Jim Walsh (Fianna Fail)

We have had a good debate on this point. Senator Norris raised issues about the amendments that pertain to the section and the Minister gave an outline of honest opinion. From the point of view of mounting a defence, given that the legislation will obviously be interpreted by the courts, the entitlements of the plaintiff and the defendant will be tested in this respect.

Section 18(2)(a) states: "[Where] the defendant believed in the truth of the opinion or, where the defendant is not the author of the opinion, believed that the author believed it to be true". How can the court establish that as a fact rather than it being simply used as a defence? If an editor or reporter states under oath that what he or she wrote was his or her honest opinion at the time, it appears it would be difficult for that to be tested by a defendant.

I have a query about section 18(3)(a) which probably is somewhat related. Senator Norris referred to the convoluted language in it and I understand the Minister said he will examine if it can be simplified. The Minister may correct me on this, but in regard to the affidavit that must be presented at the start of a case by the plaintiff and the replying affidavit that must be presented by the defendant, it strikes me that in the case of the plaintiff, the person who is being allegedly defamed, there will be a clear-cut identification of that individual. In the case of the defendant, the article in question might have been written by a reporter. In whose name will the affidavit be presented? Will it be the defendant, the reporter or somebody else within the organisation concerned? If a defence of honest opinion is being claimed, that should be clearly stated in the affidavit by all the parties involved to ensure that if it is tested and found during the case that the defence of honest opinion is not upheld and that the opinion is not held honestly, there would be repercussions.

This comes back to the thrust of ensuring that the legislation is balanced to ensure that the defendant has certain rights under it as well. From my reading of the section, it appears as if this defence may not be supported other than during the case. It would strengthen the issues involved and it may even strengthen the settlement of cases before they ever go through the court process, which is cumbersome and expensive, if it were made a requirement that such a claim in a case would have to be stated in a sworn affidavit at the outset.