Defamation Bill 2006 - Committee Stage (Resumed) 11th December 2007

Defamation Bill 2006 - Committee Stage (Resumed) 11th December 2007^
SECTION 23.
Question proposed: "That section 23 stand part of the Bill."
An Leas-Chathaoirleach: I welcome the Minister for Justice, Equality and Law Reform to the House. The debate is resumed on section 23. Is the section agreed?
Senator David Norris: I have a difficulty with it but I am prepared to wait until we reach the next section to discuss it.
Senator Eugene Regan: Is it clear from this section that the onus is on the defendant to prove that the plaintiff consented to the statement?
Senator Jim Walsh: On the issue of consent, it generally arises by way of a telephone call to the person concerned.
Senator David Norris: Yes.
Senator Jim Walsh: If a person consents to a publication, he or she may not be fully aware of its full content. I have concerns that a person might indicate he or she is happy with a statement, but without knowing the detail of the full article, it is impossible for a person to give such consent. I do not know the case law on this issue but consent in this regard is not good enough. Such consents are generally sought at the last minute by reporters trying to cover themselves by making a telephone call to the person concerned and if he or she is not fully au fait with the total content of the article, it could create an injustice if such defence of consent were accepted by the court.
Senator David Norris: Senator Walsh's point has brought something to mind. I consider I was seriously libelled by one of the gutter newspapers some time ago and on that occasion I did not take the matter to court. I was telephoned around midnight and I got out bed to answer the telephone, the person read over what he or she proposed to publish and wanted a comment from me. That person was just covering himself or herself. That is precisely the kind of matter about which Senator Walsh spoke. Newspapers may in a sneaky way try to get one offside.
I imagine the Minister will say newspaper reporters must prove what they write. I wonder what is that proof. Does the provision mean proof in writing or can the record of a telephone call made late at night to a person be held to be convincing proof or would the person need to have a contemporaneous note or a recording of the conversation? The section does not seem to indicate that? If a person gives consent in writing in advance, he or she has very considerably weakened his or her case for taking an action for libel to the point of extinction. I have concerns about precisely the matter that Senator Walsh raised.
Senator Eugene Regan: The issue is that the defence of consent would apply only where the plaintiff is apprised of the full extent of the statement which is to be made and which then is the subject of the action. In circumstances where one is doorstepped and asked to accept or reject a cryptic statement that is put forward, the true situation is not covered. Therefore, some elaboration is needed on the consent required to enable this to be a valid defence.
Minister for Justice, Equality and Law Reform (Deputy Brian Lenihan): If Senator Regan wishes to table an amendment, I will it consider it sympathetically. This is a new provision and was not included in the 1961 Act. Therefore, Senators are entitled to question its meaning, as they are to question the meaning of anything that is put before them. However, specifically, they should raise any concerns they have about this section. I will examine the issue the Senator raised.
On the drafting of the section, as it stands, I advise Deputy Walsh that a consent clearly must be an informed consent. A consent is not simply a casual conversation with a garrulous newspaper man or woman at a late hour of night; it must be an informed consent. The expression "consent" in the section clearly is the consent of the plaintiff and, therefore, must be a consent to the publication of the statement in respect of which the action was brought. In other words, if a person said, "you can say of me that I am the keeper of a house of ill repute in this city" and consented to having said that, but did not own a house of ill repute, under this section he would not have an action for it. There have been cases where persons have uttered utter falsehoods and untruths to reporters for the purpose of generating libel actions. The consent must be freely and spontaneously given.
In relation to the onus of proof, an issue raised by Senators Norris and Walsh, the words "it shall be a defence" mean that the onus rests clearly on the defendant to make out the defence.
Senator David Norris: I wish to ask the Minister a question on what he has said. I have never heard it said that people have sought out newspapers and told reporters lies. Are there any proven instances of this? It would be fascinating if there were, and perhaps it is possible there have been such instances.
Returning to the matter of telephone calls by reporters, there is also a question of headlines carried by newspapers and information having been twisted. I have to use Senator Walsh in the hypothetical case I will cite, but I do not mean to sully his reputation. I believe he has a wife. I am not so provided and, therefore, I cannot put this hypothetical question in regard to myself. If a newspaper reporter telephoned Senator Walsh and asked him, "Did you beat your wife last night?" and he rightly said "No" and the newspaper then carried the headline "Walsh says he did not beat his wife", the implication would be that nobody would believe him because they would know perfectly well that he beat the daylights out of his wife. That is type of circumstance I mean and perhaps such communication is a kind of consent. I am interested to know if there are cases of scams where people have lied to reporters to damage their reputation and have taken action on foot of that. I have never heard of it, but it might well be a lucrative additional source of income for Members of the House.
An Leas-Chathaoirleach: Senator Walsh is anxious to answer that question.
Senator Jim Walsh: No, I cannot think of the right answer to that question, one that would not get me into more trouble.
On the question of consent - I am sure the Minister would be able to advise me on this - there is reference in a later section of the Bill to the interaction between the reporter and the person who is defamed. Rather than inserting a defence of consent, I wonder if that later section deals sufficiently with this issue. I note the Minister said the consent would be an informed consent. That is not stated in this section but perhaps it is inherent from other laws.

Deputy Brian Lenihan: In what section is this?
Senator Jim Walsh: I cannot say off the top of my head, but there are sections dealing with interaction that takes place. For example, section 24(3) deals with the issue, as do other areas. I wonder whether it is necessary to include it. A kind of confusion can arise. It would not be uncommon if somebody was contacted off guard by a reporter who knew what he was doing and told the reporter he could publish whatever he liked. It might just be a throwaway remark and the person might not be fully au fait with the issue, but it could provide cover in a subsequent defamation case. Perhaps the Minister's point about informed consent is right and the courts would very strictly interpret that consent could only be given where the person had time to peruse fully the article and to respond to it in a measured way. However, I wonder whether it is necessary at all in the Bill.
Deputy Brian Lenihan: It has always been part of the common law. All we are seeking is a codification of that, which is an expression of what is the current law in statutory form. I cannot see that it prejudices the parties to a legal action.
Senator David Norris: Can the Minister give any examples of people telling lies?
Deputy Brian Lenihan: I could give many examples of persons who tell lies.
Senator David Norris: I will be more specific under cross-examination and ask whether the Minister can give any examples of people telling lies to newspapers with the intention of making profit from libel actions. He said he could do so.
Deputy Brian Lenihan: Not this afternoon. I will return to the subject on Report Stage if the Senator wishes to table an amendment.
Senator David Norris: I would be very interested in hearing some of these examples, if the Minister can dig them out. I do not mean to be awkward, but I challenged his predecessor on the basis that I have yet to come across a convincing case where the libel laws frightened off a proper investigative journalist from an investigation. I asked him on a number of occasions, but he said he could not find such a case, having previously said such cases existed. It is just a little piece of forensic cross-examination.
Deputy Brian Lenihan: Legal professional privilege prevents me from comprehensively answering the Senator's question.
Senator David Norris: My compliments on an elegant wriggle.
Senator Eugene Regan: To deal with Senator Norris' case and the situation that may arise, perhaps another defence should be built in here for the publisher. We have a whole list of defences, but we may need another defence. I will be putting down amendments on Report Stage for this and other sections of the Bill. We are agreeing to these sections on the basis that further amendments will be submitted on Report Stage.
Question put and agreed to.
SECTION 24
An Leas-Chathaoirleach: Amendments Nos. 16 to 19, inclusive, are related and may be discussed together by agreement.
Senator Eugene Regan: I move amendment No. 16:
In page 18, lines 26 to 36, to delete subsection (1) and substitute the following:
"24.--(1) Subject to subsection (4), it shall be a defence (to be known, and in this section referred to, as "the defence of fair and reasonable publication") to a defamation action for the defendant to prove that the statement in respect of which the action was brought was published in good faith and in all the circumstances of the case, it was fair and reasonable to publish the statement.".
I think it is agreed that instead of a subject of public importance, the section should be amended to refer to a subject of public interest. I am not committed to the exact wording proposed in the amendment and I am prepared to withdraw it. However, I think that this section creates a defence which has very serious implications. It is based on jurisprudence established in the United Kingdom that has not yet been adopted in this jurisdiction, although there are intimations that it has been so adopted at the level of the High Court, following the Reynolds judgment. However, this is the subject of a Supreme Court appeal. In a sense, we are codifying jurisprudence which is not yet settled in this jurisdiction. That has far-reaching consequences because it sets up a defence which effectively means that a publisher can print an untruth and defame somebody, yet still establish a defence.
There is other jurisprudence in the US which states that there is no constitutional value in a false statement of fact. It affects confidence in politics and it also infringes the right to privacy and the constitutional right to one's good name. This section is very important and I question the extent to which we codify a defence which is not settled in the jurisprudence of this jurisdiction.
Senator David Norris: I agree with Senator Regan. I am astonished that a Fianna Fáil Minister would introduce this kind of thing in the light of the case mentioned by the Senator. This is the celebrated Reynolds case, which followed some American precedents that have been extremely damaging. Look at the state of play in America, especially for politicians and negative advertising. People can tell any quantity of lies with apparently complete impunity about opponents in a political race. People who are highly decorated war heroes can be described by little lice as cowards. People who never got their backsides off the seat in front of the television and who never fired so much as a pop gun in their lives, can still tell these lies. That is where all this thing started.
In my opinion, Mr. Reynolds was very badly treated by the British courts and I would be horrified that the same kind of practice could be pursued here. Senator Regan also made another point that I had intended to make. Under the Constitution, the State guarantees very strongly not only to protect but actively to vindicate the good name of its citizens. Yet this Bill states that someone can print something that is untrue, as long as it is done in good faith. That is not good enough and that is why my amendment is more limited than that of Senator Regan. My amendment just deletes the expression "in good faith". I do not believe in it and I think it is wrong. Why should people be allowed to print lies? What does good faith mean? Is there a definition of good faith? Does it mean that the publisher had the day off because of a hangover, so he did not look over the article in question? Does it mean that he was too stupid to realise that the thing was defamatory? Why should the stupidity or unprofessional behaviour of an editor be allowed to protect him or her against an action by a citizen?
I am astonished at this. A very distinguished former Taoiseach and leader of the Minister's party was very badly treated under similar ideology in the British courts, yet here we are happily introducing it into our own legislation. No thank you.


Senator Jim Walsh: I said this on the previous occasion we debated this issue, when the Minister's predecessor took the debate, and I did not get far. This is a significant shift in our defamation laws. I agree with Senator Norris. The good faith criteria are weak. There is an amendment to remove section 24(1)(a), "in good faith", and even paragraph (b), "in the course of, or for the purposes of, the discussion of a subject of public importance, the discussion of which was for the public benefit", may not be strong enough. It is a shift towards freedom of expression, which we must make, but it could undermine all the other balancing measures we are trying to include for the person who is defamed, the plaintiff. This is significant.
If we continue with this we should have at least a paragraph (c) stating that strenuous efforts must be made by the reporter or publication concerned and obliging them to check or ascertain that what they are publishing is true and factual. That is not in place. I am concerned by the absence of this strong criterion, which should underpin all publications of statements that may impact on people's good names. If stories are not true they should not be published. This significantly dilutes that principle.
Deputy Brian Lenihan: Before I deal with the detail of the amendments I will say a few general words on this section. Section 24 puts on a statutory footing the new defamation defence of fair and reasonable publication on a matter of public interest. It extends the occasion of qualified privilege to the world at large. Defamations can occur on occasions of absolute or qualified privilege without malice. Formerly the phrase "public importance" was used and there is no issue on the fact that "public interest" is now proposed because it is a more precise concept. Senators are familiar with the genesis of this new defence. As Senator Norris said, it was first set out by the United Kingdom court of appeal in 2001 in the case of Reynolds v. Times Newspapers Limited, which developed this new defence.
Senator David Norris: It also came out of the United States case of Sullivan v. The New York Times Company.
Deputy Brian Lenihan: Sullivan v. The New York Times Company originated this doctrine in the 1950s. The High Court decision in July 2003 by Mr. Justice Ó Caoimh in the case of Hunter and Callaghan v. Duckworth and Company Limited and Blom-Cooper adopted the reasoning of the Reynolds case and introduced the concept into Irish jurisprudence. In September 2006 the United Kingdom court of appeal refined and clarified this defence in the case of Jameel and others v. Wall Street Journal Europe. In his consideration of the case of Leech v. Independent Newspapers (Ireland) Limited of June this year, Mr. Justice Charlton was of the opinion that a fair and reasonable defence existed for the Irish media and he drew heavily on the Jameel judgement. While Senator Regan said the matter has not been resolved by the court of ultimate resort in this country, the judicial precedents are not encouraging. The new defence provided for in section 24 codifies in statute the existing judicial position following the decisions of the Irish High Court to apply the reasoning of the United Kingdom authorities.
I agree philosophically with Senators Norris and Regan on this. Many commentators argue that the issue in defamation should be truth or falsehood. Absolute and qualified privilege trench on it, but to extend an occasion of privilege for media interest to include the whole world is a far-reaching step and I share the Senators' reservations. I would be interested to see whether Senator Regan can bring his party, including Members of the Dáil, along on this and whether there might be all-party agreement which would put us all in a stronger position. As Minister for Justice, Equality and Law Reform I am in a difficult position. Were I not to legislate for this area I would leave the matter to the courts, where the signals are not encouraging. Our only option therefore is to legislate for it but to restrict it in every way possible. The reference to compliance with the standards of the Press Council of Ireland has been inserted to make the defence difficult to make out. That is the only way forward.
As a person interested in legal matters I never agreed with the Sullivan judgment and the fact that our courts are introducing it is disappointing to me. As legislators we have a duty to stop them. In this legislation we purport to codify all the defences. If we do not address this issue, we leave it out and say it does not exist. I appreciate Senator Regan's comment that we should leave this matter to the courts, but the signs are that if we do so they will develop this defence at their own pace and on their own terms. When the courts raise an issue, we as legislators have a duty to respond to it in our way. My instinct on this defence is to circumscribe it as much as possible. Our views on this may be misrepresented in public comment and I want to be clear why I am concerned about it. Truth should be at a premium in defamation matters and our laws should not encourage the publication of falsehoods.
Senator Eugene Regan: I appreciate the Minister's outline of the case law. Mr. Justice Ó Caoimh's statement was obiter dictum to the case and cannot be relied on except in the broadest sense. The matter will be a subject of a Supreme Court ruling soon and that is why I say the law has not been settled. We must be conscious we are adopting legislation that might have constitutional impediment in light of the constitutional requirement that the good name of an individual be protected and vindicated. I am concerned that we do not overstep the mark in this legislation and we have an obligation on that.
Senator David Norris: The Minister has been open, honest and interesting. I applaud the fact that he shared his views on this difficulty with the House. I am pleased he thinks the judges' following the Sullivan case was the start of the rot, followed by the infamous Reynolds case in Britain, which no Irish person could relish. The Minister indicated that the Judiciary is following such precedents in other jurisdictions, as it is entitled to do, in the absence of any prescription from the Houses of the Oireachtas, which we are doing. The Minister has suggested an elegant and sophisticated approach in which we appear to do what the newspapers want but tie it around with so much red tape that they will find it difficult to enter this defence. We must legislate for this area but I would like us to do so that we can close it down. As the Minister said, truth is at a premium. If we allow newspapers to tell lies, they will be happy so to do and it will be damaging, especially with the impact of the British tabloids in this country. The judges will not follow these precedents if we legislate effectively and tie their hands. The judges only interpret the law, we originate it and it is up to us to do our best.


Further down the section is this business which I believe is lamentable. The Minister spoke about broadening out the concept of public benefit, etc., to cover the entire population and so on. However, in section 24(2) it is narrowed down again in a manner that raises questions. Subsection (2)(a)states:
For the purposes of this section, the court shall, in determining whether it was fair and reasonable to publish the statement concerned, take into account such matters as the court considers relevant including any or all of the following:
(a) the extent to which the statement concerned refers to the performance by the person of his or her public functions.
In other words, one can tell lies about people in public life and this can be construed as something of a mitigating factor. I do not see the logic of that, although perhaps, in one sense there is. On the Order of Business today, for example, there was an interesting series of exchanges about drugs and whether the approach should be to hammer down as hard as possible the American style war on drugs or to liberalise them by going towards decriminalisation and so forth. I can see a case, for example, if a Minister was taking a hard line on drugs and was then discovered every Saturday, in the potting shed, smoking joints and taking cocaine. At that point, fair enough, the Minister should be made responsible to public opinion. However, as regards this bald statement, "the extent to which the statement concerned refers to the performance by the person of his or her public functions", what has that got to do with the price of eggs? Why should that be allowed to dilute the necessary and primary element of truth? I cannot follow that.
I would inform the Minister that this is possibly unconstitutional. When the Constitution talks about vindicating a person's good name, it is very strong in this regard. It is one of the great things in Éamon de Valera's Constitution.
Senator Jim Walsh: One of the many great things.
Senator David Norris: It allowed me to decriminalise homosexuality. I thank Mr. de Valera, and I do not imagine he expected that.
Deputy Brian Lenihan: There are lurking problems still, in Article 41.
Senator David Norris: I am just making the point, and, regrettably I have to leave the House for a while, although not before I hear the Minister's reply. I believe we are creating two classes of person here. The Constitution does not say the good name of an ordinary citizen may not be dragged in the mud but if he or she is stupid enough to get elected to the Dáil or Seanad, or even a county council, then one may say whatever one likes about him or her. I do not believe that is right and I shall take a good deal of convincing.
Senator Jim Walsh: I welcome the Minister's comments as regards the premium on the truth, and it should be the criterion by which all sections of the Bill are measured.
Senator David Norris: Hear, hear.
Senator Jim Walsh: To follow through on the point I made earlier about the statement being true, I wonder whether we are proceeding with that. I heard what the Minister had to say on the advisability of it because of the codification. If section 24(1)(a) was to read, "[I]n good faith, following implementation of best practice in establishing the truth of the public statement, and...", then the term "In good faith" is qualified by compliance with best practice in the media and the newspaper business about establishing the truth. My understanding of the way the media operates is that if something is controversial or defamatory of somebody, it should not be published without corroborating evidence from other sources. At least that could put some degree of qualification on the term "In good faith". I am not sure whether it is perfect qualification, but it would certainly be an improvement on what is there. I share the concerns of other Senators that a lazy reporter could, in fact, just publish without establishing how factual or otherwise a statement was. The rest of the section contains some qualifications but this insertion, stating what is meant by fair and reasonable publication, ensures a definition that is as good and tight as it can be.
Deputy Brian Lenihan: On the specific point raised by Senator Walsh, my advice is that good faith encompasses all the factors subsequently referred to which includes, in the case of a statement published in a periodical, the extent to which the publisher adhered to the code of standards of the Press Council or to standards equivalent to those specified, and abided by decisions of the Press Ombudsman and determinations of the Press Council. However, I am prepared to look at the points Senator Walsh has raised to see whether it can be strengthened.
Amendment, by leave, withdrawn.
Government Amendment No. 17:
In page 18, subsection (1), line 27, to delete "as "the defence" and substitute "as the "defence".
Amendment agreed to.
Senator David Norris: I move amendment No. 18:
In page 18, subsection (1),line 31, to delete paragraph (a).
I am precluded from calling a vote because I have another appointment. Perhaps we can return to battle, however, on Report Stage.
Amendment, by leave, withdrawn.
Government Amendment No. 19:
In page 18, subsection (1)(b). line 33, to delete "public importance" and substitute "public interest".
Amendment agreed to.
An Leas-Chathaoirleach: Amendment No. 20 is in the name of Senator Norris. Amendment No. 21 is related, therefore, amendments Nos. 20 and 21 may be discussed together by agreement. Agreed.
Senator David Norris: I move amendment No. 20:
In page 19, subsection (2)(f)(i), lines 9 and 10, to delete all words from and including "or" in line 9 down to and including "standards" in line 10.
Can the Leas-Chathaoirleach give me the opportunity to find the relevant part of the Bill because I was just leaving the House.
Deputy Brian Lenihan: Does the Senator want me to deal with it?
Senator David Norris: I shall be obliged because unfortunately I have to leave now. That leaves me with the opportunity to re-submit. I shall read the Minister's reply with great interest, and I apologise for having to leave now.
Deputy Brian Lenihan: Senator Norris's amendment on this section is not as fundamental as his previous one and might not require a vote. However, the point being raised is whether the membership of the Press Council can be made compulsory. In providing for the circumstance in which a matter of public interest can be a fair and reasonable publication, the section goes on to state, at subsection (2)(f):
in the case of a statement published in a periodical, the extent to which the publisher of the periodical---
(i) adhered to the code of standards of the Press Council or to standards equivalent to those specified in that code of standards, and
(ii) abided by decisions of the Press Ombudsman and determinations of the Press Council;
If I interpret Senator Norris correctly, he is trying to delete all the words that are equivalent. In other words one must either adhere to the code of standards of the Press Council or else one may not avail of this defence at all. That is something I will look at.
Section 24 makes specific reference to the Press Council, and that is to be welcomed. We cannot force periodicals to take up their entitlement to be members of the Press Council and therefore in a sense we are making it mandatory. However, this is a civil matter and it will be possible to look at Senator Norris's amendment. I will consider it for Report Stage.
Senator David Norris: I am very grateful. The Minister, in fact, has articulated exactly what was in my mind, and I am grateful for that.
Deputy Brian Lenihan: That is a unique gift.
Senator David Norris: However, he looks rather shocked at the prospect of entering my consciousness like that. I thank him for his undertaking to look at this amendment and I shall re-submit it on Report Stage.
Amendment, by leave, withdrawn.
Government Amendment No. 21:
In page 19, subsection (2)(f), to delete lines 11 and 12 and substitute the following:
"(ii) abided by determinations of the Press Ombudsman and determinations of the Press Council;".
Amendment agreed to.
Amendment No. 22 not moved.