Michael McDowell (Dublin South East, Progressive Democrats)

I would be censured and held in the lowest esteem for doing that to a newspaper editor. Is there any responsibility attached to the power of the media and is there any sense of obligation to be truthful?

Members of the House have referred to what was published in one of yesterday's newspapers. I spoke about that to the former Tánaiste last night. I said I would take the opportunity of this debate today to express my revulsion at what I had seen. She is a gentle and decent person. She said, "Please, do not. It will only add petrol to the flames and reignite the controversy." Her decency contrasts dramatically with the cowardice of whoever would do that with a newspaper.

Senator O'Toole sought clarification on the question of qualified privilege. Section 16(3) refers to two elements. It is a defence in a defamation action to prove that the statement concerned was contained in a publication or a report specified in Schedule 1, which is privileged, without explanation or contradiction. This includes parliamentary and court proceedings. However, Part 2 of Schedule 1 sets out a number of occasions where published statements are subject to explanation or contradiction and the defence may be lost where the publisher refuses or fails to publish a reasonable statement by the complainant by way of explanation or contradiction.

That is the distinction between the two Parts of Schedule 1 of the Bill. The first is where there is qualified privilege, without any obligation to allow the person who would be defamed an opportunity to comment. The second is where somebody is entitled, when something is reported as fact and is damaging to them, to have his or her side of the story included as well. I hope Senator O'Toole is satisfied with that.

Senator Quinn raised the issue of juries having a role in deciding damages. The problem is that where a jury decides there has been a defamation and the judge is to assess the damages, the judge might radically disagree with the jury on the case. The judge might think the report is true and agree with the defence counsel throughout the case and disagree with the jury's verdict. To ask a judge to award damages on the basis of a verdict by which the judge is unconvinced would be difficult. That would be the case particularly if aggravated or punitive damages were in question.

It is important not to have the current situation whereby nobody can talk about amounts of money to a jury. When considering somebody's loss of reputation and what would be adequate compensation for that or for damage to his or her reputation, surely it must be relevant that the Supreme Court has stated in a number of cases that there is an overall limit to what can be given by way of general damages to a person who suffers personal injuries. If one is in a wheelchair, a jury cannot go mad and award one €3 million or €4 million for the loss of the use of one's lower limbs. I do not know what sum would be awarded now to a paraplegic or quadriplegic but it probably would be between €250,000 and €500,000. If that can be the rule of law in such cases, a corresponding rule of law should apply in the case of compensatory damages for libel. In those circumstances it is not wrong that figures can be mentioned to a jury by way of general guidance and it is not necessary to appeal to the Supreme Court. Under this legislation the Supreme Court has the power to vary the award and substitute its own award rather than send the matter back for retrial.

My final point relates to the press council's powers. The press council and the ombudsman can, "provide for the taking of remedial action by the member of the Press Council in respect of whom the complaint was made consisting of any or all of the following: (i) the publication of the decision of the Press Ombudsman and by such members of the Press Council as he or she directs and in such form and manner as he or she directs...". Form and manner in that case would refer to the size of the publication and the way it is to be carried. I agree with the general consensus in the House that it is astonishing how disproportionate apologies are in terms of space, location and prominence compared to the original defamatory stories. Occasionally people insist on front page apologies and more power to them, as far as I am concerned. In those circumstances, at least, they have a guarantee that a large number of people will have read the apology.

I thank the Members for their reasoned and enlightening comments on the Bill. I take on board what Senator Mansergh said, that if there is a problem with protecting privacy it is incumbent on those who see a problem with the proposals published by the Government to suggest alternative proposals. If there is an actionable tort of invasion of privacy, which no lawyer denies, that should be acknowledged. It should not be a cause of action which exists in theory but is not mentioned in any statute book. If it is actionable, I appreciate that the media is concerned about the pre-emptive injunction, which it believes would prevent investigative journalism from taking place and allow the rich and powerful to prevent particular areas of their lives and affairs from being investigated. That is fine, and we will examine the question of pre-emption and see if the Bill has struck a wrong balance.

I did not conjure the circumstances in which an Irish newspaper sent photographers disguised as medical staff into the hospital room of a prominent broadcast journalist shortly after she delivered her child. That was a breach of her privacy and it was her right to stop those photographs from being published by some means if she wanted to do so. While we can argue until the cows come home about right and wrong, this is not an imaginary situation. We are dealing with the upholding of decent standards. If the print media is committed to upholding decent standards we look to the council, which is in the process of formation, and to what we see to evaluate whether there is a commitment in good faith to protecting decent, innocent people from being unfairly damaged by the media. Like many Senators here I have attempted to be fair to all sides and strike a balance in this legislation. Extremists on all sides have accused me of going too far in the other direction and I have attempted to establish a middle way with this legislation. I wonder if other people have the same appetite for fairness that I have.