Michael McDowell (Independent)

There will be no obligation to come back and say, two weeks later, that by the way the Garda has dropped the investigation. Section 26 as originally proposed may have been a bit nerdy in terms of setting out all the hoops that had to be jumped through, but that was done as a result of very close political pressure – I will use that phrase – to ensure we did not sweep away the rights of persons in public life. It did not come into its present form on the back of a cigarette packet. There was huge discussion to get it into law at all. There was huge interaction between politicians to ensure protections were put in. If a Member of this House, or the other House, or somebody in a public position is being investigated by the Garda for corruption and the Minister’s amendment is put through, it can be the front-page story of any newspaper anywhere as long as the editor and the journalist who wrote the story believe in good faith it is in the public interest for the public to know that investigation is taking place. A point that I would throw out for the Minister's consideration is that we put protections around people who are accused of rape. Anybody accused of rape who is brought to court cannot be identified for good reason. If what is proposed comes into place, then any accusation of any other kind - be it in respect of a wife beater, a corrupt person, a bribe taker or whomever - in any ongoing investigation will be able to find its way on to the front page of any newspaper. There will be a 100% cast-iron defence given to the newspaper involved to the effect that it is true, that it was informed that it was true by a particular garda and that it saw the file. That story could, therefore, be published. The person against whom the accusation was made would have no access to redress whatsoever under the Minister's proposal. That is the bottom line. There would be no redress whatsoever if a newspaper says that it is in the public interest that the public should know the details of a case and that those details were published in good faith. Once those three criteria are satisfied, there is no point in suing. There is no point in asking why the details were put on the front page of the newspaper. Someone could not ask, "Why did you ring me up and say we are going to publish this unless you deny it?" All of that just goes out the window. A simple test.

I am not going to say that what is proposed is unconstitutional, but it is verging on the unconstitutional to say that that is a full defence for a person who is grossly damaged by a story of that sort appearing on the front page of a newspaper. All of us here know that if a story of that kind is published on the front page of a newspaper to the effect that one of us or a chief superintendent, a bishop or whomever is under investigation by the Garda for doing X, Y or Z, that is fine and there is nothing the person involved can do about it at all. That is what the Minister is proposing. Even if, as in Senator Craughwell's example, it is found that there is nothing to the story, the newspaper, RTÉ or whatever organ published it is not even bound to say a year later, "By the way, when we published that story, it turned out we were wrong, but we have a full defence under the laws of defamation."