Maurice Cummins (Fine Gael)

I welcome the Minister to the House and commend him on this good albeit long overdue Bill which has been in the offing for a considerable time. For example, it has been effectively ready for almost two years. I regret the Minister's Fianna Fáil colleagues have seen fit to hold it up in such a selfish fashion, in order to force into existence the Privacy Bill. Even if one considers this delay to have been lengthy, it is shocking to note the issue of reform of the law of defamation was mooted as long ago as 1992, or almost 14 years ago, a point to which the Minister has alluded.

The Privacy Bill 2006, which is often mentioned in conjunction with this Bill, is dangerous and unnecessary legislation that must be shelved. While the Minister has stated it has not been shelved, he is aware it will not reach Áras an Uachtaráin in the lifetime of the present Government. I can assure the House that if Fine Gael is elected after the general election, it will not place the Privacy Bill on the legislative programme.

While finalising this Bill, the Minister established a committee, under the chairmanship of Mr. Brian Murray SC, to prepare a report on the appropriate legislative basis for the protection of privacy that would be consistent with freedom of expression. The Defamation Bill is based largely on the report from a committee chaired by the former chairman of the Bar Council, Mr. Hugh Mohan SC. However, one of its key recommendations, to which the Minister has alluded, is notable by its absence. While the committee's report recommended a statutory press council that would have been appointed by the Government, obviously the Minister has decided it was not a runner after strong lobbying on the issue. However, I am pleased to note the press industry has taken upon itself the establishment of a press council. I welcome the establishment of a non-statutory press council and an ombudsman, which will allow members of the public a new avenue with which to pursue grievances without having resort to libel proceedings.

Fine Gael has called for the creation of a press council for many years. My colleague in the Dáil, Deputy Jim O'Keeffe, has commended the press industry and the National Union of Journalists on setting up this council and has expressed his confidence that it will provide an adequate and cost-free avenue of redress for individuals or organisations who feel aggrieved by the media. However, it is essential that the council, which will be funded by the industry, will be properly resourced and that its recommendations regarding individual grievances will be adhered to by all media outlets. I hope it will provide independent analysis of genuine problems between the interests of newspapers and those who appear in them from time to time. It is incumbent on the industry to establish a truly independent body and not a group that will always see eye to eye with the editors' point of view. The new press council should have the power to bring to bear heavy sanctions when required and the media should co-operate fully with its rulings. The question as to whether the press can regulate itself remains to be answered.

I will turn to the Bill's contents, rather than its omissions. It is long overdue and I broadly welcome it. However, the legislation could have been better had it stayed closer to the report of the legal advisory group on defamation, which was drawn up by the media law experts who considered this issue in March 2003. For example, the advisory group's 129 page report recommended a new defence of reasonable publication, which made its way into the Bill in section 24. However, in its transition, such a defence appears to have been substantially watered down and defendants must now fulfil far more criteria before being able to rely on it. Similarly, my examination of the Bill suggests that the demonstration of any level of malice, however small or insignificant, will debar a publication from availing of the defence of reasonable publication.

Section 24(4)(b) states the defence of fair and reasonable publication shall fail unless "he or she did not act in bad faith or out of spite, ill will or improper motive". Hence, if a complainant can prove any bad faith or ill will, the newspaper in question has no defence under section 24. This section should include some level of assessment of malice.

One of Fine Gael's greatest criticisms of the Privacy Bill is that effectively, it will stifle investigative journalism. I believe the Defamation Bill will also stymie some efforts to air clandestine problems. This is particularly evident in section 24(2)(g), which allows the court to consider "the extent to which the plaintiff's version of events was represented ... [or] to which a reasonable attempt was made ... to obtain and publish a response from that person". Will it now be necessary for a reporter to put every allegation to the subject of a story before it can be published? The Bill is unclear as to how hard the reporter should try. While Members agree the right of reply should be maintained, the Bill should be more specific if they intend to legislate for it. What constitutes an effort to get another person's side of the story? I am interested to hear the Minister's viewpoints in this respect.

Nevertheless, the Bill allows the media a number of defences against being sued, apart from the defence of fair and reasonable publication on a matter of public importance, that were not previously available, which is to be welcomed. I also welcome the provision in section 6 that will require litigants to swear affidavits verifying their claims and assertions on which they can be cross-examined. This is an entirely reasonable requirement that could be introduced usefully in other areas of the law of torts.

Those who campaign for plain English will be also pleased to note the removal of the distinction between defamation in permanent and impermanent forms, that is, libel and slander. It is time to merge both terms into a single tort of defamation as this would simplify matters for the ordinary citizen.

Lodgments are also a welcome part of the Bill and under section 27, a sum of money can be lodged in court by a defendant without admitting liability. Instead of damages, a plaintiff who successfully sues will be able to seek a declaratory order or a correction order that would force the publication to publish a correction or statement that the information published was untrue and was defamatory. I believe this will be a useful mechanism for the avoidance of protracted legal actions.

One of the most shocking legal matters to have appeared in the news recently has concerned the discrepancy between the level of awards for different torts. It is entirely unjust that a private businessman should receive a larger payment for a defamation award than a young man whose life has been destroyed by the negligent removal of his stomach. Although I am aware it was not a factor, the businessman is a multimillionaire and the reward he received is barely noticeable to him. However, the young man of whom I speak cannot work a full day, can never enjoy his food in the future and must survive on the comparatively meagre settlement awarded to him. Hence, I welcome the reform of the libel remedies outlined in Part 4 of the Bill, particularly those included in section 29, which can only improve justice for civil plaintiffs. The apparently arbitrary nature of libel awards may become somewhat more consistent in their application by allowing the parties, including the court, to address the jury on damages and for an apology to be published without any admission of liability.

Broadly, I welcome the Bill and Fine Gael will support it. I look forward to Committee Stage and the Minister can be assured I will table several amendments in an effort to improve the Bill.