Rónán Mullen (Independent)

I have some sympathy there and Senator Ruane has raised some very interesting points on the right to recover a reputation. It reminds me of that idea of the right to be forgotten as well. Some of us have been reflecting on that in recent days with the question of whether a person who had a conviction for firearms could be employed in the precincts of the Oireachtas. I remember thinking that they should certainly have to go through the scanner for a few years anyway but there should certainly be a focus on allowing and enabling the rehabilitation of a person over time. I do sympathize to some degree with what Senator Ruane has raised in that regard.

On the Minister's reply to the concerns I raised, it does seem that the media, and not just the media but others the Minister mentioned - academics, etc. - are having extended to them here a form of qualified privilege, which I would say at best is only mildly qualified. As I have heard Senator McDowell say, there is a case for adjusting what is there already in section 26. The question is whether the Minister is going too far here, and I think he is. The Minister has made the point that he is concerned the section 26 defence has never to his knowledge been successfully invoked. I heard a form of that argument here last year when we were discussing the hate speech legislation, when it was said we were not managing to get convictions or, as I believe it was then Taoiseach, Deputy Simon Harris, who said, one of the reasons for changing the legislation was to make it more possible to get convictions. I find that a troubling line of argument. Surely there is every possibility that the reason section 26 has not been successfully invoked is that it is acting in the preventative way the law should, which is to prevent false or defamatory statements from being made. Is it not the correct question for Minister to ask himself and to address here what type of stories or things we are now aware of that should and could have been reported in the past but for the fact that there was not a strong enough public interest defence for publication? Are we talking about situations in the past whereby if journalists had a stronger public interest defence, they could have reported more freely on allegations that politicians were taking money from donors, illegally or otherwise? Even at that, I cannot understand how it can ever be right to say that there are circumstances where the court is not interested in whether the defendant took steps to verify the truth of an imputation that it conveys, which is the subsection (3) exception: "Where the statement in respect of which the defamation action was brought was an accurate and impartial account of a dispute", and that the court can disregard the defendant's failure to even take steps to verify the truth of the imputation conveyed by it. In what world and in what circumstances is that get-out fair? Surely as a matter of precaution it should always be the case that there should be an absolute obligation to try to verify. They might not succeed in verifying or satisfying themselves one way or the other to a court level of certainty, but that it might not be to their disadvantage that they did not even try is a concern.

The defence the Minister gave for that, and I do not want to put words in his mouth, was that he wanted to protect neutral reportage of issues and to protect the media watchdog function. We all know that media, various media and some media, are capable of selective watchdoggery.The Minister must have in mind the possibility that the media might be interested in particular potential villains and less so in others. I remind him of what happened with RTÉ and Fr. Kevin Reynolds, for example. There was a widespread discussion at the time that one of the reasons for the failure to check facts was that there was at the time a certain odium around church people, particularly in the context of abuse cases. The media dropped its guard and as a result an innocent person was libelled. But for the particular circumstances of the libel, that person might not have had the recourse they were eventually able to get.

We are operating in a climate where the media does not always have clean hands, is not always scrupulously impartial and does not always subject everybody to the same test when it comes to hearing about, investigating and reporting wrongdoing. I do not see how we subtract from the ability of good bona fide media or journalists, in particular - I know the Minister is not exclusively talking about journalists - to do their jobs by not giving this get-out that they do not, in certain circumstances, have to take steps to verify the truth of the imputation they convey. I cannot think of a single example where that get-out for journalists could be shown to be necessary. How is it ever not strictly required that you try to verify?

The Minister is allowing this exception in circumstances where an accurate and impartial account of a dispute is brought forward. Senator McDowell has already asked what exactly is meant by "dispute". If we were talking about court cases, we could all understand. As the Minister rightly says, it is not just possible and permitted but necessarily possible and permitted to report proceedings in court cases even where the facts of what is reported to be alleged have not necessarily been established.

The Minister, however, is not talking about court cases; he is talking about an accurate and impartial account of a dispute. Let us suppose that somebody makes a horrible accusation about the Minister, and that the Minister chooses not to dignify that allegation with a response. Can someone then give an accurate and impartial account of the dispute? They could claim it is a matter of public interest because the Minister is a public person against whom X has made a horrible accusation. They could claim that they gave the Minister the opportunity to respond and he said he would not dignify the accusation and would see the person reporting in court if they publish. If that person publishes, he or she is entitled to ask the court to disregard the fact that no steps to verify the story were taken, other than asking the Minister if it was true. Is that what is meant by taking "steps to verify"? Is that all you have to do? Do you even have to do that? I do not understand how it is possible to give anybody a get-out on the requirement to take steps to verify the truth of something that they choose to put in the public domain.

I completely get the Minister's distinction between the fact of an allegation and the facts or otherwise contained within an allegation. However, the person who takes on the responsibility to publish is the initiator of the problem. If they do not, in certain circumstances, even have to take steps to verify the truth of what they are saying, it is a serious problem.

The Minister rightly talked about the problem that exists now on social media with people being constantly defamed and subjected to abuse of various kinds, including defamation. I worry that what is going on here is that he is bringing everybody down to a lower standard of behaviour and not addressing the problem. I do not deny that the Minister is attempting to address the problem and that he intends to address it, but what is contained here facilitates less, and not more, responsible behaviour at a time when attention to standards in the publication of information, claims and allegations has never been more important. While I note what the Minister has said about considering whether the concept of fairness should be brought back, much more careful consideration needs to be given to this get-out in regard to the obligation to take steps to verify the truth. That needs serious consideration. It is dangerously problematic as it is set out at present.