Jim O'Keeffe (Cork South West, Fine Gael)

I am delighted to welcome this Bill, although it has been a long time in the making. When I was a law student, the Defamation Act 1961 was regarded as modern legislation and a significant improvement on the previous arrangement but that Act has clearly become very creaky at its edges. As far back as 17 years ago, aspirations for change were expressed in the 1991 Law Reform Commission report. Given that we have not rushed the matter, it is not before time that legislation has been brought before the House. A number of aspects have been teased out in the meantime and we now have a package which I am happy to support.

This is a serious issue because freedom of expression is one of the most fundamental rights in a democracy. Our freedom of expression is confirmed in Article 40.6.1° of the Constitution, which guarantees liberty for the exercise of certain rights, including the rights of citizens to freely express their convictions and opinions and, by analogy, freedom of the press. There have been many developments at international level since the Constitution was enacted. Article 19 of the Universal Declaration on Human Rights contains high sounding phrases on the freedom of expression, but these are aspirational rather than justiciable. Similarly, the International Covenant on Civil and Political Rights contains purely aspirational language. We are discussing, therefore, the need to introduce justiciable measures that achieve the correct balance between freedom of expression for the media and the protection of the individual. No right is absolute because a balance is required to prevent abuse. The European Convention on Human Rights dates from 1950 but was only incorporated in domestic law four years ago under Article 10 of the Constitution.

I have been involved with the Joint Committee on the Constitution in its examination of Article 40. Various bodies have made submissions and we hope to issue a report on whether changes should be made to the article within the next eight weeks. Constitutional change is a slow process, however, and regardless of the recommendations of our report, it will take time to reflect them in the Constitution. The existing article, even though expressed in archaic language, has been adequate as a constitutional base. However, our domestic law is, quite frankly, a mess and in clear need of reform.

Particularly in the aftermath of court judgments awarding significant sums of money in libel cases, calls for reform tend to surface stridently in the media. The starting point for me, however, is the aggrieved individual. The current arrangement for aggrieved individuals under domestic law is not satisfactory. If an individual has a genuine case, he or she must take on the might of one of the newspaper empires. It is worse than David against Goliath; it is like a snail confronting Goliath. One would need to be as rich as Croesus to take on some of these newspapers but very few people are in that position. In addition, it can take up to six years before a case is disposed of. That is entirely unsatisfactory from the point of view of Seán and Mary citizen or any other resident of this country.

With justification, the media have on occasion raised the flag of reform. Some of the defects in the current legislation are crazy. It defies belief that a newspaper which wants to issue an apology is unable to do so because it would thereby expose its bank balance to an action. That is the most outrageous example, along with the prohibition on a lodgement in court. There was a range of other issues where the media, rightly, were entitled to say this situation was entirely unfair and wrong, even if they were looking at it from a particular perspective.

The other aspect of our domestic law that often struck me as crazy was the question of the amounts of awards. It was a lottery. There was the ludicrous situation not long ago when a large award in a major case was appealed to the Supreme Court which sent it back to the High Court on the basis that it was excessive. When the case was reheard, an award three times the original amount was made. Without commenting on the merits of that case, it shows the crazy outcomes that can be achieved when the courts have no facility to clearly specify guidelines on amounts of awards.

The basic constitutional structure is being examined and that work will take place in its own time. That is not where the focus of urgency must be but on our domestic law where three issues became connected over time, namely, reform of the defamation laws, the question of a Press Council or Ombudsman and the question of privacy. I have been convinced for a long time of the need to reform our defamation laws. I am all in favour of a change and recognise the need to establish a Press Council and Press Ombudsman. However, I have reservations on the question of rushing any change in our privacy laws. It is not urgent and I am not sure it is necessary. Let us make the changes in our defamation laws and continue with the work started on the Press Council and Press Ombudsman and put aside any changes in the privacy laws. The essential point is getting the balance between preserving the democratic right to freedom of expression and ensuring any restrictions are not overly restrictive or open to abuse by any person or organisation, including the State.

I am speaking in general terms. I very much support the Bill, although I have no time to go into detail. Some teasing out and tweaking needs to be done on Committee Stage. I am delighted with the operation of the Press Council and that the Press Ombudsman, a respected former Member of this House, has already taken a lead. I am very pleased with his decision on a complaint made by or on behalf of a senior respected Member of this House. I urge the Government to accept that this is not the time to push ahead with changes in the privacy laws. In the light of the European convention and the cases heard before the European Court, including the Princess Caroline of Monaco case, there are adequate protections. Let us not decide now. The Government should put the issue aside, review the situation in five years and see how the system is operating. Meanwhile let us go ahead. God speed the work on the Defamation Bill and that of the Press Council and Press Ombudsman. We will have a good package that will serve the country well for a number of years to come.

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