On 1 December, my Department organised a conference on defamation in the context of the Report of the Legal Advisory Group on Defamation and the commitment in the programme for Government to reform the law on defamation. I was gratified to see present at that conference a wide range of representatives from the major sectors of the Irish media. It was a very successful conference and I will draw today on some of the elements of my presentation on that occasion. I pay tribute to Senator Jim Walsh who was the only Member of this House who managed to get along to it. There was a good robust discussion at that conference, to which he can testify, with a wide range of views expressed by participants. I expect that all the contributions received on the day, as well as others received prior to that day, will soon be available on my Department's website to further assist and inspire further contributions. I did not respond to the issues raised on the day of the conference because I was there in a listening mode and decided it would probably be wiser to let everything sink in a little more. This debate is appropriate given that I have provided for a consultation period up to the end of January 2004. As I was in listening mode on that occasion, I stress that I am also in listening mode here today.

Last Friday, 5 December, I spoke at a symposium on freedom of expression organised by the Law Department of Trinity College Dublin. I note that in the intervening period a very important address was given by Onora O'Neill of the Royal Irish Academy on a related topic. I noted that growing attention was being paid to the right of freedom of expression and the responsibilities that flow from the exercise of that right. Given that the concept of freedom of expression or free speech is presumed to be a fundamental right in a modern democracy it is rarely subject to critical scrutiny. We are concerned here with something that is the very essence of a democracy – the right to communicate facts, opinions and comment.

Bunreacht na hÉireann may have been adopted as far back as 1937, but it still provides in Article 40 that, subject to public order and morality, the State guarantees liberty for the exercise of the right of citizens to express freely their convictions and opinions. Free media have always been taken as one of the essentials of an open and democratic society. One of the founding fathers of the United States, Thomas Jefferson, asserted on the principle of free speech, "If it were left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter." That pronouncement, while understandable when viewed from the perspective of the Revolutionary War in America towards the end of the 18th century, is perhaps today somewhat less reasonable, given the way in which so much of the newspaper industry is now sensitive to market forces, concerned as much with profit, shareholder value and market share as it is with the dissemination of what can be termed "news" and opinions. However, it must also be said with some regret, and I hope I will not be accused as I have been on occasion of shooting the messenger, that there has been an element of dumbing down of much of the print media and, to a lesser extent, the broadcast media. Nevertheless, our courts in recent times have upheld the role of the media as important in holding up a mirror to society and as upholding the citizen's right to be informed.

In a democracy government is accountable to the people. In those circumstances it is apparent that the people must be informed about what is going on in government, otherwise accountability means nothing. No one would suggest that government alone should inform the people of what it is doing, though in recent times many developed democracies as well as the emerging ones have introduced processes whereby government is seen to be more open, more transparent and more accountable. There still needs to be an independent mediator. Classically, in a democracy, that is a role assumed by the press which acts as a kind of watchdog on the affairs of government, mediating between the people and their government and what it is doing. Another American, Abraham Lincoln, once famously said, "Let the people know the facts and the country will be safe."

Senators will be aware that the programme for Government of 2002 contained a commitment that the Government would move, in the context of a statutory press council and improved privacy laws, to implement reforms of libel laws designed to bring them into line with those prevailing in other states. We are now at a key point in a consultative and legislative process which I hope can take us all the way through to a reform of the law on defamation. The focal point of this process was the Report of the Legal Advisory Group on Defamation, which was published in June of this year.

When I brought the report of the advisory group to Government in June 2003, I emphasised, and I emphasise again to Senators today, that the group's report was not a report by me to Government or a report of the Government. No decisions in respect of the substance of the contents of the report have yet been made. I emphasise that because yesterday I noted that the first few lines of an editorial in The Irish Times announced that I was retreating from my proposals to have a Government appointed press council. I do not know how many times I have to say that was never my proposal, is not my proposal and, in all probability, will not be my proposal. What the Government agreed was to have a consultation period, before any action might be taken on foot of the recommendations, which will run until the end of next January.

I hope today's proceedings will prove to be a valuable step in the consultative process feeding into one of the most important legislative processes that will occur in the lifetime of this Government. I have committed myself to a consultative approach because the issues with which we are dealing are of huge importance. As I said previously, reform in this area is not just another process of modernisation or policy initiative. It is not an area for casual experimentation but one of such serious importance that we have to get it right. I trust Senators will bring a sense of perspective and informed comment to the consultative process.

This is not an area for casual experimentation or adventure. Any change in this area must be carefully thought through in all its implications. We cannot afford to get this process wrong. Therefore, I make no apology for proceeding carefully and with a degree of circumspection nor for engaging in consultation and reflection. On the contrary, any other approach would be inexcusable, bearing in mind the vital importance of the subject matter.

It might be very useful to record some of the recent milestones in the area of defamation law. The key milestone in the process towards reform can be said to date from 1991, with the publication of the Report of the Law Reform Commission on the Civil Law of Defamation. In May 1994, the National Newspapers of Ireland published a draft defamation Bill. Their Bill was largely based upon the recommendations contained in the Law Reform Commission's report. The main differences were that the newspapers wanted the complete abolition of juries in defamation actions; that the making or offering of an apology should be taken into account in awarding damages; and that defamation actions should be commenced within one year of publication. The Progressive Democrats published a defamation Bill in 1995, which dealt with three separate areas, civil defamation, criminal defamation and contempt of court. That Bill was not voted down on its Second Reading, but was effectively parked by the then Government.

The Report of the Commission on the Newspaper Industry, which was published in June 1996, took the view that changes in the libel laws were necessary. The report dealt with issues such as the balance between privacy and press freedom and the introduction of an ombudsman for the newspaper industry to deal with complaints from the public.

My predecessor as Minister for Justice, Equality and Law Reform brought forward the scheme of a defamation Bill, which was agreed by the previous Government in December 2001. However, while that proposal is still extant, its progress has been influenced by developments, not least by the passage of time, the appointment of a legal advisory group and the commitment in the programme for Government to bring about change to bring Irish law into line with that prevailing in other countries in the context of reform of the law on privacy and the establishment of a statutory press council.

The Government had accepted for drafting a Bill in December 2001. However, when I became Minister, I felt that, in view of new commitments in the programme for Government, further exploration of certain issues was necessary. In that context, I established the legal advisory group in September 2002 to assess the legal changes that may be required if Ireland's defamation laws are to be brought into line with those prevailing in other states. This initiative was designed to give effect to the commitment in the programme for Government. The group was given three broad terms of reference, which are well known. The advisory group report contains 23 separate recommendations. The media coverage and comment since the publication of the report have perhaps understandably focused mainly on the statutory press council. There is a number of other important recommendations in the report which have not been the subject of much media comment or analysis, for example the proposed new defence of reasonable publication, the suggested re-balancing of the role which judge and jury have currently in defamation actions that are commenced in the High Court, the Circuit Court to have jurisdiction in all defamation claims where the amount of the damages claimed does not exceed €50,000, a suggested one-year limitation period, as the NNI suggested some years previously, and the enshrining in legislation of a defence to be known as the "defence of innocent publication" that would be available to, among others, broadcasters, distributors, printers and Internet service providers. A suggested text for a new defamation Act that would replace the Defamation Act 1961 was put forward by the advisory group, which was very useful. Since we are concerned with a potential legislative outcome it is very informative to see how the recommendations translate into legislative form.

Many of the recommendations put forward by the Law Reform Commission in its Report on the Civil Law of Defamation were endorsed by the advisory group. Among those were the recommendations touching upon the making of an apology, court lodgements and the rationalisation of the defences of absolute and qualified privilege. It is a mark of the excellence of the work done by the Law Reform Commission that the report it prepared on this topic remains so influential and that so much of it has been adopted by all involved, from whatever perspective they have approached this topic of reform.

Senators will also be aware that from 1 January 2004, the European Convention on Human Rights Act will require every Irish court to interpret every judgment made on statute law in a manner compatible with the provisions of the ECHR. The most interesting implication of this change in our law of interpretation is that long-established rules of common law will fall to be re-interpreted as necessary to make them fully compliant with the ECHR and the jurisprudence of the Strasbourg court. The somewhat different treatment of subjects such as privacy, reputation and freedom of expression which appear in the texts of our Constitution and that of the ECHR will have to be reconciled, bearing in mind that the Constitution always takes precedence in Irish law over any international convention. In that context, Dr. Gerard Hogan made a very interesting contribution in which he stressed that the differences between European convention approaches to privacy and defamation and the approaches of our own Constitution were not very substantial.

Much of our defamation law is contained in judge-made rules and rules of court which deal with topics such as the onus of proof, lodgements, apologies and the law relating to privilege. Other aspects of our law are to be found in the Defamation Act 1961. The coming into effect of the European Convention on Human Rights Act as part of our domestic law is bound to put hallowed principles of law and practice under the spotlight and is likely to result in different attitudes and emphasis in the future administration of our defamation laws by the courts. I mention the ECHR because the changes embodied in the new ECHR Act have the potential to alter the tone if not the entire substance of the debate on defamation law reform.

Another interesting matter on which I will not dwell too long is the case of Callaghan and Hunter v. Blom-Cooper in which on a preliminary issue Mr. Justice Aindrias Ó Caoimh in the High Court delivered a judgment on 31 July 2003. That judgment was the subject of a law report in The Irish Times recently but it has not really come to public attention. In that case, the author of a pamphlet is being sued for defamation by two members of the Birmingham Six. By way of preliminary issue, the author brought to the courts the proposition that by definition his pamphlet was an exercise in free speech and could not be unlawful. He sought to have the case decided in limine on that basis.

As Attorney General at that time, I was joined as a party to that preliminary issue by order of the court. I can furnish to Members of the House the submissions made, but briefly, the submissions made by the Attorney General were to the effect that the right to publish statements concerning matters of public concern was wider than had been previously generally recognised and that in some cases statements of fact, as distinct from statements of opinion, might be privileged from action in defamation as a necessary adjunct of the freedom of expression guaranteed by the Constitution and by the European Convention on Human Rights.

Judgment in the matter was reserved and delivered at a point after the holding of the last general election, the publication of the programme for Government and the establishment and report of the legal advisory group. In brief, the High Court has held that a defendant can avail of the reasoning set out by the House of Lords in Reynolds v. Times Newspapers. Mr. Justice Ó Caoimh stated the following: "In considering the various authorities open to this court I am persuaded that the flexible approach represented by the decision of the House of Lords in Reynolds v. Times Newspapers is the most appropriate way of approaching the problems in the instant case in the absence of a clear legislative framework." In effect, the court ruled against Mr. Blom-Cooper's submission that publication of his pamphlet was per se protected by the Constitution and the ECHR but allowed him to amend his pleadings to invoke the privilege accorded by the Reynolds decision. In short, the Irish common law of defamation has moved on since the programme for Government was published and the consultative process was commenced.

The question is raised by the quotation cited as to whether it is now necessary or wise to attempt a statutory reformulation of that aspect of the law, either along the lines of Reynolds or along the lines of Australian and New Zealand cases, the approach of which was rejected by Mr. Justice Ó Caoimh. It could be argued that the decision in the Blom-Cooper case delivers in part on the Government's stated intention to align the Irish law of defamation with defamation laws in comparable common law states. On the other hand it could be argued that the Reynolds formula suffers from a good deal of uncertainty and that a clear statutory reformulation is desirable to make the developing common law in this area more certain. This latter argument presumes that there is a clear statutory reformulation available which would be sufficiently flexible to allow further development and qualification of the privilege. I have not come to any fixed conclusion as to whether this matter should be the subject of express legislation. I can see arguments both ways.

One of the most publicised recommendations of the advisory group was to establish a statutory press council with functions which would include the preparation of a press code of conduct and the investigation of complaints concerning alleged breaches of that code. The report sets out in some detail the main features of such a proposed council, including matters pertaining to its operation and structure. Its draft defamation Bill contains a template for the legislative intervention which the group believed would be required were such an entity to be established.

In proposing the establishment of a statutory press council, the programme for Government did not attempt to define in advance the nature or composition of such a body. It seems obvious that there is not and never has been any legal inhibition on the press in Ireland establishing a voluntary press council if it wished to do so. A purely voluntary press council would of course have no legal authority and no enforceable remedy as a matter of law. I stress that the term "statutory" does not necessarily mean a council of the nature and composition envisaged in the advisory group's report. It certainly does not mean that the Government of the day should seek to appoint the members of a press council as a matter of executive discretion.

The model in the report envisaged, as Members are aware, the appointment by the Government of a press council with substantial statutory powers to procure compliance with its rulings. There are two fundamental issues here which should not be confused. The first is whether a press council should be statutory or purely voluntary. That issue raises the question as to whether a press council, if it is desirable in the first place, should have power or status of any kind in statute such as to require the press to implement any finding made by it arising out of a complaint by a member of the public. Returning to the defamation conference, there seemed to be a consensus that any worthwhile press council would need statutory underpinning of some kind, no matter how the council was composed or who was appointed or elected to it. For very simple reasons, such as giving some form of legal privilege to its reports, that would be necessary. It has happened on occasions that an editor has apologised as demanded by a solicitor acting on behalf of a person claiming to have been defamed, immediately following which apology the journalist has sued the editor for defamation. If one has a system whereby there is any formal intervention in the suits between newspapers and those written about by newspapers, it is almost by definition requisite that there should be some form of statutory protection, at least from legal suit, for that council.

The second issue is as to whether, if a press council is statutory, it should be Government appointed or whether it could be otherwise constituted, for example, elected or nominated by bodies or groups which would be expected to create a balanced press council. The model examined by the legal advisory group is by no means the only or most obvious model for a statutory press council. I could easily envisage a body chaired by a judge and composed of nominees of a variety of groups to reflect the different interests involved. Such a body could reflect the interests of the public, media owners and journalists. The public interest might be represented in a number of ways, one of which might be a form of proportionate selection by elected public representatives to ensure that the Government of the day could never swamp the council with its sympathisers. Other models for the composition of a statutory press council may well be suggested. Some were suggested last Monday week, including the appointment of office holders, such as the Ombudsman or others, to function ex officio.It is in vogue these days to query the principle of self-regulation. As I said at the Department's seminar, I am not convinced that self-regulation is a bad thing in a democratic society. The media are now hoisted by their own petard because they have been uncritical opponents of self-regulation without once hesitating to see what the effect of that logic would be if it were turned on themselves. I am reminded of the scene in A Man for All Seasons when Sir Thomas More is talking to William Roper about legal protections. More asks Roper if he would cut down every bush to get at the devil, to which the enthusiastic young Roper replies that he would. More then asks Roper if he cuts down every bush and the devil then turned upon him and the wind blew the other way, what protection would he then have? The media have been in a coruscating mode of attack on all forms of self-regulation but have suddenly found themselves the victim of their own logic and rhetoric. I go against the current grain and say that I believe self-regulation, in many areas, functions very well indeed and that the state need not control everything in society.

I equally believe that self-regulation must carry with it at least the notion that there are some rules to which injured parties can point in seeking redress from abuse of press power. That is the nub of the issue. Can press power be abused without defamation – by intrusion on people's privacy – in a manner which seriously injures innocent and vulnerable people? If so, are such people to be given any redress or protection from such non-defamatory abuse? If a newspaper proprietor or editor were to thumb his or her nose at generally accepted ethics and seriously injure an ordinary citizen would that be a case of "it's just too bad"? If the answer to the last question is in the negative, the question arises as to whether a statutory press council, however composed, should have some capacity to right wrongs or to deter future wrongs.

In the past there has been a suggestion that people who are wronged by the media should have some form of redress from a press council. What form of redress could there be? The defamation group's report suggested that a jury might decide to accord the new defence of reasonable publication to a newspaper because of the extent to which that newspaper toed the line with the press council appointed under the Act. That was not sufficiently stressed at last Monday week's conference. The report tied the notion of reasonable publication to a willingness to accept press council decisions and to act on foot thereof. There is a subtle logic to that. It connects together the notion of a responsible press being allowed greater latitude. If the Irish Daily Bugle, for example, constantly ignored the press council, the defence of reasonable publication might not avail it because the particular politician of whom the Irish Daily Bugle had asked its question may have felt he would not get a fair deal from the newspaper since it had consistently ignored press council rulings.

The chief executive of the Equality Authority wrote an article in a newspaper last Sunday week suggesting that a press council might be a vehicle for spreading equality values. That is not my purpose in proposing a press council and I would be wholly opposed to it. No matter how laudable or questionable equality values may be, the purpose of a press council is not to act as an organ of a new civic religion established by law to tell the media what line they must take on certain issues. An article such as Mary Ellen Synon's on the Paralympics, which was deemed offensive by most people, is one which it is possible to write, even if it is offensive, without infringing the law. We must be very careful before we go down the road of censoring people's taste and requiring them not to be offensive. That could turn us into a very suffocating society indeed.

The Government's programme links the three issues of privacy, public protection in the form of a press council and defamation law. The three issues are inter-related. I am more confident speaking to a political house than to other bodies in saying that in the world of realpolitik to engage in a bold adventure in one direction without being conscious of the need for balance would be politically naive. For me to do so would be naive if I were a backbencher, let alone a Minister. The three issues are connected and people should not imagine they can dine à la carte at a table on which they are set out. The interrelationship is set out in the programme for Government and I stand behind that sense of realism. I am open-minded on the exact substance and means of delivery of reform in each of the three areas.

I come to this debate with a personal prejudice in favour of free speech and against unnecessary regulation but with a desire to ensure that we have vigorous and inquiring media functioning in our society. What I am trying to do, and will do in the lifetime of the Government, is to bring forward a reform which is sufficiently balanced to bring behind it the weight of a political majority in these Houses. It is in that context that I particularly value the input of this House. I welcome the fact that this House has chosen to discuss the issue at this point as part of the process which will lead to that balance being correctly struck.

The law of defamation in this country is primarily governed by the Defamation Act 1961. Despite advances in technology and the increasing breadth of the media and the Internet, that Act, which is over 40 years old, remains in place and has not been amended to any great degree.

In recent times, there has been a near unanimous expression of support for the reform of the libel laws. In that context I find it wholly unacceptable that the Minister would seek to link defamation law reform with the regulation of the press. In October 2001, in a document entitled, Press for Change, Fine Gael published its proposals for a major overhaul of Ireland's outdated libel laws. The party broadly supports the proposed reforms as contained in the legal advisory group's draft Bill, however, it believes that the Bill as drafted fails to deal with many important issues.

Fine Gael believes that an apology should constitute real grounds for mitigation in court. Under the present regime, an apology made in good faith can be used against the maker as effectively constituting an admission of liability. This is wrong and needs to be changed. The early settlement of potential claims should be encouraged by lending legitimacy to apologies.

It is Fine Gael's view that the rules governing court lodgements should be changed in defamation cases so that the acceptance of a lodgement will be accompanied by a declaration from the court vindicating the complainant. By the very nature of the case, litigants in defamation cases go to court for vindication, not for an award of damages. If the acceptance of a lodgement were to be accompanied by a declamatory judgment, the vast majority of cases would be resolved far earlier than is currently the case.

It is the view of the party that juries should be retained in defamation cases. The abolition of juries in personal injury cases caused awards to rise sharply and their retention in cases of this nature is vital, particularly given the nature of tort. It would be very helpful if judges were allowed to issue guidelines to juries. An important addition to defamation law in this country would be the provision to allow a genuinely mistaken or inadvertent libel to be alleviated by an immediate apology.

Another important matter which the advisory group failed to deal with is that of deceased persons. My party is firmly of the view that the good name of the deceased should be protected. At present there is no protection and we have seen the consequences of the absence of such protection. In order to maintain balance between the parties in an action of this kind, it is important that the onus of proof remains as it is. It should continue to be the case that the defendant must prove the truth of the matter which he or she has published. Regardless of what model of press regulation is adopted, this side of the House wishes the reform of the defamation laws to be a priority.

My party is by no means a stranger to the important issue of press regulation. In October 2001, Fine Gael published its proposals for the regulation of the press in a document entitled Press for Change. We recognise that in any healthy democratic society a free and vibrant media is a key weapon in achieving greater accountability right across all sectors of society. Fine Gael supports an independent, effective and free press.

Apart from Fine Gael's contribution to the debate on this matter, the question of libel law reform and the newspaper industry has been the subject of a number of reports and submissions over the past decade. The Law Reform Commission published a report on defamation in 1991. The 1996 report of the Commission on the Newspaper Industry under the chairmanship of the former Chief Justice, Mr. Justice Thomas Finlay, formally recommended the establishment of a press complaints procedure. Seven years later these recommendations have still not been implemented.

In the Fianna Fáil-Progressive Democrats programme for Government, the present partners in Government undertook to reform libel laws in the context of a statutory press council. The Minister for Justice, Equality and Law Reform established a legal advisory group on defamation which published its report in March 2003. In addition to proposing a series of much-needed reforms of libel law, the advisory group advocated the establishment on a statutory basis of a press ombudsman and a press council. Both the Minister for Justice, Equality and Law Reform and the Taoiseach are on record as supporting these proposals.

As a result, there is a strong onus on the media to be responsible and objective in its reporting. While there must be room for comment and opinion in newspapers, there was a time when it was identifiable as such, but this is not always so now. Much straightforward reporting is laced with a degree of bias as it reflects the opinion of the writer. Given the influence such reporting has on society generally, that aspect should be examined. There is no difficulty with reading opinion or advice columns as long as they are clearly identifiable as such. Where such opinion occurs more subtly as part of reporting, however, it can have an undue influence on people.

It may be due to competition but sometimes the headline of an article has no bearing on its content. It is almost as if it is designed to be controversial and grab people's attention and, in the case of the front page, perhaps to sell the newspaper. I wonder if competition is lowering standards in this regard. We embrace competition in many areas of business because it is generally good, but in this instance I wonder whether it is having a converse effect.

At the conference we attended, the former chairman of the British Press Council, who is a Queen's Counsel, commented that the standard of journalism in Britain is very low. We may all have come to that conclusion independently, but it is interesting that someone in such an important position should comment in those terms. The secretary of the National Union of Journalists used similar terms to acknowledge that journalistic standards have declined in Ireland. That is worrying and it needs to be addressed. Unfortunately, over the past year, I have seen an almost paranoid response to comments made by people in public life or elsewhere that were critical of the media. The media would do better to stand back, reflect and ask whether there are some elements of truth in what is being said. In some of those instances, objective comment went out the window and there was no attempt to be fair in response.

Some interesting comments were made by representatives of the National Newspapers of Ireland, the NUJ and others who addressed the conference. Many, but not all, of those attending the conference were in favour of media self-regulation. That begs the question, however, that if the newspaper industry has been campaigning for ten years to change the libel laws, and at the same time there was a need for some sort of self-regulation, why has it not happened? Why was the initiative not taken? At this stage of the game, when it looks as if we are heading towards the establishment of a press council, that undermines the argument for self-regulation. I noted that, in a well presented and balanced argument, Mr. Fintan O'Toole took issue with the idea of media self-regulation.

It was a pity that more politicians did not attend the conference because many of the contributors displayed a strong bias against politics of every hue. I checked my notes on the conference yesterday and at one stage I had written "biased" and "almost paranoid" concerning some of the contributions. They spoke about politicians in terms where, if they had been talking about coloured people, Travellers or asylum seekers, they would be charged with incitement to hatred by making racist comments. We must have broad backs, however, to take such criticism.

I took note of one comment by an editor who said the press is there to challenge those who see themselves as being in power. There was nothing about analysing objectively or reporting critically and fairly; it was a case of "regardless of what they are coming up with, we are going to challenge those who see themselves as being in power". I thought there was an air of self-importance in the comments but a little humility does no harm, whether we are involved in politics or any other sphere of life.

I compliment the Minister on the consultative process upon which he has embarked. My interpretation of the conference was that it was an exceptionally good reminder to us to proceed very cautiously. The legal advisory group on defamation deserves to be complimented. It has come up with a comprehensive report at the invitation of the Minister. As he rightly pointed out also, the recommendations we are debating are theirs. They are not the Minister's or Government policy but it is important that we examine them and comment upon them because presumably the Government will make decisions on how they are to be implemented.

Interestingly, and I suppose not surprisingly, many who spoke from the media and newspaper industry at the conference said this did not go far enough in their view. My view is that they have probably gone too far and I would be inclined to recommend that smaller steps and a progressive approach be taken because there has been a failure of the law to balance the right of free speech and the entitlement to good reputation. If we tilt the balance wrongly, the damage to the individual cannot be undone whereas in terms of the right to free speech, it would be fair to say that that is reasonable. If there are limitations on it because of the libel laws they should be changed, but doing it in a progressive and phased fashion means we are erring on the side of caution in the face of the individual. Our Constitution is tilted in favour of the individual, and we should recognise that.

The defence of reasonable publication, where the purpose of discussion of some subject was for the public benefit, can be used as part of the defence. There are various other areas such as honest publication etc. which may need to be clarified and clearly defined. Otherwise, it could make it very difficult for an individual who has been defamed to obtain redress. In drafting the legislation we should be careful that is not the outcome of the whole process.

I welcome the fact that juries will continue to be involved in the process. The awarding of damages is an area that must be examined because the financial deterrent is the best deterrent for the media in terms of complying with regulations and indeed with a press council. Where there are frequent offenders in terms of decisions of the press council and the code of conduct in the area of defamation, a seven day closure would be imposed by the courts, as we did with regard to the pubs, perhaps on application of the press council.

With regard to the Circuit Court, the €50,000 limit should be increased to €100,000. The one year time limit to allow a person to make a claim for damages should be increased to three years. The question of lodgements in court is something which should be carefully examined. In cases where a lodgement is made and there is a denial of liability, if the court recognises there should have been an apology the lodgement should be set aside and should not affect the outcome in terms of the individual involved.

I believe in a press council and there is nothing inconsistent between giving it a statutory background and independence. After all, the General Medical Council and other organisations work within a statutory framework. The important aspect is independence, particularly in terms of an ombudsman, and that requires privilege of some sort. The people in this area should be encouraged to produce their own codes of conduct based on the best journalistic, sub-editing and editing standards. We have a better chance of getting compliance with that than something that is imposed. I agree with the Minister that we cannot legislate for taste and it is a mistake to try to do so. We have had sad experiences of censorship to which nobody would want to return. I congratulate the Minister on the approach he is taking. Having a public debate is vitally important and I agree with him that in political terms, issues are bundled and it is not possible to unbundle them.

I am conscious of time and the Chair's indulgence. I want to leave the Minister with a thought for the day which was brought to my notice by a former colleague, Senator John Horgan. This is a quote from Bishop Con Lucey speaking in 1937 in which he states:

A libel law which tends to kill criticism of public officials, slum landlords etc., except the criticism be clearly in the public interest, ought to be replaced. It is too much to expect any private individual who has damaging revelations to make to know beforehand whether these revelations will do good or not.

As Bishop Lucey is not always portrayed as an apostle of liberal values these days, I thought it was interesting that he had reached that conclusion and that he had got it in one.

In changing the libel laws we consider the interests of newspapers, big people and the rest of it but the people who are most pressed upon by the current libel laws are the little people. I have been libelled but I could not afford to do anything about it. Giving these people the right to have their name vindicated and their privacy protected, and balancing those two issues, is what the Minister is tackling now and I wish him well in his quest.

This is particularly true of murder and crime. After I published my proposal I was approached by the representatives of victims of crime. By raising the actual case of a woman who had been murdered, they made a strong point. The manner in which such a murder is reported causes serious offence to the family. For example, it may be constantly reported both in the print and broadcast media that a naked body has been found in the Dublin Mountains, which causes considerable offence to the victim's family who cannot do anything about it. When, on the anniversary of the murder, a member of the family goes to the newsagents to buy a newspaper, he or she will again see their close relative, their loved one, being written about in these terms, which causes serious hurt.

In addition, there is clear evidence of a bandwagon effect in the reporting of suicide. While it is correct that the media, particularly the regional media, have taken the issue on board by writing about suicide and its incidence, the manner in which it is reported is also extremely important.

With regard to anorexia, one remembers the Lavinia Kerwick story, at the edges of which was a degree of voyeurism. The case also resulted in dangerous reporting which amounted almost to the glorification of anorexia. At the time, I was informed it was glamourising the problem.

Standards have undoubtedly fallen in terms of racism and stereotyping as well as in the use of photographs of victims of crime, particularly people who have been killed. The reporting of issues such as race, immigration and poverty raises problems as regards stereotyping. In terms of the portrayal of women, one constantly sees photographs in newspapers of what I call men in suits, whereas it is rare to see women in such powerful environments. On the other hand, fashion shows and models are constantly reported in the media. These issues would be worthy of examination by a press council.

A press council is essential. I hope we can move away from the question of who is appointed to it and get to the nub of the issue, which is whether it should be statutory or non-statutory. As I stated, while I have not given up on self-regulation, I wonder if the relevant bodies are serious about it. How serious can they be if they argue on the one hand for an independent body while, on the other, calling for it to include legal protection? I call on them to sit down and listen to the views of the Minister and others, including Members of the House.

In establishing a press council, it will be vital to provide a clear mechanism for making complaints. As Senator Maurice Hayes pointed out and as we all know, short of taking a case to court, there is no way to get redress if one's story has been misreported, misinterpreted, misunderstood or one has a complaint to make. I ask the NUJ, the NNI and journalists generally to examine the model of the Broadcasting Complaints Commission, a statutory body appointed by the Government which works. There is no sense of political or other interference with the BCC, a body to which people can bring their complaints.

Having worked in RTE, I am aware that if one hears that a complaint has been made to the Broadcasting Complaints Commission about something on which one has worked, the matter is taken seriously on an individual, team and organisational level. There are, therefore, models for a press council. What the public wants is a body which provides decent redress if one takes a complaint to it. Therein lies the need for balance. On the one hand, it must have teeth while, on the other, it cannot operate in a heavy-handed manner which acts as a disincentive for the press to investigate and report.

The proposal by the legal advisory group on defamation on the grounds for reasonable publication is excellent. It seems to have broad support and is worth pursuing. It is well worth seeing if it can be given some sort of legislative and statutory framework. In that regard, the courts must have a role; otherwise, who will decide what is a reasonable publication?

The NUJ and the NNI should look carefully at these proposals. They should not respond with a gut reaction but look at the layers of issues that must be considered. The public must be included also in some way. The Minister should consider looking beyond the usual suspects and pillars. In terms of the media, it is not like an economic forum or a political matter. It is a much broader issue. The public needs to have confidence in the media and, in general, it has that confidence, but it is gradually eroding. The influence of British tabloid journalism in this respect has not necessarily been good.

I know politicians become very sensitive when they are reported or misreported. I know that access to the expenses claims of politicians under the freedom of information provisions, particularly in the local press, has caused a good deal of angst among politicians. However, that is something with which we will have to live. We cannot expect to be treated the same as the ordinary "Joe Soap", walking down the street. We are not like that; we are public representatives in the Oireachtas and our standards have to reflect that position. We leave ourselves open to considerable public scrutiny, but there is an issue of privacy, particularly concerning our families. That is something we have every right to ask to be protected and we should collectively take a stand on that not only to protect ourselves and our families, but also each other. That is not too much to expect. We stand for election, but members of our family do not and their privacy should not be invaded simply because they are unfortunate enough to be related to a politician.

I commend the Minister on his work in this area. He is clearly very committed to it. I am glad we have this opportunity to clarify, at least for ourselves, his thinking on the matter. I support his general view on it and wish him well. Once again, the thinking of bodies which have a clear interest in this matter should be in-depth, responsible and broad. I look forward to a legislative framework coming before the House in the next few months.

We need to achieve a balance, where if someone is defamed in an article there will be a way in which he or she can get redress without having to go down a legal road. He or she may not have the money or inclination to go that route. The argument in favour of self-regulation suggested that statutory controls were hostile to press freedom and that self-regulation was the only way the press could preserve its freedom. There is no doubt, as the Minister stated, that press freedom is a very necessary requirement of a democratic society and that it should be recognised that the free exchange of ideas and opinions builds the values that inform society. However, it does not follow that any statutory intervention runs contrary to that position.

It should be possible to establish some form of statutory body which would respect the freedom of the press and act in an autonomous way, while providing transparency and independence that would give the public confidence in the entire process. There is no real argument as to why the press and other media should not be treated in the same way as others. Perhaps we could have an all-embracing council which would involve both the print and broadcast media.

One of the best responses to a defamatory statement is a careful rebuttal. If anyone who makes a defamatory statement is shown to have got his or her facts wrong, he or she will lose credibility when someone responds with a hard and fast rebuttal. However, a rebuttal only works if the person is working off the same hymn sheet and he or she has the same capacity as the individual who broadcast or printed the statement in the first place. As very few people own television stations or newspapers, it is very difficult to take on the mass media. In that respect, free speech is not worth very much when one is up against the power of the media. There have been cases where people's reputations have been destroyed by media attacks. I do not know if the defamation laws are a satisfactory remedy in that regard. I do not think the person who sues for defamation manages, certainly in the short or medium term, to restore his or her good name. Most media organisations will defend and pay rather than accept they were wrong. As they have the money and the power, the individual is wasting his or her time in taking them on. This is an important issue and one on which the Minister has my blessing. There will probably be much more discussion and thought put into the process before we see the Minister in the House again with legislation on this matter.

Of course, the press are not plaster saints – I would not suggest that for a moment. Like the rest of us, they often make mistakes. They cut corners under pressure of deadlines or the fear of being beaten to a story by a competitor. Five or six years ago, around this time of the year, one radio station carried a story that the turkeys in a certain supermarket chain – not the one with which I am associated – had been poisoned. This was broadcast at 10.30 a.m. on the basis of a telephone call received at 10 a.m. and could have caused much damage. I visited newspaper editors and other figures in the media to ask them to act in a more realistic manner. Just one telephone call can do much damage. I could understand their sympathy with my position, but they also said that with radio stations and so on competing so actively, if there is a delay of half an hour listeners will become convinced they always hear the stories first somewhere else. I understand the competitive nature of the business and why people act the way they do. I am not talking about defamatory statements or libel only, but about the damage that can be done generally.

The media are increasingly ready to blur the distinction between what the public is interested in and what it actually needs to know. There must be an effective system of regulation of the media to accompany any new laws. Nobody is suggesting the media be given the freedom to do what they like in an unbridled fashion, but these matters are not excuses for doing nothing. Nothing excuses the extent of the foot-dragging that has been going on since 1991.

The excuse for the delay centres on an argument about the form to be taken by any regulation of the media. The media have consistently and strenuously objected to the form of statutory regulation the Government appears to favour, although having heard the Minister today I am not so sure, namely the commission or press council whose members would be appointed largely by the Government itself. I understand their reservations, but I cannot help feeling they are becoming unduly hung up on this issue. Nor can I help feeling that it has suited various Governments in the past, as it has suited every Government for the past ten years, to drag this issue out for as long as they possibly could. Even a press council, a regulated body appointed by the Government, would be much better than the unreconstructed libel laws in place at the moment. In opposing the kind of regulation that is proposed, the media may be looking for the best when they should be prepared to settle for what is good.

I have said many times there is a gap between the way we talk, as legislators, and the way we act. We are, for example, in the habit of frequently deploring the low regard in which the political process in general is held and the low regard for politicians in particular. While we go on talking, however, we are slow to do the very things that would help to rebuild public confidence and trust in the political process. I associate the libel and defamation issue with the political process because it is closely tied to political matters. Most of the people who have sued in the past have been politicians. Again and again we hear that journalists and newspapers have been gagged by the threat of libel action, either through direct threats from those affected or by their own legal advisers. We are told that some of the revelations now being made at the Mahon tribunal could have been in the public domain much earlier had it not been for the actual or feared threat of libel.

As long as we continue to drag our feet on this issue we deepen people's cynicism about our sincerity, yet at the same time we wish to make public life more transparent and to be more answerable to the people. What do the ordinary people think when they consider our failure to grasp the nettle of defamation and libel laws? They simply see it as a matter of politicians looking after themselves and their own interests. They see it as a defensive gesture by people and institutions that seem to have something to hide. We may argue against that, but I am talking about how the public views matters. The plain people of Ireland are not impressed by yet another Seanad session devoted to statements on defamation. What they want to see is a Bill on the subject, which will grab hold of the issue and drag our political processes into the 21st century.

This is the one question that should emerge from this debate: When will we see the long-awaited Bill to deal with libel? We have had the report of the Commission on Law Reform, endless other internal reports and interminable discussions, including debates such as this. The Minister has clearly been trying to get to grips with this matter in recent weeks and it has been interesting to see him place it high on his agenda. I hope we will now do something about it. I look forward to next month when the Minister, after listening carefully to the debate, goes about placing a law on the Statute Book.

I do not believe newspapers are particularly inhibited. Let us look at some of the other institutions. I recall a journalist was forced to produce a grovelling retraction of an article he had written about a former Taoiseach and his relationships with a bank and the way it had forgiven certain substantial loans. The bank denied it. The unfortunate journalist had to retract and grovel and now it has been revealed that the bank was lying through its teeth. That is an appalling indictment of such institutions. However uncomfortable it may be, it is important for individuals and institutions to tell the truth in these matters.

It is important that the individual is protected against the might of newspapers. For example, if one looks at mass circulation, the damage that can be done to a person is severe in terms of his or her reputation and standing with his or her neighbours, friends and so on. The newspapers have resources to fight these cases if they wish. I do not accept for one moment the notion that there should be a significantly lower burden of proof required for somebody in public life. Why should there be a lower burden of proof? I have a very simple principle – print the truth or pay the price. I would like that enshrined in the legislation being brought forward. Should they be allowed print lies and get away with it because somebody is in a position in public life? There is also the notion that items are published because it is in the public interest and the public has a right to know. Does the public have the right to know that the Queen has a plastic toaster? What public interest does that serve? It is of no public interest whatsoever. It is major intrusiveness and, as far as I am concerned, it is intolerable.

There is a concentration of power in the hands of newspaper moguls, such as Rupert Murdoch. Luckily, our local variant, Sir Anthony O'Reilly, is a reasonably decent man, but that is an accident. He could easily have been a twin of Rupert Murdoch. If that was the case, where would we be?

Regarding the hypocrisy of the newspapers, I laugh at the squawks that come from every newspaper in the State about how they are battered into a corner and it would be appalling for the Government to appoint people or for anybody but themselves to regulate the newspaper industry. Are these not the same newspapers that lectured every other profession, including the Garda Síochána, lawyers and others, about the need for independent examination and that everybody must be seen to be objective, open, transparent and accountable – all except the newspapers? They say they will regulate themselves.

Let us look across the water at the neighbouring island and see what happened there when the newspapers regulated themselves. The Sun prints lies regularly, including an article about Elton John which stated he was at a party with rent boys and drug boys. He was not even in the country. He got damages of £1 million. The newspaper's circulation increased enormously because his name was on the front page. The Sun was delighted and was probably able to trouser about £500,000. We need to ensure the individual is protected in such situations.

I accept there are matters of public interest and they should be ventilated. It is appropriate that this happens. We are all relatively tough and seasoned in these matters and most of us are prepared to take a reasonable level of criticism on the jaw. What constitutes a public figure? Is a public figure just a politician? Is it permissible to have a lower standard of proof against politicians alone or lawyers, doctors or judges? What happens if somebody says something about a judge? There are complications there, but I had better not dwell on that area. I have just realised I should avoid that one, but I look forward to returning to it at a subsequent date.

It is important to look at the libel laws. Matters of public interest should be ventilated, but there is a real duty to protect the ordinary citizen. People who are accused, in particular, of rather nasty sexual crimes often have, as a matter of practice, their names, addresses and occupations printed in newspapers and they may be found not guilty. What happens then? That man or woman's reputation is destroyed forever. It should not be legal to print the name of an accused person until he or she is convicted because the printing of the name is part of the punishment. The argument is that it should be held in public. It is held in public in a public court. Those closest to it and those who have a real interest can be present in the court as is their entitlement. In my opinion, newspapers are not entitled to destroy the reputation of a person who is held and presumed to be innocent until he or she is found guilty. The newspapers do it every day of the week. I have even seen such articles accompanied by photographs. What is the redress for those who are innocent and have been so found by the courts? Their reputations have been destroyed by such matters being published in this manner. I ask the Minister to examine this matter.

We cannot generalise about the media. Provincial newspapers are doing an excellent job and write in a balanced way. Their editorials could be held up as examples of the quality of life that exists in this country. The local radio stations are open to anyone who wants to make his case and the standards are exceptionally high. The mainstream newspapers are, by and large, doing a good job, although they have taken a small step over the boundary and must pull back. It is fine to say this is what the public wants but if the public is fed a particular diet, how will it be weaned off it unless positive action is taken? The public does not want the sensational all the time, there is a discerning readership and viewership and these people want balance.

How many times have we read a newspaper headline then looked for substantive content under that headline only to find none, particularly in an evening newspaper like the Evening Herald? People pick it up at a railway station thinking there is a story in it but below the headline there is no substance. There is one reason only for the headline, to sell the newspaper. When the Kildare bypass was opened, I used it that night. When travelling on it, I thought of the wonderful progress we had made. I picked up the Irish Independent the next day and it did not mention the good side of the bypass, only the build up of traffic in Monasterevin.

The credibility gap between the media and public will grow and the media would do well to heed that instead of making outrageous assertions on "Tonight with Vincent Browne" that an innocent person can be demonised and the only opportunity of redress for him is to go to the High Court with the resultant costs and further publicity. That is not right and we must get back to reality. I am confident that we have the right Minister to see this through and it must be done as a matter of urgency.

Terrible things have happened, which are being exposed, and I am not taking issue with any of that. It must be worked through and the difficulties in society faced, but it is nonetheless the case that, even if it concerns only perhaps a small minority, there is a temptation to look for compensation or to threaten somebody that unless a sum of money is paid, the person making the threat will go public or make charges. If a person is taken into custody for a brief period, that person may be treated badly on the basis of the allegation alone because people assume that if such an allegation is made, it must be true. All of this relates to defamation. We need to be extraordinarily careful and realise that the climate creates some temptations and that we must find a way of separating the wheat from the chaff. The law should take a serious view of people who make accusations which, as has been said, destroy people's reputations, even probably if they manage to clear themselves of such false accusations.

Another area which perhaps needs further study by the Law Reform Commission or some other body is the question of defamation of the recently dead. I hope the Minister will not dismiss this point out of hand until I develop my thoughts on it. One cannot damage in a financial sense someone who is dead. I am not talking about damages but a person's reputation can be very precious, particularly to one's nearest and dearest, including one's brothers, sisters, children and, as applies to a few cases, parents and close relatives. We need a system whereby the reputation of a person who is recently dead can be cleared. It would have to be carefully drawn up. I refer to where malicious, false accusations and allegations – I am not talking about value judgments which is a different issue – are made with impunity against a person. What I have in mind is not that one would be able to seek damages as such, but that one would be able to seek the clearance of such a person's name and questions of legal cost might arise. There would be no pecuniary interest for the person making the complaint, but there could be some pecuniary cost in the sense of legal fees. This matter is worthy of consideration. I accept it would need to be looked at carefully and would not be easy to address.

The purpose of a press council, although one would not believe it having regard to some of the comments about it, presumably, is to provide an alternative to law courts where people can get redress without having to incur vast legal expense. That ought to be in the interest of the media as much as the individual. Most private individuals, no more than politicians, do not want to go to court. I have a strong view, although different people for whom I have worked would have a different view on this matter, that politicians should almost never go to the law courts unless they are accused of something of a personal and disgraceful nature. I am thinking of what Daniel O'Connell would have done a few hundred years ago; he would undoubtedly have challenged the editor to a duel.

Standards in journalism are important. The standards of the great majority of journalists are good. Most of the journalists and editors I meet are trying to do their best. There is no doubt about that. I fully endorse what Senator Ó Murchú said about what used to be called the regional media, including regional radio. They have set very high standards. One does not hear massive complaints about lack of fairness or balance there. This is interesting. The regional media give a fair crack of the whip to both sides of the political debate. Even if they have a prejudice they tend to be reasonably restrained in the way in which they allow that prejudice to show itself.

Senator Ulick Burke mentioned the FOI Act. I make no apology for saying that the Freedom of Information Act originally in place had gone too far in the wrong direction and needed to be corrected. In matters governmental, transparency is not necessarily a good thing. I know that remark will probably attract some obloquy in the fullness of time, but there must be privacy. It must be the case that if a Minister for Finance is proposing something with which I radically disagree, I am entitled not merely to say so orally at a Cabinet meeting, but to send him a memorandum strongly opposing his suggestion. That applies right through my Department. If I ask my civil servants in the Department of Justice, Equality and Law Reform to prepare a position to oppose some proposition coming from another Minister, that entire process should take place privately. If it does not, then either the comment or analysis is neutered because it will be in the media within a couple of weeks, or else the response is confined to yellow Post-Its or to paper which is shredded, or written on the backs of envelopes. That is completely unacceptable.

Among Departments and Ministers, for example, the very essence of democratic government is that one is entitled to elaborate on and develop one's case in privacy, because one is leading to a Cabinet discussion and decision which will take place in private. I make no apologies for the protections which were introduced regarding the deliberative process. They were necessary. I have already said in public that the stance taken by the former Ombudsman in this matter was unduly aggressive in trying to tear down that kind of privacy, so much so that where we had a clearly established routine whereby political parties could ask the Department of Finance to cost their political proposals on budgetary matters with a view to improving the degree of responsibility that attaches to the democratic process, and whereby people could present a tax strategy which they wanted assessed in the context of an election, that was to be done in private. Could anything be more sensible or more high-minded than that public servants would conduct that service in private even for Opposition Deputies? Could anything be more wrong-minded than to imagine that the Freedom of Information Act required or could even create a situation where one party could then apply to find out what another party had been up to in terms of costing proposals? Could anything have been more wrong-minded or muddled than to think the public interest would be served by this? Nevertheless that much-decried Freedom of Information (Amendment) Bill had to protect this aspect of privacy from aggressive implementation of the Freedom of Information Act.

What have we got now? The deliberative process is to be thrown open to the public gaze after ten years, whereas the figure in the neighbouring jurisdiction is 30 years. We are then told that some terrible fascist, oppressive, regressive legislation was imposed on the Irish people.

Sometimes – I will not identify the newspaper concerned – when I wondered at some of the stories printed about me, I asked the press officer in the Department of Justice, Equality and Law Reform to contact the person whose name appeared on the byline of the story to say it was not true. I received the response that the journalist did not exist but was a name of convenience used by three journalists, on occasion, as a byline. Are the National Union of Journalists and the National Newspapers of Ireland willing to put up with the pretence that people exist and have written stories when, in fact, the name is completely imaginary or chosen from a telephone book? If that is ethical journalism, I do not know what matters are coming to.

It was wholly wrong that Deputy Ciarán Cuffe, who moved his share portfolio from oil shares to other shares and bought into a company that manufactures condoms, should see a newspaper headline which read, "TD linked to porn site". I agree with the Members on both sides who pointed out that headlines frequently bear no relationship to the reality. One of the most unfair aspects of journalism is that perfectly sensible stories are given wholly unfair and damaging headlines in order to attract readership, particularly, as Senator Ó Murchú mentioned, when the headline is placed on the front page in order to persuade people to lift up the newspaper. If there is any degree of integrity in a newspaper, its headlines should fairly reflect what is to be read in a story.

I am not on a media bash. Democratic politics and an active set of newspaper and broadcasting institutions have a symbiotic relationship. One cannot survive without the other. There would be no journalism if we did not have a democratic system of government and there would be no democratic system of government if we did not have active journalists. They are two sides of one coin and anyone who thinks one can split the coin or bend it is foolish. I labour under no illusions in that regard.

Some people queried whether I am foot dragging on this issue. I am not. The last three to five months have been useful in flushing out people and requiring people to stand up their views. Even if I do not agree with everything in the expert group's report – it is not my opinion but the group's opinion which is contained therein, particularly regarding a press council – I believe it has done the State a magnificent service by flushing out people and forcing them to address issues which they had only half thought through. Today's proceedings will play a significant part in bringing that matter forward.

I am deeply grateful to Senators for this opportunity to address them and for all the thoughtful contributions made to today's proceedings.

Sitting suspended at 1.40 p.m. and resumed at 2.30 p.m.