Brian Lenihan Jnr (Dublin West, Fianna Fail)

Several issues arise in regard to this section. My comments on Committee Stage were precisely that and were made in the context of a proposal that we should not legislate in this area. Senator Regan has restated that proposal in advocating that we simply delete the section and do not address this issue. I disagree. Senator Regan referred to pending legislation before the Supreme Court, but this Bill is prospective rather then retrospective in effect. We as legislators have a duty to legislate the law in its original form. This Bill is presented as a codifying and reforming measure and it lists in an exhaustive manner all the defences available in a defamation action. It is not a desirable state of affairs to say that we should not legislate for this area but instead leave it entirely to the courts. Many of my comments on Committee Stage must be referred to in this particular context.

The United States courts, in the decision in The New York Times Company v. Sullivan gave a wide latitude to commentators and journalists to defame politicians. That is not what is proposed in this section. In regard to Senator Mullen's comments, I am prepared to accept that there can be such a creature as a journalist who decides that there is a public matter upon which he or she fairly and reasonably wants to comment and that he or she can publish something in good faith which, in all the circumstances of that case, it is fair and reasonable so to do. As Senator Alex White observed, we have subjected this matter to the requirements of our equivalent body, the Press Council. The courts drew up these judgments in the context of particular cases where they saw a particular difficulty. There have been several statements by judicial authorities of some eminence that they are prepared to recognise such a defence. We have a duty, therefore, to state the law.

There was some reference to the possibility that I may be conflicted or that promises may have been made to media interests. That is certainly not the case.