Seanad debates

Tuesday, 4 December 2007

Defamation Bill 2006: Committee Stage

 

5:00 pm

Photo of Jim WalshJim Walsh (Fianna Fail)

The aim of the Bill, as the Minister rightly put it at the outset, is to strike a balance between freedom of expression and the constitutional right of persons to their good name. Section 7 provides for an affidavit. It is mandatory for a plaintiff to swear an affidavit verifying the assertions and allegations made. Section 7(9) states it is open to the defendant to cross-examine the plaintiff on the statement and any matters sworn in the affidavit. Perhaps we are being overly prescriptive. When I raised this matter previously, reference was made to the Law Reform Commission putting the onus of proof unreservedly on the plaintiff. There may be a reason for that, such as persons fraudulently making a claim against newspapers. I wonder, however, if the inclusion of this provision goes too far in the other direction. The onus should be on members of the media, if they are publishing statements which are derogatory and possibly defamatory, to establish that they are dealing with facts. It is imperative that we do not dilute that requirement. I am aware that the learned lawyers present would, in cases before the courts, avoid going on a fishing expedition. However, this provision leaves it open to a defendant, who might well be on shaky ground with what he or she published, to use the affidavit to try to pick holes and perhaps find other avenues to pursue.

Take the example of somebody who has been defamed specifically on an issue. The person takes the matter to court and it is found that the statement made was untrue. Let us say the person had committed an offence or even a crime in his or her teenage years. This can be introduced into the case and, as a consequence, it can be found that the person did not have a great reputation to defend in the first place. I believe there is an element of unfairness in that. I would prefer a situation where the defendant must deal specifically with the allegation and not be able to open it up to become an investigation of the individual and his or her life story, to see if there are skeletons in the cupboard to help support and underpin the case. That is unjust. It is not permitted in a criminal case; in fact, there are strong rules that prohibit a person's previous record being introduced in a case or being brought before a jury. The case must be dealt with specifically on the nature of the offence involved.

We should not create a different set of circumstances in this legislation. It is manifestly unfair. The section should be re-examined from that point of view, despite what the Law Reform Commission said.

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