Jim Walsh (Fianna Fail)

I am not sure these amendments do anything to safeguard the public from irresponsible journalism. There are, as Senator Mullen said, many good journalists and it would be wrong to taint everyone with the same brush, as is the case for all professions. However, there are irresponsible elements within the media who seem to be able to function unfettered. Our duty is to ensure they cannot do so because the damage done to people's reputations and the psychological damage done may be enormous.

Amendment No. 17 states: "In a defamation action, the defence of qualified privilege shall fail if, in relation to the publication of the statement in respect of which the action was brought, the plaintiff proves that the defendant acted with malice." It is not always easy to do this. In light of this requirement, when a defendant is found to have acted with malice the penalties are probably insufficient. In such circumstances, not only should the plaintiff receive ordinary damages, but exemplary damages should also be awarded, as occurs in other cases. While the matter is to be examined in the review, I ask the Minister to consider, in light of experience, beefing up this provision.

I was shocked by the response of a newspaper group to a hammering it received in the High Court. Its response to the decision was not what one would wish from a responsible newspaper organisation or publication in respect of how it proposes to adhere to the law. It appeared to decide it would operate to its rules and change the law to meet its rules. This appears to be what we have done in the legislation by allowing newspapers to establish a press council. Given that press nominates the council's members, it will be far from independent.

I am not sure whether Senator Norris agreed with an argument I made previously in the House on the matter of sanctions. One of the sanctions which applies under the licensing laws is that a premises can be closed for up to seven days. Senators have argued that in extreme circumstances in which a defendant is found to have acted demonstrably with malice and clear intent to damage someone, a sanction of closure of publication for a period should be available. I ask that this option be considered in the review.

I am concerned about the amendment to the previous section 24 and seek clarity from the Minister. Amendment No. 19 appears to remove the obligation on the defendant to prove that he or she believed at the time of publication that a statement was true. I understand this requirement has been removed which effectively means that a plaintiff will be unable to mount a case on that basis and a statement which the author knew to be untrue at the time of publication may be published. The Minister has argued that reports may contain a number of conflicting opinions and the obligation in the previous section 24 could interfere with the ability to publish such reports.

Newspaper articles are now practically free of reporting and even main articles contain a great deal of opinion. One must go back to older editions of newspapers to see reporting . While one knows what one will get when one reads the opinion section of a newspaper, frequently news reports are used to mask opinion and prejudice.

I have concerns about the implications of amendment No. 19 for the reputations of individuals. I am particularly concerned that the removal of the obligation in question creates a weakness in the system which will make it difficult for those who have been defamed to secure redress.