Eugene Regan (Fine Gael)

I move amendment No. 16:

In page 18, lines 26 to 36, to delete subsection (1) and substitute the following:

"24.—(1) Subject to subsection (4), it shall be a defence (to be known, and in this section referred to, as "the defence of fair and reasonable publication") to a defamation action for the defendant to prove that the statement in respect of which the action was brought was published in good faith and in all the circumstances of the case, it was fair and reasonable to publish the statement.".

I think it is agreed that instead of a subject of public importance, the section should be amended to refer to a subject of public interest. I am not committed to the exact wording proposed in the amendment and I am prepared to withdraw it. However, I think that this section creates a defence which has very serious implications. It is based on jurisprudence established in the United Kingdom that has not yet been adopted in this jurisdiction, although there are intimations that it has been so adopted at the level of the High Court, following the Reynolds judgment. However, this is the subject of a Supreme Court appeal. In a sense, we are codifying jurisprudence which is not yet settled in this jurisdiction. That has far-reaching consequences because it sets up a defence which effectively means that a publisher can print an untruth and defame somebody, yet still establish a defence.

There is other jurisprudence in the US which states that there is no constitutional value in a false statement of fact. It affects confidence in politics and it also infringes the right to privacy and the constitutional right to one's good name. This section is very important and I question the extent to which we codify a defence which is not settled in the jurisprudence of this jurisdiction.