Seanad debates

Tuesday, 4 December 2007

Defamation Bill 2006: Committee Stage

 

5:00 pm

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Dublin West, Fianna Fail)

In considering section 7, we must take account of the inner nature of the defamation action. Historically, the pleading stated that the defendant did falsely and maliciously say of and concerning the plaintiff matters which lowered the plaintiff in the eyes of upstanding members of the community. There was never an onus on the plaintiff to prove that the matters were false and untrue. The onus in this type of tort is on the defendant to establish the truth of the statement. There is, if you like, a presumption of falsity.

The media organisations which have lobbied for change in this area have opposed this presumption of falsity, saying that it puts an unfair burden on them that is not cast on any other defendant in our law of civil liability. In fact, as several Senators have pointed out, owing to the strength of the media organisations compared with the individual plaintiff seeking to vindicate his or her reputation, the Government decided to retain the presumption of falsity as a core element of our defamation code.

The one difficulty is that it is then open to a plaintiff simply to file a pleading, which is an unsworn document. I apologise to the House for entering into the technicalities of legal practice, but it is important in the consideration of this issue.

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