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

I thank Members for their contributions, to which I have listened very carefully . I will begin with Senator Ruane, who made a number of interesting points. Her first point was on non-disparagement clauses and she inquired as to the interlink between non-disparagement clauses and the defamation laws that operate at present. My view is there is no link between the two. If somebody has signed a non-disparagement clause, say with a former employer, this does not restrict them from making comments about the employer in defamation. However, it does restrict them in terms of the provision that exists in contract. Senator Ruane gave the example of a former employer at a delicatessen with foods that were completely inedible and in breach of safety regulations. If somebody worked there and had signed a non-disparagement clause, there is nothing in the law of defamation that precludes them from making comments accurately about the condition of the deli, stating the food is in breach of food safety laws. However, they would probably find themselves subject to a claim for breach of contract, or even an injunction to stop them, because they are not complying with the non-disparagement clause to which they had agreed. I suppose if people agree to them, it can have consequences in terms of restricting their freedom of expression but the defamation laws are not the laws that interfere with that freedom of expression.

Senator Ruane also asked about non-disclosure agreements and their use in references. If somebody is writing a reference in respect of a former employee who they believe had harassed or bullied colleagues, they are perfectly entitled to say this in the reference. If it is true it is true, and they are perfectly entitled to say it under the defence of truth but, as I said earlier, generally anything contained in a reference, provided that reference is not malicious or disproportionate, is protected by law of qualified privilege. Senator Ruane also gave the example of somebody giving a false reference. If an employer knows in fact that the employee was involved in bullying or harassment but decides in order to get them off the books to give them a good reference, the only liability that arises there is that the new employer may have an action in negligence against the old employer who gave what was an inaccurate and dishonest reference.

Senator Ruane also asked about more vulnerable people. My experience is that very many people who fit within the description of vulnerable people have taken defamation actions and have succeeded in them. Certainly I am aware of very many people with criminal convictions who have taken defamation claims and have succeeded in those defamation claims. There is also a reported judgment, to which I am entitled to refer as a result of this, in Hill v. Cork Examiner Publications Limited. A man who was a prisoner in Cork Prison with a conviction for serious assault was identified in a newspaper as being in a section of the prison that accommodated persons who were guilty of sexual assault. He took an action in defamation and he succeeded and was awarded significant damages. It is certainly the case in my opinion and my experience that people who have convictions and people who were or are prisoners are just as entitled to take defamation claims as anyone else. Obviously, their reputation is damaged as result of getting a criminal conviction but this does not mean they have lost their reputation completely. There are different gradations in terms of damage to reputation.

Senator Ruane also asked about the right of reply. Obviously, if somebody does not issue a defamation claim but decides to go down the route of the Press Council, the Press Council can require the publisher to issue a right of reply. There is also a provision in the Defamation Act that is not affected by this Bill, which refers to the right to make amends, whereby a defendant can say they have made amends to the person who was defamed.

Senator Ruane asked about the public interest and how the legislation discusses whether something is for the public benefit or in the public interest. The new provision simply limits this to the public interest. We are better off not having different types of standards such as public benefit and public interest. I am trying to simplify the section 26 defence. This is part of the reason we have removed the section regarding publication being of public benefit also.

I will now deal with what Senator Mullen stated in his contribution.Senator Mullen spoke about section 26 operating in a preventative way and that he wished to ensure it continues to operate in that preventative way. That is not the intention of the section, however. It is not there to prevent stories being published. There are other aspects of defamation law to deal with that. We have the provision dealing with a defamatory statement where something is said that lowers a person’s reputation and the right of reasonable members of society. The rest of the Act sets out the protections for the right to one’s good name. Section 26 is not supposed to be there to prevent people publishing stories. As I said at the outset, it is there to ensure that some level of protection is given to articles published in the public interest in respect of which the publisher has gone to lengths to ensure they have checked their sources and verified the story.

Senator Mullen asked me to provide an example of where this section would apply. As Senator McDowell mentioned, section 26 was invoked unsuccessfully in the case involving Mr. Gerry Adams. You could certainly think of situations where a broadcaster or a newspaper has carried out a thorough investigation into something that is clearly in the public interest. For example, by looking at the performance of functions of a statutory agency, a newspaper or broadcaster might have been able to establish there were deficiencies in what a statutory agency was doing, it was not fulfilling its statutory role and that was having a significant negative impact on the public. Clearly, that is a story that is in the public interest. However, within the story, they may have stated something that was not correct in respect of, say, an official at senior management level within the statutory agency or someone on the board of the statutory agency. That may be troubling for that individual who could say they were not responsible for any of that. The purpose behind this, however, is to provide some broader protection where the substance of the story is true but one part of it is wrong in circumstances where the publisher has gone to significant lengths to ensure the story is properly inquired into and investigated.

Senator Mullen also spoke about section 26(3) and expressed concern about the fact that, “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.” This is in respect of defamation action brought where there was an accurate and impartial account of a dispute. In the first instance, it has to be an accurate and impartial account of a dispute.

Indeed, Senator McDowell asked what we are talking about with this subsection. We are trying to provide some form of statutory protection to the reporting of a circumstance such as the following example. I will use the example of a dispute in the Government between two Ministers, where one Minister says he believes the other Minister met a specific individual while fulfilling a part of his ministerial functions, while the other Minister denies this. There is a significant dispute between these two Ministers in respect of this matter. From a newspaper’s point of view, it is in the public interest that it be able to report the fact that there is an ongoing dispute between two Ministers. It could alternatively be between two senior officials in a statutory body. The newspaper’s ability to report on the matter is in the public interest. What we are seeking to do here is to say that they do not have to identify which one of the disputing Ministers or officers in the statutory body is correct. It does not have to be checked whether the publisher is making efforts to figure out the truth of it. The story and the fact that there is this dispute is in itself in the public interest. It should be reported without the necessity, as is generally the case, of verifying the truth of the imputation conveyed by it. Obviously, the truth of the imputation by the Minister in my example is that the other Minister had been involved in wrongdoing by seeking to meet this other person whom the other Minister denies meeting. The purpose behind the drafting of this provision can, therefore, be seen. It is designed to deal with disputes that clearly have to be in the public interest.

Senator Mullen also mentioned “watch-doggery”, and he referred to “selective watch-doggery”. It is unquestionably the case that newspapers in Ireland do not have to be impartial or objective. There is no requirement on any newspaper to be impartial or objective. They can be as completely biased as they want to be. That obviously applies to online publications as well. The only time the State imposes an obligation on a publisher or broadcaster to be impartial and objective is when it is providing them with a licence. The Broadcasting Act imposes obligations on broadcasters to ensure impartiality and fairness in the treatment and broadcast of current affairs. We have to recognise that newspaper can have a political agenda that suits them. They do not have to be fair or unbiased. They are entitled to put forward opinions that other people disagree with.

Senator Mullen mentioned the case of Fr. Kevin Reynolds. That is an example of someone who was the subject of a significant, damaging and defamatory story, who did not have much wealth or influence, but was able to vindicate his good name because of the defamation laws. That will not change under the current legislation.

Senator McDowell came in and he started by mentioning a third form of canine that has been mentioned today, although I will not get into that. He probably makes a valid point in stating that, with juries gone, section 26 will probably become more navigable. The judge hearing the case will be able to apply and operate the difficult statutory scheme in a more navigable way than would be the case with a jury.

Senator McDowell recommended the removal of section 26(1)(c) of the Defamation Act 2009. I know he is just putting this forward as a recommendation and I will consider it. Section 26(1)(c) imposes the requirement on the publication that, “in all the circumstances of the case, it was fair and reasonable to publish the statement.” I wish the Senator to note, however, if that is removed, my understanding is that all of section 26(2) would be removed because it states: “For the purposes of this section, the court shall, in determining whether it was fair and reasonable to publish the statement concerned, take into account such matters as the court considers relevant including any or all of the following------