Michael McDowell (Dublin South East, Progressive Democrats)

Section 16(2) is the general defence of qualified privilege. This is to deal with situations where somebody says something which is factually untrue such as "You are a thief" or words to that effect. However, if the person thought on the occasion that he or she said the words that the man in question was a thief, that is an occasion of qualified privilege and as such is a defence. For example if one says to a garda one is urging to arrest another individual "This man is a thief — he's just stolen my car", then regardless of the fact that he is not a thief, that is an occasion of qualified privilege as long as one did not act maliciously by being reckless as regards whether the assertion was true, or knew it was false. One may see somebody outside one's house getting into one's car, call a garda and say, "This man has just tried to steal my car" when the reality is that he had found the keys and was just checking out whom they belonged to and is wholly innocent. The fact one has totally misjudged the situation and made a defamatory statement to the garda to the effect that the man is a thief is the subject of qualified privilege because one honestly believed it was true. One had a reason to say it at the time to the garda in that one had an interest in communicating the message and the garda had an interest in receiving the information. That is what qualified privilege is concerned with.

Honest opinion, however, is a different concept here. Whereas the same test of malice applies in both, honest opinion is a statement of opinion based on facts which are either proved or accepted. In section 19 there is an interesting test as to what is opinion and what is not, in cases that are, effectively, a mixed bag of opinion and fact. I recall on one occasion a journalist writing about a judge's sentencing decision and the comments he made in the context of it, where he said: "What kind of judicial idiocy is this?" A question arose in the High Court as to whether the assertion that it was judicial idiocy amounted to a statement of opinion or fact. I will not go into the case but I remember it vividly because I was involved in it.

Section 19 is designed to set out rules for distinguishing between statements of opinion and fact. The extent to which something may be capable of being proved is one of the issues one must bear in mind. The extent to which a statement was made in circumstances in which it was likely to have been reasonably understood as a statement of opinion rather than a statement of conviction and allegation of fact, is a second. The words used in a statement and the extent to which they were subject to a qualification or disclaimer or accompanied by cautionary words must be considered.

If one said Senator Norris or whoever was totally disreputable and unfit to be a Member of the Houses of the Oireachtas——