utterances which then are reflected in legislation or in how they vote within the parliament, that is a matter of legitimate public concern and is something newspapers should be able to report.

The matter of control of the Internet is very problematic. It is obvious that some countries have not dealt with this problem and some countries have encountered difficulties in trying to deal with it. Section 2 of the Bill refers to electronic communication and defines “statement” as including visual images and decides that a statement can be published on the Internet. This is desirable but the degree to which this can be enforced is problematic. I am not so sure whether the provisions in the Bill are sufficient and I suggest this should be examined between now and Report Stage or before the Bill is sent to the Dáil.

I have dealt with the important aspect of opinion as provided for in the Bill. The offer to make amends is dealt with differently in other jurisdictions. It should not be the case that an offer to make amends or to make a correction should be prejudicial. An offer to make amends or put an explanatory note in the newspaper should not prejudice the position and this is dealt with in a reasonable fashion in the Bill. The matter of consent is important.

I refer to the matter of technology and images. I have been critical of circumstances in the past concerning private individuals. I have been extremely critical of circumstances where a child is murdered — there was one very notable case — a funeral is held and because of the technology available, a cameraman standing 200 yards away can shoot close-up images of people at their most vulnerable. That is out of order. It is one thing to seek and receive consent but, increasingly, there is no regard to consent. These are not matters of public importance. It is entirely wrong that people should be subjected to that intrusion at a time when they are at their most vulnerable. That matter needs to be controlled.

That brings us to the press council, whether it can control matters of that nature and, if there is a breach, the degree to which it can intervene to ensure other breaches do not occur. What is pro[1069]posed in regard to the press council is reasonable. I agree with the Minister that this should not be a statutory press council in the sense that it should not be independent and self-regulating. What is in the Bill is reasonable.

Schedule 2 refers to protecting the public interest by ensuring ethical, accurate and truthful reporting by the press. Now one is into a really difficult area. What is ethical? Is it ethical to show images of people at a funeral? It is unethical but I can think of people in the newspaper industry who would say it is ethical. That is an extremely difficult area. It is a different from what the Minister spoke about. He spoke about an issue which is important, namely, taste. That something is very distasteful does not mean it is unethical. We have enough experience from our domestic history as to what people, including those in this House, did when it came to matters of taste and how they attempted to control matters they thought distasteful. What I am trying to say, although not particularly well, is that taste is even more arbitrary than an ethical standard. That something is in bad taste should not mean it should not be published.

One then comes to the point reached in Denmark with the Islamic images. Does one say there is an absolute right to publish matters of that nature even though they offend very large numbers of people with a particular sensitivity? That is when one gets into a difficult area. Freedom is very important and it is essential to defend it, and in those circumstances, however distasteful, offensive and even blasphemous something is, the newspaper still has the right to publish. It led to deaths in that case so one is getting into a difficult area.

Senator Norris spoke about what the press council would do. It is up to the law to regulate how the press operates. It is up to the council to apply standards which are different from what is in the law. I do not see having an independent press council separate from what is in the legal provisions, although it is part of what is before us, as a problem. There was a press council in Austria which the proprietors decided not to fund anymore, and it fell. It has still not been restored and they do not believe there is anything particularly difficult about that.

There is also the question of advertising. The Advertising Standards Authority for Ireland can regulate what is in advertising. Again, the issue of taste comes into that. Does one leave that separate from the press council or does one include advertising in the work of the press council? That issue needs to be addressed.

The chairperson of the press council and the independent public directors shall be persons who are of standing in the community, persons who are independent of the interests of owners and publishers of periodicals, etc. I am not sure about that provision. Senator Maurice Hayes would make an excellent chairman of the press council.

[1070]  Dr. M. Hayes: No.

  Mr. Dardis: I did not say the Senator should, I said he would. The point I make is that somebody should not necessarily be excluded because he or she has a connection. Again, it comes back to the public. If the public knows about it and is comfortable with it, so what? It is similar to the notion that county councillors are not fit to be members of boards. Will somebody please tell me where there are people who are so independent that they have no attitude to, or view on, how the press should be regulated or on other matters in public life? It is absolute nonsense. We can probably come back to that issue on Committee Stage.

I refer to privilege, to which there are two aspects. One aspect is dealt with very comprehensively in the Bill, namely, statements and the privilege attaching to them. It is reasonable they are covered and they are catalogued here. There is a different privilege, which is much more difficult, where the journalist protects the source. As happened in the recent past, an editor and a journalist were summoned to the tribunal to identify a source. Under the ethics of their profession, they said “No” and they are open to prosecution or to being held in contempt. There have been cases in the past where people went to jail and there was one very prominent case some time ago.

I refer to the experience of other countries. In general, although it is not universal, there is an acknowledgement of the need to protect sources and that journalists should have that type of privilege. If one pushes that to the limit, one could ask if that applies to a person told about a murder. One is getting into a problematic area here. In general, we must ensure journalists are secure in regard to their sources and that their sources are not exposed. There have been cases where journalists have had to go back to their sources perhaps on two, three or four occasions and eventually the sources agreed to the journalists publishing their names. That is not a very desirable way to proceed.

I refer to the dead, to which there has been some reference. Again, there are differences in how this matter is dealt with. The family of the dead should have certain rights. The Lawlor case was referred to. The family of the late Liam Lawlor should have had recourse. It does not seem sensible that the lady in the car had recourse to the courts but the family did not. It can be very defamatory to the connections of the deceased, although I do not want to use that particular case. The family is entitled to redress in such circumstances. From what I can see from the continental experience, there is scope for redress for families. The provision in the Bill deals only with the estate of the defamed person. In other words, the deceased would have had to have initiated the proceedings before he or she died for them to continue. I am not sure about that.

[1071]I refer to bodies corporate. Class actions are allowed in quite a few jurisdictions which would go beyond bodies corporate. I do not know whether one could consider the Irish Farmers’ Association a body corporate, although perhaps one could. They are entitled to redress but there are probably some problems of definition or other problems which need to be dealt with.

The issue of privacy opens another debate which is probably appropriate for another time. In regard to what should be private, there is a different standard for public persons as compared to private individuals. A person’s home is his or her castle and once he or she closes his or her door, it is reasonable that he or she should be free from intrusion or prying. There is, however, a different standard for public and private individuals.

I refer to the rulings of the European Court of Justice. In Austria, the rulings of the court are superior to the rulings of the domestic court. In a recent high profile case, Princess Caroline took a case to the European Court of Justice and a bizarre judgment was handed down. It was felt that if she was photographed in an unbecoming situation, that would be an intrusion into her privacy. We must have some regard to the rulings of the European Court of Justice vis-à-vis our domestic situation.

  Ms O’Meara: I welcome the opportunity to speak on this important legislation. I welcome the Bill and congratulate the Minister on its publication. It is the product of a long gestation, as set out clearly in the Minister’s remarks to the House, which involved the Law Reform Commission, draft Bills, a conference, a legal advisory group and extensive consultation. This is reflected in the high quality of the legislation.

Like Senator Norris, I welcome the fact that we have got first bite on this legislation. The Minister has always taken our views into account and is always willing to listen to views from both sides. The introduction of the Bill is a defining occasion for the media in this country. If the Bill is successful, especially with regard to the establishment of a press council and the appointment of a press ombudsman, it will mark a defining moment in the generation of an improved set of media standards and in the relationship between the media and the public. This is balanced legislation and clearly the Minister has listened to inputs from many sources in drawing it up. I particularly welcome the establishment of a press council and the appointment of a press ombudsman.

The Bill was published alongside the Privacy Bill and much was made of this fact. We know the two Bills initially were put together and that some members of the Cabinet and Government Deputies believe the trade-off for the Defamation Bill is a Privacy Bill. However, there is no question that the Privacy Bill as published is fundamentally flawed. It has been exposed as [1072]dangerous legislation in its current format. The reason for this is that it has not been the subject of extensive consultation or the subject of a Law Reform Commission report. It has not had input from the industry nor from those with knowledge and experience of the area. It seems the Privacy Bill has gone onto the back burner, but despite that I congratulate the Minister on bringing forward the Defamation Bill which is timely, welcome and undoubtedly necessary.

The privacy legislation was initially welcomed in principle by the Labour Party and we have not given up on the notion of privacy legislation. The contents and framework of the legislation will be very important. We could not support the current privacy legislation as it is framed, but that is not the subject of today’s discussion.

The Defamation Bill is welcome and we will not call a vote on Second Stage. The legislation contains an important provision for the establishment of a press council and the appointment of a press ombudsman. I apologise for not stating before I commenced my contribution that I am a member of the National Union of Journalists, a former practising journalist and take a considerable interest in the area.

In 1998 I published a proposal for a voluntary press council in the context of a changed media landscape and of a situation where the media continued to become an even bigger player in society, especially against a background of the weakening influence of former powerful forces such as the church, the Oireachtas and political parties. To some extent a vacuum has been created. What is normally referred to as the Fourth Estate has become a very important player in our democracy. In that context, as a member of the NUJ and a former practising journalist, I believed it was important for the media to take the initiative and establish a press council. This would be important in recognising the role and power of the media and that with that power would come duties and obligations.

The establishment of that council would also create a situation where members of the public — the majority of the public does not consider itself as having access to the courts system — who felt they had been wronged by the print media, whether individually or as a group, would have somewhere to bring their complaint and have it heard and know the industry would respond if the complaint was upheld. That proposal, while supported at some level by the NUJ, was never advanced by the industry, despite many opportunities to do so.

The same industry squealed at the notion of the Minister bringing forward the idea of a statutory press council and his initial proposal was not acceptable. It was certainly not acceptable to us in the Labour Party. I acknowledge, however, that the Minister listened and took on board the views expressed and has now come forward with an acceptable and potentially successful model for a press council. In general, it follows the [1073]model I suggested. Therefore, it would be hypocritical on my part not to support it.

When I published my proposal for a voluntary press council, I stated I did not support the idea of a statutory press council in the context of the need to guarantee press freedom and to ensure the Government would not have control over the media. However, considering what the Minister has brought forward, placing the press council in a statutory context will generate a greater level of public confidence in it. The statutory base will also give it greater standing and power in the community.

I read carefully the Schedule to the Bill which sets out the minimum requirements of a press council. It states the principal object shall be to ensure the protection of freedom of expression of the press. This is a significant guarantee. It also states as an object to protect the public interest by ensuring ethical, accurate and truthful reporting by the press. Nobody could disagree with that. I wish the future press council well in this vision. A further object is to maintain certain minimum ethical and professional standards among the press to ensure the privacy and dignity of the individual is protected.

1 o’clock

I support all those objectives, particularly as a member of the National Union of Journalists. However, I wish to point out two facts. First, the National Union of Journalists already has a code of ethics and standards, but it is not upheld. The second point is that unless this press council is seen to live up to the legislation, it will not generate the trust and confidence of the public and will have been a failure. This is up to the press council itself.

I welcome the appointment of the appointments committee for the press council. I acknowledge the industry for agreeing to the establishment of the press council and press ombudsman. Coming from the industry, I know what a large step forward this is. It is necessary, long overdue and must happen. I call on the industry to live up to the standards expected of it by the public because those standards are undoubtedly falling. The impact of this is that public trust and confidence in the media is on the wane.

Members referred to the reportage on the Liam Lawlor incident, which was undoubtedly a watershed. A line was crossed and public outrage rightly followed. We in this country — it is great to be able to say this — expect a standard from our media. We expect the media to live up to a standard of ethics and professionalism on our behalf. One could say the independent media is private industry, and that it is not like RTE or State-funded media. However, the fact is the crucial role played by the media in our democracy is such that it must live up to standards.

We see the effect when public service broadcasters or newspapers take on an issue. The “Prime Time Investigates” programme on Monday last has transformed public discourse on the [1074]issue of mental health. Every day the reportage on issues by newspapers calls to account legislators and public institutions, which is their role. However, there is a balance to be maintained. Unless there is trust and confidence in the media, it has no standing in calling to account legislators or public institutions.

Most journalists know this and most live up to it. Increasingly, however, the demands of commercialisation, dumbing down or populism — call it what you will — apply. We see this every day of the week and people are sickened by it. The public knows there is no need to invade a person’s privacy. There are many examples of slipshod journalism. When I worked in RTE I had occasion to point out that we were using a certain term on radio about a victim of crime. A woman had been murdered in the Dublin mountains, and journalists constantly referred to “the naked body of a blonde victim”. I said that was not acceptable and asked why it was necessary to use such terms. That is just one example.

The families of victims of crime will tell of how they go to a newsagents in the morning and see their grief and personal history plastered all over a newspaper for purely voyeuristic purposes. Salacious details of murders are revealed, which in many cases the public lap up. Standards are falling constantly. It is up to individual journalists and it will be up to the press council to ensure minimum standards. I wish them well because they are up against it and have a high standard to meet.

This will be a defining moment in that it will define the future relationship of the media and the public in this country, which depends on the success of the press council and the media ombudsman. I do not take the same view as Senator Norris in this regard. My default mode is optimism. I foresee the success of the ombudsman generally. Although this ombudsman is being funded and put in place by the industry, I believe enough people in the media industry know we have reached a crossroads in this regard. Making the press council and press ombudsman work is a very serious matter because so much is at stake.

The press council cannot be seen as a regulator of the press but it is the place where standards must be seen to be upheld. We do not know how this will work in practice. What happens if it does not work? While there are appeals mechanisms, if the press council is not living up to the standards set down in the legislation, to whom would a member of the public complain? I realise it is a big question and perhaps the Bill is not the means to deal with it.

If the press council does not work, it is clear there would be no alternative but for the Oireachtas to act, particularly in the area of privacy, which is the key issue that has emerged. I agree with Senator Dardis that there is a different standard for those in public life, such as Members of the House, and private citizens. Politicians [1075]must be held to account, and the media is obviously one of the organs which holds us to account. However, there must be boundaries around that. When one goes in one’s front door, that should be it.

I welcome Senator Dardis’s remarks with regard to the experience in other countries, of which we need to hear. If useful points could be sent to Members via e-mail, I would welcome that as I do not have time to fully research the issue. We need to consider the context in this regard and get the balance right between, on the one hand, the media’s right to ask hard questions, hold us to account and expose matters, and, on the other hand, the need to maintain privacy. I note the point with regard to the Internet, which is a difficult issue that could be teased out further on Committee Stage.

I warmly welcome the Bill. I commend the Minister on bringing it forward. I was remiss in not welcoming the Minister of State, Deputy Tim O’Malley, to the House, for which I apologise. This is a defining moment in the relationship between the Irish media and the public. We are charged with a major responsibility with regard to the Bill.

  Dr. M. Hayes: I welcome the Minister of State, Deputy Tim O’Malley, to the House. I have three interests to declare. First, I am a director of Independent Newspapers, second, I am a writing contributor and commentator and, third, I was involved as a facilitator with the steering group which produced the model of the ombudsman. Given my experience in setting up ombudsman offices, I may have been helpful to the group.

I assure Senator Norris this model does fulfil the criteria for the use of the term “ombudsman”. There used to be a snobby notion among statutory ombudsmen, of whom I was one, that other people should not be allowed to use the title. New Zealand is the only country that has protected it. The essence of an office of ombudsman is that, first, it should have independence, second, it should have resources, third, it should have access and, fourth, it should have the ability to secure redress for the complainant. Time will show whether this office fulfils those criteria.

I will not rise to the other baits which Senator Norris cast in front of me, partly because it would take too long and because I have no great taste for shadow-boxing. However, as he has bared his breast, I will let my wounds bleed for a moment too. I believe I was libelled, or at least misrepresented, on two occasions, once by an Irish newspaper that is sadly no longer in publication, and again by a British broadsheet that is. I was not looking for money. There was no malice in either case but in both cases what was published exposed me to a severe danger to my life, given the jobs I was doing. All I wanted was a correction and an apology that would set things right. However, given the law of libel in Britain and [1076]Ireland, the newspapers were afraid to give that apology to me because of where it would lead.

I welcome the Bill because it enables people like me to have that sort of matter cleared up. This is a charter to help the poor person and the less wealthy in their relationship with the press. The libel laws as they stand can be used by rich people as a pastime, whereas poor people get very little from them. This measure balances that again somewhat.

I join Senator O’Meara in congratulating the Minister. Like her, I appreciate the manner in which he has dealt with this legislation. It could form a model for dealing with legislation of this type. The Minister came to this House for a preliminary debate on the matter, attended a conference, engaged in extensive consultation and listened to people before introducing this proposal. I agree with him that this legislation balances the conflicting rights of the public to be informed, of the press to ensure that the public is informed, and of individuals to enjoy privacy and respect. It is difficult to deal with such issues in any society, but the Minister has made a fair and reasonable stab at it in this Bill.

I would like to mention some aspects of the Bill that I welcome. I am pleased that it ensures that the issuing of an apology will not be seen as an acceptance of liability, provides for the ability to make lodgments, allows courts to direct juries, limits the period in which a case can be taken and imposes a requirement for verified affidavits. While the legislation has some negative aspects, they are minor and can be dealt with on Committee Stage. I will give some consideration to whether we should extend so much protection to corporations in the absence of a financial loss. Having listened to Senator Norris, I am sure some of my colleagues in another place will have different views on the matter.

We need to concentrate on the important aspects of this legislation. I am glad that Senator O’Meara dealt with one such matter at length. I refer to the proposal to establish a press council and to provide for a press ombudsman. We may be quite late in coming to this point. It may have taken the push of another Bill, which we are not discussing today, to arrive at this juncture. This legislation represents something of an accomplishment for those involved in the industry’s steering committee. They brought together the various strands of this disparate industry to face their responsibility to deal with their clear shortcomings, which can hurt people. It is important to have brought the industry to this point.

I have no doubt about the industry’s desire for the proposed ombudsman to be independent, which is exemplified by the nature of the people who have been chosen and have agreed to select the first group of people to take on this role. Having said that, the new arrangements will be tested by the manner in which these people will operate, the quality of the person who is selected as the [1077]ombudsman, the access that the ombudsman is given and, in particular, the extent to which the ombudsman will be able to require redress to be given to a person, by means of publication or otherwise. While some of the sanctions which are provided for are like the H-bomb in nature, most of them are reasonable.

The Minister will be able to withdraw certification or recognition from the proposed press council if it is not performing in accordance with to the requirements set out for it. It is important that peer pressure be exerted within the industry to ensure that all interests respect the decisions of the proposed ombudsman and press council. I hope the industry will go further in that regard by making it part of the terms of employment of editors, for example, to respect the press council and its findings. That is part of the testing ground.

Senator Norris expressed concern about the proposal to provide for the defence of reasonable belief. It is a pity that people do not read beyond the side title or first subsection of sections of legislation. If Senator Norris had read further down, he would have learned that the rest of the relevant section surrounds the defence of reasonable belief with a series of conditions which have to be satisfied before the courts will allow it to be used.

As Senator O’Meara said, we are giving the industry the potential to show its mettle. It should be allowed to do that. When the press council has been established, it should be allowed to develop a code of conduct. The code of conduct is the most important part of the proposals relating to the press council, which have been circulated by the steering group. The principles which are set out in the code of conduct are central to the entire system. They should be regarded not as definitive but as work in progress. Part of the role of the proposed press council will be to work with journalists and other people in the industry to flesh out the code of conduct. The manner in which that is done will, along with the work of the courts, protect privacy as much as anything else. I do not want to sound like a member of the DUP talking about what Sinn Féin needs to do in respect of policing when I say that the work of the proposed press council is entitled to be tested over a credible period. The council should be allowed to show its ability to operate.

I welcome this Bill, which I will support, because it offers the opportunities I have mentioned. I look forward to the Committee Stage debate on some of the issues which are of concern to Members. Such matters can be sorted out at that time.

  Mr. Coghlan: I welcome the Minister of State, Deputy Fahey, to the House and I welcome the Defamation Bill 2006. A great deal of preparatory work has been done on this legislation, for which we have been waiting for a long time. It has been introduced on foot of the due considerations of the Law Reform Commission. I under[1078]stand that all of the LRC’s recommendations, with the exception of a recommendation relating to the proposed ombudsman and press council, have been incorporated in the Bill. Extensive consultation has been undertaken.

I welcome yesterday’s announcement of the proposed establishment of an independent press council and ombudsman, to be provided for under this Bill when it becomes law. While the code of practice that has been agreed is not cast in stone, it represents a good starting point for this law. As we know, it removes many of the defects of previous laws. I agree with the proposal to allow for the defence of reasonable publication in matters of public importance.

I also agree with the measure in this law, to which the Minister for Justice, Equality and Law Reform referred in his opening statement, which will allow judges to assist juries, as opposed to giving direction to them, when they are deciding on amounts of damages. We are aware of a recent prominent example of a judge deciding not to give such assistance, although he may have felt he was not allowed to do so. When a guiding principle is laid down by a superior court — particularly by the Supreme Court, as was the case in this instance — it is important to give juries some assistance. I think juries should look for such assistance, which they may not have done in the past. If the Supreme Court has made a decision as a benchmark, the judge should be able to assist the jury by saying that the amount of damages should be within certain limits. That would be an important step. If I understood the Minister correctly when he was speaking about this matter — I heard him fleetingly while I was passing a monitor — I agree with his approach. This is a good measure that is long overdue. That might have been a cause about which Senator Leyden and his colleagues know something. For a long time it was hand-cuffed, so to speak, to the Privacy Bill. The Minister, understandably, feels unable to give any assurance that that Bill will come before us shortly. It may never see the light of day; we will certainly not see it in this Parliament.

I referred briefly to the press council. The ombudsman and the complaints system being a new avenue to take without going to court, and which is free to the citizen, is important. It is natural for people to get upset if they believe they have been defamed but the cost of taking action is prohibitive. Many people believe it is a law for the rich and that only the rich can afford to take the gamble of going to court. I welcome that measure.

In an ideal world we should have a statutory press council but I accept this measure is an initial step. All the press have signed up to it, or so they told us yesterday, but if something were proved to be amiss in the future I am sure the matter could and would be revisited. Members of this House, and no doubt those in the other House, would be the first to shout about it. It is important that citizens have an avenue open to them that is [1079]free and that the question of costs will not come into their considerations should they decide to go that route.

I welcome section 26, which provides for a declaratory order. It concerns citizens who believe they can prove they were defamed but who are not seeking damages. As we are all aware, the media can be lax at times. To give a recent example, an apology was not offered over a period of six years. There were wealthy people involved in that case but some citizens may not be able to afford to take that route even though they would be able to prove they were defamed. They might not want to seek damages but if they have not been offered an apology this declaratory order, which is a new provision, is very important. I refer mainly to the print media, but it could apply to radio and television as well, in cases where an apology is not forthcoming and they are being truculent against the small man, so to speak. That is the reason section 26 is so important.

I welcome section 14 regarding defence of truth, although it is only a change of title in terms of justification. It is a sine qua non that someone would come to a case with clean hands. I am aware of an instance where a letter received prominent circulation. It was not published but one or two parties felt aggrieved because they were the parties referred to without actually being named. The hint was dropped that they would take an action, probably with the intention to frighten the small man, so to speak. Where people who may have been party to something irregular if not illegal, they cannot take an action without clean hands. If I read it correctly that is provided for in the section, which I welcome.

I give the Bill a general welcome, particularly the provision dealing with a press ombudsman and a press council. The question of their independence will arise but before concluding I should say that no one can doubt the credentials of those on the appointments committee, namely, Professor Mitchell, Dr. Manning, Dr. Miriam Hederman O’Brien and Kevin Murphy. They all have excellent track records and no one would doubt their ability to do the best. For that reason I welcome the Bill.

  Mr. Leyden: I welcome the Minister of State, Deputy Fahey, to the House and the officials from the Department of Justice, Equality and Law Reform. The Tánaiste was in the House earlier.

One’s reputation lives forever. When people die, their next of kin either carry on their good names or must live with possible shame. That is the reason this Bill is particularly important. I commend the fact that the Minister has had widespread consultation in that regard. He has presented us with a Bill of the highest quality. I say that having read the Bill and an article, Defamation Law in Ireland, by Kieron Wood, a barris[1080]ter, from which I intend to quote for the record. That article outlines the background to defamation law in Ireland. It states, “... because of the importance of educating public opinion, the State will try to ensure that the organs of public opinion such as the radio and the press [it doesn’t mention television] keep their right to liberty of expression, but they shall not be used to undermine public order, morality or an authority of the State”. It is a very good document and anyone interested in this legislation should examine that area.

I will deal specifically with one area, namely, defamation of the dead. The Minister stated:

The Bill does not provide for the defamation of the dead, an issue which arose during the consultation period. It does, however, provide that on the death of a person, a cause of action for defamation vested in him or her immediately before death should survive for the benefit of the estate. Similarly, it also provides that a cause of action in defamation subsisting against a person should survive his or her death and lie against the estate.

I was in the course of preparing a defamation of the dead Bill. I suggest the Minister should consider including a section in this Bill before Committee and Report Stages to the effect that families would have a right to sue newspapers for defaming the dead. I refer specifically to the case involving the late Deputy, Liam Lawlor. Liam Lawlor died in a tragic accident in Moscow. He was seriously defamed in an article in the Sunday Independent, which was published on the day of the Fianna Fáil Ard-Fheis in Killarney. It came as a shock to all of us to learn that Liam died in such tragic circumstances but then we learned that his wife and family had to deal with the fact that her beloved husband and their beloved father was defamed in such an uncaring way. Nobody in the Sunday Independent, including the editor, has taken direct responsibility for that. It is important to ensure newspapers are aware that if they defame the dead, they will be liable. I am particularly keen to see this legislation passed.

State law in Quebec, Canada and in Rhode Island in the United States allow civil actions in such cases. I have studied that area and am aware that a similar law exists in Germany and was used recently to convict historian, David Irving, who made derogatory comments about members of the Jewish community killed by the Nazis during World War II. That case was successfully fought at the time. I am delighted to have an opportunity to go into the legislation in more detail in that respect.

A book was published in the United States in which President Lyndon B. Johnson was accused of the assassination of President John F. Kennedy. It sold 75,000 copies. The content of the book was totally untrue yet efforts were made to denigrate President Johnson by association with that tragic assassination in 1963.

[1081]When the debate on the Bill resumes, I will appeal to the Minister to make provision to allow the next of kin take action in case of serious defamation and libel of a deceased individual. One has nothing but one’s good name and under this Bill, one can now defend one’s reputation in the courts. In the case of one who has died, however, nobody can defend his or her good name.

Debate adjourned.

Sitting suspended at 1.30 p.m. and resumed at 5 p.m.