Brian Lenihan Jnr (Dublin West, Fianna Fail)

Amendment No. 18 is a Government amendment to section 22. Section 22 permits an apology to be given in evidence. The fact of an apology or the offer of an apology to the plaintiff can be given in evidence in a defamation action in mitigation of damage. This is an important and essential part of our law. The Government proposal makes clear that the evidence of the apology can be given in the form set out in the amendment:

(a) made or offered an apology to the plaintiff in respect of the statement to which the action relates, and

(b) published the apology in such manner as ensured the that apology was given the same or similar prominence as was given to that statement, or offered to publish an apology in such a manner.

The Government amendment ensures that where an apology is made and published by a defendant, the apology will be given the same or similar prominence as was given to the original defamatory statement or that the defendant offered to publish the apology in such a manner.

One of the prime purposes of the Bill is to make it easier for the media to give apologies. This is important. One of the big reasons newspaper editors were reluctant to apologise is they believed an apology would be used to accelerate or increase the amount of damages which a plaintiff could recover. This led to the undesirable situation where cases did not settle and apologies were not given and we ended up with expensive gold-mining operations in the Four Courts. If we are to avoid this, it is essential that the fact of an apology being made cannot be used against a defendant in a defamation action.

I listened carefully to what Senators said on Second Stage and in Committee with regard to their views on the conduct of the media and consulted with my Government colleagues. I took the view that a reasonable change that could be introduced in this Bill was to insist that an apology should have at least a prominence that corresponded with the wrong that was done to someone's reputation. Therefore, the formula I have drawn up in consultation with the Parliamentary Counsel is that the apology is given the same or similar prominence. I know this does not warm the hearts of newspaper editors, but it is not an unreasonable proposal in the context of the philosophy of this legislation. The amendment proposed by Senator Regan and the Labour Party deals with the separate issues of the adequacy and timing of an apology. It is not useful to impose time limits or qualifications as to adequacy. That puts a timeframe on both a defendant and a plaintiff in the matter of the issue in acceptance of an apology. It potentially could limit the application of this Bill.

The provision in the Bill that the apology be offered as soon as is practicable is an appropriate approach. It leaves it up to the plaintiff to accept an apology prior to any court action. Where the issue becomes a concern of the court in an action, the court, in looking at the matters concerned and where there is a dispute, no doubt will take into account arguments about reasonableness but we should not write that into legislation.