Michael McDowell (Dublin South East, Progressive Democrats)

I feel much better. I come back to the point we are discussing, namely, whether it should be open to the court in the context of a correction order to give a direction as to the form and extent of such an order. What Senator Maurice Hayes is proposing is that the law should be less directive than this and that, effectively, it should be up to the newspaper editor to choose the norm and effect. He proposes that the remedy would be for the person who was aggrieved by the non-prominence of the apology to return to court to seek redress by way of a contempt motion. I am not content to do this.

I appreciate Senator Hayes is trying to introduce flexibility but I am not content with the amendment. This does not require precision from the court; a court can be reasonable in the way it gives flexibility to the editor or otherwise. However, in the last analysis, it is a matter in which the court has the authority to make an order specifying the extent of a correction order. If I were to accept Senator Hayes's amendment, I would be depriving the court of this and handing back discretion to the editor. I am not keen to do this, given my experience. Senator Hayes has admitted that he, like myself, has written for newspapers and that he is a director of a newspaper company, which is fine. If he could point out to me one newspaper which has ever been generous with an apology, except with a gun to its head, I would be interested to hear of it. I have seen the exact opposite in perhaps 98% of cases, namely, a constant desire to minimise the apology and the reparation to the individual. From that point of view, I am not attracted to the amendment.

What I have done in the Government amendment is provide for a maximum period during which the correction order must appear in order that if there is a tsunami or a similar event, the editor can choose over a number of days the day to get the news out. For an old-fashioned newspaper, there is usually flexibility on the front page. However, having run a front page story in a tabloid newspaper, if one was required by a court to place an apology on the front page, there is little room for manoeuvre on the front page of a tabloid — there is either one story or two and that is it.

The point made by Senator Hayes that one cannot foresee events is fairly met by the Government amendment which gives a period within which the correction must be made. I am not willing to go as far as Senator Hayes and say it is a matter for the editor to choose the level of prominence and interpret the court order. It is fair to allow the court to state what it has in mind is, say, an apology of at least six inches high or four inches wide, not just a small little thing that appears in the corner of the front page, or wherever it may be.

It is not an adequate remedy to suggest to somebody who thinks he or she did not receive a fair apology that he or she should bring the newspaper back to court for contempt. To return to the point made by Senator Jim Walsh, the cost implications of such an application would be enormous. What would it cost to bring a substantial newspaper back to the High Court on an attachment or a contempt motion? If an apology was dubious and only half of what one expected in terms of size or prominence, what lawyer would say one was certain to win? The person concerned would be left in a situation where the advantage would always be ruled in favour of the newspaper proprietor. If such a proprietor was so egregiously mean and if the victim of libel could not be certain that he or she would win the contempt application, the latter would be advised by anyone wearing a wig and gown to avoid returning to court for a second battle because the case could go on forever. I prefer the Government amendment.