Dermot Ahern (Louth, Fianna Fail)

I thank Senators for their remarks. All those in public life, not only politicians, will have some difficulty with a defence of fair and reasonable publication. If any Bill was to feature on my Christmas card list, the Bill before us is not it. Before my appointment to this Department I looked long and hard at section 24, now section 26, on the defence of fair and reasonable publication. It is not correct that the provisions on this matter have been driven solely by court decisions in the United Kingdom. They were driven by the Reynolds case of, I believe, 1999. The Reynolds test has been adopted by the Irish courts in a number of cases. For instance, it was cited in the Leech v. Independent Newspapers case in June 2007. In his decision in that case, Mr. Justice Charlton was of the opinion that a fair and reasonable type defence existed in Ireland for the media. He drew heavily on the Jameel judgment. The defence did not feature in the jury's consideration of the case.

The purpose of section 26 was to impose parameters on what has developed here and abroad regarding a defence of fair and reasonable publication. It is better that the Oireachtas, taking into account the development of the law in this area, endeavour to sculpture the law in a way that suits what we believe the people we represent desire. That is the reason that, on balance, it is better to have this defence on a statutory basis rather than leaving it up to the courts to state the law in this area.

On the question raised regarding the removal of the obligation on the defendant to prove he or she believed in the truth of a statement at the time of publication, it was brought to our attention that it could be argued that this requirement could hinder the reportage of stories which contain a number of conflicting opinions. It also appeared to conflict with the provision in subsection (2) which allowed for consideration to be given to the extent to which the statement drew a distinction between suspicions, allegations and facts.

We must accept that if an investigative reporter or other member of the media is carrying out an investigation, he or she may produce a number of conflicting opinions as to what took place in a particular incident. To impose a requirement that the author believe in the truth of such opinions, even though they may be conflicting, is not logical. It was, therefore, correct to delete the requirement while retaining the other significant requirements under various headings in section 24, now section 26. As Senators will note, under this section, the court will consider relevant a series of factors set out in paragraphs (a) to (j), inclusive. A significant number of hurdles must be overcome by anyone pleading this defence. For example, subsection (1) requires that a statement must be shown to have been published in good faith and in the course of discussion of a subject of public interest, the discussion of which was for the public benefit. It will be a matter for the court to decide on these matters. The strong view impressed upon me is that this is not an easy defence to claim and a significant number of hurdles must be overcome before a defendant can claim it. We have achieved the right balance in this regard.

Through a previous amendment, I endeavoured to ensure there was some restriction on the ability of the media to lodge when they are claiming this particular defence. I had in mind that if the defendant wished to plead this defence, he or she would not be able to lodge at the same time. In other words, they would not get a double whammy against a plaintiff. It is the case that, under the rules of the superior courts, a judge already has the power to make a decision regarding costs. It does not necessarily have to follow the event. I was going to raise that to a statutory level, in other words, I was going to confirm what was already in the rules of the superior courts. However, it was impressed upon me, both inside and outside the House, that this might be seen as another imposition. I relented therefore and withdrew the amendment. As I say, however, all these things are constantly evolving. The law on defamation and privacy is literally evolving on a daily basis. We only have to see what is the subject of significant speculation in the UK today concerning alleged abuses. Thankfully, and I think it is to their credit, the media here have not been as intrusive into the lives of public figures as the UK media. In a contracting market where there are more players than heretofore, people are scrambling around for stories and to a certain extent standards may drop. However, the Press Council and the Press Ombudsman have worked well to date and should be given a fair wind.

Most of us would have suspicions about self-regulatory bodies, not least in my own profession for many years. I am always suspicious of self-regulatory bodies as would most people in public life. We would rather have independent regulation, not least of our own existing profession, but we are where we are. The legislation sets the parameters within which the Oireachtas wishes to see a self-appointed Press Council and Press Ombudsman operate. In fairness, they should be allowed to proceed because, despite what was said earlier, they have shown an independence of mind. We have seen recent reports that there are some difficulties. There will be disputes, naturally, as media organs will not be happy with the judgments that have been handed down by the Press Council from time to time.