Jim O'Callaghan (Dublin Bay South, Fianna Fail)

Senator Norris started his contribution by stating that then Minister, now Senator McDowell, had a reputation for being a rottweiler, but Senator Norris was concerned that he seemed to have turned into a chihuahua. The basis for this charge being made by Senator Norris was that he thought then Minister, now Senator McDowell, had completely caved to the interests of newspapers and media owners by the section 26 defence he was bringing forward nearly 20 years ago.

It is important to understand the purpose behind the original section 26 before we start to look at the reasons I am seeking to amend it. To do that, I have to go down a little bit of a tangent. It is always important, when we are discussing reform of the defamation Bill and defamation law, that we look to see what are the broad range of defences that are available. There is an assumption in defamation law that it is either true or false and that is it. As Members of this House will know, the defences available under the Act are much more complicated and extensive than that. We all know what a defamatory statement is in terms of lowering a person's reputation in the eyes of reasonably minded persons in society, but there is a variety of defences to that. The primary defence is the defence of truth. I was conscious about some of the arguments and submissions that were being made on the last occasion, such as whether a newspaper could report that a politician or a person in public life had been arrested and was being questioned by An Garda Síochána. The truth of the matter is, under the law at present, they are entitled to do that.

I think it was Senator Joe Conway who referred to the Cliff Richard case. The Cliff Richard case was a very interesting case, but that was a case in terms of breach of privacy. The claim being brought against the BBC and the West Yorkshire or Midlands Police was to the effect that the privacy of Cliff Richard had been breached because information about this investigation had been disclosed to the BBC and other media organisations. If there is an allegation against a person and the Garda is investigating that person, a newspaper can publish it, subject to the fact that they may be exposing themselves to other claims such as breach of privacy or they may have a claim under the statutory provision that Senator McDowell sensibly introduced back in 2005 making it a criminal offence for the gardaí to leak information to a journalist.

The first port of call is the defence of truth. As defamation law developed, however, there was a recognition that we need to give further protections other than simply the defence of truth. For instance, if somebody stands up in the House and accuses me of being a murderer and I instituted proceedings against them, they could not rely on the defence of truth, but they could go to another provision in the legislation and say they have the defence of absolute privilege. That would completely block me from succeeding in that claim. Truth is not the only defence that is available in response to a defamatory statement. Absolute privilege is one.

Qualified privilege is another defence that is available in circumstances where the substance of the defamatory statement is not true. We have decided in our law, and in the common law before that, that there are certain types of communications that should be protected and sort of inoculated from the defamation claim. Those types of communications are, for instance, the communication between a former employer and a future employer by way of a reference. We have decided that if somebody is writing a reference for somebody who is about to be employed in another job, we will protect that communication, even though there may be a statement in it that is false. The reason we do that is we think it is in the public good that this type of communication is protected by way of qualified privilege. If a former employer writes to a future employer and makes a statement about an employee which is false, wrong and defamatory, there will still be protection for the publisher of that reference, provided he or she has not acted maliciously or disproportionately.The reason we have that is because that is the type of communication we believe should be fully protected. Similarly, a doctor writing to a consultant may make an allegation about the patient's spouse being involved in some sort of wrongful activity or criminal assault. That will also be protected provided the communication was not made maliciously or disproportionately. There are a whole series of defences that are available to publishers in circumstances where the statement that the publisher has made is false. That is part of the reason I am introducing this retail defence. People have not met it with huge support or endorsement but it is a very significant change in our law. If a shop owner says to an individual they believe that person has something stolen in their bag and the owner wants to check the bag, if that turns out to be false, the shop owner will still have a defence because we, the Houses of the Oireachtas, have decided that it is the type of communication that should be protected because it is for the common good. They are examples of where statements are made that are false but yet the legal process and our statutory scheme provides a defence to it.

Another area where, historically, under the common law there was a protection was in the area Senator McDowell loosely referred to as public interest journalism or communications about issues of public interest. If you look at the Schedule to the Defamation Act, there are a whole series of things that have protections under it. For instance, the fair and accurate report of court proceedings is one. A fair and accurate report of the Houses of the Oireachtas is another. Whatever about one of us saying something here, because we have an absolute privilege, somebody's fair and accurate report of something that happened here will also attract qualified privilege, as it is known. That developed over the years in the common law so that, in certain instances, journalists would be protected in their publications even if it was the case that what they said was false but, notwithstanding the falsity, the broad thrust of the publication was in the public interest, was properly researched and the journalist engaged in inquiries in advance of it.

That was the whole common law development of what we now call public interest journalism. As Senator Mullen said, we then had the development of the Reynolds case. It is noteworthy that the former Taoiseach was involved in a case that led to one of the biggest developments of the law of qualified privilege in that area within England and Wales. It said that there would be a form of qualified privilege defence for what is referred to as public interest journalism in circumstances where the publication had got aspects of the story wrong but in general it was in the public interest.

I am conscious of what Senators said on the last occasion. I did not come up with this in the office. It is not as though I have decided that we should change the law completely so that, if someone says something that is false, we should now protect them. That has always been the case the since the development of the common law and with the establishment of the Reynolds case. We know in Ireland that in the early part of this century and the end of the last, there were decisions of the superior courts which said that Reynolds-type defence does exist in Irish law. When Senator McDowell was Minister for justice, he recognised that rather than having a vague common law rule about Reynolds where we have to go back and look at judgements from the House of Lords and other subsequent judgements such as Jameel, it was much preferable if we, as an Oireachtas, set out in statute what we believe is the appropriate statutory defence for what was called fair and reasonable publication on a matter of public interest. I believe it was his intention and the effect of the Houses' enactment of section 26 that the Reynolds defence was abolished. However, there is some doubt about that if you look at some of the authorities from the Supreme Court. Mr. Justice Collins, when he was on, I think, the Court of Appeal, gave a decision in Desmond against The Irish Times where he said there is doubt as to whether Reynolds has been completed replaced by section 26. In truth, and I think for purposes of efficiencies, we are better off trying to codify the Reynolds defence in our own statutory section. I believe Senator McDowell did that with his section 26 introduced many years ago and enacted.

That is the background of where we are in section 26. It has existed for 16 years. I cannot think of any case - perhaps Senator McDowell can - where it has been successfully invoked. That is a reason we, as an Oireachtas, and I, as a Minister, should give consideration to trying to change it so that at some stage it can be invoked successfully.

The purpose of section 11 and the new section 26 is to try and make it more manageable. One of the difficulties with the old section 26 was that, similar to this section 26, it was set out in two subsections. It set out that the statement had to be published in good faith, was for the discussion of a subject of public interest, that in all circumstances the manner and extent of the publication was sufficient and that it was fair and reasonable to publish. It then went on and, for the purpose of determining that, set out a whole series of factors that had and should be taken into account when determining whether the publication was fair and reasonable. What was actually happening in practice was that people were going through each of these 11 or so characteristics in paragraph 2 of section 26 and stating that they did not comply with it, so that meant they could not avail of it.

Because of that, it was unquestionably the case that section 26 did not succeed in defamation actions. It may have been invoked in many, but I cannot recall anywhere section 26 succeeded. There was work done in respect of it. There were views sought during the review and there was a committee review in respect of it as well. A number of individuals made submissions stating that section 26 should be amended. Perhaps I can go through some of them in a bit of detail. By the way, it is the people in this House and the other House who make the law. Just because stakeholders have made submissions in respect of it, it does not mean that I, as Minister, or the Members, as legislators, are required to comply with it. Nonetheless, they should inform our discussion in respect of it. For instance the Bar Council of Ireland, the Business Journalists Association of Ireland, The Irish Times, Newsbrands, the National Union of Journalists, RTÉ, McCann FitzGerald, and Ronan Daly Jermyn, along with academics such as Professor O'Dell made submissions to the review of the Defamation Act 2009 indicating that the existing defence in section 26 was overly complex, lacked clarity and set too high a hurdle for the defence to be successfully pleaded.

The Irish Council for Civil Liberties shared this view and indicated that it considered that the existing defence might not meet the standard required by Article 10 of the European Convention on Human Rights, ECHR. It recommended removing the requirement to demonstrate that a publication was fair and reasonable in all of the circumstances and the adoption of an approach similar to that in section 4 of the Act in England and Wales, which requires a defendant to provide that the statement was or formed part of a statement in the public interest and that the defendant reasonably believed that publishing the statement was in the public interest. McCann FitzGerald and MGM submitted that a judge should be required to consider whether the defence was made out and direct the jury accordingly given the complexity of the defence.

Part of the reason section 26 may not have succeeded in many cases in the past was because it is a very difficult statutory provision to involve a jury in. It is extremely complicated and difficult to set out in questions to a jury in an issue paper at the end of a case how they should apply section 26. One of the consequences of cases no longer being determined by juries - if that is enacted by the Houses of Oireachtas - is that we will see more invocation and use of section 26 by judges sitting alone and making decisions.

There were a series of concerns in respect of it.When I look at a statutory provision, I have to consider to what extent it has been effective. I can look at the qualified privilege section. Another defence I have not referred to is the defence of honest opinion. I can look at that and cite examples of where that has succeeded. However, as Minister, if I am presiding over a piece of legislation and I cannot identify one case where section 26 has succeeded - it may have been invoked a couple of times but I have no clear example of it ever being successfully invoked - that must raise a question mark in respect of it.

As mentioned on the last occasion, traditionally this was a defence for responsible journalism. Given the way the communication world has progressed, I think we should extend it beyond people who are technically referred to as journalists. There was much reference on the last occasion to the McLibel case. Individuals who were the defendants in that case were individuals who were not journalists but who sought to say they were putting forward a publication that was in the public interest, so there is a benefit in trying to extend it beyond journalists. I know everyone in this House agrees that although some of the cases in this area involve high-profile individuals, defamation law in many respects is not simply about high-profile individuals. It is about the individual who can find themselves subject to a very serious article which is defamatory of them even though they have no public role. That can happen frequently.

The reason the amendment to section 26 is being introduced is that the consensus among the majority of stakeholders who made the review to the 2009 Act on section 26 was that the defence of fair and reasonable publication is overly complex, lacks clarity and sets too high a hurdle for it to be successfully pleaded. Those stakeholders were not just media organisations, as I say, but also included, as I mentioned some moments ago, the Bar Council and the Irish Council for Civil Liberties. Senator McDowell correctly notes that an amendment to section 26 was not included in the Bill as published. However, it was included in the general scheme as published in March 2023 and the intention to include it in the Bill by way of amendment was flagged when the Bill was introduced in Dáil Éireann. Head 16 of the general scheme of this Bill proposed an amended defence which required a defendant to prove: that the statement was in the public interest; that the defendant reasonably believed publishing the statement to be in the public interest; and that the defendant complied with the standards of responsible journalism when verifying and publishing the statement. It also provided that, where the statement was published by a journalist, the third obligation should be modified to a requirement to act reasonably.

At pre-legislative scrutiny the justice committee recommended that the defence set out in the general scheme be further simplified. Again, the feedback from witnesses to the committee was that the inclusion of too many stages and criteria in the existing section 26 has meant it is difficult to reach the threshold for the defence, resulting in greater uncertainty, an increase in the amount of litigation and higher costs overall as well as the underutilisation of the defence. The feedback from witnesses to the justice committee in relation to head 16 of the general scheme was that the requirement to comply with standards of responsible journalism should be re-evaluated as the proposed wording might restrict use of the defence to journalists, to the exclusion of other relevant groups - this is a point I mentioned a few moments ago - such as academics or whistleblowers, whose work would fall within the sphere of public interest and who might be targeted with defamation claims. Those witnesses included the Bar Council, academics, the Anti-SLAAPs Network and, as I said, the ICCL. Taking on board that feedback, the updated defence requires a defendant to establish three things in order to avail of the defence: first, that the statement was on a matter of public interest; second, that the defendant reasonably believed that publishing the statement was in the public interest; and third, that the statement was published in good faith.

When it comes to determining whether the defendant reasonably believed that publishing the statement was in the public interest, subsection (2) provides that the court shall have regard to whether the "belief was arrived at after the making of such enquiries and checks as it was reasonable to expect of the defendant". It is certainly going to be the case that, to use Senator Mullen’s example, if a source has come forward and made a statement about an individual that is defamatory, a publisher could not just decide that they have a source who said it and they will just publish that. That would not fit within the statutory test.

Senator McDowell remarked during the debate that the question of whether an attempt was made to verify a story would be swept aside with the introduction of this defence. However, I find it difficult to see how a journalist who had not taken steps to verify a story could persuade a court that he or she had carried out such inquiries and checks as was reasonable to expect of him or her. There is also case law from our own courts, the English courts and the European Court of Human Rights which makes it clear that a statement can only be considered to be in the public interest if it is on a topic which has the capacity to impact the rights and interests of the public and where the information in question is reliable, properly researched and presented and published in an objective and unbiased manner. That body of law which has been established by the Irish superior courts is not going to be swept away with the enactment of this new section 26, if it is enacted, because the issue of public interest has already been considered by our courts and there is no difference between the public interest that exists at present and the public interest that would be introduced if this new provision was enacted. Material which is salacious or improperly researched or verified will not be considered to be in the public interest.

Senator McDowell is correct that the reference to fairness is being removed from the section. I will reflect upon that when it comes to Report Stage. It used to be the defence of fair and reasonable publication on a matter of public interest. Now the test, as provided for in the new section 26, is that it is just reasonable. At this stage I do not believe the removal of the reference to “fair” in itself impacts on the standard of protection. This might be best illustrated by looking at subsection (2) of the existing section 26. The factors listed under the existing section 26(2) either go to whether something was a matter of public interest or whether the defendant reasonably believed that publishing was in the public interest having made such inquiries and checks as was reasonable to expect of that defendant. It is difficult to envisage how a statement could pass the test set out in the proposed section 11 which requires that it be in the public interest, that there be a reasonable belief based on conducting reasonable checks and inquiries that it is in the public interest and that it be made in good faith and not be regarded as fair.

Senator Mullen referred to the abuse of politicians and public figures, which should not be countenanced. I echo the concern both he and the Ceann Comhairle have expressed in respect of that. However, I do not see how it could be countenanced by the defence available in the proposed updated defence. This is not a charter for the abuse of any figures, whether they are political figures or other individuals in the public eye. Section 26 as amended by section 11 contains an explicit requirement to act in good faith and also requires a defendant to conduct reasonable inquiries as to the veracity of the statement in question. It is the case that subsection (3) of the proposed new defence provides that a defendant should not be required to take steps to verify the truth of an accurate and impartial account of a dispute. The purpose of that subsection is to allow for a neutral reportage on issues so that the media can carry out what has been termed a watchdog function. In other words, as well as being in the position to investigate and report on stories in the public interest, it will be possible for journalists and those reporting on matters in the public interest to neutrally report what is being said by two parties to a dispute without needing to investigate the facts of the allegations where there is a public interest in awareness of the existence of the dispute and the allegations as distinct from the substance of the allegations themselves. This is in accordance with the case law of the European Court of Human Rights, which has found that punishment of a journalist for assisting in the dissemination of statements made by another person would seriously hamper the contribution of the press to the discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so.

This House will be acutely aware of issues that can arise in the public domain where there is a dispute in a statutory body or, indeed, within government whereby the newspapers should be entitled to report on the fact that allegations are being made by one element within a statutory agency against another or, indeed, you could have a situation where Ministers could find themselves in dispute. There is a public interest in the public being apprised of that dispute and it being properly reported in the media. By the way, I fully accept - I know people in this House are not just talking about politicians - that public figures and indeed private figures are entitled to their good name and should not be subject to scurrilous, abusive or vindictive statements. However, we need to be conscious that sometimes a person can find themselves unfairly in the public glare if a false allegation is made against them to An Garda Síochána and the gardaí are required to investigate it. If the person being investigated is completely innocent, but the gardaí have to investigate because of the complaint, it is truthful to say that the gardaí are investigating somebody because of a complaint that has been made. The reason newspapers do not generally publish stories like that is because they have a legitimate and understandable concern, and this will continue after this legislation if it is amended, that by reporting that, for example, Jim O'Callaghan is being investigated for corruption, the meaning of the article could be assessed by a court in a certain way. It could be decided that it was stating that I am involved in corruption, as opposed to being investigated for it with no substance to it.

Newspapers are cautious and careful when it comes to publishing statements such as that. We need to recognise there is an entitlement to publish stories which are true. Publishing a story which is true is not necessarily the same as saying there is substance to the fact that an allegation was made against somebody. If an allegation is made against somebody, it may be false, but it is true to say it has been made. It is a difficult area.

I know Senator Craughwell mentioned on the last occasion issues about information being provided by An Garda Síochána to newspapers, which is something that, if it is done illicitly and in breach of the statutory rule, would constitute a criminal offence. It is reprehensible. However, there is a remedy available to a person who has had a story about them leaked by An Garda Síochána to a newspaper. Their claim is of a breach of duty by An Garda Síochána in providing the information. I know it is an extremely hard case to succeed in because you have to have evidence that it was actually done, but in terms of the newspaper publishing it, the correct way to deal with it is to ensure the law is complied with in the first instance.

As public figures in a democratic society, we must be prepared to accept a level of scrutiny. Most Members of this House and the other House, and most people in government, expect and tolerate a level of scrutiny. Obviously, the public must be entitled to engage in discussion and debate in relation to our actions insofar as those actions relate to matters of public interest. No one here will disagree with that. I consider that section 11 will provide for an appropriate balance between those competing rights and will provide a workable defence in appropriate cases. For that reason – I am conscious it is going to be opposed in the House - I will proceed with pushing for the adoption of section 11. Nonetheless, I will reflect on the matter, particularly the point about there being no reference to the term or adverb "fairly" or to the word "fair". As I said with regard to many of the issues that were identified here on the last occasion, there are other protections in place for individuals when it comes to privacy rights and the statutory protection available under the type of legislation I mentioned, such as the Garda Síochána Act.

I wish to see if I have left out any of the other points that were made on the last occasion. The biggest problem we have with defamation at present is with people being defamed by anonymous people on social media. The really important part of this legislation is to ensure we provide a mechanism whereby people can apply promptly to court to get information about the individuals and identification of the individuals who are defaming them. I believe the section 26 I am proposing - the amended version - is not going to result in the realisation of the fears expressed by many Members of the House today and on the previous occasion. I think it will simply provide a more effective and efficient mechanism for defendants to be able to say they acted fairly, in good faith and in the public interest. They will be able to say that even though factually it was not correct, notwithstanding that they should be given protection. That is a line of defence that was not invented by me; it has been in common law for many years. Senator McDowell, as Minister, gave it statutory effect in section 26 of the 2009 Act. I do not think this is going to pose a significant change to it. I think it will improve it.

Finally, Senator Mullen spoke about section 12 and the abolition of the Reynolds defence. That has been included for the purpose of removing any ambiguity. The Reynolds defence seeks to give effect to the public interest defence of fair and reasonable publication. We do not need both of them. We do not need lawyers to be able to go to the court and argue about relying on section 26 but also on the Reynolds defence, which is more vague. We as the Houses of the Oireachtas in Ireland should be able to formulate our own defence. We are better off doing that rather than adopting a defence from the House of Lords in the UK, notwithstanding that the plaintiff was a former leader of my party.