Michael McDowell (Independent)

That left the law in that condition. There were people who said this was a correct decision of Mr. Justice Ó Caoimh, and others who said it should be done by the Legislature and not by a High Court judge. There were suggestions that we were not to slavishly follow decisions of the House of Lords in England, whether we agreed with them or not, where they changed the substantive law of defamation to provide a new form of defence.Without wishing to delay the proceedings in the House on this Bill, it should be noted that it was in that context that the Defamation Act 2009 had to deal, in section 26, with setting out what was or was not to be the law as regards the freedom of newspapers to publish what is prima faciedefamatory matter but done in good faith and for the purpose of discussion that was for the public benefit. That was the context in which section 26 in its present form came into existence. As I said on the previous occasion, there was very considerable worry at a political level at the time that in attempting to formulate a statutory version of a defence of this kind, the floodgates would be opened in a manner the former Senator Norris so graphically described in his contributions in this House. His view was that the pre-existing law was perfectly good and should be maintained.

It is true, as the Minister said, that lawyers who appeared in defamation cases found it very hard to predict how a jury confronted with the statutory hurdles and criteria set out in section 26 would come to implement them. However, given the Government is now determined to abolish jury trial, we have to say there is no difficulty in asking a High Court or Circuit Court judge to interpret criteria laid out in a section, even if they are extensive. What the Minister is achieving - in inverted commas - by abolishing jury trial robs of their weight a lot of the doubts and criticisms that were levelled at section 26 because a judge confronted with that section could easily understand each and every part of it. I am of the view, as I have stated in the course of the debate on this Bill, that section 26 should be simplified. I support the Minister in that respect but I was doing it also in the context of my opposition to the abolition of juries.

Nonetheless, I still think it could be justified by the removal of the third condition in section 26(1), which states, "in all of the circumstances of the case, it was fair and reasonable to publish the statement". I understand that particular clause was the subject of a question given recently to the jury in the Gerry Adams v. BBC case, in which I appeared on a different issue to do with reputation, as to whether it was fair and reasonable to publish the statement. From memory, the jury thought it was not fair, that the programme, in effect, was not fair and, therefore, did not go along with the section 26 defence mounted by the BBC. The kind of catch-all provision that "in all of the circumstances of the case, it was fair and reasonable to publish the statement" has perhaps, particularly with a jury, given an out. The jury members could say, "Yes, we have listened to all the arguments but, in the end, that was not fair and we are holding for the plaintiff and against the broadcaster." That is the first point I want to make. Section 26(1)(c) is probably too vague a provision even if the matter is to be determined by a judge. In the end, it is highly subjective as to whether something was fair and reasonable if all the other criteria were satisfied.

The Minister mentioned stakeholders. That is a word I find slightly alarming. Who are the stakeholders? Are they newspapers, the NUJ and lawyers who appear habitually for or against plaintiffs in defamation proceedings? Is McCann FitzGerald, traditionally the solicitors acting for Independent News & Media up to a point, a stakeholder in any real sense? Looking to the other Reynolds case, Fr. Kevin Reynolds was represented by a single-man firm in Robert Dore & Company. Is Robert Dore a stakeholder who should be considered in matters of this kind? The smaller firms probably do not have departments that can deal with every aspect of public discourse. Of course, every solicitor firm that litigates is its own litigation department.

It would be sensible to look at section 26(1)(c) and perhaps to excise the phrase "in all of the circumstances of the case, it was fair and reasonable to publish the statement". I am going to ask the Minister to answer particular questions. The Reynolds defence was to do with journalism and, as we know now, journalism is not the entirety of the problem if we understand it as printed newspapers or licensed broadcasters. We now have satellite television channels and we do not know who owns every channel we see. We have online publications, which cannot be bought in a newsagent, such as The Ditchand gript.ie. Then we have the whole concept of people being entitled to start their own news channel, commentary channel or online magazine or publication, be it periodical or not. At the time of the Reynolds decision, people knew what journalism was. It was participation in the coverage of current and historical events in particular forms of publications. Now we have a very different world.

The funny thing about the Minister's new section is that it proposes, in effect, the same test for everything when it comes to the defence of publication on a matter of public interest. Is a loner sitting in a bedsit in front of his or her computer and about to upload a comment onto social media entitled in the end to the benefit of the Minister's new section?Is that person entitled in the end to the benefit of what is provided for in the Minister's new section? I believe they are. I do not believe there is any distinction to be made regarding the kind of publication we are dealing with. An individual may decide now to publish something in the public interest in good faith, reasonably believing that publishing it is in the public interest. Somebody sitting alone in a room can come to that conclusion and can, if later sued, invoke the defence the Minister is offering. Therefore, we are not now dealing with the media in the same sense as the House of Lords was at the time of the Albert Reynolds decision; rather, we are dealing with somebody who becomes convinced that he or she is in possession of facts that should be brought to the public's attention via posts on social media. We are saying that instead of having the media-oriented provisions of section 26 as eventually passed by the Dáil in 2009, we should have a new, simplified defence that covers all publications of any kind whatsoever.

Section 26(2) of the Minister's proposed section states:

Subject to subsection (3), a court shall, for the purposes of determining whether subsection (1)(b) [which refers to a defendant reasonably believing that publishing the statement is in the public interest] is proved, have regard to whether the belief was arrived at after the making of such inquiries and checks as it was reasonable to expect of the defendant.

What are the reasonable checks expected from a man or woman sitting in a bedsit about to upload something onto social media? Do they involve the individual having seen relevant information in a newspaper, on television or in a foreign periodical? Before an individual says something defamatory, must they knock on the door of the person about whom they are writing and ask whether it is true that they did A, B or C? I wonder how that would really work.

Senator Mullen raised and developed a point that I mentioned. The proposed section 26(3) states:

Where the statement in respect of which the defamation action was brought was an accurate and impartial account of a dispute to which the plaintiff in the defamation action was a party, the court shall, in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest, disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.

What kind of dispute are we talking about? If two teachers in a secondary school are in dispute as to whether one of them is a child abuser in the school, does that qualify as a dispute that can be impartially and accurately brought to the public's attention? Teacher A may say teacher B is a child abuser and teacher B may hotly deny it, saying teacher A is malicious and has no grounds for making the accusation. Is that a dispute? If, say, the dispute goes to the board of governors of the school and the governors are divided 50:50, is it a dispute that can be fairly described impartially by stating the following six governors think X and the following eight think Y and that the substance of the issue is that a party to the dispute had been defamed and it was in the public interest that the public should know about it?

The media and public-personages aspect of the existing law is reflected in the proposition, in section 26, that one of the criteria the court have to consider is “the extent to which the statement concerned refers to the performance by the person of his or her public functions”. That was to reflect the Reynolds decision, implying there are people and things already in the public domain that may be treated differently. That criterion is to be scrapped.

What is a matter of public interest? Is it a matter of public interest that the lollipop man outside a certain school has been accused of child abuse? Arguably it is because children will be crossing the road every day under his control and interacting with him in doing so. He is not a person you would normally think of, such as a politician or officeholder, as attracting the Minister's defence; however, there is no criterion set out in the Minister's proposed section that distinguishes whether the man is fair game for a publication about whether he is a child abuser and whether parents should be informed of serious allegations to that effect if they surrender their children to his temporary control every day on the way to school. There is nothing in the Minister's section that differentiates between his activity and a member of the Oireachtas taking bribes, and that worries me considerably.

The second point that has to be borne in mind, and which was mentioned by Senator Mullen, is that you can have people who consider themselves to be watchdogs in the public interest and who post online for consumption by the public but who are highly selective. I do not have to remind this House this week that there are very many people who put up on social media items to do with crimes alleged to have been committed by asylum seekers and migrants. The same people, some of whom actually use online magazines, do not seem to be interested in whether an Irish person perpetrates the exact same crime. We had a case the other day, publicly dealt with, in which apparently an Irishman brutally stabbed an Irishwoman with whom he had had a relationship, because she was ending it.She suffered grievous injuries. I noted that none of the online publications that would have been the first to point out if he was a migrant did not bother with that story. They were not interested in that case. If there had been a minor stabbing involving a migrant, it would get top billing in certain online publications. What Senator Mullen said about being a selective watchdog is very true. We think and we hope that, let us say, RTÉ is not selective in that way and that it does not just look at foreigners committing crimes in Ireland, but looks at everybody who commits crimes in Ireland and reports fairly on all of those news stories. There is no obligation at all to be fair in that kind of way, cast by the Minister in the proposed section. One view of the public interest apparently can be that particular crimes are committed by immigrants, migrants, asylum seekers, or people who are here illegally. That is newsworthy, but the others are not.

If section 26(1)(c) were excised, that would leave the other criteria in section 26(2) of the existing statute to be considered. The first one is the extent to which the statement concerned refers to the performance by the person of his or her public functions. Let us take the case of an entirely private dispute about whether somebody sexually abused his or her own daughter or whatever the case may be. Is it in the public interest that the person be exposed or is it only in the public interest for the person to be exposed if he or she is a public figure in any event or carrying out some kind of public function? The Minister's section just does not deal with that issue at all. The second point is the seriousness of any allegations made in the statement. The court is to look at the context and content of the language used in the defamatory statement. The extent to which the statement draws a distinction between suspicions, allegations and facts is very important. I have seen in my own lifetime people who are, let us say, dissatisfied with the outcome of investigations, going to the media and saying the DPP would not prosecute or the chief superintendent would not send forward this file or whatever, but here it is and it makes a very serious allegation against a person in public life. In those circumstances, outside of the criminal law, are we to have situations where there can be discussions about people tending to suggest that there is an allegation or a suspicion that they have engaged in criminality, based on good sources?

The funny thing about the recent Gerry Adams case before the jury was that the producer of the programme, as I understand it - I was not there for most of the case; I only saw the bit when I was there as a witness - said that she had very good anonymous sources for the accusations that were made against him. Is it legitimate for someone to say that they have very good anonymous sources, that people are trustworthy and that they tested them out and what they were telling seemed correct? Is that to be a criterion by which, once satisfied, defamatory matter can be published about somebody, as in that case where there was an untrue allegation that Gerry Adams had been party to the decision to kill Denis Donaldson? Is it legitimate at all to put forward a programme of that kind if you are entirely dependent on off-stage actors who either are disguised and appear in profile and shadow, or who are just sources who are dependable and who you have checked out carefully? I wonder if any of us were the subject of an accusation of very serious criminality, whether we would be content for a broadcaster, online newspaper, a newspaper or an online poster from a bedsit to be able to say: "Well, I believed very much that the source, which I'm not going to reveal to you, was true. I was told that in total confidence by somebody who is absolutely trustworthy." Are we going to accept that kind of publication and say that it is a good defence for any of that spectrum of publishers to say that they acted in good faith in publishing it?

In paragraphs (f) and (g) of subsection 2, the whole idea of the Press Council was brought in. I just want to remind the House about what the background to that was. There had been a proposal in the programme for Government for the establishment of statutory press council. A report was done and submitted to me as Minister, which effectively recommended that there should be a press council. Members will be glad to hear that I was to appoint most of the members of it. I said to myself that this is absolutely unacceptable. Any press council that gets statutory recognition, as this gave it, would have to be entirely independent of the State. That is what happened. The provisions of the Defamation Act 2009 made it clear that if the media in Ireland established a press council, it could be recognised for the purpose of that section, but not otherwise. I disregarded the report recommending a ministerially appointed press council.

Another issue is the extent to which the plaintiff's version of events was represented in the publication concerned and given the same or similar prominence as was given to the statement concerned. As in the Gerry Adams case, is it fair if at the end or at the beginning for someone to say that Gerry Adams denies the following and then have 20 minutes of anonymous allegations made? Where does the Minister's proposed revision of this section deal with that? He does bring it in respect of disputes because it has to be an impartial and accurate account but that issue does not seem to have any weight at all for other defamations. The 2009 Act states, "if the plaintiff's version of events was not so represented, the extent to which a reasonable attempt was made by the publisher to obtain a response from that person; and ... attempts made, and the means used, by the defendant to verify the assertions and allegations concerning the plaintiff in this statement". Then you go to the Minister's subsection (3). Effectively, it is predicated on there being a dispute. It does not say a public dispute, but a dispute between the plaintiff in the action and somebody else. In those circumstances, if you are impartially and accurately describing the dispute, you do not, if you are the publisher, have any duty to take any steps to verify the truth of the imputation conveyed by the publication. I think that is wrong. That is not a simplification of the law. That is the introduction of an entirely new species of reporting. There is a dispute. A says B is a child abuser. B says he is not. This dispute exists between them. I am going to fairly, impartially and accurately print the fact that this dispute exists. It is a defence to the imputation against the person accused of child abuse. It is a defence that it was in the public interest to publish it about him. No duty is cast on the publisher to ask if it is true or whether it rings true. You might say it was done in good faith. That suggests, somehow, that you could not publish something that you believe is a wildly incredible allegation, and I go along with such a view. If, however, two people are standing up in public and accusing each other of bribery, theft, corruption, sex abuse or whatever, you name it, and I say here is a dispute, I will tell you all about the dispute impartially and accurately, and I have no obligation to check out whether the fundamental allegation in that dispute is true, I cannot understand how the Minister proposes to bring that into law.

The Minister gave the background to how section 26 came to be in the Bill, and I accept what he said about that. When I checked the Dáil record and looked at the interaction between him and Deputy Matt Carthy of Sinn Féin, none of these matters were considered at all. Nobody really looked at it at all. It was just nodded through. As Senator Mullen says, the same happened with the hate speech legislation. It was just plonked into this House, largely unconsidered as to what exactly it would mean. It was when it was put under the spotlight that people began to have questions about whether it should or should not be passed.

I am glad the Minister says that he is prepared to entertain proposals for changes to section 26. Apart from opposing his version in its entirety, it is difficult to ask this House to come up with an entirely different piece of law where we have not had any consideration of it by the Dáil. The Minister mentioned the word "stakeholders". Everybody is a stakeholder in this. Every single citizen is a stakeholder in this. Just because you run a newspaper, an online magazine or because you call yourself the Irish Council for Civil Liberties, ICCL, a body which I greatly admire, it does not mean that you have some special function, especially when the ICCL approached it, and rightly so, from the point of view of freedom of speech. That was its particular perspective. Politicians, by the way, are stakeholders in this. They will find out if it is passed in its present form just how much they were stakeholders and ignored their own self-interest. Every single citizen is a stakeholder in this because every single citizen has an interest in protecting their good name or the good name of members of their family. It is not just politicians; it is politicians' spouses and families. To see somebody defamed with immunity and impunity because the newspaper thought it was in the public interest that it should be made public, the devastation that can cause to the child of a public figure, to see their parent plastered all over the front of a newspaper, the subject of an in-depth RTÉ investigative report, attacked mercilessly by one of the online magazines or just simply under siege from a constant barrage or anonymous online postings, is huge. Everybody is a stakeholder here.

That is something that it is very easy in our new society to forget. You set up an NGO such as the Irish Council for Civil Liberties, voluntarily or by the State, it does not matter, or you listen to McCann FitzGerald, which is a very substantial legal firm that specialise in defending newspapers and perhaps broadcasters. You then say that the Bar Council is a stakeholder. I wonder are they really stakeholders who should be listened to more than the interests of the public and the individual citizen represented by TDs and Senators. That is what was so disappointing about the debate on section 26 in the Dáil. It never even looked at what the difference actually was between the new section 26 and the old one, what would and would not be permitted and what defences would or would not be put in place. The debate in Dáil Éireann never really examined the change that was being made. When the Minister says that he is prepared to consider looking at his proposed section 26, that is good. I presume he will do it with an open mind and pay attention to what has been said in this House, at the very least, in relation to it.

It is extraordinary. Not one word of the debates in this House has been published by the stakeholders. You can search RTÉ or every newspaper, but not one comma of this debate has been published. That is because they hope it will go through unscrutinised and unchallenged. That is what is going on. You might think that they are interested in this. I think Professor Eoin O'Dell, an academic, is the only person who has said a word about it.Not one word about the issues we have been debating here for the last two days has been put in the public domain by the so-called mainstream media, the non-mainstream media, all of the online commentators or even the academics. Why is that? It is because the stakeholders stand to benefit from the Minister's amendment. They want to wave it through unchanged. It suits them very well, thank you very much. They talk about the importance of the legislative process and holding Members of the Oireachtas to high standards but when their own interests are concerned, there is not a peep out of them. It is depressing. That is all I will say.

If this Bill goes to Report Stage, and I have no doubt that it will, there is provision in the rules of this House to remit the consideration of whatever section is put forward or any amendments that are put forward to Committee Stage, in other words, to reopen the matter at Committee Stage so that a genuine discussion can be held rather than what happens on Report Stage, which is that Members may make one speech and that is it. That does not really work in this context so I am glad that the rules of the House so provide. At this stage, I am entitled to ask the Minister whether he believes in the existing section 26(3), which states:

The failure or refusal of a plaintiff to respond to attempts by or on behalf of the defendant, to elicit the plaintiff’s version of events, shall not— (a) constitute or imply consent to the publication of the statement, or

(b) entitle the court to draw any inference therefrom.

Does he believe in that? Are we changing that law? Are we saying courts can draw an inference from the fact of a person saying nothing or that one's solicitor says "publish and be damned"? Does the Minister agree with section 26(3) of the existing law? It is hugely important. If that subsection is deliberately being taken away by this House, the courts will notice that it used to be law that no adverse inference could be drawn but that it is no longer the law. They will say that Seanad Éireann and Dáil Éireann deliberately swept that safeguard aside. Is the Minister content to get rid of that safeguard? I will finish now but it is very easy to write a story and say that you contacted Senator Conway, who failed to respond-----