Brian Lenihan Jnr (Dublin West, Fianna Fail)

If Senator Regan wishes to table an amendment, I will it consider it sympathetically. This is a new provision and was not included in the 1961 Act. Therefore, Senators are entitled to question its meaning, as they are to question the meaning of anything that is put before them. However, specifically, they should raise any concerns they have about this section. I will examine the issue the Senator raised.

On the drafting of the section, as it stands, I advise Deputy Walsh that a consent clearly must be an informed consent. A consent is not simply a casual conversation with a garrulous newspaper man or woman at a late hour of night; it must be an informed consent. The expression "consent" in the section clearly is the consent of the plaintiff and, therefore, must be a consent to the publication of the statement in respect of which the action was brought. In other words, if a person said, "you can say of me that I am the keeper of a house of ill repute in this city" and consented to having said that, but did not own a house of ill repute, under this section he would not have an action for it. There have been cases where persons have uttered utter falsehoods and untruths to reporters for the purpose of generating libel actions. The consent must be freely and spontaneously given.

In relation to the onus of proof, an issue raised by Senators Norris and Walsh, the words "it shall be a defence" mean that the onus rests clearly on the defendant to make out the defence.