Jim O'Callaghan (Dublin Bay South, Fianna Fail)

I move amendment No. 15:

In page 9, between lines 18 and 19, to insert the following:

“Defence of publication on matter of public interest

11. (1) The Principal Act is amended by the substitution of the following section for

section 26:

“Publication on matter of public interest

26. (1) It shall be a defence (to be known as the ‘defence of publication on a matter of public interest’) to a defamation action for the defendant to prove that, in all the circumstances of the case—

(a) the statement in respect of which the action was brought was on a matter of public interest,

(b) the defendant reasonably believed that publishing the statement was in the public interest, and

(c) the statement was published in good faith.

(2) Subject to subsection (3), a court shall, for the purposes of determining whether subsection (1)(b) is proved, have regard to whether the belief was arrived at after the making of such enquiries

and checks as it was reasonable to expect of the defendant.

(3) Where the statement in respect of which the defamation action was brought was an accurate and impartial account of a dispute to which the plaintiff in the defamation action was a party, the court shall, in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest, disregard any omission of the defendant to take steps to verify the truth of the

imputation conveyed by it.”.

(2) The amendment effected by subsection (1) shall apply only to causes of action accruing on or after the date of the coming into operation of this section.”.

As colleagues will be aware from Report Stage amendments, what is being proposed here is that we will amend section 26 of the Defamation Act by providing for a much simpler and concise defence of publication on a matter of public interest. Colleagues may be aware that since the 2009 Act was enacted and came into force on 1 January 2010 there was a statutory defence in line with what was referred to under the common law as a Reynolds-type defence. Section 26 gave effect to that and the whole purpose of that section when it was enacted in 2009 was to provide a statutory defence for what we can refer to as responsible journalism. That would operate in circumstances where a journalist or a publisher made a factual error in the publication that was broadcast or published in a newspaper or online, but the factual error would not expose them to a claim in defamation because it was a reasonable publication on a matter of public interest.

Since that legislation has come to be enacted section 26 has been pleaded on many occasions but there are very few judgments or, indeed, decisions of juries where section 26 has been successfully invoked. Understandably, persons who seek to rely upon this statutory defence are thereby concerned that there is not a sufficient understanding of the section on the part of judges or juries, or it is not effective enough for the purpose of availing of what was previously a statutory defence.

What this amendment is seeking to do is to try to simplify it. As I said, section 26 was intended to facilitate public discussion on matters of public interest. This facilitation of public discussion is in line with Ireland's obligations under Article 10 of the European Convention on Human Rights, ECHR, and it plays a vital role in safeguarding democracy. However, feedback received from stakeholders was that the existing section is overly complex, lacking in clarity and sets too high a hurdle. Particular concern was expressed in relation to the onerous checklist in section 26(2) which provides for ten factors which the court may take into account when determining whether publication of the statement was fair and reasonable.

Section 11, therefore, puts forward a simplified defence which seeks to facilitate public debate in the public interest while safeguarding the right to a good name. The new defence requires a defendant to demonstrate first that the statement was in the public interest, second, that they reasonably believed publishing the statement was in the public interest and, third, that the statement was published in good faith. When considering whether a defendant reasonably believed publication to be in the public interest, the court must take into account whether the belief was arrived at after the making of such inquiries and checks as it was reasonable to expect of the defendant.

If the statement in question consists of an accurate and impartial account of a dispute to which the plaintiff and the defamation action was a party, the defendant is not required to demonstrate that they took steps to verify the truth of the imputation conveyed by it in order to demonstrate reasonable belief that publication of the statement was in the public interest. This provision recognises that in some instances there is a public interest in the neutral reporting of allegations in circumstances where it is clear that the publisher is not standing behind those allegations. In other words, it may sometimes be in the public interest to know that an allegation has been made in respect of an individual before that allegation can be investigated.

However, that does not give a freeway to individuals to say they are just publishing an allegation that has been made elsewhere. It has to be in the public interest and there has to be a certain reasonable belief that the publication was in the public interest and there also needs to be a recognition that there is a responsibility on the publisher to take reasonable steps to inquire into the veracity of the statement.

Amendment No. 16 adds a new section 26A to the Bill. This provision abolishes any defence which may have existed at common law on the basis of the decision in Reynolds against Times Newspapers Limited in which the United Kingdom House of Lords in its judicial capacity recognised the existence of a defence for responsible public interest journalism. The purpose of section 26A is, therefore, to make it clear that where a claim for defamation arises after its commencement, any defence on the basis that the publication is in the public interest should be based on the newly inserted section 26 only. This avoids any confusion or duplication with pre-existing defences.

The purpose of these amendments is to ensure that there is a more concise, comprehensible and usable defence of reasonable publication on the matter of public interest. In the second amendment I just discussed, it seeks to make it known that any other type of Reynolds-type common law defence has been abolished.

There is some uncertainty at present as to whether or not the Reynolds common law defence still exists at common law. My own view is that it has been abolished by the enactment of section 26 but certainly the courts will take a decision. Mr. Justice Collins in the Court of Appeal has recognised that there is some uncertainty about that issue. If it is the case that we are going to enact a statutory defence of fair and reasonable publication, what we do not want to happen is that there is going to be a parallel and corresponding common law defence emanating back to the Reynolds decision. The Reynolds decision was a very interesting decision, in that it recognised for the first time that you could have a public interest defence in respect of publication to the world at large. Prior to that it was very much a qualified interest defence that was based upon duty and interest of individuals. An individual had a duty to confer information and another individual had an interest in receiving it. They tried to apply that to publications to the world at large because they recognised the importance of trying to defend responsible journalism that was in the public interest but which may have been inaccurate in one factual respect.

In order to deal with that they had Reynolds in England for many years. We then adopted Reynolds here even before the enactment of the 2009 legislation, the Blom-Cooper decision here recognised that Reynolds operated here. However, the net effect for it is that once we enacted section 26, it is fair to assume everyone thought that the Reynolds defence had ceased to exist. There is, as I said, uncertainty as about it. This legislation and this latter amendment will ensure there is no parallel common law defence alongside the new section on reasonable publication in the matter of public interest.

See this speech in context