Jim Walsh (Fianna Fail)

I did not receive a satisfactory response to a point I raised on the previous occasion the Bill was debated. Section 22(1) states: "In a defamation action the defendant may give evidence, in mitigation of damage, that he or she made or offered an apology to the plaintiff...". Why is a distinction drawn between the words "made" and "offered" in this context? The legislation does not make provision for a press organ to unilaterally publish an apology when it knows it is wrong. Why should the words "or offered" be included? The section contains a dichotomy.

The reason Senators are painstakingly examining the sections is that we have strong reservations about many of the Bill's provisions. In addition, the purpose of the House is to examine legislation. The Minister has kindly agreed to consider a number of points raised in the House.

Section 22(3) states that in a defamation action, an apology made by or on behalf of a defendant in respect of a statement to which the action relates does not constitute an express or implied admission of liability by that defendant and is not relevant to the determination of liability in the action. This means the plaintiff will not secure advantage by giving evidence in court that he or she has received an apology. The defendant, on the other hand, may, "in mitigation of damage", give evidence that he or she has made or offered an apology to the plaintiff. This is an unfair and inequitable provision which must be addressed to achieve balance.

As Senator Norris stated, if an apology can be cited in support of a case, it should be open to both the plaintiff and defendant to do so. It is logical to provide that publications should not fear that making an apology will result in a subsequent legal case being conceded. However, if the defendant can use an apology in mitigation of damage, it should not follow that the plaintiff should be deprived of an opportunity to raise the apology in support of his or her case. If a publication has done damage to a person's reputation, damages should flow.