Dermot Ahern (Louth, Fianna Fail)

The issue being addressed by amendment No. 9 from Deputy O'Snodaigh is the prominence of the apology. This was debated very significantly, particularly in the Seanad, and my predecessor as Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, introduced amendments on Report Stage there which ensured that where an apology is made and published by a defendant, the apology would be given the same or similar prominence as was given to the original defamatory statement, or that the defendant would offer to publish the apology in that manner. That is regarded as a fairly significant change from the original Bill as published.

The current construction sets a minimum standard with regard to the prominence of the apology and ensures that an apology will not be hidden away in the back pages of a newspaper, which is something many people complained about. The current wording does not prevent an apology from having an even greater prominence than the original defamatory statement. My view is that the current wording is preferable.

Amendment No. 10 relates to when an action is in being. Section 24(1) states:

In a defamation action the defendant may give evidence in mitigation of damage that he or she—

(a) made or offered an apology to the plaintiff in respect of the statement to which the action relates, and

(b) published the apology in such manner as ensured that the apology was given the same or similar prominence as was given to that statement, or offered to publish an apology in such a manner,

either before the bringing of the action or, where the action was commenced before there was an opportunity to so do, as soon as practicable thereafter.

It is a matter of tactics, in effect, and the amendment is forcing the hand of a media organisation or individual who may be a defendant. It may put more onus on the defendant to publish an apology much earlier than was envisaged. For tactical reasons, particular circumstances in a case may mean that it is not in a defendant's best interest to make an apology. We tried to frame the issue in such a way as to achieve balance.

I have some sympathy with what the Deputies say and I would be of the mind to accept the amendment, which deletes lines 36 to 38. I stated previously that there is a tactic in this for somebody defending an action. I made the point earlier that people are much more inclined, if something injurious is done to them, not to go into court because they are in jeopardy of having to pay costs. Some people may never have been in court before and would rather get an apology with similar prominence to the injurious statement.

There may be circumstances where the defendant may have reasons not to publish an apology as soon as is being suggested in the amendment. I am prepared to accept the point, subject to the review. What is beneficial to society in general is that an apology will now be made in circumstances where there is no admission of liability. Up to now an apology being made was an admission of liability, and in that case the game would be up for the defendant involved.

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