Jim Walsh (Fianna Fail)

Significant changes in defamation law to a large extent hinge on this section and the section on honest opinion. We have debated it back and forth and have probably gone as far as we are likely to get with it. Nonetheless "believed" is a very subjective word. I have raised the fact before that "defendant" is not defined in the Bill. As a consequence, that creates a lacuna which might be exploited.

Let us take the example of a person who is seriously defamed and the commentator who wrote the offending article knew he or she was defaming the person, yet the editor genuinely believed that what was said was the writer's honest opinion. If the defamed person subsequently takes a case, who is the defendant? I suggest it is the newspaper, probably represented by the editor. As we have not defined "defendant" sufficiently, it creates a situation whereby damage can be done to a person's reputation without him or her effectively being able to get recourse subsequently to this being corrected. This a major change in the legislation and I know it is being sought by the media.

To some extent I accept that the freedom of the press is an essential part of the democratic process. This must be weighed in the scales when we are trying to achieve a balance. One of the difficulties is that we can have views on this but they really only manifest themselves subsequently in case law.

The wording in the original draft of the Bill was ambiguous but the Minister made an amendment on Committee Stage to address it. However, I am not 100% satisfied with it for the reasons I have outlined and given that the truth can be subjective. If the facts substantiate an article, that is fine, but if they do not, it is not a particularly strong defence for its author to claim subsequently that he or she believed his or her remarks to be true. Perhaps we are depending too much on judicial discretion.

In light of the amendment made by the Minister on Committee Stage, I will withdraw my amendment, No. 15.