Martin Mansergh (Fianna Fail)

No.

Senator Ormonde is correct that the Bill covers only a fraction of those matters to which one might take exception in the media. It will not get rid of scurrility in objective terms or what one might consider to be such. There is no way of doing that other than under the auspices of some type of authoritarian régime. Politicians are in a more advantageous position than most in that we have platforms from which we can reply. I am firm believer in the view that politicians, even when maligned, should, if possible, fight their case in the court of public opinion rather than in the courts of law. With all due respect to the Minister, I contend that politics and law do not mix particularly well.

The levels of damages awarded in such cases often seem disproportionate. In many instances, high damages may simply go to pay high barristers' fees. The purpose of a press council is to provide a relatively expeditious and inexpensive way of setting one's reputation right. I am not sure that at least that remedy should not apply to those who are connected to the recently dead. I fully accept there cannot be monetary considerations applying in such instances.

The provision in section 7 that the plaintiff must swear an affidavit is welcome. There have been libel cases, not necessarily in this State, where it subsequently transpired that what was alleged to be libellous was entirely true. I have some reservations in regard to subsection (9) of this section, which provides that the defendant is "entitled to cross examine the plaintiff in relation to any statement made by the plaintiff in the affidavit". I recall an instance where I was being potentially libelled and the advice I received was that while it was true that one was not doing X, people with deep pockets may wish to inquire as to whether one is doing Y or Z.

Section 13 sets out how a court should deal with a defamation action. There is a difficulty, however, in that people often avoid charges of libel by making indirect references or allusions. These provisions will be subject to varied interpretation in this regard. If I were a newspaper proprietor, I would not be sure where I might stand in a case where a plaintiff could reasonably say that an indirect allusion applies to them. It will all depend on the content of the statement in question, but I wonder whether the definitions are somewhat loose.

The point I am about to make may bring bricks falling around my head. I do not like absolutism of any type and it is for this reason that I have some concerns about the references to absolute privilege. I understand and defend the reasons that Members of the Oireachtas enjoy such privilege. There are cases, however, where that privilege has been abused to allege that named persons have committed all types of crimes. This has happened in the House of Commons, for example. Such allegations may put the accused person's life in danger. The Finucane case involved one of the most disgraceful statements ever made by a Minister in the House of Commons. I am glad this person's career did not subsequently flourish. Perhaps there should be some parliamentary mechanism whereby Members could be censured for abuse of privilege. The Committees on Procedure and Privileges may already have some powers in this regard.

Section 17 (1)(a) provides that a defence of qualified privilege will fail if the plaintiff proves the defendant did not believe the statement in respect of which the action was brought to be true or that the defendant acted in bad faith. It seems virtually impossible to prove that a defendant made a statement in bad faith. People are capable of continuing to believe in the face of all the evidence, the most extraordinary statements.

I welcome section 24(2)(c), which provides for the context and content, including the language used, of the statement. This will encourage moderation in language used. A recent editorial in Village magazine rubbished the press council proposal, not from a press point of view, but on the grounds the media will run a coach and horses through it as they are only interested in making a profit. I hope the council will work and do so in good faith. It is as much in the interest of the media as anyone else that proper standards are maintained. If it does not work, the problem will subsist and other remedies may have to be found.