Michael McDowell (Dublin South East, Progressive Democrats)

However, self-regulation must carry with it the notion that there are some rules to which injured parties can point in seeking redress from abuse of press power. There is no point in having an independent press council which can do nothing and is ignored by its members with complete impunity. I am conscious of the danger in arguing that all press activity should be capable of regulation in the interests of good taste or conventional mores. That is not and never will be my approach. It is not the business of a press council to start telling columnists what they should or should not say. The public is the best judge of these matters and it does not need a press council to speak on its behalf.

In the context of libel reform, the Bill puts on a statutory basis a new defence of fair and reasonable publication on a matter of public importance. This defence is subject to certain conditions and is designed to facilitate public discussion where there is both a benefit and an interest in such discussion taking place. This new defence takes cognisance of jurisprudence from the European Court of Human Rights and from certain decisions in the UK courts. The genesis of this defence first arose in these islands in the decision by the UK Court of Appeal in 2001 in the case of Reynolds v. The Sunday Times. In September 2006, the Court of Appeal in the UK refined and clarified its nature and purpose in the case of Jameel and others v. The Wall Street Journal Europe. The court overturned an award against that paper and allowed its defence of reasonable publication on a matter of public importance. The UK Court of Appeal ruled that the defence of reasonable publication was in a new jurisprudential category. It is not the same as a defence of privilege. It has to have a number of conditions to be fulfilled before a responsible publication could plead it. Interestingly, the court in the introduction to its judgment noted the balancing factor between the development of this new defence by the English judiciary and a strengthening of the law on privacy.

However, it should be clear that this new defence is designed to facilitate responsible journalism. It is not a charter to engage in casual defamation or character assassination. It is not a licence for sloppy or vindictive practice by journalists or editors. It will be for the courts to decide what credence to give to an editor or a journalist who tries to cloak himself or herself in such a defence without proper regard for its purpose.

The matter of the process of awarding damages in defamation actions has been much in the news of late, especially in the case of O'Brien v. Mirror Group Newspapers and others. Since the legal representatives of the Daily Mirror have indicated an intention to consider some form of appeal of the High Court award of €750,000 to the Supreme Court, it would not be appropriate for me to comment on that case in particular. However, the Bill as it stands makes it clear that a judge in a High Court defamation action shall give directions to the jury in relation to the matter of damages; it sets out a wide range of factors to which the court shall have regard to in awarding damages, and provides that the Supreme Court, on appeal, may substitute its own level of damages for that awarded by the High Court.

I wish to highlight certain of the main provisions of the Bill at this stage. The present torts of libel and slander will cease to be so described and will instead be collectively described as the tort of defamation. Plaintiffs and defendants in a defamation action will be required to submit a sworn affidavit verifying assertions and allegations and to make themselves available for cross examination. That is not necessarily so at the moment. One could know one had done something infamous and simply tell a newspaper in effect, "Your article suggests I have done something infamous — prove it". One might not even get into the witness box at any point of the trial, yet force the newspaper to prove something was defamatory. That is a strange aspect of our law at the moment. However, without reversing the onus of proof, which was suggested in the Law Reform Commission paper, what is provided here is that somebody must swear that he or she has been defamed and then make himself or herself available for cross-examination as a condition for bringing an action. I believe that is a reasonable position.

It is an offence for a person to make a false statement in an affidavit in support of an action and this mirrors the approach taken in the Civil Liability and Courts Act of 2004. An offer of apology shall not be construed as an admission of liability. The current legal situation effectively precludes this and impedes the giving of a speedy apology which, in some cases might result in a decision not to proceed with court action. The defendant in defamation proceedings may in future lodge in court a sum of money without admission of liability. This mirrors the present position with regard to nearly every other civil action where damages are sought.

Provision is made for new remedies which a court may grant in lieu of, or in addition to, damages. These remedies will, in the ordinary course, be predicated upon a plaintiff having requested a timely and conspicuous retraction of the defamatory matter in circumstances where the defendant has failed to accede to that request. A declaratory order, for which a plaintiff may apply in lieu of damages is intended to offer a speedy means of redress where the only issue is the wish of a plaintiff to have an acknowledgement that the matter in question was defamatory of him or her.

A correction order is envisaged as an additional remedy to declaratory judgments, as it allows the possibility of damages, that may direct the terms of any correction in which a court order is to be made in favour of a plaintiff. A range of factors intended to guide the court in making an award of general damages is specified in section 29. Juries are being retained for High Court proceedings but the trial judge shall give directions as regards the matter of damages. Aggravated and punitive damages are maintained but are limited to specific instances by section 30. The defences available in defamation proceedings are rationalised and clarified in sections 14 to 25, inclusive. A list of occasions where absolute privilege arises is provided in section 15. The defence of qualified privilege is given a statutory basis for the first time and it will attach to the reports and decisions of the Press Council, recognised under section 43.

The defence of fair and reasonable publication on a matter of public importance is created in statute form for the first time in Ireland. It is designed to facilitate public debate where there is both a benefit and an interest in such discussion taking place. The availability of the defence for publishers of relevant periodicals is subject to conditions, notably membership of the recognised Press Council and adherence to its decisions and code of standards. Non-members must have in place an equivalent "fairness" regime so as to avail of the defence. The exact provisions in relation to the recognition of an independent Press Council are set out in section 43 and in Schedule 2. The conditions with regard to the making of an offer of amends are updated, along with the consequences for acceptance or non-acceptance of the offer are provided for in sections 20 and 21.

The common law position with regard to the liability of distributors for defamatory material is being given a statutory basis as "the defence of innocent publication". The defence develops in a more comprehensive way the common law defence of innocent publication which has traditionally been available to distributors, in particular for such as Internet service providers in recognition of the speed with which modern technology works.

Bodies corporate are to be allowed to sue for defamation irrespective of whether they have incurred special damage. A limitation period of one year will apply to the bringing of defamation proceedings unless the interests of justice so require, in which case a court directs otherwise and may allow a period of two years. A special jurisdiction limit for defamation actions in the Circuit Court of €50,000 is provided. The current Circuit Court limit for damages claims is €38,092.

Provision is made for the abolition of the common law offences of criminal, seditious and obscene libel. The issue of blasphemy is under consideration by the Oireachtas All-Party Committee on the Constitution. I am inclined to the view that the committee is well placed to reflect the range and depth of opinion on that complex subject and it would be better for us to get on with this legislation rather than dealing with that particular area.

A new offence of publication of gravely harmful statements has been created. This applies where a false statement is published causing grave injury to the reputation of a person and intended to cause that grave injury. Where a person is convicted of such an offence, the court may issue a warrant authorising a member of An Garda Síochána to enter and search a premises and seize copies of the statement in accordance with the terms set out in the warrant.

The Bill does not provide for the defamation of the dead, an issue which arose during the consultation period. It does, however, provide that on the death of a person, a cause of action for defamation vested in him or her immediately before death should survive for the benefit of the estate. Similarly, it also provides that a cause of action in defamation subsisting against a person should survive his or her death and lie against the estate.

Schedule 1 is divided into two parts and provides for statements having qualified privilege. Part 1 provides for statements privileged without explanation or contradiction. The list includes determinations or statements by the press council or ombudsman. Part 2 of the Schedule provides for statements privileged subject to explanation or contradiction.

Schedule 2 provides for the minimum requirements in relation to a body seeking recognition as the Press Council for the purpose of the Act. The Minister will have to satisfy himself or herself that these criteria are being met prior to making an order declaring the applicant organisation to be the press council for the purposes of the Act. Once recognition is granted, there could be only one such body. An order of recognition granted to the press council may be amended or revoked, should the Minister form the opinion that the council no longer meets the minimum requirements set out in Schedule 2.

However, in that event, before the moving of any order to this effect the press council must be afforded the opportunity to address the issues of concern. The Schedule also provides for the appointment of a press ombudsman who will investigate, hear and determine complaints made to the press council concerning the conduct of its members and the complaints procedure. The Schedule also outlines the potential scope of the code of standards to specify the standards to be adhered to, as well as the rules and practices to be complied with by the members of the press council.

The Defamation Bill 2006 will bring about a very significant and long awaited reform and modernisation of the law regarding defamation. I believe it is a reform that can be welcomed by all persons, be they journalists, editors, publishers or ordinary citizens. It will respect the necessary balance between the equally important but sometimes competing rights of freedom and expression and of respect for the good name and reputation of citizens. The Bill will replace the now outdated Act of 1961 with modern updated provisions while also promoting better regulation and fairness.

In addressing this House during its debates on defamation in 2003 and 2005, I said that I came with a personal prejudice in favour of free speech and against unnecessary regulation, and as a constitutional republican with liberal values I still hold that point of view. I wish to ensure that we have a vigorous and inquiring media functioning in our society. The legislative proposals I am presenting today will, on enactment, bring forward a reform which is sufficiently balanced to gain the necessary acceptance both politically and in the community.

I commend the Bill to the House and I look forward to the contributions by Senators to the debate on its provisions.