Jim Walsh (Fianna Fail)

It might well be argued that the defence of fair and reasonable publication is a concession to the media. I take a different view. I think it is a concession to free expression and it is one I fully support in the Bill. It is a significant shift and modifies our defamation laws substantially, but it is right that it should do that where issues of public importance and matters of public benefit can be placed as a defence to publication. In going that route, we need to mindful when easing the laws of defamation to maintain a balance. Section 24(3) reads:

The failure or refusal of a plaintiff to respond to attempts by or on behalf of the defendant, to elicit the plaintiff's version of events, shall not -

(a) constitute or imply consent to the publication of the statement, or

(b) entitle the court to draw an inference [that is fine] if, in the particular circumstances of the case, the court considers that the plaintiff was reasonable in withholding any response or in believing that a denial or refutation by the plaintiff of a defamatory statement would itself be unfairly used or published.

What we are doing is qualifying the denial of the court's right to draw an inference. I have serious concerns in this regard. If a person is contacted by a newspaper, reporter or radio or television station, he or she should be entitled to say that he or she is not prepared to make any comment. The court should not be allowed to infer in such circumstances. This is a very significant qualification. I ask that this be looked at between now and Report Stage. I am discussing sections because, as I am on the Government side, I cannot table amendments to the Bill. If I were in a position to do so, the House can rest assured that I would table many amendments.

Section 24(4) deals with the defence of fair and reasonable publication. It states:

The defence of fair and reasonable publication shall fail unless, in relation to the publication of the statement in respect of which the action was brought, the defendant proves that-

(a) at the time of publication he or she believed the statement to be true,

(b) he or she did not act in bad faith or out of spite, ill will or other improper motive.

I am not disagreeing with that but how is it to be proven? It strikes me that other than making an affidavit, it is impossible to prove this. It is a significant part of the subsection. What answer or clarification might we get in this regard?