Brian Lenihan Jnr (Dublin West, Fianna Fail)

It is seldom that a Minister in the Seanad considers it a bad idea when several amendments are grouped together. In this case, however, there might have been merit in dealing separately with these amendments because Senators Norris and Alex White are addressing two entirely different issues.

Section 22 deals with the apology that may be offered by a defendant in mitigation of damages. A defendant can always offer such an apology to reduce the amount of damages to which the plaintiff is entitled. The ability of the defendant to point to an apology as a mitigating factor is an existing and appropriate feature of our defamation system. An apology can only be offered in mitigation of damages, however, not in extinction of damages. I agree with Senator Walsh that there is a danger in Senator Alex White's reference in amendment No. 13 to "substantial mitigation of damage". This would mean that the mere production of an apology would entitle the defendant to a substantial reduction in damages. That is not the law. Rather, the law is that the court can assess the quality of the apology in mitigation of damages.

This also addresses the issue of the time limit proposed by Senators Regan and Alex White. There is no need for a time limit if an apology does not effect a substantial reduction in the damages awarded. That is why no timeframe is written into section 22. To provide for such would prejudice the position of a plaintiff who could be told that, because an apology has been given within 14 days, for example, he or she is thus not entitled to damages. That is not the purpose of the first two subsections which deal with mitigation of damages by an apology.

Senator Norris's amendments propose to amend subsections (3)(a) and (3)(b) by the insertion of the word "automatically". If I had to go to the stake on this Bill, subsection (3) is the one subsection I would enact unchanged. It is essential we recognise the reality of what happens in court in libel actions. Newspapers are reluctant to issue an apology because they see it as an admission of liability. As a consequence, plaintiffs face the prospect of lengthy, expensive and traumatic proceedings in the High Court where they face the full battery of the legal armoury the defendant can afford to vindicate his or her reputation. There is no incentive for a defendant to apologise under the current system. Rather, the opposite is the case.

It is important that we provide that incentive. This is the purpose of subsection (3), which states:

In a defamation action, an apology made by or on behalf of a defendant in respect of a statement to which the action relates—

(a) does not constitute an express or implied admission of liability by that defendant, and

(b) is not relevant to the determination of liability in the action.

This is an important provision not only for litigants in the current system but for the operation of the press council. The council will not work until this subsection is enacted. The press ombudsman has little moral suasion with an editor of a newspaper or the controller of a broadcasting organisation in terms of procuring an apology. The editor or controller will decline to offer an apology because he or she believes the plaintiff in question will swallow the apology before suing the newspaper or broadcasting organisation and taking it to the cleaners. That is the advice the editor or controller will receive. The purpose of this subsection is to move this branch of the law away from that type of approach. We must recognise that media organisations are powerful and we must create a culture where apologies are much more readily given. I cannot accept Senator Norris's amendments because they would introduce a considerable degree of uncertainty in this regard.

The question of deceased persons can be addressed in our discussion of another section. However, I will speak about it now because Senator O'Donovan spoke in strong terms about his concern that an apology is not given to the relatives or next of kin of a deceased person whose reputation has been grievously traduced in print or broadcast media. The Senator referred to the case of the late Liam Lawlor. The person who was travelling in the vehicle with Mr. Lawlor when he died sued before the Irish courts because of claims made against her at the time of his death. This case is a signal illustration of the importance of jury trial in defamation actions. I am not satisfied this action would have led to the same conclusion were the trial conducted by judge alone. The realisation by the newspapers involved that they would face a jury induced them to make a settlement of the proceedings.

It is a matter of record that, after my appointment, I consulted various media organisations, lawyers who acted for both plaintiffs and defendants, and academics in regard to this Bill. I indicated to all the media organisations that the issue of gravest concern to me was that newspapers in recent years had breached a fundamental Irish custom of respect for the dead, particularly at funerals and in the immediate aftermath of death. I indicated that this was an issue about which I had grave concerns. I conveyed my wish to the press ombudsman that the press council address this issue as its number one priority. The situation regarding Liam Lawlor is not the only example of this recent practice.

Whether we can deal with this issue in this Bill is a matter for consideration in our debate on another section. I do not want to anticipate the difficulties that are likely to arise but the writing of obituaries, for example, is clearly in the public interest. The freedom to make comment is important and it is a matter upon which action must be taken. I wish the press ombudsman and press council well in their work. There is a black hole in that certain matters can be published in Irish newspapers that cannot be published in British newspapers because of the operation of the press council in the United Kingdom. I am anxious to give the council an opportunity to plug that black hole. It is matter of public record that I was prepared to leave the Privacy Bill 2006 on the Order Paper of this House for a period to allow the council time to demonstrate its capacity. If that capacity is not demonstrated and this Bill cannot address the issue of the defamation of a dead person at the time of his or her funeral, it is an issue to which I will return in the Privacy Bill 2006. I am not prepared to let this black hole continue.