Rónán Mullen (Independent)

Gabhaim buíochas leis an gCathaoirleach Gníomhach agus cuirim fáilte ar ais roimh an Aire. On the last occasion, I had just begun to speak when we had to report progress. I expressed my wonderment at how this section had got through the Dáil, considering how far-reaching it is in how it changes the situation with regard to the protection of people and their right to a good name and reputation. Both the Minister and Senator McDowell beside me are senior counsel and they know a lot more about defamation than I do. I only spent a short period at the Bar before escaping to the relative security of politics. One starts at the provision in Article 40 of the Constitution which states:

The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen [and] ... in particular, by its laws protect, as best it may, from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

It is not just the life, person and property rights of every citizen, but the good name of every citizen.I have no doubt the Minister knows well and has already considered that it is in that light, and in the light of whatever jurisprudence has occurred over the years giving effect to the recognition not just of that right people have but of the duty of the State towards them, that we must consider any change such as that proposed here today in our law on defamation.

It is interesting to consider that, alongside this defence of publication on a matter of public interest, we have the abolition of the so-called Reynolds defence. I had recourse to an AI overview to get a simple characterisation of the Reynolds defence for the purposes of helping us to consider this matter here today. It talks about its being a common law qualified privilege in defamation law that protects journalists who publish material in the public interest. The phrase it uses is interesting whereby the defence allows a publisher to avoid liability for defamation if they can show that they engaged in responsible journalism. I admit that that is a summary of what the Reynolds defence is about, but it is useful to consider that. If we are taking out something that subjects a journalistic defence to the requirement that they have engaged in responsible journalism, the question we must ask ourselves is what we are replacing it with. Does the replacement that we propose to insert uphold responsible journalism and require responsible journalism? To recall what is here in black and white, the defence on a matter of public interest first subjects the defence to the requirement that the statement was on a matter of public interest. It seems to me that any statement that could be regarded as libellous is mostly a statement that is in the matter of public interest because if it were true, it might well be very much in the public interest to publish such a statement. The reasonable belief that publishing the statement is in the public interest is, of course, where the rubber hits the road. We have to wonder what would constitute reasonable belief for that defence. How demanding would the courts be in requiring reasonable belief before the defence can be permitted? As regards the statement being published in good faith, that reminds me that qualified privilege, such as that enjoyed by people when they make a complaint to the Garda that involves saying something about a person that if untrue would be libellous, is only to be enjoyed where a person is communicating such a statement in good faith, and certainly malice would defeat it.

We have to consider not the situation where a publication online or printed, or by a broadcaster, would be malicious - let us assume good faith - but where they put themselves in the hands of a source of information who may or may not be malicious in what they claim, or who may just be wrong, or who may have imagined a version of the facts that is wrong but which nonetheless the publication, acting in good faith, goes ahead and brings that statement to public attention by publishing it. Is it about reasonably believing according to their own lights or would an objective test have to satisfy the court? Am I correct in thinking that this would allow in certain circumstances journalists citing unnamed sources to simply repeat allegations of one side of a dispute and that as long as they accurately repeat that allegation as they come to discover it, they could be considered to be acting in good faith, and that as long as the story appeared plausible to them, they could be considered to have reasonably believed that it was in the public interest to publish it?

As politicians, we naturally think it is ourselves in the firing line, and it might well be that politicians would be among the most obvious victims of such a change in the law. If an aggrieved parent, however, tells a plausible-sounding story alleging, for example, abuse against a teacher in a school or against the principal of a school, what recourse does that teacher or principal have to prevent publication? Or, in the case of a false and possibly malicious claim having been made, what recourse do they have to get redress? The question arises, as was discussed by Senator McDowell last week, as to whether we are talking about unnamed sources. If, for example, there is a straw-man figure, a person without significant resources, somebody who in the legal jargon is not a mark for compensation, but if such a person was willing to put himself or herself out as an accuser, is a newspaper, a broadcaster or an online publication then home free to carry what would previously be classified as a libel?

Those are among the legitimate concerns there must be on a plain reading of this section. I could be wrong on this but I understand this section came up for discussion in the Dáil relatively late in the day and was not discussed over and back in the way that something so far-reaching might be expected to be discussed.

Last week, I began to mention what the Ceann Comhairle had to say in a related context recently. On the first day of the new Dáil term, she called for action, saying that more must be done to combat the threats and abuse of politicians. Whatever about threats, it is reasonable to consider that a defamatory statement about somebody is an example of abuse. It is therefore interesting that at a time in our public, political and social life when there is huge concern about the way people are being targeted online with statements that are at the mild end untrue or uncharitable, and at the extreme end horrible and defamatory, where it sometimes seems that parts of the online world are the wild west, I think everybody understood that the Ceann Comhairle was speaking for all reasonable people by saying that elected representatives need to be able to carry out their duties and stand up for different ideas, values or political proposals without being excessively prone to being victimised online and otherwise. In her own words, she warned against a culture of fear and intimidation taking root. She said we risk losing the very essence of democratic representation and that it is incumbent upon us all to collectively defend the integrity of political debate and cultivate an environment that encourages participation without fear.

I am asking the Minister to consider whether a section like this weakens our ability to protect people in public life in the way the Ceann Comhairle was describing. If this makes it easier to put out statements that could destroy people's reputations without necessarily being true, is the Minister not creating a more dangerous and toxic environment, not just for politicians but in particular for politicians? Is what the Ceann Comhairle had to say not something that should give us pause and something that should inform our consideration of this proposed change?

The other matter I recall is the incitement to violence or hatred and hate offences Bill of last year.Again, it is an example of the Seanad doing what the Dáil failed to do, which was to bring tough scrutiny to a proposal that had the potential to curb the free exchange of political ideas in a dangerous and unhelpful way for society. Along with Senators McDowell, Keogan, Craughwell and Clonan, and others, I was involved in bringing a measure of scrutiny to that legislation which gave the Minister's predecessor pause. A truncated form of that Bill was eventually put through. I understand it is not the Minister's intention to proceed, for the moment anyway, with legislation - pardon me if I am wrong - that will change the situation, although there is a case to be made for an adjustment to legislation and an updating of the 1989 legislation.

My point is that the momentum from the previous Government was, at that point, to dangerously close down free speech or to recklessly expose people to the risk of being targeted and ultimately prosecuted for the legitimate expression of political ideas, for example because hatred was not defined in the legislation, or because new definitions of "gender" were being imported into that legislation. We rightly opposed that in this House because the threat was to the free exchange of political ideas, which is so important for our democracy. What I find strange is that this proposal appears to be going exactly in the opposite direction and to the other extreme vis-à-visthe supposed concern of the previous Government. I worry that this proposal pulls the rug out from under the protection of people's rights to their reputation in a way that is careless and risky, to say the least. Like T.S. Eliot, I will end up where I began, by asking whether this could be an unconstitutional move given the risk to people's reputations, to which I think people are going to be unfairly exposed.