Michael McDowell (Dublin South East, Progressive Democrats)

I am pleased to have the opportunity to introduce the Defamation Bill 2006 and to outline its main provisions. We have had a number of very good debates in this House, most recently on 9 February 2005, on the reform of our current defamation legislation which dates from 1961. I took note of the contributions that day and promised Senators not only to take them into account when drafting the legislation, but also that I would launch the new defamation Bill in this House. I am glad to be able to keep that promise today.

The purpose of the Bill is to provide for a modern statutory framework for defamation law by replacement of the current legislation which dates back to 1961, and the common law which goes back even further in some cases. The Bill provides for a comprehensive reform and gives statutory expression to developments in the jurisprudence of our courts and elsewhere, including the European Court of Human Rights. The agreed programme for Government in 2002 contained a commitment that the Government would, in the context of a statutory press council and improved privacy laws, move to implement reforms of libel laws designed to bring them into line with those of other states. This Bill delivers on the commitments in that programme.

There is no doubt that the reform of our defamation legislation is long overdue. A review of the legislation on defamation was conducted as far back as the early 1990s, which culminated in the publication of a final report by the Law Reform Commission in December 1991. The report contained over 50 detailed proposals for reform in this area of the law. Subsequent to the publication of the LRC report, a draft defamation Bill was commissioned by the national newspapers of Ireland in 1994 and I published a Private Members' Bill in Dáil Éireann the following year. Both of these proposed Bills were influenced by the recommendations made in the LRC report. In 1996, the report of the Commission on the Newspaper Industry also made recommendations for some changes to the law. In responding to the need for reform of the defamation legislation, the Government approved a Bill for drafting in December 2001 which was proposed by my predecessor, the then Minister for Justice, Equality and Law Reform.

Following on from the commitment in the programme for Government, I established a legal advisory group on defamation in September 2002 to report on the implications of fulfilling this commitment. The group also reviewed any other relevant developments which might need to be taken into consideration since the Government decision of December 2001. There has been extensive consultation in preparing this Bill. Subsequent to the publication of the advisory group's report in June 2003, I initiated a public consultation process on the report and also held a major conference in December 2003 to facilitate an exchange of views from a wide cross-section of interested parties. The Bill takes into account that extensive consultation process.

The extensive consultations included those with the Irish press industry steering committee. That committee yesterday published its proposals for an independent press council, a press ombudsman and a code of practice or standards. At the launch, I welcomed this important development. From my initial perusal of the code of practice, I believe that it contains valuable and sensible provisions to govern the conduct of journalists and editors in their work. I am sure that these proposals will be studied carefully not only by Members of this House, but by all persons with an interest in the matter.

The current legislation on defamation is deficient in a number of areas. An apology, which might often be all that is required, cannot be made to an aggrieved person without having that taken as an admission of liability. Unlike in other civil actions, no lodgement can be made in court against a defamation action without admission of liability. There is an insufficient range of remedies other than damages available, such as clarification and rectification.

There is an absence of clarity about the role of the court in giving directions about the level of awards. Plaintiffs do not have to swear affidavits to corroborate their complaint. Plaintiffs are not compelled to take the stand for cross-examination. Defamation actions can be taken up to six years after the publication of the alleged libel. A defence of reasonable publication on a matter of public importance is undefined in statute law. There is a particular silence on the question of encouraging alternatives to the court proceedings such as a complaints system and code of standards operated by the press. The existing legislation lags behind the requirements of the European Convention on Human Rights and developments in jurisprudence in other jurisdictions as regards the appropriate balance between freedom of expression and protection of one's good name.

The new provisions introduced in the Bill will give plaintiffs a better sense of their rights under the law. For those interested in obtaining speedy redress when they have been defamed, new forms of remedy will be available to them in future. The new legislation will also provide greater clarity for publishers and will facilitate responsible publishers in avoiding defamatory statements as well as providing guidance as to the limits of the various defences which are open to them.

It is useful to consider the other elements in the commitment set out in the programme for Government. Foremost in content and discussion has been the issue of a press council. The legal advisory group in its 2003 report recommended the creation of a statutory Government appointed press council. I clearly indicated that while this was one possible approach, it was not my favoured approach. My proposals for reform, as agreed by the Government, differ from the group's recommendation.

The Bill supports the concept of an independent press council — such as that launched yesterday — which can be afforded statutory recognition by both Houses of the Oireachtas on foot of a motion by the Minister for Justice, Equality and Law Reform subject to the motion meeting certain basic and obvious criteria set out in Schedule 2 to the Bill. This is the most acceptable outcome in this regard and should gain the support of the House. This approach will allow the print media to put into practice its self-proclaimed determination to bring forward an independent, effective and industry-funded press council operating a proper code of practice. The code must provide an added protection to citizens' privacy and dignity from media intrusion and violation. Nothing less will be expected by the public. The proposed press ombudsman service must be properly empowered to deal with complaints from those affected by breaches of standards as set out in such a code.

A code of practice to which the print media organisations can subscribe and adhere is a critical element of independent regulation of the press. We now have that code, which will bear careful consideration. It should not fall to the Minister or the Government to dictate the exact detail in such a code of practice or standards.