Michael McDowell (Dublin South East, Progressive Democrats)

Senator Jim Walsh referred to section 5(4). The purpose of this subsection is that if one says something to somebody that is directed towards him or her, it is not defamatory. If one's secretary heard one, in an unintended way — for example, through the office partition — making a defamatory remark about somebody, that should not, of itself, constitute publication. This is a peculiar matter. There was a famous case involving Kirkwood Hackett v. Tierney in which it was claimed that Michael Tierney, the former president of University College Dublin who was related to me by marriage, had defamed a student in the presence of the college registrar. The latter stated that he had no recollection of the event and there was a question as to whether that was right or wrong. There must certainly be instances where people overhear conversations in an unintended way and where the mental element of defamation is not present because the remark was primarily intended to be heard by the listener only.