Eugene Regan (Fine Gael)

I move amendment No. 25:

In page 18, to delete lines 35 to 45, to delete page 19 and in page 20, to delete lines 1 to 10.

I raised this matter on Committee Stage during the discussion of the defence of fair and reasonable publication on a matter of public interest. The justification for introducing this defence in the Bill is that it is settled law in this jurisdiction. We have had some discussions on the matter on Committee Stage and the Minister referred to the various case law. He also said:

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...

I am surprised that the Bill now on Report Stage does not reflect the views expressed on Committee Stage by the Senators and the Minister. The fact is that the law is not settled in this area and we are essentially deeming that law established by the British House of Lords should be given a statutory basis here. That is law which in the main case of Jameel was a two-to-one judgment and has only persuasive influence in the courts here. I am not suggesting that there is not an opportunity for the jurisprudence in this matter to be developed in the Irish courts. It is best left to the courts at this juncture that this defence be developed if it is to be developed. There is currently an appeal to the Supreme Court that needs to be adjudicated upon, which would clarify the law in this area. It raises issues of constitutional law. There is the constitutional guarantee to the right to one's good name and the right to privacy. On the other hand there is the public interest issue, which is served in terms of the constitutional right to freedom of expression. Section 18 contains the honest opinion provision, which is appropriate. However, in this instance, given the constitutional implications and the need for balancing these rights and given that the issue is before the Supreme Court at the moment, the matter would be best left to the courts.

Originally two Bills were to have been introduced, the privacy Bill and this Bill on defamation. When the privacy Bill was withdrawn or parked as the case may be, this provision of fair and reasonable publication on a matter of public interest was introduced. In the absence of the privacy Bill and the law being settled by the Supreme Court, it would be appropriate to stay this matter and not to include it in the Bill.

I could refer to case law involving material mistakes of fact and publications that are factually incorrect and defamatory but which are given effectively qualified privilege here. It is an extension of qualified privilege to political information as it were. I am not sure the manner in which the provision is articulated is appropriate in the light of the unsettled state of the law in this jurisdiction. I ask that this amendment be deleted and that the matter be left to the courts where the law can be properly developed and the constitutional provisions can be interpreted.