Michael McDowell (Independent)

Before we put the matter to a vote, in fairness to Senator Mullen, he was not saying the purpose of this was preventative. He was saying that in many newspapers and out in RTÉ and various other places where publications happen, people would take a look at section 26 as it currently is and ask whether they are satisfying all these steps. That is what they would ask themselves. Is it enough for them to say they asked Senator McDowell for comment and he refused? They know they will not be able to rely on that in court, so that is not good enough. Senator Mullen was not saying it is designed to prevent people publishing things. On the contrary, he was saying that just because you cannot point out cases where section 26 was successfully invoked by a defendant, you cannot say it did not have an effect on publishers. That is his point and it is an entirely valid one. He is saying it is a checklist a newspaper or broadcaster would go through. They would ask whether they are satisfying the checklist or whether they are hoping that the fact Senator McDowell did not answer their Friday afternoon telephone call means that on Sunday they can publish X, Y and Z and that it will help them in some way in defending any proceedings that are brought. That is important. I agreed with the Minister when he said that if we removed section 26(1)(c), then we would have to change subsection (2) and we would have to have a knock-on effect of some kind if we were going to include the criteria that were not simply the fair and reasonable criterion.

The other thing the Minister says is he wants a single test for everybody. What is the single test for the guy in the boxroom at the top of a building in Rathmines? What is the test in relation to having made reasonable inquiries? Is it the same as that for the media? Is the Minister seriously saying a loner in his bedroom deciding to upload his accusation, or whatever it is, has the same onus on him to stand up the story as there would be on a newspaper? I make that point because it is so possible to defame somebody now by putting something out on the Internet without accountability, without any check and without anything like that happening. We will, as the Minister said, come later to what to do about anonymous publications but if he is actually talking about the loner in the boxroom in the house of flats in Rathmines, what is he asking him or her to do by way of verification before he or she makes an accusation? Is the Minister seriously asking him or her to knock on the doors of people and take witness statements from them, and the like? No, he is not.

Senator Craughwell mentioned the leaking of Garda information. Virtually every week there is a story that the Garda is investigating such and such. It is fine if it says, “Gardaí are investigating a gang of burglars operating in the Carlow region” or something like that, but if it is “Gardaí are investigating Senator Michael McDowell on suspicion of corruption", that is entirely different. It is an entirely different situation. The Minister referred to the prosecutions that have been brought, as they have been, but the only the reason they have been brought is that it became an arrestable offence to release information. Prior to that it was an offence under the Official Secrets Act, there was no power of arrest and there was a culture of impunity for a minority of gardaí who knew they could never be caught if they brazened out the matter. The genesis of the five-year penalty arose from the Commissioner of An Garda Síochána reporting that he could not control the flowing-out of information unless he had a power of arrest. It was not a desire on my part to start introducing a regime of fear in the Garda - on the contrary. If you could not arrest somebody or arrest the journalist to whom they had spoken, you could not prove the source of leaks from An Garda Síochána.

The good name of the citizen is not purely that of the citizen themselves but all of their family. Sometimes the family members deserve protection. When we come to Report Stage, there have to be amendments to this. It is not adequate to leave it in its present state. It has been pared down to the absolute minimum. There are no protections, really, for people who will be plastered all over the front page with a caption stating that so-and-so is under investigation for X. That is a simple statement of fact. The public should know about it, the journalists will say. They will say they are publishing it in good faith. That will be a full defence and thus it will be all over the Sunday papers that so-and-so is being investigated by the Garda for X or Y.