Michael McDowell (Dublin South East, Progressive Democrats)

No. Subsection (6) provides that if a person makes a statement in an affidavit under this section that is false or misleading in any respect and that he or she knows to be false and misleading, he or she shall be guilty of an offence. That has nothing to do with making an honest mistake. It must be proved that the person knew it was false and misleading at the time he or she made it. The notion that something might have happened over a period of two years which might make one's recollection wrong would not be correct.

The genesis of this section was the Law Reform Commission's suggestion, in its famous document on defamation, that we should put the onus of proof on a plaintiff in defamation proceedings, that is, one should prove that the allegation against oneself was false. The commission said that this is the only area of tort law where there is no onus of proof on the plaintiff. When the Government considered this, there was a strong view that it was not an acceptable approach. We did not agree with the Law Reform Commission that the onus of proof should shift unreservedly to the plaintiff in defamation proceedings.

However, we were also confronted with another situation. It is not fanciful because it has happened. Somebody who has done something wrong but feels that the newspaper cannot prove that it is wrong can sue the newspaper and get away with it without ever exposing him or herself to any form of liability. This has happened and people have extracted money, apologies, contributions to charity and so forth, knowing well that the newspaper was spot on but calculating that it could never prove the matter and would have to back down. A Member of the House of Commons, Tom Driberg, sued the pants off a few newspapers, if I may use that phrase——