Rónán Mullen (Independent)

The Minister will regret the new defence of fair and reasonable publication, the introduction of which he is presiding over, and will also regret the strengthening of that defence, which is imported in his Dáil amendment to the Bill. The Minister has the reputation of being quite critical of the media and its abuse of its privilege and the position of trust it enjoys in our country. That is understood, rightly or wrongly, to be part of the context for putting the Defamation Bill back on the agenda.

When the defence of fair and reasonable publication was discussed in the Seanad on Committee and Report Stages, I shared Senator Norris's concerns about it. At that time, I noted the Minster's predecessor, the Minister for Finance, Deputy Brian Lenihan, said he was essentially philosophically opposed to the defence of fair and reasonable publication. The Minister, Deputy Lenihan, said at the time that the defence of fair and reasonable publication, even though he was philosophically opposed to it, had to be introduced because it was the direction the courts were taking in their jurisprudence. I understood it was the job of the Oireachtas to determine, subject to the provisions of Bunreacht na hÉireann, what position the courts should take when dealing with certain matters by defining precisely what the law is and should be.

If I was a citizen of Burma perhaps I would take a different view, but we live in a free society where the media enjoys a largely unfettered role in its analysis of and commentary on public affairs. It is a role we have often seen abused. The only agenda being served by the introduction of a defence of fair and reasonable publication is the agenda of those who do not ultimately respect fairness or prioritise sensationalism, the need to sell newspapers and the promotion of a culture of controversy above fairness.

It is bad policy to provide that where a person defames another, he or she should enjoy a defence of fair and reasonable publication. A defence of mistake, as well as all the other provisions contained in the Bill, might apply but not a defence of fair and reasonable publication, especially given the step the Minister has taken, that is, the elimination of the proviso concerning belief or otherwise in the truth of the statement. It amounts to providing that a person may be in doubt as to the truth of what he or she is publishing because there are conflicting opinions, as the Minister has said, but he or she will go ahead with publication none the less.

I respect the Minister and his views as reported in the media and agree with a lot of them. However, he does a disservice to the cause of good journalism by including in this Bill a defence of fair and reasonable publication. His predecessor said he was philosophically opposed to such a provision and I am not misquoting him. The Minister should have gone one step further and eliminated it when he had the opportunity to do so.