Jim Walsh (Fianna Fail)

I move amendment No. 27:

In page 19, subsection (3)(b), lines 25 to 30, to delete all words from and including "if," in line 25 down to and including "published" in line 30.

This is an amendment about which I feel strongly. I suggest section 24(3)(b) should read, "entitle the court to draw an inference" and that the following be deleted, "if, in the particular circumstances of the case, the court considers that the plaintiff was reasonable in withholding any response or in believing that a denial or refutation by the plaintiff of a defamatory statement would itself be unfairly used or published". I am not satisfied with that qualification. The plaintiff should have an absolute right to withhold comment if somebody comes to him and there should be no imputation, good, bad or indifferent, from that. We go part of the way but then say "shall not ... entitle the court to draw an inference". A judge may decide that is giving judicial discretion.

We are dealing with very powerful influences within the media. Public opinion is shaped to a large extent by what people hear and read in the media. There is no doubt that judges are also influenced. There are comments sometimes from judges about reports of court cases. There is a real concern about the influences that can be brought to bear on judges or others in cases where a great deal of money is at stake.

To qualify the absolute right in this instance is wrong. To come back to the fundamental principle, one can go to court and remain silent. There is no obligation on one to comment. While the recent criminal justice legislation may have allowed some inference to be drawn from that in certain offences, there should be no inference in this instance. There should not be an onus on an individual, if somebody contacts him, to make any comment. The onus should remain on the press, the reporter or the publication to establish that what they are publishing is factual and the truth. I feel strongly that by including the additional wording of paragraph (b) we are going yards offside in respect of the balance we should maintain between freedom of expression and the right of an individual to his or her good name and in respect of the mechanism we have for protecting that for them.