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

We will come back to that. Part of the reason the media in Ireland are responsible and careful is the defamation laws, which have had a positive impact on Irish journalism and media. You know if you read something in a respected Irish newspaper that it is, to a large extent, true and if they get it wrong, that will be established fairly promptly. I note Senator McDowell's point about the Press Council. It is preferable if the new section 26 is not just limited to people who decide to become part of the Press Council. We need to ensure that if there is a statutory defence available, it should be broadly available to anyone who comes within the parameters of the defence. It is important we do not limit this defence to journalists. We all know the world is extending; there are activists and people involved in academia. We talked about the person in the room on his own with his computer. If he complies with the test, prepares a well-researched publication, makes the necessary inquiries and checks that are reasonable to expect of the defendant and what he is publishing is on a matter of public interest, if he reasonably believed publishing the statement was in the public interest and if the statement was published in good faith, notwithstanding the fact that he is up in an attic, he will get the benefit of that defence. He should be entitled to that defence in the same way as an editor of a newspaper sitting in a larger office will be entitled to the benefit of the defence as well. We cannot assume that just because someone is a solitary sole operator, their intentions will be malign. The test should apply across the board.

It is hard to give examples of the type of defence that would operate or how it would successfully operate. I do not like referring to cases particularly as Minister for justice but as I said earlier, the BBC did not succeed in its defence in the case brought against it by Gerry Adams. There have to be some cases out there that will get the benefit of section 26. It has not happened to date. If it has been there for 14 or 15 years, it is surprising that there has not been a successful vindication of that defence to date. I note what Senator Mullen said in respect of that. It is not the same as saying there has not been a prosecution and it is not working. While there have been many defamation claims and many examples of where section 26 has been pleaded and relied upon, it is surprising we are not able to identify one example of where it succeeded. It is important to note the justice committee made a recommendation in its report that section 26 be simplified. I know what Senator McDowell said about the Dáil being quiet about it but it had an opportunity - in pre-legislative scrutiny or in the review of the Oireachtas committee's report - to look at this.

I will compare section 26(1) as it exists at present with the new section 26. The substance of the current law is set out in section 26(1). Section 26(2) just provides examples the court should take into account. Section 26(3), I think, says something that does not necessarily have to be said. The substance of the defence is section 26(1). At present, it says it is a defence to prove that:

(a) the statement in respect of which the action was brought was published (i) in good faith ...

That is in the new provision as well. In the course of, or for the purpose of, the discussion of a subject of public interest is also in the new provision. The Act continues, "the discussion of which was for the public benefit". That has been removed. I think the reason, as I explained earlier in response to Senator Ruane, is it makes it very complicated to have that addition. The third comparison is, "in all of the circumstances of the case, the manner and extent of publication of the statement did not exceed that which was reasonably sufficient". That is not included in the new one. The last is, "in all of the circumstances of the case, it was fair and reasonable to publish the statement." The new provision states, "the defendant reasonably believed that publishing the statement was in the public interest". I will reflect on that to see whether it is necessary to include the word "fairly" again. It is also important to note that subsection 2 of the proposed new section 26 says that for the purposes of determining whether or not the defendant reasonably believed publishing the statement was in the public interest, that belief must be "arrived at after the making of such enquiries and checks as it was reasonable to expect of the defendant." It is not a million miles away from what is there at present but it is an effort to make it more manageable.

I note Senator McDowell said not one comment on this debate had been published. That is reflective of the fact that newspapers do not have to be objective or cover debates one may believe are important but they decide, for their own interests, they do not wish to cover.