Brian Lenihan Jnr (Dublin West, Fianna Fail)

Sullivan v. The New York Times Company originated this doctrine in the 1950s. The High Court decision in July 2003 by Mr. Justice Ó Caoimh in the case of Hunter and Callaghan v. Duckworth and Company Limited and Blom-Cooper adopted the reasoning of the Reynolds case and introduced the concept into Irish jurisprudence. In September 2006 the United Kingdom court of appeal refined and clarified this defence in the case of Jameel and others v. Wall Street Journal Europe. In his consideration of the case of Leech v. Independent Newspapers (Ireland) Limited of June this year, Mr. Justice Charlton was of the opinion that a fair and reasonable defence existed for the Irish media and he drew heavily on the Jameel judgement. While Senator Regan said the matter has not been resolved by the court of ultimate resort in this country, the judicial precedents are not encouraging. The new defence provided for in section 24 codifies in statute the existing judicial position following the decisions of the Irish High Court to apply the reasoning of the United Kingdom authorities.

I agree philosophically with Senators Norris and Regan on this. Many commentators argue that the issue in defamation should be truth or falsehood. Absolute and qualified privilege trench on it, but to extend an occasion of privilege for media interest to include the whole world is a far-reaching step and I share the Senators' reservations. I would be interested to see whether Senator Regan can bring his party, including Members of the Dáil, along on this and whether there might be all-party agreement which would put us all in a stronger position. As Minister for Justice, Equality and Law Reform I am in a difficult position. Were I not to legislate for this area I would leave the matter to the courts, where the signals are not encouraging. Our only option therefore is to legislate for it but to restrict it in every way possible. The reference to compliance with the standards of the Press Council of Ireland has been inserted to make the defence difficult to make out. That is the only way forward.

As a person interested in legal matters I never agreed with the Sullivan judgment and the fact that our courts are introducing it is disappointing to me. As legislators we have a duty to stop them. In this legislation we purport to codify all the defences. If we do not address this issue, we leave it out and say it does not exist. I appreciate Senator Regan's comment that we should leave this matter to the courts, but the signs are that if we do so they will develop this defence at their own pace and on their own terms. When the courts raise an issue, we as legislators have a duty to respond to it in our way. My instinct on this defence is to circumscribe it as much as possible. Our views on this may be misrepresented in public comment and I want to be clear why I am concerned about it. Truth should be at a premium in defamation matters and our laws should not encourage the publication of falsehoods.