Brian Lenihan Jnr (Dublin West, Fianna Fail)

The defendant whose editor had one opinion about the honest opinion and whose journalist who wrote the article had a different opinion would be in a weak position in any court proceeding. The credibility of his or her case would be undermined by the conflict within the defendant's command structure in respect of the publication. Regarding this practical matter, Senator Walsh's concern is not real.

The section addresses the question of comment and opinion. It is important to bear in mind section 18(1) which states: "It shall be a defence (to be known, and in this Act referred to, as the "defence of honest opinion") to a defamation action for the defendant to prove that, in the case of a statement consisting of an opinion, the opinion was honestly held." In pleading the defence in defamation actions, the traditional defence of fair comment was to say of an article or statement that in so far as it contained statements of fact, it was true and, in so far as it was a statement of opinion, it was a fair and reasonable comment on matters of public importance. For the reasons outlined by Senator Alex White, this seemed to be a cumbersome way of describing the fact that an opinion cannot be proven as a fact, but that it needed to be shown as being fair and reasonable. The traditional law is being restated in the Bill in terms of an honest opinion.

Having examined the Bill and Senators' opinions on Committee Stage in the previous Seanad, I agree with Senator Norris that the language in the original provision lacked clarity. The Parliamentary Counsel has devised a better formulation in respect of the defence of honest opinion, one over which we can stand as a codification of existing law without going beyond current law. In that respect, I am happy with the provision.

Senator O'Toole raised a matter that will arise when we address section 24. I do not want to anticipate discussion on the section, but an attempt has been made in the legislation to codify all available defences in a defamation action. This is correct because we as legislators have a duty to define in exact terms the scope of this particular civil wrong. We cannot leave matters to be determined by the courts or leave issues open. Consequently, the drafting of this legislation has been a difficult exercise because some concepts with clear meanings in text books and judicial decisions must be translated into statutory form for the first time. This matter is an example of that type of exercise.