Jim Walsh (Fianna Fail)

This section involves a significant change in that plaintiffs and defendants will be obliged to swear affidavits. I stated on Second Stage that there is a certain peculiarity in that regard because people who are involved in serious crime are not obliged to present themselves to present any evidence and can remain silent. The Minister recently made an announcement, which I welcome, that the position will be corrected and brought into line with legislation introduced in the aftermath of the Omagh bombing.

I have a number of concerns regarding this matter because defamation is extremely serious for those who are defamed. In trying to create a balance, we must be cognisant of ordinary citizens who could be defamed and who might not, on foot of a range of circumstances, be in a position to obtain redress. While the media have argued long and hard in respect of this provision, we may be skewing matters too much towards them and away from ordinary citizens. I am, therefore, somewhat concerned with regard to people being obliged to swear affidavits. On the other hand, transparency is important. Later in the debate I will ask if the press will be required to make an affidavit in respect of an honest mistake, which would be important.

Under subsection (9), the defendant and the plaintiff will each have the right to cross-examine. Why is the legislation so prescriptive on that issue? It is a statutory right to cross-examine, but under the courts system they already have that right. If a plaintiff does not present themselves to give evidence, they can be called by the defendant in the case. Defendants are often reluctant to do that because the person then becomes their witness. This strikes a chord with the judge and jury, given that the person is one's witness but the evidence he or she gives does not assist one's case. Perhaps we are skewing the legislation too much. Why is that necessary? Both the plaintiff and the defendant have the same obligation and, in any event, would be in a position to call a witness from the other side and cross-examine him or her on what is in the affidavit or anything relating to it.

I am also mindful of other cases that have cropped up in the courts. In those cases, specific allegations which involve defamation are made against citizens, the citizen goes to court and it transpires that those allegations were incorrect. However, because the plaintiff might have other failings and these are brought into play, the case is lost or damages are not awarded, despite the fact that incorrect and defamatory information was published. There have been a number of cases where the court has found that the person did not have a reputation to protect, as it were.

We need to be careful that we do not create a situation where people will find themselves being defamed but are unable to have that remedied because of the construction of the legislation.