Ivana Bacik (Independent)

I was just about to say that. The Senator has highlighted the fact that my good friends and colleagues, Colm Mac Eoichaidh and Michael Smith, did the public interest a great service and in moving outside the jurisdiction of the State which they felt they had to do to prompt what ultimately transpired in the Mahon tribunal investigations. Clearly, there was a problem with investigative journalism. The Minister has said, rightly, that there is enormous public interest in insuring freedom of the press and having healthy investigative journalism to hold public figures to account. All of these considerations will have to be taken into account. When one bears this in mind, as well as the provisions in the original and 2006 Bills, not to mention the Senator's Bill, one realises a good number of changes will have to be made in any new Bill introduced.

We have to be conscious of the need to balance more clearly the public interest. I am conscious that we have all been provided with the commentary of the National Union of Journalists by Mr. Seamus Dooley who has clearly said the media were inhibited by the law on defamation in investigating corruption in the past, a clear position taken by the NUJ. While I am not sure I agree with his conclusion that there is no need for a privacy Bill, the analysis by Ms Andrea Martin, a respected legal expert in this area, he provided is a very helpful appraisal and critique of the 2006 Bill. She is right in saying the uncertainty surrounding the parameters of the actionable tort of privacy would not be clarified by the provisions included in the Bill. She also says the terminology used is unhelpful and terms such as "public interest" are not in the defined in the Bill but should be. Instead, as Professor Horgan has pointed out, we have a definition of "public interest" in the preamble to the code of practice drawn up by the Press Council of Ireland. There is no equivalent definition in the Bill, as drafted. Phrases which are used which do not have provenance in Irish or ECHR law include "news gathering".

Ms Martin has made a number of pertinent and reasonable points in highlighting flaws in the Bill. She concludes that it has the potential to inhibit legitimate journalistic investigations and the exercise of freedom of expression and that there are concerns about issues such as the hearing of actions other than in public. One can go through the Bill in a piecemeal fashion but the overarching principle is the need for a review of the mechanisms in place, to ascertain how the Defamation Act has worked in practice and, in particular, how the Press Council of Ireland and the ombudsman are operating to protect the privacy of individuals while safeguarding legitimate freedom of expression. It is worth noting the Press Council upheld a complaint by a Minister against a newspaper which had called her a liar. It is also worth noting that the former chair of the Press Council said the best balance might be through the combination of the civil court powers on defamation cases and the ombudsman and council framework. There is a need to review the machinery to ascertain whether a statutory framework is required, which it probably is. On balance I would be in favour of a Bill but not this one and not in this format. However, I welcome Senator Norris's initiative as it is helpful to debate the issue. I hope we can move forward, leaving the Bill on the Order Paper, and conduct the review described by the Minister.