Seanad debates

Wednesday, 13 December 2006

Defamation Bill 2006: Second Stage (Resumed).


Question again proposed: "That the Bill be now read a Second Time."

11:00 am

John Dardis (Progressive Democrats)
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I call Senator Leyden. The Senator has five minutes remaining.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I welcome the Minister of State at the Department of Finance, Deputy Parlon, and his staff and advisers from the Department to the House. When I discussed this Bill last week, we had an opportunity to consider it over the weekend. I read a very interesting article in the Irish Independent by an eminent journalist named Colum Kenny, in which he put forward a very fair and balanced view in respect of this Bill. However, one of the lowest forms of publicity was seen yesterday in an article about the former Tánaiste in the Irish Daily Star, which ran the headline: "Mary the Blood Sucker". Deputy Harney is an excellent Minister and a former leader of a political party.

I no longer believe that self-regulation is enough. I have changed my view since last week because of this article. I wish to name the editor of the Irish Daily Star, Gerard Colleran. The paper is partly owned by Independent Newspapers. I believe a front page apology should be given to this House. Deputy Harney is one of our colleagues and at a meeting last night of the Fianna Fáil parliamentary party, she was given an ovation when she entered the room. The article in yesterday's edition of the Irish Daily Star was condemned by the largest party in the country, which felt insulted by it. I call on Gerard Colleran to withdraw the article and issue an apology on the front page of the newspaper as quickly as possible.

It is so offensive that I find it hard to express the words. How offensive must it be to Deputy Harney's husband, Brian Geoghegan, and both the Harney and Geoghegan families. I will not say more, except to say that as a result of yesterday's edition of the Irish Daily Star, I now believe the Cabinet should reconsider whether we have a self-regulating press council or whether we need an independent press council. Before the article appeared, I believed the Tánaiste and Minister for Justice, Equality and Law Reform, Deputy McDowell, was very fair and went very far to try to come to terms with the newspapers.

Another point in respect of the Defamation Bill is whether an apology from newspapers is enough. Again, there is a question mark over self-regulation. Damages serve a punitive use. The Bill provides that an apology can be printed after a libellous article or as a get-out clause. I must commend RTE and TV3.

We are served very well with our television service and national broadcasting because we pay €150 per year in a licence fee to ensure we have balanced and fair coverage of all political parties and news items. However, they would never publish an article like that published by the Irish Daily Star yesterday. That newspaper sells for €1.30. Its readers should boycott it because of this article until the newspaper issue an apology. I would find it very difficult to buy this newspaper as a result of yesterday's article.

In respect of the Bill itself, the Minister of State may have an opportunity to look at this situation. The Irish Daily Star is partly owned by Independent Newspapers, which is the largest newspaper group in Ireland and probably one of the strongest such groups in the world. By association, the editor of the Irish Independent, its staff and the proprietors also come in for questioning in this regard.

Bearing in mind that one of the most of the scandalous publications concerned the late Liam Lawlor, I have made the point — it is provided for in the Bill — that a family can continue a defamation action even when a person is deceased. I was preparing a Bill called the defamation of the dead Bill. The Minister should seriously consider strengthening the section in the Bill dealing with the defamation of the dead. The Minister did not pursue it further. Such a provision is found in some jurisdictions, such as certain states in the US, including New Hampshire. Australia is also considering such a Bill.

There is nothing more valuable than one's good name. The graveyard is the greater equaliser and leveller of all. After a person, including anyone in public life, has died, anything can be said about them. Neither they nor their families can defend themselves. The proposed press council should be strengthened so that, at least, it will take up a case on behalf of a deceased person and if the family has proof, it can go to the press council and press ombudsman and have its case processed and published.

I pay tribute to the Lawlor family, including Mrs. Hazel Lawlor, who went through a very sad time because of the libellous statement published in the Sunday Independent.

Photo of Joe O'TooleJoe O'Toole (Independent)
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Do I have eight minutes?

John Dardis (Progressive Democrats)
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Senator O'Toole has ten minutes.

12:00 pm

Photo of Joe O'TooleJoe O'Toole (Independent)
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I welcome the Minister of State to the House. I have spent much time over the last week looking at both the proposals for a press ombudsman and press council of Ireland brought forward by the media. I have also read very carefully this Bill and the Privacy Bill 2006. I am completely opposed to some measures in the Privacy Bill. They are not right and go too far. I will not support the Privacy Bill as it stands because there are significant problems with it, which we need to look at.

However, today we are debating the Defamation Bill. Senator Leyden made a significant point when he spoke about the article in yesterday's edition of the Irish Daily Star. I agree completely with Senator Leyden. I thought the article was appalling. It brings us all into disrepute. The question is how we react to it. I read the article yesterday and examined how it could be dealt with under what has been proposed. The code of practice for newspapers and periodicals provides that newspapers shall at all times strive for fairness and honesty. I do not think any fair-minded person would consider what we saw yesterday to be fair. Under the privacy principle, the code of practice provides that readers are entitled to have news and comment presented with respect for the privacy and the sensibilities of the individuals. I make this point to perhaps argue against Senator Leyden. I agree with his response to the article, about which I felt embarrassed and saddened. It was completely over the top and unacceptable, but the real issue is how one deals with it. Can it be dealt with under the Defamation Bill and the proposals for the press ombudsman and the press council? It can be dealt with in this way. Some changes may be required and I will comment on those later.

I find the concept of a press council attractive because on each occasion the House has discussed defamation, libel and the press, Members always make the same point, namely, that people cannot seek remedies, redress or corrections without having recourse to the courts. Only those who can risk or who are in a position to raise large amounts of money can afford to go before the courts. Until now, therefore, the only way people could seek any kind of independent arbitration or redress was by taking that route.

The advantage of the proposal contained in the Schedules to the Bill is the fact that we will be in a position to establish a press council. This will mean that an ordinary person who has been defamed, badly treated, libelled or whatever by the press will be able to approach the press ombudsman, who will be independent, and he or she will be able to use his or her resources to investigate the complaint, reach certain conclusions and seek redress on behalf of the individual concerned at no cost. That is a major and important advance. The next avenue — still at no cost — open to the complainant will be that if he or she is not satisfied with the findings and conclusions reached by the ombudsman, he or she may appeal to the press council, which will also deal with the matter. For the first time, therefore, we will give ordinary people the right and the opportunity to have a matter corrected or to seek redress in a fair manner and at no financial cost. That is a major advance.

Most people who read something about themselves in the newspaper about which they are dissatisfied become concerned about their character, their reputation and what their neighbours and other members of their communities will think and they will want the information corrected. If an honest mistake has been made, it should be easy to correct. However, publishers state that they are often afraid to correct something because by doing so, they admit liability and stand open to court action as a result. That kind of nonsense creates difficulties and it is dealt with, to some extent, in the Bill. It is important that consideration be given to this matter.

I listened to Senator Norris's contribution and I know from where he is coming in respect of this matter. I have known the Senator well for 20 years and on more than one occasion he has been unfairly and badly treated by the media. I could place on record a number of examples in that regard. I have encountered similar difficulties with the media and, in preparing for this debate, I examined the way different newspapers dealt with me.

I had a serious argument with The Irish Times which, in my opinion, libelled me. I did not receive satisfaction but I was given the right to reply. I chose not to take the latter because it was not what I was seeking. The newspaper and its editor engaged with me on the issue and we argued the point. In the end, it was my decision whether I wanted to take the legal route. I do not know whether I will ever do so but I am not attracted to doing so. However, I would be attracted to taking the avenue offered by the establishment of a press council.

In respect of the next point I wish to make, I must declare an interest in that I am vice-chairman of the Personal Injuries Assessment Board. Independent Newspapers did a three-page hatchet job on the latter that was unfactual and wrong. We were able to prove, line by line, that the supposed facts contained in the article were incorrect and that it defamed and damaged the Personal Injuries Assessment Board. The difference between that and the experience I had with The Irish Times is that Independent Newspapers — it is very difficult for me to have sympathy for it in this regard — refuses to engage with the board. This is an example of how badly the press does its business. Is it any wonder it does not receive much sympathy?

What can we do to change the position? We can pass the Bill and move matters forward. However, there are a number of difficulties with the legislation. For example, I do not understand the concept of partial privilege. I may not be present in the Chamber — I will listen on the monitor or read the transcript of the debate — but I ask that the Minister for Justice, Equality and Law Reform comment on what I am about to say in his reply. What will be the position if a person has dealings with the press ombudsman and the press council, remains dissatisfied and then decides to take legal action? Will he or she be in a position to take such action? I am seeking to ensure that no existing right will be restricted or confined by the potential establishment of a press council or press ombudsman.

Section 16(3) contains a ten-line sentence. I am suspicious of such sentences and am of the view that it is wrong to use them. If the Minister of State, Deputy Parlon, has nothing better to do, perhaps he will read section 16(3) while I am commenting on it. We are presented with one long sentence, comprising a combination of sub-clauses, etc. and in my view it could be written in a more easily accessible way. The final part of the subsection states "[I]t is proved that the defendant was requested by the plaintiff to publish in the same medium of communication in which he or she published the statement concerned, a reasonable statement by way of explanation or a contradiction, and has refused or failed to do so or has done so in a manner that is not adequate or reasonable having regard to all the circumstances." Even in terms of punctuation, the use of a comma before the word "and" is somewhat daft. I do not know what purpose such a comma serves and I am quite nifty at syntax. I read the sentence in question on seven or eight occasions to try to gain some understanding as to what it means. It should be written in a way that Members and others can understand.

John Dardis (Progressive Democrats)
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The Senator needs to come to his own final sentence.

Photo of Joe O'TooleJoe O'Toole (Independent)
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I will do so. That was a nice link on the part of the Acting Chairman.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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Full stop.

Photo of Joe O'TooleJoe O'Toole (Independent)
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I take it that the phrase, "and has refused or failed to do so or has done so in a manner that is not adequate or reasonable having regard to all the circumstances", means that partial privilege is allowed in certain circumstances but that if a publisher refuses to implement what has been asked of it by the press council or press ombudsman, partial privilege will no longer be extended and that the complainant will be able to have recourse to the courts. I am interested in discovering the connection between the press council's deliberations and findings and the restrictions that will be introduced on foot of the long sentence to which I refer. Perhaps the Minister for Justice, Equality and Law Reform will indicate how a person may have access to the courts.

The greatest difficulty with the press council will be the lack of sanctions. I accept that, under the Constitution and the law, it might be very difficult to fine people. However, I would like the power to issue fines to be granted. I will table an amendment in this regard. Just as a public house can be closed for a period if its owners do not comply with the law in the context of selling alcohol to under age people or not complying with the smoking ban, I am of the view that a publication should be closed down for a number of issues or days if it transgresses. This would give the press council teeth.

It should be part of every editor's contract to comply with a code of ethics and with what is required of him or her under the legislation and by the press council and the press ombudsman. Editors should be required to do as they are bid by the press council or the press ombudsman. I expect to table a number of amendments for Committee Stage. I apologise to the Acting Chairman for exceeding my time.

Photo of Tony KettTony Kett (Fianna Fail)
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I welcome the Minister of State at the Department of Finance, Deputy Parlon, to the House. I also welcome the opportunity to say a few words on the Bill. The concept behind the Bill has been in gestation for some time. The Minister said that the National Newspapers of Ireland commissioned a draft defamation Bill in 1994. Few believed the Minister last year when he committed himself to being open-minded about the draft legislation. Having read parts of the Bill I can say that he has delivered on his word. The Bill may not have progressed much since 1994 simply because those proposing it might have been afraid of the outcome and what they had they held.

Defamation is a serious issue which needs to be addressed now. In drawing up the legislation the Minister must maintain a balance between freedom of speech and the right of an individual to his or her good name and reputation. Balancing those two rights can be tricky but at the same time the Minister must recognise that freedom of expression is fundamental to the workings of democracy.

Some journalists and commentators on this issue made off-the-wall claims that they should have an absolute right to write what they wish and that should take precedence over all other considerations. Those comments lie where they are because under no circumstances could that be the case. For example, the front page of the Irish Daily Star yesterday was outrageous. To malign someone who has given her life to politics in that way shows the newspaper up for what it is. That was not the first time the editor of that newspaper had been in the limelight for publishing such content. We have come to expect it.

Democratic society is entitled to a press for high standards and good ethics. When those two values are in place it is incumbent on the press to hold people like us to account if we are to be accountable to the public. That is the case in most democratic societies. The media, however, has no system of regulation. The only recourse available to someone who has a legitimate claim against the press is a right of reply. While the defamation may be on page one, the reply will probably be on the back page. Litigation is the only other option. There are few who can take on the power of the media. A balance is needed to give someone who is defamed redress without having to take that expensive route. The Bill seeks to achieve that and will deliver when the dust has settled.

I am not sold on the provision to appoint an ombudsman and an independent press council because the council is to include 13 members, seven of whom will be independent public figures, a further five will be drawn from the representatives of newspaper and magazine publishers while one member will be drawn from the National Union of Journalists and one of the independent members is to be chairperson. It will be the overall decision-making body in a new procedure to enable members of the public to lodge complaints about press behaviour. If six of the 13 members are all of the one ilk it would be difficult to achieve independence. Will there be a quorum for the meetings and will it simply make a stipulation regarding a number of people? If, for example, seven or eight is a quorum, if six of those who turn up religiously are the media gurus and they are like-minded, independence goes out the window. It may be that the quorummust comprise members of each group among the 13.

The Bill introduces a new defence of "fair and reasonable publication on a matter of public importance". That is a fair and reasonable point because it makes it harder for the individual to sue without good reason and protects the media. There will no longer be an admission of liability and if in court a newspaper apologises or lodges a sum of money that should not be seen as an admission of liability. Although we have not heard from the press it should be fairly happy with the Bill because it may have feared that the Government would appoint itself arbitrator.

Many people's reputations have been destroyed by outrageous reporting. The most annoying aspect of that is that even if an apology is submitted the following morning the damage is done. Mud sticks. Heretofore most media organisations preferred to fight a claim in court than admit they are wrong. Defamatory comment, even when it was wrong, sullied one's reputation and the only means of retribution was an expensive one.

We must be sure, however, not to stifle good investigative journalism of which we have seen many examples, including "Prime Time Investigates" last Monday night. A good story needs no embellishment. Headlines rarely bear any relation to the story below them and sensible stories may have outrageous headings. It is the nature of the business that headlines sell newspapers. Accordingly, newspapers with any degree of integrity should print headlines that match the content of stories. Unfortunately, democratic politics and an active newspaper industry need each other in equal measure. I hope the Bill can in some way assist members of the public to achieve a situation whereby nobody can be defamed or have their character taken without having access to reasonable redress.

Sheila Terry (Fine Gael)
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I welcome the Minister of State, Deputy Parlon. I regret that this important Bill has taken an undue amount of time to come before the House. That said, I welcome it. For all the reasons outlined by previous speakers, the Bill is urgently required. We need it now more than ever. More and more newspapers, especially British ones, are coming to this country carrying scurrilous articles. I refer in particular to the article about one of our senior politicians, the Minister for Health and Children, Deputy Harney. That type of journalism is unacceptable. It is disgraceful and a shame on the newspaper that carried it. We have seen other articles in the past that also leave much to be desired. I hope the measures contained in the Bill will help to improve the standards of journalism.

We are dependent on good investigative journalism and we have been well served by the media. There was a time when one could take anything one read in a newspaper as being factual. I still like to think what I read in a newspaper is true, but we know the ethical standards of some journalists are not as high as they should be. From time to time, certain newspaper articles have caused great hurt and upset and defamed people's character. This proposed legislation, which is overdue, should help to update our laws on defamation.

The press needs freedom to report accurately what is known to be true, but freedom of the press brings responsibilities, and we want to see these upheld. We want professionalism and high ethical standards in the press. There is a thin line between reporting factually and sensationalising a story. The Bill sets down the rules by which journalists must operate.

I welcome many aspects of the Bill, especially the setting up of a press ombudsman and an independent press council. The press ombudsman will provide the public with a forum for complaints about published articles and allow people to seek redress without having to resort to the courts. Heretofore, the majority of people could not afford to take on the press, no matter how strongly they felt their good name had been damaged. I welcome the fact that there will be more independent members on the press council than members of the journalistic profession. It is important that we strike the right balance. That, in itself, will help make it easier for people to seek redress.

I welcome the Tánaiste and Minister for Justice, Equality and Law Reform. I thank him for attending the debate. I regret that the families of deceased persons cannot seek to uphold the good name of deceased relatives, although if a case had been initiated before death, it can proceed. However, in some cases, the first time anything is written about certain individuals is following their death. Perhaps the Minister will clarify the reason he has omitted to provide redress for the families of deceased individuals whose good name has been called into question.

The defence of fair and reasonable publication on a matter of public importance must be coming from the press. The version of the new defence in the Bill is much narrower than that outlined in the report of the legal advisory group on defamation, which has claimed this is to be regretted. The stronger we can make the rules, the better reporting we will get and the more protection that will be afforded to individuals.

I welcome the Bill's provisions in the area of damages. Currently, libel damages appear to be a lottery. This was evident in the recent O'Brien case. I had better not say any more about that case as it may be appealed. It is difficult to understand the level of award given in that case compared to other cases where greater damage may have been done but where smaller awards were given. Perhaps the Minister would indicate how that will change in the future.

I welcome the fact that the Bill requires the courts to address the jury on damages, where they are to be awarded. The party is also allowed to address the jury on the question of damages. In addition, an apology may be published without any admission of liability. I welcome this provision which will allow people to seek redress by way of an apology. Heretofore, some journalists appear to have found it easy to take a person's good name causing great hurt or damage to an individual or his or her family and, subsequently, to publish an apology in very small print and hidden within the newspaper some days or weeks later. I have always felt sympathy for the individuals concerned because while everybody reads the front page, very few people might see the correction or apology located elsewhere in small print.

I welcome many aspects of the Bill and hope it will be enacted as quickly as possible. It will deal only with articles published after the Bill is enacted and will not be retrospective, which is regrettable. However, that cannot be avoided.

Photo of Ann OrmondeAnn Ormonde (Fianna Fail)
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I welcome and compliment the Minister who always finds time to come to the House and listen to how we view legislation that is about to be enacted. This is an opportunity for me to discuss the Bill and compliment the Minister on updating and reforming the law on defamation. In his contribution he said he consulted widely going back to the 1990s and set up the legal advisory group to facilitate more discussion, especially the impact of the legislation on the public. That is welcome.

However, I have the read the Bill and thought about it. I have changed my mind on it very often during the past week. We all want a democracy, freedom of speech and journalists who will investigate a story and present it in a fair and reasonable manner as outlined in the Bill. I have no difficulty with that. The problem is how best to measure what is being told and printed and how it is interpreted by the man in the street. The Bill is an attempt to level the playing pitch between those who write articles and those who read them. I am not sure if we are getting it right in this legislation.

I will never forget reading about the late Liam Lawlor's death. I was shocked by the headlines and the details and I have yet to see an apology. Maybe there was an apology but, if so, I did not see it. As he is dead the family has no redress. That is not fair to a family who have been so tragically destroyed by such articles.

Yesterday, while discussing this Bill, I saw on the front page of the Irish Daily Star, this gutter newspaper, the Minister for Health and Children, Deputy Harney, depicted as, "Mary the Blood Sucker". What will this legislation be about? If that story was printed after the enactment of the Bill what would be its impact? Would there be enough power to deal with that gutter press? It led me to ponder on the mindset of the journalist who wrote it and his background. Would he have done it if it had been his mother, sister or family? Did he have a hidden agenda apart from what was in the article?

If one wishes to present an article in a fair and reasonable manner how does one assess fairness and reasonableness? I have a difficulty with those two words when I look at the picture on yesterday's newspaper. This happened while we were debating the issue. It leads me to ask whether there is any respect for the legislation we are attempting to put through. It is a disgrace.

There are fine journalists around the House with whom I relate. There are also good investigative journalists the work of whom we saw on television on Monday night last when discussing another interesting subject matter. There is no control over the print media. It puts a spin on the subject and gets everybody involved. One cannot find out where the spin is but it is clear from the headline and the article there is no correlation between the two. The information is fact but the spin can misinterpret it and destroy a reputation.

A key element of the Bill is that the press council will allow for the man in the street to pursue a correction of the headline. That can be done by means of a written apology. Words are cheap. If a written apology is being provided for, will it get the same measure of a headline on the newspaper as the original headline which destroyed the character of the person or will it appear in some obscure part of the newspaper where nobody will notice it? Then it is too late as the reputation of the person and his or her family and the community in which he or she lives is destroyed. That is my concern. It is easy to make an apology to which no liability is attached. One can say one is very sorry, but the damage is done. The damage was done to the Minister for Health and Children yesterday by that headline. How can that statement be corrected? I am concerned about the essence of the press council and whether it will have teeth.

I want us to work with the journalists and the press and I want trust. I want fairness and loyalty but I do not want gutter as portrayed in the article. Those in the Visitors Gallery are listening to this debate as well as those in the Chamber. I want those in the Visitors Gallery to know that we try to do a good job in this House——

Rory Kiely (Fianna Fail)
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It is not in order to speak to the gallery.

Photo of Ann OrmondeAnn Ormonde (Fianna Fail)
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I beg your pardon. I appreciate that point. Everybody knows we try to legislate and to behave well in society. Is it fair that a newspaper headline will destroy our reputation on some small issue and that a spin is put on it? Will the press council correct that article? It is all very fine in the case of a recent article involving a millionaire as he can pursue it all the way. If it happens to the man in the street he goes to the ombudsman to have his case searched and to the press council which makes the decision on whether a code of standards will be applied. I want those standards spelled out because standards can vary and can be interpreted differently.

In regard to the composition of the press council, seven members will be independent and six will be from the press. I am concerned about the quorum. If the members travel from all over the country how many should be present at a meeting?

Following what I read in yesterday's newspaper, I am concerned. Last week I was convinced this was a great idea. What was printed in yesterday's newspaper was an insult and destroys the good work the Minister is trying to do. While I am sure many journalists are delighted the Minister is introducing this legislation, they flaunted it yesterday when they published that article.

Photo of Feargal QuinnFeargal Quinn (Independent)
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I welcome the Minister to the House. He is a regular attendee. It is difficult to follow Senator Ormonde who speaks with such passion. I agree entirely with her, especially on the coverage of the death of Liam Lawlor, for which I have not seen the apology that was due, and also in regard to yesterday's coverage. I will not speak with the strength of feeling that Senator Ormonde has. On a previous occasion I mentioned to the Minister how I had been libelled in the Irish News. Some 30 years ago if not more I tried to fly across the Irish Sea in a balloon for publicity purposes. While I got publicity in the Irish News, it referred to me as "the former IRA man Feargal Quinn". I was rather upset and contacted the editor who promised to correct it immediately. I got even more upset at the correction, which went to the pain of stating that it had confused me with my uncle and that I had nothing to do with the IRA. It went on to state that I was so opposed to republicanism and Nationalism that I was almost a right-wing Tory. I almost needed to get a correction to that piece as well. However, at least it was corrected.

I welcome with a certain sense of awe the arrival of the Bill before the House. Many of us doubted it would ever see the light of day given that this subject is a case of the irresistible force meeting the immovable object. For many years it has been obvious that our defamation law was inadequate and against the national interest. However, it seemed that in this area our political process was incapable of responding to a national need to have it changed. Now the logjam has at last been broken, which alone is a cause for celebration.

It is also worth celebrating that the Bill has arrived in this House alone and not accompanied by its much less desirable twin brother, the Privacy Bill 2006, which was mentioned earlier. I take this as a sign that the original idea to tie the two measures together has been abandoned and if this is true, which I hope is the case, I applaud it as a wise course to take. The Privacy Bill was spawned by the same political difficulty that kept us from considering new defamation legislation for all these years. It is hard to disagree with the conclusion of many critics of that Bill that it would be in many respects a step backward rather than a step forward.

From one point of view, the Bill before us represents a gauntlet thrown down before the media interests. This is because the success or otherwise of this legislation will depend very much on whether the Minister's proposed new press council and press ombudsman work in practice as they approach the difficult task of regulating or at least monitoring the media. It is largely up to the media to ensure that this new system works to the benefit of all concerned. I take Senator Ormonde's point that the front page of yesterday's newspaper, which I refuse to mention, was like throwing down a gauntlet to us.

The structure of the press council, which is recognised by the State while being independent of it and also independent from the vested interests concerned, is the right one for the job. This form of structure, if it proves itself successful in this case, might offer us a model which could be followed in other areas in future. Anything that cuts down the number of appointments in the gift of the Government of the day is positive.

This Defamation Bill is clearly a great improvement on what we have had up to now and I hope it will prove to be so in actual day-to-day operation. However, the Bill does not go far enough in changing one aspect of our defamation law, which is a matter for regret. The amount of damages to be awarded in a defamation case will still be decided by a jury. I am a great supporter of the jury system. In general it works very well for us and has done for many generations. However, where the jury system works at its best is where the jury is charged with deciding on the facts of a case. While a judge may direct a jury on the law it must follow, the jury's view on the truth or otherwise of the underlying facts is rightly held to be sacrosanct. It is the jury's decision whether the facts are correct. It brings a down-to-earth element into a legal system which otherwise might not be guaranteed always to follow the dictates of common sense.

However, in our criminal law, we rightly restrict the power of the jury to deciding on the facts. If, God forbid, I lost the run of myself and decided to assassinate the Minister today, a jury would decide on whether I was guilty of that deed. Having done so, that would be the end of its function. It would not be up to the jury to decide what punishment I should suffer or whether I should be punished at all. We rightly believe that when it comes to sentencing, the jury has no role. That is where judges come into the picture.

However, in civil matters the role of the jury is wider, which is a mistake. To take the present instance, in a defamation case the jury is expected not only to decide whether a particular statement was defamatory, but also it is expected to decide how much the offended party should get by way of damages. We have spent some time discussing this matter in the recent past and again today. This requires the jury to range beyond the area of facts, where we rightly put a special premium on the common sense of ordinary citizens, and into a much more vague and murky area where the benefit of juries is less obvious.

It is commonplace that people are always much more generous with other people's money than they would be with their own. Even today someone suggested that a wealthy person could well afford it. It is a widespread feeling among the public that the larger an organisation and the more impersonal it appears, the better it is equipped to pay large sums of money without apparent detriment to anybody. For instance, people are very relaxed about the notion of insurance companies paying out very large sums while forgetting that they, as policy holders, eventually pay for it. We have seen a great case being made recently in this regard, which has been very much influenced by the work of Senator O'Toole. This is a major issue in the area of defamation, and it is a grave mistake to leave any such role for the jury in our reformed law.

The change envisaged in this Bill is that the judge is to have a role in directing the jury as to the amount of damages and that the amount awarded can be appealed to the Supreme Court, which indicates that the Minister is taking this matter into account to some extent. However, there is no indication how this will work in practice. Is the judge to direct the jury on the exact amount to be awarded? If so, it is a sham to involve the jury at all. Will the judge offer a range of figures to the jury within which it must operate, or a maximum figure it must not exceed? If that is to be the way, there is little point in bringing the jury into the matter again after it has done the major job we expect of it — deciding on the facts.

There is also the issue of how exactly the judge is to arrive at his or her direction, in whatever form it takes. Assessing in monetary terms the impact of a defamatory statement is highly subjective, much more so, for instance, than assessing compensation for a physical injury. There is no particular reason to believe that a judge's legal training makes him or her more skilled in making such an assessment than a lay person. A further question arises of different judges having perhaps widely different views on the appropriate amount of damages. The Bill should specify an official system of damages, a tariff that would set out the broad parameters of damages that can be awarded in particular cases. While I realise it will not be as easy to draw up such a tariff as it is in the case of physical injuries, it is surely not beyond the wit of man to do so. In any case, such an approach is infinitely better than relying on the different intuitions of a range of judges. The amounts set out in the tariff could be adjusted from time to time by ministerial order to take into account changing circumstances over time.

I welcome the Bill and the input of the Minister and his officials, particularly after such a long wait. However, I do so with reservations so long as this flaw remains in our approach to defamation.

Photo of Martin ManserghMartin Mansergh (Fianna Fail)
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I welcome this Bill. It is important that it has the support — which I am sure was not easily won — of all the major interests. The question remains whether there should be privacy legislation in place to complement it. The media have condemned out of court the introduction of any such legislation. Can it be their position that nobody has any right to privacy? In practice, it often boils down to where one draws the right to privacy of public figures. This is an issue that requires further discussion and consideration but it should not be dismissed out of court. Those in the media have a responsibility to bring forward constructive suggestions in this regard.

I approach this Bill from a similar angle to that taken by Senator Maurice Hayes, which is neither particularly from the point of the view of the political class nor particularly from the perspective of the media. The reality is that it is dangerous for private individuals to take a libel case unless they have access to exceptional means. We saw recently how two public figures, one a Member of the other House and the other a senior public servant, came to grief as a result of taking cases. An element of such difficulties is the cost of litigation. The Competition Authority's report suggests that lawyers want to ensure we all have access to a Rolls Royce system. The difficulty, however, is that the vast majority of us cannot afford a Rolls Royce. This is something that must be examined.

When I was doing my doctorate on 18th century French history, relating to events well before the revolution, I discovered there were proposals at that time regarding a free system of justice and the breaking down of barriers between solicitors and barristers. It is telling that this type of discussion was taking place during the ancien régime but the matter has still not been resolved.

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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I thought for a moment that Senator Mansergh was suggesting he had started his doctorate before the French Revolution.

1:00 pm

Photo of Martin ManserghMartin Mansergh (Fianna Fail)
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Senator Ormonde is correct that the Bill covers only a fraction of those matters to which one might take exception in the media. It will not get rid of scurrility in objective terms or what one might consider to be such. There is no way of doing that other than under the auspices of some type of authoritarian régime. Politicians are in a more advantageous position than most in that we have platforms from which we can reply. I am firm believer in the view that politicians, even when maligned, should, if possible, fight their case in the court of public opinion rather than in the courts of law. With all due respect to the Minister, I contend that politics and law do not mix particularly well.

The levels of damages awarded in such cases often seem disproportionate. In many instances, high damages may simply go to pay high barristers' fees. The purpose of a press council is to provide a relatively expeditious and inexpensive way of setting one's reputation right. I am not sure that at least that remedy should not apply to those who are connected to the recently dead. I fully accept there cannot be monetary considerations applying in such instances.

The provision in section 7 that the plaintiff must swear an affidavit is welcome. There have been libel cases, not necessarily in this State, where it subsequently transpired that what was alleged to be libellous was entirely true. I have some reservations in regard to subsection (9) of this section, which provides that the defendant is "entitled to cross examine the plaintiff in relation to any statement made by the plaintiff in the affidavit". I recall an instance where I was being potentially libelled and the advice I received was that while it was true that one was not doing X, people with deep pockets may wish to inquire as to whether one is doing Y or Z.

Section 13 sets out how a court should deal with a defamation action. There is a difficulty, however, in that people often avoid charges of libel by making indirect references or allusions. These provisions will be subject to varied interpretation in this regard. If I were a newspaper proprietor, I would not be sure where I might stand in a case where a plaintiff could reasonably say that an indirect allusion applies to them. It will all depend on the content of the statement in question, but I wonder whether the definitions are somewhat loose.

The point I am about to make may bring bricks falling around my head. I do not like absolutism of any type and it is for this reason that I have some concerns about the references to absolute privilege. I understand and defend the reasons that Members of the Oireachtas enjoy such privilege. There are cases, however, where that privilege has been abused to allege that named persons have committed all types of crimes. This has happened in the House of Commons, for example. Such allegations may put the accused person's life in danger. The Finucane case involved one of the most disgraceful statements ever made by a Minister in the House of Commons. I am glad this person's career did not subsequently flourish. Perhaps there should be some parliamentary mechanism whereby Members could be censured for abuse of privilege. The Committees on Procedure and Privileges may already have some powers in this regard.

Section 17 (1)(a) provides that a defence of qualified privilege will fail if the plaintiff proves the defendant did not believe the statement in respect of which the action was brought to be true or that the defendant acted in bad faith. It seems virtually impossible to prove that a defendant made a statement in bad faith. People are capable of continuing to believe in the face of all the evidence, the most extraordinary statements.

I welcome section 24(2)(c), which provides for the context and content, including the language used, of the statement. This will encourage moderation in language used. A recent editorial in Village magazine rubbished the press council proposal, not from a press point of view, but on the grounds the media will run a coach and horses through it as they are only interested in making a profit. I hope the council will work and do so in good faith. It is as much in the interest of the media as anyone else that proper standards are maintained. If it does not work, the problem will subsist and other remedies may have to be found.

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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I thank Senators for the general welcome given to the Bill. It depended on a prior consultation process which, as acknowledged by many Members, was a broad process and an attempt to bring balance and consensus where it did not seem possible. I thank those who participated in that process because, broadly speaking, the terms of the Bill now command a sufficient consensus. I bear in mind that Senator Norris is unhappy with the legislation. I am not asserting it has unanimous support from the House. However, its principles have close to unanimous support, whatever about some of the details that can be debated on Committee Stage.

The Bill was designed to bring our law into conformity with developments among other common law countries. I believe in a free press. Our media must be inquiring, searching, brave and cannot be subject to the Government of the day or the governing class. It is the essence of democracy that the people know what is happening and, therefore, the Government does not have a monopoly on the means of knowledge of what is happening. The Constitution describes the role of the media as educating public opinion.

It is not always comfortable when one is in office, or aspiring to office, to be judged by the media. With the exception of the broadcast media, it has no obligation to be fair or objective. It is entitled to be partial and unfair in the way it deals with people. There is no objective standard of fairness and we are entitled to have highly political newspapers, whether it is An Phoblacht, a tabloid or a broadsheet. They are entitled to be opinionated and have their own agendas which is what a democracy is about.

John Lloyd, a noted English commentator and former deputy editor of an English periodical, has written extensively on what the media is doing to politics. I am not courting controversy but I believe there is a vindictive and destructive streak in the media when it comes to elected public representatives. This is not omnipresent but sometimes emerges in a way that is unfortunate. We live in a democracy. Those elected to govern and represent the people are chosen by the people. They deserve at least the respect of having been chosen. Nobody chooses the editor of a newspaper or who writes in this newspaper or that. There is no process where the readers of a newspaper are entitled to send a columnist out of office or suspend their right to comment. Mr. Lloyd's thesis is that the media has set itself up as agenda-setters in the political process. It is very well for it to set agendas and pose difficult questions. However, where agendas are pursued, the public is entitled to draw its own conclusions without being deliberately misinformed.

On one occasion I delivered a speech to the House in Irish. It was my long-standing intention as Minister to do so in both Houses as our national language should be used by Ministers. Out of courtesy I took the step of ensuring that every Member who, like myself, was not fluent in Irish could follow the speech by circulating the text in English. A Sunday newspaper announced I had done this because I had an agenda and wished to conceal the content of my actions. When the newspaper telephoned my press office, it was told an English text had also been circulated on the occasion. This fact did not suit the newspaper's thesis that I was trying to pull the wool over Members' eyes. It was deliberately ignored and a headline and article was generated which deliberately kept away from the reader that an English text had been circulated.

I asked a journalist and assistant editor in The New York Times about its procedures when a complaint is made about an article. The New York Times is obliged to give both sides of a story. The journalist of the piece must explain to the editor how material relevant to informing the reader was omitted from a story. A journalist is held to account to a standard of ethics. Why can we not have more of that in our system of reportage? It is not necessary to spin a story one way to get across an editorial value. If an editorial value has any validity, being even-handed in presenting the facts will not detract from the reader's capacity to decide whether he or she agrees with the editor's views.

The media, undoubtedly, aspires to being formers of opinion. If they are forming opinion, there is a moral obligation, in a democratic society, to be even handed with the facts and not to mislead readers in pursuit of agenda items.

I believe it is self evidently true that the editor of a national newspaper is at least as powerful a figure in Irish society as a Member of this House who does not hold ministerial office or a backbencher in the Dáil.

Photo of Paul CoghlanPaul Coghlan (Fine Gael)
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At a minimum.

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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A question then arises as to what accountability there is for such a person when huge standards of accountability are demanded of individual elected politicians. Is it relevant, for example, to the Prime Minister's office that the British Prime Minister's son got merry and was brought home by police because the Prime Minister has made speeches on public order issues? Is it relevant that the son of a newspaper editor who has been writing editorials on the same issue has been taken home by the police? I doubt that most newspaper editors would concede that it is. They would be extremely bitter if rival publications were to trot out the type of stuff politicians must endure.

There was a particular case in the recent past where the circumstances of the death of a nephew of an office holder in this democracy, in a hotel in Spain, was the subject of appalling invasions of the family's privacy and grief. The connection with the politician was exiguous but the detail and the degrading material that was published was revolting. It was done purely on the basis that it was fair game to publish this material because the individual in question was a nephew of a politician. I reject that. If I gave the details in this House of the death of a nephew of a newspaper editor, on the basis that the editor was an opinion former as influential as most Members of these Houses, I would be subject to censure and revilement for doing so.

Photo of Paul CoghlanPaul Coghlan (Fine Gael)
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The Minister would not be boring.

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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I would be censured and held in the lowest esteem for doing that to a newspaper editor. Is there any responsibility attached to the power of the media and is there any sense of obligation to be truthful?

Members of the House have referred to what was published in one of yesterday's newspapers. I spoke about that to the former Tánaiste last night. I said I would take the opportunity of this debate today to express my revulsion at what I had seen. She is a gentle and decent person. She said, "Please, do not. It will only add petrol to the flames and reignite the controversy." Her decency contrasts dramatically with the cowardice of whoever would do that with a newspaper.

Senator O'Toole sought clarification on the question of qualified privilege. Section 16(3) refers to two elements. It is a defence in a defamation action to prove that the statement concerned was contained in a publication or a report specified in Schedule 1, which is privileged, without explanation or contradiction. This includes parliamentary and court proceedings. However, Part 2 of Schedule 1 sets out a number of occasions where published statements are subject to explanation or contradiction and the defence may be lost where the publisher refuses or fails to publish a reasonable statement by the complainant by way of explanation or contradiction.

That is the distinction between the two Parts of Schedule 1 of the Bill. The first is where there is qualified privilege, without any obligation to allow the person who would be defamed an opportunity to comment. The second is where somebody is entitled, when something is reported as fact and is damaging to them, to have his or her side of the story included as well. I hope Senator O'Toole is satisfied with that.

Senator Quinn raised the issue of juries having a role in deciding damages. The problem is that where a jury decides there has been a defamation and the judge is to assess the damages, the judge might radically disagree with the jury on the case. The judge might think the report is true and agree with the defence counsel throughout the case and disagree with the jury's verdict. To ask a judge to award damages on the basis of a verdict by which the judge is unconvinced would be difficult. That would be the case particularly if aggravated or punitive damages were in question.

It is important not to have the current situation whereby nobody can talk about amounts of money to a jury. When considering somebody's loss of reputation and what would be adequate compensation for that or for damage to his or her reputation, surely it must be relevant that the Supreme Court has stated in a number of cases that there is an overall limit to what can be given by way of general damages to a person who suffers personal injuries. If one is in a wheelchair, a jury cannot go mad and award one €3 million or €4 million for the loss of the use of one's lower limbs. I do not know what sum would be awarded now to a paraplegic or quadriplegic but it probably would be between €250,000 and €500,000. If that can be the rule of law in such cases, a corresponding rule of law should apply in the case of compensatory damages for libel. In those circumstances it is not wrong that figures can be mentioned to a jury by way of general guidance and it is not necessary to appeal to the Supreme Court. Under this legislation the Supreme Court has the power to vary the award and substitute its own award rather than send the matter back for retrial.

My final point relates to the press council's powers. The press council and the ombudsman can, "provide for the taking of remedial action by the member of the Press Council in respect of whom the complaint was made consisting of any or all of the following: (i) the publication of the decision of the Press Ombudsman and by such members of the Press Council as he or she directs and in such form and manner as he or she directs...". Form and manner in that case would refer to the size of the publication and the way it is to be carried. I agree with the general consensus in the House that it is astonishing how disproportionate apologies are in terms of space, location and prominence compared to the original defamatory stories. Occasionally people insist on front page apologies and more power to them, as far as I am concerned. In those circumstances, at least, they have a guarantee that a large number of people will have read the apology.

I thank the Members for their reasoned and enlightening comments on the Bill. I take on board what Senator Mansergh said, that if there is a problem with protecting privacy it is incumbent on those who see a problem with the proposals published by the Government to suggest alternative proposals. If there is an actionable tort of invasion of privacy, which no lawyer denies, that should be acknowledged. It should not be a cause of action which exists in theory but is not mentioned in any statute book. If it is actionable, I appreciate that the media is concerned about the pre-emptive injunction, which it believes would prevent investigative journalism from taking place and allow the rich and powerful to prevent particular areas of their lives and affairs from being investigated. That is fine, and we will examine the question of pre-emption and see if the Bill has struck a wrong balance.

I did not conjure the circumstances in which an Irish newspaper sent photographers disguised as medical staff into the hospital room of a prominent broadcast journalist shortly after she delivered her child. That was a breach of her privacy and it was her right to stop those photographs from being published by some means if she wanted to do so. While we can argue until the cows come home about right and wrong, this is not an imaginary situation. We are dealing with the upholding of decent standards. If the print media is committed to upholding decent standards we look to the council, which is in the process of formation, and to what we see to evaluate whether there is a commitment in good faith to protecting decent, innocent people from being unfairly damaged by the media. Like many Senators here I have attempted to be fair to all sides and strike a balance in this legislation. Extremists on all sides have accused me of going too far in the other direction and I have attempted to establish a middle way with this legislation. I wonder if other people have the same appetite for fairness that I have.

Question put and agreed to.

Rory Kiely (Fianna Fail)
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When is it proposed to take Committee Stage?

Photo of Jim WalshJim Walsh (Fianna Fail)
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On the first sitting day of 2007.

Sitting suspended at 1.25 p.m. and resumed at 2 p.m.