Rónán Mullen (Independent)

I second amendment No. 25. I take a different view from Senator Regan in terms of what I am proposing in amendment No. 26 as a means of redressing what I would regard as the mischief in the proposed section 24. I base my comments largely on the debate that took place on Committee Stage. It is clear not only that there is a large element of disquiet among public representatives to whom I have spoken on the proposed section 24, but also that the disquiet is shared by the Minister and the Fine Gael party. I will recall Senator Regan's comments on Committee Stage in a moment but, first, I will briefly revert to what the Minister said. He noted that the proposed section 24 would extend the occasion of qualified privilege to the world at large. He said that defamations can, on occasions of absolute or qualified privilege, occur without malice.

The Minister talks about the judicial precedence not being encouraging in this area, by which it is clear what he means. I note the Minister's impressive legal credentials but he noted the fact that case law in this area was such as to lead gradually to this kind of defence of fair and reasonable publication being available to media that would defame a person. The Minister regarded such judicial precedence as not being encouraging. As Senator Regan noted, the Minister went on to agree philosophically both with my colleague Senator Norris and with Senator Regan. The Minister said that, wearing his ministerial hat, he was in a difficult position. He said that were he not to legislate for this area he would leave the matter for the courts where the signals are not encouraging. He went on to say therefore that the only option is to legislate for this defence of fair and reasonable publication but to restrict it in every possible way. The Minister said that as a person interested in legal matters — he understates the position there, I think — that he never agreed with the Sullivan judgment. He said the fact that our courts are introducing this defence gradually was disappointing to him.

I fully agree with the Minister. This case law is not taking us in the proper direction. A defence of fair and reasonable publication should not be available because I believe that a person's good name is important. I agree with what Senator Harris said, by implication, about the importance of investigative journalism. I note, however, that the exposés he referred to — although I am going from memory — happened under the current defamation regime. I have not heard many examples of wrongdoing that were not outed because of the precise content of our defamation laws to date. Even if there were such examples, I do not see how that could justify defaming a person.

I am also concerned by the public interest dimension incorporated in the proposed section 24, which seems to suggest that where we are talking about a person's discharge of their public duties, it might somehow be more legitimate to defame them, or that there might be a greater entitlement to the defence of fair and reasonable publication.

My big difficulty, however, is that the Minister appears to believe that the courts are somehow on this journey, jurisprudentially speaking, and that they cannot be stopped, but that we can somehow legislate to restrict it. I apologise if I have misunderstood the meaning of what the Minister is saying, but this is why I disagree with Senator Regan's amendment. The mere deletion of what is proposed would certainly allow the courts to continue in the current direction. That would have the effect of frustrating the Minister's intent, which is to limit as far as possible the availability of the defence of fair and reasonable publication. There is another way to limit it, however, which is — as I have proposed — to exclude specifically the possibility that the courts might allow such a defence. It is in the hands of the Oireachtas to determine, subject to the Constitution, what the courts decide in these matters. That is why I did not understand what was said on Committee Stage. I say that with all respect for the Minister's legal credentials, which are considerable. I just do not understand why there is an implication in everything that was said on Committee Stage that there was nothing we could do to stop the courts from deciding as they have been.

I am therefore proposing an amendment that would clearly establish that there shall be no defence based on fair and reasonable publication, or based on the idea that the statement in respect of which the action was brought was published in good faith, or in the context of a discussion which is the subject of a matter of public interest, and so on. I do not know what to make of the various whisperings one hears that a deal was done under the last Government with captains of the media industry. I do not think there is any point in discussing that. Why is it, however, that politicians on both sides of the House regard this proposed section as a retrograde step, yet we seem to be careering towards its adoption in this House? I do not understand the logic of that. We are purporting to do something very serious in departing from the principle that if one is defamed — even if, God help us, one is a public person — one shall have a remedy in the courts. Politicians in particular will rue this section if it goes through.

I work in journalism part-time and have much respect for the very fine journalists who research, report, analyse and comment upon complex and important issues. I have concerns, however, about journalists who, in my view, do not have the right to defame somebody and not be liable to legal sanction. Nobody has that right.

I wish to mention briefly the concerns of a barrister, Mr. Jim O'Callaghan, who is more experienced than I am in this context. He is a colleague of the Minister in the Fianna Fáil party but also an eminent barrister. In addressing the Bar Council conference in December 2007, Mr. O'Callaghan expressed significant concerns about the proposed section 24. He said that no analysis of the right to free expression, of which he was aware, had sought to promote it into a form of protection for the dissemination of factually inaccurate material. Mr. O'Callaghan also said that the right to freedom of expression should not afford any protection to a false statement. He said the State must ensure that there is a statutory mechanism available so that a real remedy is available to the victim of such a false statement. He said that the balance between freedom of expression and a person's right to their good name could be achieved through the simple requirement that the media can publish anything they wish, subject to the laws on privacy — whenever we have more of them — and fair trials, or any statutory prohibition such as those that apply in family law proceedings, provided what they say is true. I could elaborate further, but I will not.

What is proposed in section 24 will promote and exacerbate a culture of irresponsible journalism. There is a time to talk about freedom of expression and, if we were in Burma, I would, perhaps, express a different view. The fourth estate in this country is very powerful. I do not believe it needs the extra leeway proposed in section 24 in terms of defaming people's characters and getting away with it. It will undermine a culture of good journalism. As public representatives, we will rue the day.

It would be nonsensical for this proposed section to stand given the reservations expressed by the Minister, Senator Regan and others. The Minister said on Committee Stage that he would be interested to see whether Senator Regan could bring his party, including members of the Dáil, along on this and whether there might be all-party agreement which would put us all in a stronger position. While the Minister is a man for whom I have great respect, it sounds to me like he is looking for an excuse to do the right thing. I call on Members on all sides to take courage in their hands and to not be afraid of negative headlines or bullyragging from some sections of the media who believe they deserve the powers of this section, and to legislate, as suggested in my amendment, to specifically exclude its effect.