Dermot Ahern (Louth, Fianna Fail)

I move: "That the Bill be now read a Second Time."

I am pleased to have this opportunity to introduce the Defamation Bill 2006 to the House. This Bill comprehensively reforms the law on defamation and replaces the current legislation, which dates back to 1961. It provides a modern framework and gives statutory expression to developments in the jurisprudence of the Irish courts and elsewhere, including the European Court of Human Rights. While the road to reform has been slow and has taken a number of turns, the deliberative process and consultations have been intensive and productive.

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 more than 50 detailed proposals for reform in this area of the law. In 1996, the report of the Commission on the Newspaper Industry also made recommendations for changes in the law. In December 2001, the then Government approved the drafting of a Bill. Following on from that, the agreed programme for the Government formed in 2002 contained a commitment to legislation in this area. In September 2002, the then Minister for Justice, Equality and Law Reform, Michael McDowell, established a legal advisory group on defamation to report on the implications of this commitment.

Subsequent to the publication of the legal advisory group's report in June 2003, my Department conducted an intensive public consultation process on the report. This included a major conference in December 2003 that facilitated an exchange of views with a wide cross-section of interested parties. Extensive consultations were held with the Irish Press Industry Steering Committee, which brought together representatives of national and regional newspapers, as well as UK newspapers with Irish editions and periodical publishers.

The Bill that is before the House is largely the text that was presented to the Seanad in July 2006 by the then Minister, Michael McDowell. I took a close interest in the comments of Senators during the extensive debate on the Bill in the other House. I would welcome the same close scrutiny of this important and ground-breaking legislation by Members of the Dáil so we can get the balance right. In 2007, my predecessor undertook a short and focused process of consultation on the Defamation Bill and the Privacy Bill, which was published by the last Administration. The Government has decided to pursue the Defamation Bill at this time. I hasten to add that the Privacy Bill remains on the Seanad Order Paper, having been approved by the Cabinet.

I commend the recent decision of the Press Council of Ireland and the Office of the Press Ombudsman, which vindicated the right to privacy of a member of this House. The decision will be welcomed by all sides in the Oireachtas and beyond. The good start that has been made by the Press Council augurs well for the future. I welcome the fact the newspaper in question published the decision in a position of prominence, similar to the position in which the offending article was printed. Such an approach is required under the legislation before the House. I am pleased that this requirement has been observed by the newspaper concerned in this instance.

The current defamation legislation falls short in a number of ways. It is unhelpful to all concerned that an apology, which is often all that is required, cannot be made to an aggrieved person without it being taken as an admission of liability. Unlike in other civil actions, no lodgment can be made in court against a defamation action without admission of liability. It is clear that an insufficient range of remedies, other than damages, is available to an aggrieved person. It is unsatisfactory that there is an absence of clarity on the role of the court in giving directions about the level of awards, that plaintiffs do not have to swear affidavits about the nature of their complaints and that applicants are not compelled to take the stand for cross-examination. That defamation actions can be taken up to six years after the publication of the alleged libel has understandably been the subject of much complaint by media organisations. On the other hand, aggrieved people had no real practical alternatives to court proceedings, such as a complaints system based on a code of standards operated by the press, until the recent formation of the Press Council.

Existing legislation lags behind the requirements of the European Convention on Human Rights. It is not in line with developments in the jurisprudence in other jurisdictions on the appropriate balance between freedom of expression and protection of one's good name. The new provisions in the Bill will give plaintiffs a better sense of their rights under the law. New forms of remedy will be available to those interested in obtaining speedy redress when they have been defamed. The new legislation will provide greater clarity for publishers, help responsible publishers to avoid making defamatory statements and provide guidance about the limits of the various defences which are open to them.

The Bill supports the concept of an independent Press Council, 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, as long as it meets certain criteria set out in Schedule 2 to the Bill. A code of practice to which print media organisations can subscribe and adhere is a critical element of the independent regulation of the press. We now have such a code. It should not fall to me as Minister, or to the Government, to dictate the exact detail of a code of practice. However, Schedule 2 provides some guidance about the basic standards expected in such a code, in the public interest. The Press Council has made it clear that the code will be organic and will evolve as circumstances require.

I am concerned that some publications have yet to subscribe to the Press Council of Ireland. While I realise these are early days, I urge all media organisations and publications to attain membership of the council, for their own benefit as well as that of complainants. I encourage the early publication by the council of details of its membership to ensure full transparency. One of the primary benefits of a statutorily recognised press council, as provided for in this legislation, is that qualified privilege attaches to its reports and decisions, or those of a subsidiary body such as the Office of the Press Ombudsman which has been established by the council. Subscription to the Press Council and adherence to its code of practice by a publication will strengthen its entitlement to avail of the new statutory defence of reasonable publication on a matter of public interest in any court action. To avail of that defence, publications which choose not to join the Press Council, for whatever reason, will be required to have in place an equivalent fairness regime or to operate an equivalent and publicised code of standards.

The Bill puts on a statutory basis a new defence of fair and reasonable publication on a matter of public interest. I hasten to add that the defence is subject to certain conditions. It is designed to be used by newspapers which decided to publish certain material to facilitate public discussion, on the basis of there being a benefit and an interest in such discussion taking place. This new defence takes cognisance of jurisprudence at European Court of Human Rights level. In particular, it is based on certain decisions of Irish and UK courts. The genesis of the defence first arose in these islands in the decision made by the UK court of appeal in 2001 in the case of Reynolds v. The Sunday Times. In September 2006, the court 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 interest.

The UK court of appeal ruled in the Jameel case that the defence of reasonable publication is in a new jurisprudential category. It is not the same as a defence of privilege. A number of conditions have to be fulfilled before a responsible publication can plead reasonable publication. In the introduction to its judgment, the court noted that there is a balance between the development of this new defence and the strengthening of the law on privacy. The thrust of the Jameel case was accepted by Mr. Justice Charleton in his consideration of the 2007 case of Leech v. Independent Newspapers (Ireland) Limited.

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. Given that this is a significant change in our law, I will welcome the views of Deputies on the details of the defence. I will examine the matter further with the Attorney General in advance of Committee Stage.

The Bill makes special provision in relation to the issue of damages. It makes it clear that a judge in a High Court defamation action will give directions to the jury in relation to damages. It sets out a wide range of factors to which the court will have regard in awarding damages. It provides that the Supreme Court, on appeal, may substitute its own level of damages for that awarded by the High Court. These provisions have been developed against a background of recent case law in our courts. I suggest that they offer clarity and some certainty on policy in this area.

I wish to highlight some of the other main provisions of the Bill. Section 5 provides that the present torts of libel and slander will cease to be so described and will instead be collectively described as the "tort of defamation". Section 7 provides that the 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 the case at the moment, which is a strange aspect of our law. It is now being provided that a person must swear that he or she has been defamed and make himself or herself available for cross-examination, as a condition of bringing an action. I believe that is a reasonable position. It will be an offence for a person to make a statement in an affidavit which is false or misleading in any material respect, or that he or she knows to be false or misleading. This mirrors the approach taken in the Civil Liability and Courts Act 2004.

Another aspect of the Bill, contained in section 22, is that an offer of apology will 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 at least, might result in a decision not to proceed with court action. With regard to apologies, the Bill provides, following amendment in the other House, that in situations where an apology is being made and published by a defendant, the apology will be given the same or similar prominence as was given to the original statement.

The Bill includes other useful provisions which I will outline. Under section 27, 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 other civil actions 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 normal 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.

Under section 26, 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, under section 28, as an additional remedy to declaratory judgments, as it allows the possibility of damages which may direct the terms of any correction that a court orders 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 to a jury on the matter of damages. Aggravated and punitive damages are maintained under section 30, but are limited to specific instances.

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 under section 16. It will attach to the reports and decisions of the Press Council recognised under section 41.

As I mentioned, under section 24, the defence of fair and reasonable publication on a matter of public interest is created in statute form for the first time in Ireland. The exact provisions concerning the recognition of an independent Press Council are set out in section 41.

The conditions with regard to the making of an offer of amends are updated in sections 20 and 21, along with the consequences for acceptance or non-acceptance of the offer.

Under section 25, the common law position with regard to the liability of distributors for defamatory material is being given a statutory basis known 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 those such as Internet service providers, in recognition of the speed with which modern technology works.

Under section 11, bodies corporate may sue for defamation irrespective of whether financial loss had occurred.

Under section 35, a limitation period of one year will apply to the bringing of defamation proceedings unless, where the interests of justice so require, a court directs otherwise and may allow a period of two years for exceptional cases.

A special jurisdiction limit of €50,000 for defamation actions in the Circuit Court is provided for in section 38. The current Circuit Court limit for damages claims is €38,092.

I am giving further consideration to Part 5 of the Bill, which provides for the abolition of the common law offences of criminal libel, seditious libel and obscene libel. It is my intention to bring forward amendments on Committee Stage to deal with the offences created in Article 40.6.1.i of the Constitution relating to the publishing of blasphemous, seditious or indecent matter. Sanctions for these offences, which include both fines and imprisonment, are contained in Part 2 of the Defamation Act 1961 and in other enactments.

If we repeal in full the provisions of the 1961 Act in reforming our defamation laws, we would be at risk of creating a lacuna, unless we make some provision in regard to the constitutional offences. Ensuring there is no lacuna created is therefore a significant consideration. My predecessor had been in consultation with the Attorney General as to how best to proceed in dealing with the issues and I intend to bring that consultation to fruition.

The Bill does not provide for defamation of the dead. The technical, legal difficulties of so providing were examined closely by the Law Reform Commission and others. This was also an issue which arose during the consultation period and during the course of the lengthy Seanad debate. Section 36 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 their estate. Similarly, it also provides that a cause of action in defamation subsisting against a person should survive their death and lie against their estate.

There are two important Schedules as part of the Bill. Schedule 1 provides a list of statements having qualified privilege. The list includes determinations or statements by the Press Council or Ombudsman. Schedule 2 provides for the minimum requirements concerning a body seeking recognition as the Press Council for the purposes 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 can be only 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 prescribes minimum conditions 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 prescribes the code of standards to be adhered to, as well as the rules and practices to be complied with by members of the Press Council.

This Bill will bring about a significant modernisation of the law on defamation. It seeks to respect the necessary balance between the equally important but sometimes competing rights of freedom of expression and of respect for one's good name and reputation. I would welcome the contributions of all sides of the House on this matter. I will be willing to consider any reasonable amendments that may be suggested by all sides of the House. The Bill represents a significant change in our defamation laws. As such, the House should take some time to consider it, particularly in view of the fact that it has undergone a robust examination of various aspects by Members of the Upper House.

I commend the Bill to the House.

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