Joanna Tuffy (Dublin Mid West, Labour)
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I spoke briefly on this Bill last week. As I stated, the Labour Party welcomes this Bill and the establishment of the Office of the Press Ombudsman and the Press Council. I wish to raise a number of issues. I spoke briefly in the Seanad on Committee Stage and one of the amendments I proposed was subsequently adopted, which I very much welcome. In his speech the Minister referred to this, stating that following amendment in the Seanad, the Bill now provides that in situations where an apology is made and published the apology will be given the same or similar prominence as was given to the original statement.

Other issues were also raised in the Seanad and I imagine we will table amendments on those issues on Committee Stage. I hope the new Minister will take some of the additional points made by the Labour Party through its amendments when we come to Committee Stage. The former Minister for Justice, Equality and Law Reform referred to the provision in the legislation of a new defence of "fair and reasonable publication on a matter of public interest" and he then mentioned the Jameel case, stating, "The court in the introduction to its judgment noted the balancing factor between this new defence with a strengthening of the law of privacy". The first case in which the press ombudsman found in favour of the complainant related to the privacy of a Member of the Dáil. The decision vindicated the Member's privacy. The decision was appealed to the Press Council, which upheld it.

Deputy Flanagan raised the issue of the Privacy Bill 2006 remaining on the Order Paper. He supported the comments of the former Minister who said we should wait to see how the Press Council and the press ombudsman operate before a decision is made on the Bill. However, while that is also the position of the Labour Party, our former spokesperson on justice, equality and law reform in the Seanad, Kathleen O'Meara, an NUJ member and a former journalist, stated on Second Stage of this Bill in the Seanad that the Privacy Bill was fundamentally flawed and:

The reason for this is that it has not been the subject of extensive consultation or the subject of a Law Reform Commission report. It has not had the input from the industry nor from those with knowledge and experience in the area. We could not support the current privacy legislation as it is framed.

At the same time, it is wrong if the Minister's approach will be to leave the Bill on the Order Paper in limbo with nothing happening about it. Suddenly, if he decides later to proceed with the legislation, no consultation will have taken place in the meantime. The Defamation Bill should be passed and the House should monitor how the Press Council and the press ombudsman operate but a consultation process on the privacy legislation should be commenced. Does the Law Reform Commission investigate an issue at the request of the Government or does it make a decision itself? The Minister should take steps to initiate a consultation process on the privacy legislation because it is an important issue.

The Press Council and the press ombudsman will deal with many privacy issues. We tend to think of high profile cases and significant costs awards in this context but the approach under the legislation is to introduce procedures that result in courts being used and significant damages being paid as a last resort. Negotiation is provided for and it is proposed newspapers can take steps to address the public's concerns. For example, a newspaper can print an apology, which is not necessarily an admission of liability. The most important aspect of the legislation is how the wider public will deal with the new procedures and how they will fare under them. A free press is important, as is freedom of expression, and the legislation recognises that while at the same time striking a balance on the protection of the reputation of the individual.

Senator O'Meara also referred to how the wider public will fare and journalistic standards. A key element of the legislation is to ensure journalism is ethical, truthful and so on, thereby providing a balance. For example, Damien Tiernan, who is chairman of the NUJ Irish Executive Council, raised issues in the reporting of the tragedy in Clonroche involving the Flood family in a recent letter to The Irish Times. He referred to an article in the Irish Daily Mail, which, coincidentally, I had also read. What was stated as fact in the headline transpired to be mere speculation when I read through the article. Damien Tiernan picked up on this and he referred to an issue also raised by Kathleen O'Meara, as a journalist, which is the commercial pressures on journalists and editors and how that is leading to slippage in journalistic standards. He stated, "There is massive pressure on many journalists working on big stories, a pressure which comes from certain news desks demanding they have the "real" story first and that a rival doesn't scoop them". He also said journalists have "a duty to maintain the highest professional and ethical standards and strive to ensure the information he/she disseminates is fair and accurate".

This also leads to the issue of the privacy of the individual and families and how stories can cause hurt to families. Those who are hurt by stories that invade their privacy or defame the dead will not necessarily want to go to court. They would probably feel they would fare badly in an adversarial court system and, therefore, it is important the Press Council and the press ombudsman protect ordinary people. They are not high profile but sometimes an unfavourable story relating to them or their families might be published and they might seek redress in a way that is fair and sympathetic to them. In the operation of the legislation, they are the most important people for whom we must watch out.

The former Minister stated the legislation does not deal with the defamation of the dead. I have not looked into how that is addressed in other countries but it also relates to privacy. A family in my constituency has an issue with information published about a family member when he died. How would the family fare under the legislation given it does not provide for the defamation of the dead? That needs to be addressed. I do not necessarily mean court cases should result but a family with an issue about coverage of a deceased relative should have the opportunity to make a complaint to the press ombudsman or the Press Council. A mechanism should be in place to address their concerns or grievances.

John Horgan, a former chairman of the Labour Court, resigned from the Press Council recently. He stated in a letter the council took a decision with which he did not agree not to publish minority decisions and that is why he resigned. He felt that it would be much more positive if it did that, which is the practice in certain press councils in other countries, as well as in some other quasi-legal institutions. The issue he raised is worthy of further discussion and should be looked at down the line by the Press Council and possibly by these Houses in terms of our monitoring of the legislation.

Obviously, when this legislation is passed, it is very important that we have some process of ongoing monitoring of how it is working. At the official launch of the Press Council of Ireland and the Office of the Press Ombudsman, the former Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, said:

There has been much comment in the media recently about the perceived ills of self regulation. Notwithstanding the independence of the Press Council and its Chairman and the eminence of the Press Ombudsman, the model of accountability we are launching here today is, by any regulatory standards, on the light side of the scale. Essentially, the Press Council will be relying on its moral authority and I do not mean in any way to slight that authority. But, be warned: there are many sceptics out there. You would do well to prove them wrong at an early date.

This is something in which I hope the new Minister for Justice, Equality and Law Reform will take an ongoing interest and that we will monitor how the Press Council operates. In respect of monitoring, one of the matters mentioned by the Minister in his speech is the fact that some newspapers and media institutions have not registered with the Press Council. If this is true, it is a worrying development. We do not want some kind of parallel operation there. The Press Council should be the primary institution. It looks like there could be a parallel operation and that some newspapers might not register and have their own system in terms of dealing with grievances brought to their attention. I worry about that kind of parallel process, which needs to be monitored.

The Labour Party opposed the privacy legislation as it stands but I reiterate that there is now an opportunity to consult the industry and the different parties in the House about what kind of privacy legislation we might foresee down the road. Hopefully, the Law Reform Commission might look into it or some other reform. The Minister should be proactive in taking steps in that regard.

John Cregan (Limerick West, Fianna Fail)
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I call Deputy Durkan.

Bernard Durkan (Kildare North, Fine Gael)
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I was waiting to see what was going to happen.

Deputies:

I call on Deputy D'Arcy. The Deputy has 20 minutes.

Michael D'Arcy (Wexford, Fine Gael)
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Is that all? I will be sharing time with Deputies Durkan and Joe Carey. The Bill is long overdue going back to 1961 when neither my colleague, Deputy Carey, nor I were born. I am nearly sure that Deputy Durkan was born then.

Bernard Durkan (Kildare North, Fine Gael)
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I definitely was.

Michael D'Arcy (Wexford, Fine Gael)
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It is long overdue. We have struggled with this for far too long and we need to get it through the Oireachtas as quickly as possible. I was watching television some time ago and saw news of an enormous award in the region of over €900,000 to a gentleman from Sligo. The sum of €900,000 for somebody's character to be defamed seems an incredible amount of money. During the debate on that award by a jury, people made a very clear association between an award of €900,000 to someone for defamation and some of the paltry awards made to people who have been assaulted in the streets, be it a civil case taken between two individuals or a criminal case. Certainly one would not get anything in the region of hundreds of thousands of euro let alone an amount that comes close to €1 million. We must have a look at this aspect.

There is a constitutional right to one's good name with which nobody could disagree. However, there has always been and should always be checks and balances in every system. The checks and balances in respect of defamation were the courts but with the award about which I have just spoken, the checks and balances have become a bit skewed. We must put in place something that is reasonable and fair. Awards of that nature seem incredible.

I want to touch upon the matter raised by Deputy Tuffy in respect of journalistic standards that applied to the reportage of the tragedy that happened to the Flood family in Clonroche. I speak as a Deputy from the constituency of Wexford. While I did not know the members of the family who are now deceased, I know other members of the Flood family. The reportage can only be described as shameful. I was appalled to see what was reported in respect of that incident. Damien Tiernan's letter went a small way in terms of professionalism towards trying to redress what happened. The reporting was disgraceful. One cannot defame somebody who is dead and this effectively gave media outlets the opportunity to do and say as they saw fit. Some mechanism must be brought in to reign in that type of irresponsible journalism. I compliment Damien Tiernan as a very responsible member of the NUJ. It was some small help to those of us from Wexford who felt so awful about the Flood family and those unfortunate events.

The journalistic standards in that case were very low. Due to the fact that so many media outlets are cropping up all over the place, be they local, national or international, there seems to be much more drive to have copy. It is all about getting some version of copy. It does not have to be true but it must be vetted by the legal advisers of the media outlet as long as it does not bring them into conflict with somebody. Standards are slipping. One now has the Internet, blogs, Bebo and YouTube, as well as the old standard media outlets and local and national newspapers. There is now also Sky Ireland and so many other media outlets. They must get copy. As we saw yesterday from our visit to TV3, it takes something like one hour to produce one minute of television, which is an incredible amount of work and cost. It puts incredible pressure on media outlets to get coverage and their space filled, regardless of whether it is airtime, viewing time or copy. Each profession now seems to have a newspaper and a number of magazines. It is absolutely incredible.

Checks and balances lie in the courts but they have become skewed. I agree with Deputy Tuffy about privacy legislation. While there were concerns about what was going to come forward, we need to bring something forward. We cannot just kick it to touch and leave it out there because the privacy legislation is also another check in respect of the defamation of individuals by media outlets. The French President, Nicolas Sarkozy, and his new wife, Carla Bruni, sued for privacy while they were in the UK. The legislation seems to be in place in other jurisdictions in respect of the Privacy Bill. We do not always have to reinvent the wheel. If legislation is enacted in other jurisdictions and is working well, we should take the opportunity to mimic it, introduce it here and ensure we have further checks and balances on the question of defamation, so that people do not always have to go to court to seek redress.

The area of what I call celebrity journalism is also important in the context of this Bill. This type of journalism is resulting in the proliferation of media outlets. Most of this so-called journalism consists of a photograph with a caption and very often the captions can do more damage than lengthy articles. Celebrity journalism does not provide us with news. It is not serving the public interest in any way, although there seems to be an appetite among the public for this type of journalism or copy. The point remains, however, that if someone wishes to seek redress, he or she should not have to go to court to obtain it.

The defence of a fair and reasonable comment on a matter of public interest is being created in this Bill. I am always somewhat cagey about the term "public interest". I recently read a book about Mr. Barack Obama. When Mr. Obama was running for the Illinois State Legislature several media outlets successfully sued to ensure that the divorce proceedings of his opponent could be opened up to public scrutiny. The media outlets argued that the information was a matter of public interest but that is questionable. While there will always be matters of public interest, the courts will determine the extent to which such a defence can be considered. In that context, the notion of the legal accordion might apply. The interpretation of the courts could be very wide or extremely narrow. Incredibly, the same thing happened when Mr. Obama ran for the United States Senate. His opponent was a divorcee and another media outlet successfully sued, in the public interest, to open up the divorce proceedings file.

Given the Obama examples, the concept of the "public interest" is one about which I am concerned. We do not know how the courts will interpret the defence of a matter of public interest. I would be very cagey about this area. Indeed, I have heard the Acting Chairman, Deputy Cregan, express concern regarding these matters previously. When we create a defence of a matter of public interest, we must be very careful. I wish to sound a note of caution here because we could be creating something that will become a Frankenstein in time. Unless we get very clear, tight details on the matter, I would be very slow to enact that particular provision.

There are many other issues that are relevant to this debate but my colleague, Deputy Joe Carey, is anxious to make a contribution before time runs out. I am sure I will have other opportunities to discuss the issues further.

Joe Carey (Clare, Fine Gael)
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I welcome the introduction of this legislation. The Defamation Bill was published on 4 July 2006 and had a relatively speedy passage through the Seanad. It updates the Defamation Act 1961, which was drafted in a different era. We are now living in a totally different world, with an enormous array of new media outlets, including mobile telephones and the Internet. In the 1960s there was a very limited number of media outlets.

It is important that we strike the right balance between providing for responsible journalism and protecting people's good name. The Defamation Bill provides Dáil Éireann with an opportunity to govern the area properly. I agree with Deputy D'Arcy that the privacy Bill should be introduced as soon as possible. Having listened to the contributions of other Deputies, there appears to be a consensus that the privacy Bill must be introduced as a matter of urgency if we are to arrive at the correct balance between freedom of the press and ensuring responsible journalism.

The Bill provides for a defence of honest opinion to replace a defence of fair comment. The language in section 18(2)(a) is very convoluted and should be refined. The issue of a defence of fair and reasonable comment is currently before the courts, having originated in the UK jurisdiction in the Reynolds v. The Sunday Times case. This defence allows for enormous latitude in publication of material and must be balanced by the proposed privacy Bill. The defence of fair and reasonable comment is a new theme in this Bill and is introduced on the basis of UK legislation. Should we wait until this matter is settled in court or legislate now in advance of the court decision?

Section 38 deals with the survival of a cause of action for defamation on the death of the person concerned. Deputy Tuffy referred to the difficulties in this area, particularly when someone is defamed after his or her death. The taking of a person's good name in such circumstances is malicious. We should include more provisions in this Bill to deal with this area.

I note with disappointment the resignation of Mr. John Horgan from the Press Council. Mr. Horgan lives approximately half a mile from me in Clarecastle, County Clare. He is a well respected person and it is regrettable that he would step down, particularly on a point of this nature. There must be a balance between reporting of the majority and the minority decisions. The fact that this person stepped down raises questions and it is regrettable. I believe it went unpublished in media circles and this also raises questions.

I welcome the Bill and I look forward to a frank and open debate. The legislation on privacy should also be introduced as it enjoys a consensus. This matter should be brought to a head as soon as possible. I look forward to hearing the Minister's views.

Finian McGrath (Dublin North Central, Independent)
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I thank the Acting Chairman for the opportunity to speak on Second Stage of the Defamation Bill 2006. This Bill has modern, updated provisions.

This is my first opportunity to congratulate the Taoiseach, Deputy Cowen, on his election. It is a great honour for him, his family and the people of County Offaly. I wish him well in the future. I also congratulate the new members of the Cabinet and the new Ministers of State, particularly the Minister of State, Deputy Máire Hoctor, who is present. I wish them all well in their jobs as they will have a difficult task over the next couple of years. I wish them well for the future.

The main purpose of the Defamation Bill is to revise in part the law of defamation and to replace the Defamation Act 1961 with modern, updated provisions, taking into account the jurisprudence of the courts and the European Court of Human Rights. The key phrase is "human rights". We are talking about respect for our people, respect for our citizens and a level of truth and justice when dealing with this issue.

Other Deputies referred to the issue of privacy. We must ensure respect for persons, particularly those in public life. They are entitled to a private as well as a public life. I agree that the media may investigate the public and political activities of politicians but there is no excuse for journalists to be camped outside the homes of ill TDs. It is unacceptable and a disgrace. I refer to recent incidents of this behaviour when a Member of the House returned home from hospital and the media were camped at his door and tried to doorstep him. That is not acceptable behaviour. Those working in the media should respect the rights of these people.

Section 3 of the Bill provides that the legislation should only apply to a cause of action which accrues after it comes into operation. It also proposes that it shall not affect the operation of the general law in force immediately before commencement of the Act. Section 5 collectively describes the tort of libel and the tort of slander as the tort of defamation and defines the essential ingredients of defamation. It also provides that the tort of defamation is actionable without proof of special damage. Section 7 provides a mechanism whereby both the plaintiff and the defendant are obliged to verify the particulars of any pleading containing assertions, allegations of fact or further information within a specific timeframe, which may be extended at the discretion of the court. The contents of the verifying affidavit could also form the subject matter for cross-examination of both plaintiff and defendant to which they must make themselves available at the time of the trial.

Section 9 is very important as it seeks to clarify the existing law. It provides that a member of a class of persons shall have a cause of action if, by reason of the number of persons who are members of that class or by virtue of the circumstances in which the statement is published, the statement could reasonably be understood to refer to the member concerned. This is an important provision when applied to our ethnic minorities and people who have a right to have their privileges and rights protected. I refer to the often negative labelling of whole communities by the media. For instance it could be a community living in a disadvantaged area, members of the Traveller community or members of ethnic minority communities. They are often labelled because one person does something wrong and that is unacceptable.

In my previous life as a teacher working in a disadvantaged community, I noted that a negative image of the community was created by certain sections while the majority of people in these communities got up in the morning, went to school, did their homework, got their diaries signed and got on with their lives. Yet reading some of the articles written about some of those communities, one would think all these people were sub-human. That is not acceptable.

Section 11 provides that a body corporate may bring a defamation action whether it has incurred or is likely to incur financial loss as a result of the publication of the alleged defamatory statement. A corporate body can be a group such as the HSE. I regularly hear Members of this House remarking that we have problems in the health service and we are trying to resolve them. I hear a labelling of everybody in the HSE. I had a positive experience during this week when the HSE — Deputy Durkan will like to hear this — granted me €2.5 million extra for Dublin North-Central for a group of families dealing with those with an intellectual disability. That is something one will not read about in the newspapers. I also had the experience——

Bernard Durkan (Kildare North, Fine Gael)
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I hope it was not specifically for the Deputy's use.

Finian McGrath (Dublin North Central, Independent)
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——of people in the HSE doing a very good job. I am making the point that this idea of defamation of a corporate body is unacceptable.

I regularly talk to HSE staff members and their morale is low because of much of the negative criticism voiced by Members of this House. I agree we should work to resolve the issues but we should not label people or corporate bodies.

Michael D'Arcy (Wexford, Fine Gael)
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Much of the criticism is valid.

Finian McGrath (Dublin North Central, Independent)
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The same applies to businesses or factories. Business is often hammered, especially shopkeepers and other service providers or trade unions which are trying to do their best. That is unacceptable.

Section 14 restates the existing law relating to the defence of justification which is now renamed the defence of truth. This is an important provision because the truth is being distorted in many publications and in new fast-track media situations. All Members of the Oireachtas should make the defence of truth a priority. As elected representatives we have an obligation to serve the public. This is the reason I welcome the Taoiseach's recent statements about public service. The majority of politicians are in public life for the right reasons. They have no vested interest. The few people who have damaged the reputation of politics have damaged us all and damaged the integrity of politics. Members from all sides of the House come in to do their best.

Section 19 sets out the criteria to be considered by a court when distinguishing between facts and opinion contained in a statement in defamation proceedings. Section 20 is important and should be closely studied. It provides for a person who has published an allegedly defamatory statement to make an offer of amends. The offer shall not be made after a defence in the defamation action has been lodged. This section updates the existing defence of unintentional defamation which is at present provided for in section 21 of the Defamation Act 1961. Many people have suffered in this area. An individual distributes leaflets at the gates of Leinster House which make wild and crazy allegations about me. I have not sued the man. I got legal advice and could have sued him. I will not go down that road because of the particular situation. I spent three years fighting that case here. I did my best, I even set up a meeting with the Minister for Justice, Equality and Law Reform. Distributing leaflets at the gates of Leinster House is not acceptable and I will not tolerate it in any situation. I will use the privilege of the House to highlight this issue. I am aware that other colleagues have suffered from this type of disgraceful carry-on by some members of the broader community. It is not acceptable.

Section 22 provides that an offer of apology by a defendant to a plaintiff is not to be construed as an admission of liability. This is an important issue. I always advocate that if somebody does something wrong, whether in politics by a Taoiseach, a Minister or a TD, one makes an apology, moves on and deals with the issue. That would save much hassle, a great deal of money and many legal cases. One sees some high profile celebrities going down that route in respect of domestic issues. It is absolutely crazy. Many legal cases could be resolved if people had the cop-on to apologise if and when they make mistakes.

Section 24 introduces a new defamation defence into Irish law, the defence of fair and reasonable publication on a matter of public importance. It is essentially designed to facilitate public discussion where there is a benefit and an interest in such a discussion. The defence is subject to the criteria of fairness and reasonableness and a range of matters, which are non-exhaustive, are specified which a court shall take into account in determining whether the publication of a statement is fair and reasonable in the circumstances. The defence is forfeited where the defendant believed the statement to be untrue, was actuated by bad faith, made out of spite or ill-will or other improper motive or that the statement bore no relation to the purpose of the defence and the manner and extent of the publication exceeded what was reasonably sufficient in all the circumstances. Section 24 is important when it comes to matters of public importance. I use this opportunity to ask that in the debate on the Lisbon treaty, we deal with facts. I appeal to those on the "Yes" side particularly, who appear to be set on a course of vilifying those——

Bernard Durkan (Kildare North, Fine Gael)
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That is a disgrace. The Deputy should speak for himself instead of running around the countryside——

Finian McGrath (Dublin North Central, Independent)
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——on the "No" side on a regular basis and making mad, crazy allegations in regard to the debate.

Bernard Durkan (Kildare North, Fine Gael)
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Who are the three monkeys?

Finian McGrath (Dublin North Central, Independent)
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I will not name them.

Bernard Durkan (Kildare North, Fine Gael)
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The Deputy should name them given that he went down that road.

Finian McGrath (Dublin North Central, Independent)
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Let us have a proper, measured debate. Let us look at the details of the treaty and examine them. Let us not dismiss people who have genuine concerns in a negative way, which is happening at present. The problem is that this is provoking a reaction among the public that is not doing politicians any good. I mention this in regard to section 24.

Michael D'Arcy (Wexford, Fine Gael)
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Fianna Fáil is doing that.

Finian McGrath (Dublin North Central, Independent)
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People have genuine concerns about it. They are entitled to ask questions and they are entitled to be treated with respect.

Bernard Durkan (Kildare North, Fine Gael)
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They are not entitled to tell lies.

Finian McGrath (Dublin North Central, Independent)
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The use of phrases such as "acts of lunacy", "head bangers" and so on is not acceptable in any debate.

Bernard Durkan (Kildare North, Fine Gael)
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What about the three monkeys? What about the disrespect for the 1916 Proclamation——

Finian McGrath (Dublin North Central, Independent)
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What does the Deputy mean by disrespect for the 1916 Proclamation? Anybody who has read——

Bernard Durkan (Kildare North, Fine Gael)
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——while suggesting that something untoward will happen?

Deputies:

Deputy McGrath, on the legislation, please.

Finian McGrath (Dublin North Central, Independent)
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I will move on with the legislation. I apologise for the heckling from Deputy Durkan.

Bernard Durkan (Kildare North, Fine Gael)
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There is no apology.

Deputies:

Deputy McGrath, without interruption, please.

Finian McGrath (Dublin North Central, Independent)
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I am dealing with section 24 which is about fair and reasonable publication on a matter of public importance. Deputy Durkan should realise that when people consider that a particular treaty undermines the Constitution, erodes our sovereignty and diminishes our influence——

Bernard Durkan (Kildare North, Fine Gael)
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They should state their grounds.

Finian McGrath (Dublin North Central, Independent)
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——he should read the 1916 Proclamation. I can quote the articles any time in a broader forum and I have done it in many debates so far.

Bernard Durkan (Kildare North, Fine Gael)
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The Deputy can quote it any time he likes.

Finian McGrath (Dublin North Central, Independent)
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May I return to the debate?

Deputies:

Yes, please, on the Bill.

Finian McGrath (Dublin North Central, Independent)
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I raised that issue in the context of section 24.

Michael D'Arcy (Wexford, Fine Gael)
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That is not the point. Rubbish.

Finian McGrath (Dublin North Central, Independent)
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That is the level of debate Deputy D'Arcy has to deal with. It is not acceptable. I accept that the truth often hurts.

Bernard Durkan (Kildare North, Fine Gael)
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I would not go there if I was the Deputy.

Finian McGrath (Dublin North Central, Independent)
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Section 26 provides a new remedy for defamation to be known as a declaratory order. It is intended to provide an expeditious avenue of redress where damages are not being sought. This is a sensible and important provision.

Section 35 creates a new offence of publication of gravely harmful statements. Perhaps that is relevant to Deputy Durkan's poster about the monkeys.

Deputies:

On the Bill, please.

Bernard Durkan (Kildare North, Fine Gael)
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The Deputy should put his signature behind one of the monkeys and we will accept it.

Deputies:

Deputy McGrath is provoking interruption. I ask him to return to the Bill.

Finian McGrath (Dublin North Central, Independent)
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I am being heckled by Deputy Durkan and it is very difficult. I have to deal with Deputy Durkan every day of my life. His leader heckled me this morning. As I said before I was rudely interrupted, section 35 creates a new offence of publication of gravely harmful statements. This applies where a person publishes a false statement causing grave injury to the reputation of the person and intended to cause that grave injury. This is an important provision. Many TDs, Senators and Ministers have suffered following the publication of gravely harmful statements. It is important that we take a strong line on section 35. I emphasise that we deal with the facts, truth and justice.

Section 38 provides that a cause of action in defamation should survive the death of the person in respect of whom the defamatory statement was made. It also provides that a cause of action in defamation should survive the death of the defamer.

Section 40 provides that, notwithstanding current jurisdiction limits, all defamation cases where the amount of the claim does not exceed €50,000 may be taken in the Circuit Court. We need to look at the issue of claims and the amount of money being given to some people. I disagree with some of the claims and some of the judgments handed down. In respect of some other claims the judges have not awarded a sufficient amount. Some balance is required in respect of this provision. Section 40 is relevant in the broader debate.

Section 43 deals with the press council. I congratulate my colleague, Deputy Tony Gregory, on winning his recent case in the press council in respect of a number of media outlets. Section 43 provides that the Minister shall, on application to him and having satisfied himself that the applicant materially complies with the minimum requirements prescribed in Schedule 2, make an order recognising the applicant as the press council. Only one such press council may be granted recognition at a time. This section also provides for the amendment or revocation of an order of recognition granted to the press council, should the Minister form the opinion that the press council no longer adheres to the minimum requirements prescribed in Schedule 2. The press council must be afforded the opportunity to address the matters of concern prior to the moving of any order. A draft of an order under section 43 must be approved by both Houses of the Oireachtas before the order is made by the Minister.

I welcome the formation of the press council. In a recent dealing with the press council I found it very efficient and fair in regard to my case.

I welcome the Bill to which there are many positive aspects. To my colleagues in the House, if they are having a debate, I ask them to look at the facts, deal with the issues and let us have less of the waffle.

Bernard Durkan (Kildare North, Fine Gael)
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That gives me an opportunity to call on our Government backbencher cum Independent cum "Yes" cum "No" side to practice what he preaches. Incidentally, he appears anxious to crow about the fact that, according to himself, the HSE made a special award or grant to some group in his constituency, albeit a deserving group. I remind him he is not the only Member of the House and that the HSE has an equal obligation to every other Member. Under the rules of democracy, it must treat everyone equally, particularly as it is not an elected body.

All Members have heard or read dubious statements which were damaging to the character, livelihood, well-being or professional life of an individual. This is a regular occurrence. There is a notion abroad that some reputations are more valuable than others. Everyone is entitled to fair treatment under the law and no one's reputation, regardless of their position or profession, should be taken lightly when certain scribes are considering what they believe to be acceptable or certain legal eagles are considering what might get past the laws of libel.

The case of a former Member of the House, the late Liam Lawlor, comes to mind. We all read disgraceful accounts of Mr. Lawlor's death in the newspapers. Regardless of whether he was a member of a political party or parliament, it was disgraceful that certain media outlets took such latitude in the knowledge that Mr. Lawlor had died. The Bill will not address this problem because, as other speakers have noted, the dead cannot be libelled. Their families, however, can be seriously damaged as a result of comments that are made on the basis that a deceased person is no longer in a position to take action against those who make them. It was ironic in the case of former Deputy Liam Lawlor that the matter was not as clear cut as the scribes and legal eagles believed and retribution was secured afterwards. Lessons must be learned from that case.

While I am conscious of the need to maintain freedom of the press and of expression, these freedoms must be measured against the degree to which the reputation of a group, body, agency or individual can be damaged by telling lies. We all have a duty to tell the truth as best we can. We should not tell a deliberate lie or deliberately misconstrue or present a case in such a manner as to mislead. To do so is equivalent to tell a lie and will be damaging. This is the reason I referred to specific posters which all and sundry can see. It is damaging to lie in a fashion which detracts from the case made by another person, undermines his or her character or damages his or her reputation. When will we draw a line?

In speaking inside or outside the House, Members seek to avoid damaging the reputation or character of individuals outside the House. This is as it should be because Members have privilege. Failure to observe privilege could result in its removal and the abuse of privilege is not excusable. Let us take a step further. What would happen if I or someone else were to decide to lie in such a manner as to damage a person's character? Would it be sufficient to issue an apology in such circumstances? It has been argued that if an apology has been issued, this should be considered in determining whether a libel took place. This depends on the extent of the damage done by the libel. In certain circumstances, it is well nigh impossible to repair the damage done to a person's reputation. If I write something which is defamatory and demeaning of an individual, the damage to the his or her reputation can be such that an apology would in no way ameliorate it. For instance, if some scribe writes that a person has been accused of taking money, as occurs regularly, it severely damages the person's reputation. However, allegations of a more personal nature, for instance, a wrongful accusation of child abuse, are so damaging that an apology would not ameliorate the harm done to the person's reputation. The extent to which the issuing of an apology should be taken into account must, therefore, depend on the gravity and nature of the allegation given the potential to cause irreparable damage.

The role of the press council has been raised. Members of the press, like public representatives, do a difficult job. If they become aware of a matter about which members of the public have a right to know, they have a duty to publish. However, they also have a duty to check the authenticity of what they publish and, in so far as possible, to verify and be reasonably sure of the facts beforehand. To do otherwise is dangerous. The practice of giving legal advice to the effect that it might be possible to get away with writing something is cynical and old-fashioned.

We must strike a balance between, on the one hand, the public good and the right of members of the public to have information and, on the other, the likely damage in the event that the information to be published is wrong or the article in question is misleading. In the final analysis, one must always err on the side of caution. If I say or do something that causes irreparable damage to a person's reputation, it is in the public interest that I fulfil my duty to give the other side of the story.

While the majority of journals and journalists observe this rule, I am worried by the actions of the minority who sometimes exert a significant influence over the responsible majority. I will take as an extreme example the role of the paparazzi in pursuing the late Princess Diana. The type of activity in which this group of journalists engaged over a long period with a view to selling magazines or other publications was disgraceful and should not have been tolerated. While the media will argue that the lives of those in public life are ripe for comment, I recall a couple of cases in which journalists were not anxious to investigate members of their own profession. Everyone is entitled to privacy and members of the media have no right to camp outside someone's hall door.