Charles Flanagan (Laois-Offaly, Fine Gael)

I wish to acknowledge the recent appointment of the Minister, Deputy Dermot Ahern, to the Department of Justice, Equality and Law Reform. I wish him every success in his new portfolio. I also pay tribute to his predecessor, Deputy Brian Lenihan, and thank him for his personal courtesy to me as Opposition spokesman. I recognise the previous Minister's work in the Department, albeit over a short period. It is a long time since the new Minister and I were Government and Opposition Whips, respectively. Since then, the Minister has dealt with a number of important issues in various Departments. I wish him well in his new role. Fine Gael will offer him co-operation on matters which should be prioritised in the areas of justice, security, law reform and equality. It is a large Department and perhaps nobody knows better than the Opposition spokesman the wide range of briefs concerned, which can be both time consuming and taxing.

As a fresh face in the Department, perhaps the Minister could consider, along with his Government colleagues, restoring or building on the civil and criminal justice arms of the Department. In the 1990s, the civil arm was separated into the equality and law reform portfolio, while the criminal arm deals with matters of domestic security. The Department has a wide brief with major responsibilities. I consider that the experiment in the 1990s worked reasonably well, albeit that a small Department was being serviced at the time under the direction of the former Minister, Mervyn Taylor. That concept might be revisited, especially in view of what other jurisdictions have done in separating the various sections of their departments of justice. I look forward to debating the issues of concern and the challenges that lie ahead in the Department, and I wish the Minister well.

Fine Gael supports this Bill. For some time we have been calling for appropriate changes and amendments to be made to defamation law. We acknowledge the important role of the media as the Fourth Estate in a democracy. It is important that a country has a vibrant and free media as free speech is an important fundamental pillar of democracy. What we must always try to do is strike a balance between the right of an individual to his or her good name and the right to report in a free and unfettered manner. It is a long time since 1961 so it is important to revisit the legislation and modernise the laws dealing with slander, libel and the various defences to them. A considerable body of case law has built up in this area and it is necessary to codify that law in one legislative measure, particularly with regard to the defences to an action. That legislation is now before the House.

A number of recent cases, particularly cases involving a late former Member of this House and a widely read Sunday newspaper, showed up deficiencies in the current legislation. Often, all that is required is an apology and, in some cases, only a simple apology but that cannot be done under the current legislation because it is connected to an admission of liability. That will change under this Bill. Similarly, unlike in the case of other civil actions, no lodgement can be made in court against a defamation action without it including an admission of liability. That has given rise to an adversarial stand-off between parties, with no resolution taking place until a court hearing, which might not occur until a number of years after the initial publication.

It is also important that the range of remedies would expand and develop beyond mere damages. I welcome the proposals regarding rectification, clarification, declaratory orders and the other remedies excluding monetary compensation. There is also a need for clarity in respect of the role of the court in giving directions on the level of awards. This area has been something of a lottery in that it has not been possible to measure the damages in any consistent way. That has given rise to confusion and uncertainty, so the giving of directions on the level of awards is welcome. Similarly, at present the applicant or plaintiff or aggrieved party does not have the opportunity to submit sworn affidavits to corroborate their complaint. That will change, which is welcome. Perhaps the reading of such affidavits could give rise to earlier settlements than might otherwise be the case, as it will be possible to see from the affidavits the points of concern that remain at issue. Furthermore, the plaintiff or applicant will be in a position to take the stand for cross-examination, which they cannot be compelled to do under current legislation.

The issue of time is important. The Press Council and the Press Ombudsman have spoken of the need for a swift response. This is most important. Currently, defamation actions in the High Court, where most defamation cases are taken, take up to six years to be heard. That is unacceptable when time is of the essence. There is a direct and clear link between the publication of the offending item and the hurt, grievance and damage caused. To allow a time lapse of four to six years in resolving the issue is in nobody's interest and certainly not in the interest of the applicant or aggrieved party.

Currently, there is no provision in the law for a defence of reasonable publication, which is a weakness. I am delighted with the range of defences outlined in reasonably clear terms in section 14 of this Bill. I noted the Minister's comments on the defence of reasonable publication and I look forward to dealing with that in detail on Committee Stage. The Bill seeks to address many of the current deficiencies in the law with varying degrees of success. There was a considerable amount of debate on the Bill in the Seanad before its reading on Second Stage today.

The new complaints procedure is welcome. I assume that anybody can make a complaint and that it is not necessary to have an immediate, first party interest in the matter. I presume it is open to any member of the community at any time to make a complaint on a matter about which they feel aggrieved and that it is not necessary for that person to have an interest in or have been mentioned in the publication. Indeed, the Press Ombudsman said on his appointment that the remedy he envisages would be free, fair and quick. These elements are of great importance. I welcome the defences set out in Part 3.

There was a long period of public debate before the introduction of this Bill. That was welcome even if the legislation was delayed in that time. The Law Reform Commission report was published in December 1991. It contained 59 detailed proposals for reform. A draft defamation Bill was commissioned by the National Newspapers of Ireland in 1994, while a Private Members' Bill was introduced by the former Deputy, Michael McDowell, in the mid-1990s. In 1996, there were further recommendations for reform from the Commission on the Newspaper Industry. The Government approved the draft Bill in December 2001 and in the following year the then Minister, former Deputy Michael McDowell, established an advisory group on defamation. The 2002 programme for Government contained a commitment that the Government would, in the context of a statutory press council and improved privacy laws, move to implement reforms of the libel law designed to bring it into line with that of other states. The former Minister, former Deputy Michael McDowell, said in the Seanad that the Bill delivers on the commitment in that programme. However, that was six years ago.

In 2003, on foot of the recommendations of the advisory group, the former Minister initiated public consultation, including a major conference in December 2003, and three years later, in 2006, the Irish press industry steering committee published its proposals for an independent press council, press ombudsman and a code of practice or standards, much of which is incorporated in this legislation. It has taken this Bill some time to reach the Dáil. It lapsed with the dissolution of the 29th Dáil and was reintroduced in the 30th Dáil on Committee Stage. That decision caused some disquiet and annoyance to newly elected Senators who were most anxious to make their contribution to the Bill on Second Stage because they, quite rightly, took the view this was important legislation. I hope that in the course of this debate, whether on Second Stage or Committee Stage, every Deputy will have an opportunity of airing his or her views and dealing with this matter in a comprehensive way.

I am delighted the Bill has eventually made its way to the floor of the Dáil, and welcome the opportunity to make a contribution. The media has long called for legislation in this area to ensure clarity and provide alternatives to court proceedings by way of remedy. While the Government was engaged in the public consultation process, and the draft Bills were being processed into what is before us, the media industry proceeded to take action and established and agreed to fund the offices of the Press Ombudsman and the Press Council. The willingness by the media to step into the breach created by a certain inaction on the part of Government is commendable and shows a commitment to fairness and fair play. This willingness to engage is a source of great importance. Dr. John Horgan, the recently appointed Press Ombudsman, served in this House for many years and is doing a commendable job in his current post. I wish him well, as I am sure every Member of the House does. Without wishing to comment on individual cases, it is important to note the recent decision by the Press Ombudsman's office as regards a complaint made by a Member of this House which was upheld by the Press Council. That was widely welcomed not only by politicians, but also by media people and journalists. That is indicative of a good, positive start to that highly onerous and important position and office. Dr. Horgan has noted that the job of the Press Council and Press Ombudsman will remain as a work in progress for some time. That is helpful, because it reflects his experience as a journalist, and as someone who was frequently written about in his earlier career as a practising politician. It is interesting that the council has a lay majority. That is important, and the code of practice prepared by a press industry committee appears to be based on very sound principles. However, it refers to the print media only, and it is important there should be some parallel for the broadcasting sector.

There are ten fundamental principles attached to the code of practice, all of which are soundly based: truth and accuracy, distinguishing fact and comment, fairness and honesty, respect for rights, privacy, protection of sources, fairness and accuracy in court reporting, prevention of incitement to hatred, protection of children and the willingness to publish the decision of the Press Ombudsman, if requested to so do. These principles are very good and I also welcome the element of flexibility adopted by the Press Council which allows the code of practice to be routinely reviewed, amended and added to if necessary. An appropriate committee of this House should have the opportunity from time to time of officially participating in that debate and playing its part in these reviews, if necessary. The code of practice forms the basis for decision making by the Press Ombudsman and the Press Council. I must acknowledge the huge amount of work that went into the formulation of the code, which appears to incorporate best practice not only from Great Britain, but also Australia, Germany and the United States inter alia. The principles are founded on best international practice. It is open to any member of the public to complain about any article in an Irish newspaper, magazine or periodical which he or she believes is in breach of the code. Perhaps there may be some outstanding work to be done in publicising the code's existence. Many people are not yet familiar, I believe, with the Office of the Press Ombudsman, his identity or indeed the Press Council, and an information campaign should be undertaken to inform the public in this regard so that a higher level of activity may be generated and the public can be offered the element of redress that is of such absolute importance. As Dr. Horgan said, the object of the exercise is to provide remedies that are quick, free and fair.

There may, however, be a stumbling block in so far as the current subscription to the Press Council's code of practice is voluntary. When introducing this Bill in its previous incarnation, the then Minister for Justice, Equality and Law Reform, Michael McDowell, stated that non-members of the Press Council would be required to have an equivalent and published code of standards to benefit from the Bill's provisions in respect of "reasonable publication".

The Minister made reference to a number of publications that have not yet signed up, and I wonder whether he might provide information as regards what percentage of publications have chosen to date to remain outside the Press Council mandate. Have most joined up or are many still waiting to participate? Have alternative codes been established by non-members of the Press Council? It is important to have one code acceptable to all rather than a variety of different codes and guidelines.

Again, as regards the Press Council, in 2003 the legal advisory group reporting to former Deputy McDowell recommended its creation. He chose to ignore the recommendation at the time and seemed less than certain as regards whether this decision was right. However, as the Bill provides, the Minister may change his or her mind in future, and put the Press Council on a statutory footing. I should like to hear the views of the new Minister as to whether that option will be exercised and the council placed on a statutory footing. I am confident, however, that it will carry out its role in a fair and expedient manner under the stewardship of its current chairman, the eminent Professor Thomas Mitchell, who brings great experience and expertise to that position. If one wanted a chairman who was truly independent, one must agree he was a great choice, and I wish him well.

It is important that the council should be guaranteed its funding and the Government has a role in ensuring it is properly resourced. The question of the source of funding might be a different matter, but it is important that it is properly resourced. There is the question of the sanctions that are available to the council, an area we may return to at a later stage.

As regards the current Bill and the matter of damages, I welcome these provisions. The media has long made a fair point that the absence of clarity in this regard is somewhat unfair. There are no guidelines, directions or consistency and a proper balance is struck in allowing the judge to give directions to a jury as regards damages. Indeed, the definition and clarity as regards what factors should be taken into account in this context are important. I note special dispensation is being given to the Circuit Court to allow for an increased level of damages from the current level of approximately €38,000 to €50,000. In the broader civil law area, the Minister should consider increasing the ceiling level of the Circuit Court jurisdiction to accord with what is intended in the Bill to allow for a claim not exceeding a sum of €50,000 having regard to inflationary matters related to the consumer price index, etc. In recent times people have taken defamation actions in the Circuit Court for no other reason than the speed with which matters can either be settled or brought to a head. There is a difficulty. It is reasonable comment that one cannot justifiably put a ceiling on one's reputation.

Much has been written about the insistence of some members of the Cabinet that a Privacy Bill be introduced in tandem with this Bill, when this matter was discussed in another arena in public. The new Minister for Justice, Equality and Law Reform, who is before us, is on record as saying that he was one of those who favoured the introduction of both Bills, while his immediate predecessor, now Minister for Finance, Deputy Brian Lenihan, said he would rather ascertain how the Press Council carried out its work and affairs before deciding on whether to proceed with the Privacy Bill. The Minister has acknowledged the birth of the Privacy Bill which is currently parked in the Seanad — a term used by his predecessor. The Minister has said it is in the Seanad. When concluding Second Stage, I ask the Minister to outline whether he shares the views of his predecessor or is he still of the view, as were many of his Fianna Fáil ministerial colleagues, that the Privacy Bill is both necessary and desirable. It appeared clear that the hand of the former Minister, Mr. Michael McDowell, was forced by his majority Fianna Fáil colleagues. While I am not sure about the benefits or otherwise of the Privacy Bill, it is important that the matter of its limbo status be clarified before we reach the concluding Stages of this Bill.

I accept that the Press Council of Ireland has only been in a position to take complaints since 1 January and just over four months is not sufficient time for a full and fair assessment. I am anxious to hear the views of the new Minister in this regard. While we are not debating the Privacy Bill, suffice it to say that the restrictive nature of the Bill in its current form would give rise to concern for my party. I share the views of the former Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, that we should give the new measures a chance before considering whether there is a need to proceed with the privacy legislation. After all, we have the Press Council of Ireland and the Press Ombudsman. If we have faith in the Bill before us it is probably reasonable to give it a chance before proceeding with further legislation. I do not believe the matter can remain uncertain or in limbo for too long.

A number of amendments were made in the Seanad. From reviewing the Seanad debate it is clear that much work on the Bill took place in that House and some important amendments were not only discussed but also agreed. One of the more interesting amendments accepted requires that the apology by the media should be given the same or similar prominence to the original offensive article. I believe that measure will be universally accepted as being fair and efficient towards addressing the complaints of people feeling aggrieved or defamed. It was totally unsatisfactory to have an offending article on page 1 and a referred apology some weeks later that might be hidden in the corner of the sports' pages. That is of fundamental importance and I welcome the acceptance by the Minister of amendments in that regard.

The Minister mentioned the abolition of the criminal, obscene and seditious libel. I note the provisions in the Bill to abolish these common law offences and to make defamation purely a civil matter, which has been broadly welcomed. Welcome was given for the prohibition of jailing journalists. The abolition of the criminal libel will probably ensure that this would be the case. The Minister said he would refer aspects of Part 5 to the Attorney General. I hope this matter can be clarified in advance of Committee Stage because there are issues of importance, including the constitutional issues mentioned by the Minister. I ask the Minister to keep the House informed of his intentions in that regard. We should have a considerable time between the completion of Second Stage and the introduction of Government amendments, particularly those relating to Part 5.

I very much welcome the provisions in the Bill allowing a cause of action in defamation cases to survive the death of the parties involved. This is a most difficult and sensitive issue that has been a source of serious concern to families of people who have themselves suffered because matters were not sufficiently clarified, brought to a head or dealt with before the death of a party who had a grievance or complaint. There are aspects of this that we should refer to on Committee Stage, as I am sure we will.

I welcome the Bill and I again welcome the Minister on his first day in the Department. The Bill is overdue. Notwithstanding the delay, there has been a high degree of public debate of the important issues involved. I look forward to further examination of the provisions of this legislation on Committee Stage.

See this speech in context