Michael McDowell (Dublin South East, Progressive Democrats)

——and put in the phrase, "in my opinion", that would clearly have to be taken into the equation in deciding whether this was an occasion for pleading the defence of honest opinion. Those three rules are set out there to guide the court. If I just said, "Senator A is wholly disreputable and should not be a Member of the Houses of the Oireachtas", out of the blue, without any factual background for the statement, that would be defamatory. However, if I said this half way through his or her performance in a particular debate or whatever, then people would say it was obviously said having regard to the circumstances. If I added, "in my opinion", that would bring the statement further across the line into the realm of opinion. If one is trying to distinguish between opinion and fact, for instance, how could one prove somebody is unsuitable to be a Member of the Houses of the Oireachtas? Could one argue that there were worse or better Members elected, or that the individual in question is not the worst, the best or whatever? Those types of things are mixed issues. However, the defence of honest opinion is designed to be one in which the factual basis of the defamatory opinion is either understood or proven. Either it is accepted there were facts which could give rise to one's honest opinion or else one can prove the facts that gave rise to it.