Pat Casey (Fianna Fail)
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I welcome the Minister to the House. We resume our deliberation on Committee Stage of the Defamation (Amendment) Bill 2024. Senator Rónán Mullen is in possession.

Rónán Mullen (Independent)
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Gabhaim buíochas leis an gCathaoirleach Gníomhach agus cuirim fáilte ar ais roimh an Aire. On the last occasion, I had just begun to speak when we had to report progress. I expressed my wonderment at how this section had got through the Dáil, considering how far-reaching it is in how it changes the situation with regard to the protection of people and their right to a good name and reputation. Both the Minister and Senator McDowell beside me are senior counsel and they know a lot more about defamation than I do. I only spent a short period at the Bar before escaping to the relative security of politics. One starts at the provision in Article 40 of the Constitution which states:

The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen [and] ... in particular, by its laws protect, as best it may, from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

It is not just the life, person and property rights of every citizen, but the good name of every citizen.I have no doubt the Minister knows well and has already considered that it is in that light, and in the light of whatever jurisprudence has occurred over the years giving effect to the recognition not just of that right people have but of the duty of the State towards them, that we must consider any change such as that proposed here today in our law on defamation.

It is interesting to consider that, alongside this defence of publication on a matter of public interest, we have the abolition of the so-called Reynolds defence. I had recourse to an AI overview to get a simple characterisation of the Reynolds defence for the purposes of helping us to consider this matter here today. It talks about its being a common law qualified privilege in defamation law that protects journalists who publish material in the public interest. The phrase it uses is interesting whereby the defence allows a publisher to avoid liability for defamation if they can show that they engaged in responsible journalism. I admit that that is a summary of what the Reynolds defence is about, but it is useful to consider that. If we are taking out something that subjects a journalistic defence to the requirement that they have engaged in responsible journalism, the question we must ask ourselves is what we are replacing it with. Does the replacement that we propose to insert uphold responsible journalism and require responsible journalism? To recall what is here in black and white, the defence on a matter of public interest first subjects the defence to the requirement that the statement was on a matter of public interest. It seems to me that any statement that could be regarded as libellous is mostly a statement that is in the matter of public interest because if it were true, it might well be very much in the public interest to publish such a statement. The reasonable belief that publishing the statement is in the public interest is, of course, where the rubber hits the road. We have to wonder what would constitute reasonable belief for that defence. How demanding would the courts be in requiring reasonable belief before the defence can be permitted? As regards the statement being published in good faith, that reminds me that qualified privilege, such as that enjoyed by people when they make a complaint to the Garda that involves saying something about a person that if untrue would be libellous, is only to be enjoyed where a person is communicating such a statement in good faith, and certainly malice would defeat it.

We have to consider not the situation where a publication online or printed, or by a broadcaster, would be malicious - let us assume good faith - but where they put themselves in the hands of a source of information who may or may not be malicious in what they claim, or who may just be wrong, or who may have imagined a version of the facts that is wrong but which nonetheless the publication, acting in good faith, goes ahead and brings that statement to public attention by publishing it. Is it about reasonably believing according to their own lights or would an objective test have to satisfy the court? Am I correct in thinking that this would allow in certain circumstances journalists citing unnamed sources to simply repeat allegations of one side of a dispute and that as long as they accurately repeat that allegation as they come to discover it, they could be considered to be acting in good faith, and that as long as the story appeared plausible to them, they could be considered to have reasonably believed that it was in the public interest to publish it?

As politicians, we naturally think it is ourselves in the firing line, and it might well be that politicians would be among the most obvious victims of such a change in the law. If an aggrieved parent, however, tells a plausible-sounding story alleging, for example, abuse against a teacher in a school or against the principal of a school, what recourse does that teacher or principal have to prevent publication? Or, in the case of a false and possibly malicious claim having been made, what recourse do they have to get redress? The question arises, as was discussed by Senator McDowell last week, as to whether we are talking about unnamed sources. If, for example, there is a straw-man figure, a person without significant resources, somebody who in the legal jargon is not a mark for compensation, but if such a person was willing to put himself or herself out as an accuser, is a newspaper, a broadcaster or an online publication then home free to carry what would previously be classified as a libel?

Those are among the legitimate concerns there must be on a plain reading of this section. I could be wrong on this but I understand this section came up for discussion in the Dáil relatively late in the day and was not discussed over and back in the way that something so far-reaching might be expected to be discussed.

Last week, I began to mention what the Ceann Comhairle had to say in a related context recently. On the first day of the new Dáil term, she called for action, saying that more must be done to combat the threats and abuse of politicians. Whatever about threats, it is reasonable to consider that a defamatory statement about somebody is an example of abuse. It is therefore interesting that at a time in our public, political and social life when there is huge concern about the way people are being targeted online with statements that are at the mild end untrue or uncharitable, and at the extreme end horrible and defamatory, where it sometimes seems that parts of the online world are the wild west, I think everybody understood that the Ceann Comhairle was speaking for all reasonable people by saying that elected representatives need to be able to carry out their duties and stand up for different ideas, values or political proposals without being excessively prone to being victimised online and otherwise. In her own words, she warned against a culture of fear and intimidation taking root. She said we risk losing the very essence of democratic representation and that it is incumbent upon us all to collectively defend the integrity of political debate and cultivate an environment that encourages participation without fear.

I am asking the Minister to consider whether a section like this weakens our ability to protect people in public life in the way the Ceann Comhairle was describing. If this makes it easier to put out statements that could destroy people's reputations without necessarily being true, is the Minister not creating a more dangerous and toxic environment, not just for politicians but in particular for politicians? Is what the Ceann Comhairle had to say not something that should give us pause and something that should inform our consideration of this proposed change?

The other matter I recall is the incitement to violence or hatred and hate offences Bill of last year.Again, it is an example of the Seanad doing what the Dáil failed to do, which was to bring tough scrutiny to a proposal that had the potential to curb the free exchange of political ideas in a dangerous and unhelpful way for society. Along with Senators McDowell, Keogan, Craughwell and Clonan, and others, I was involved in bringing a measure of scrutiny to that legislation which gave the Minister's predecessor pause. A truncated form of that Bill was eventually put through. I understand it is not the Minister's intention to proceed, for the moment anyway, with legislation - pardon me if I am wrong - that will change the situation, although there is a case to be made for an adjustment to legislation and an updating of the 1989 legislation.

My point is that the momentum from the previous Government was, at that point, to dangerously close down free speech or to recklessly expose people to the risk of being targeted and ultimately prosecuted for the legitimate expression of political ideas, for example because hatred was not defined in the legislation, or because new definitions of "gender" were being imported into that legislation. We rightly opposed that in this House because the threat was to the free exchange of political ideas, which is so important for our democracy. What I find strange is that this proposal appears to be going exactly in the opposite direction and to the other extreme vis-à-visthe supposed concern of the previous Government. I worry that this proposal pulls the rug out from under the protection of people's rights to their reputation in a way that is careless and risky, to say the least. Like T.S. Eliot, I will end up where I began, by asking whether this could be an unconstitutional move given the risk to people's reputations, to which I think people are going to be unfairly exposed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank and commend Senators on their contributions today and on the previous occasion. I said previously that one of the functions of the Oireachtas when it comes to any defamation Bill is to balance the constitutional right to one's good name with the constitutional right to freedom of expression. I said previously as well that sometimes the general emphasis is on protecting freedom of expression. I commend Senators on emphasising in this particular section and amendment the constitutional right to one's good name. It is important, from the perspective of the Oireachtas, that this is identified, referenced and debated. The other factor that has to be taken into account in terms of what we are proposing here is that ultimately the proposal is to amend section 26. That is what section 11 of the Bill before the House is seeking to do. I note that there are not any amendments in respect of section 11 and the amendment of section 26, but I hear from what Senators have said, certainly those who have contributed, that there is an intention to oppose section 11.

There is a request to give consideration to my proposed amendment to section 26. I will certainly do that. I will give consideration to what I have heard here today. However, it is also important that I set out the reason this proposal is being made, the reason section 11 is included in the Bill and the intention behind the proposed new wording for section 26 of the Defamation Act. It did not come out of thin air. I did not invent it in the office since I have come in there. When I go into it in a bit more detail, Senators will see that this was one of the factors that was considered by the Oireachtas committee when it was considering reform of the defamation Bill. It was an issue that was considered in terms of the report and the review within my Department of it.

Senator McDowell started by talking about how he introduced the original section 26. He did do so. Very many of the reasons he did so are relevant to this debate. Senator McDowell also mentioned that when he was introducing section 26 as Minister in 2006, he came in here and was traduced by the then Senator Norris. In fact, in order to inform myself, I went back and read the debate from that time. Senator McDowell did get a hard time from Senator Norris.

Rónán Mullen (Independent)
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It would not make him unique.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Senator Norris started his contribution by stating that then Minister, now Senator McDowell, had a reputation for being a rottweiler, but Senator Norris was concerned that he seemed to have turned into a chihuahua. The basis for this charge being made by Senator Norris was that he thought then Minister, now Senator McDowell, had completely caved to the interests of newspapers and media owners by the section 26 defence he was bringing forward nearly 20 years ago.

It is important to understand the purpose behind the original section 26 before we start to look at the reasons I am seeking to amend it. To do that, I have to go down a little bit of a tangent. It is always important, when we are discussing reform of the defamation Bill and defamation law, that we look to see what are the broad range of defences that are available. There is an assumption in defamation law that it is either true or false and that is it. As Members of this House will know, the defences available under the Act are much more complicated and extensive than that. We all know what a defamatory statement is in terms of lowering a person's reputation in the eyes of reasonably minded persons in society, but there is a variety of defences to that. The primary defence is the defence of truth. I was conscious about some of the arguments and submissions that were being made on the last occasion, such as whether a newspaper could report that a politician or a person in public life had been arrested and was being questioned by An Garda Síochána. The truth of the matter is, under the law at present, they are entitled to do that.

I think it was Senator Joe Conway who referred to the Cliff Richard case. The Cliff Richard case was a very interesting case, but that was a case in terms of breach of privacy. The claim being brought against the BBC and the West Yorkshire or Midlands Police was to the effect that the privacy of Cliff Richard had been breached because information about this investigation had been disclosed to the BBC and other media organisations. If there is an allegation against a person and the Garda is investigating that person, a newspaper can publish it, subject to the fact that they may be exposing themselves to other claims such as breach of privacy or they may have a claim under the statutory provision that Senator McDowell sensibly introduced back in 2005 making it a criminal offence for the gardaí to leak information to a journalist.

The first port of call is the defence of truth. As defamation law developed, however, there was a recognition that we need to give further protections other than simply the defence of truth. For instance, if somebody stands up in the House and accuses me of being a murderer and I instituted proceedings against them, they could not rely on the defence of truth, but they could go to another provision in the legislation and say they have the defence of absolute privilege. That would completely block me from succeeding in that claim. Truth is not the only defence that is available in response to a defamatory statement. Absolute privilege is one.

Qualified privilege is another defence that is available in circumstances where the substance of the defamatory statement is not true. We have decided in our law, and in the common law before that, that there are certain types of communications that should be protected and sort of inoculated from the defamation claim. Those types of communications are, for instance, the communication between a former employer and a future employer by way of a reference. We have decided that if somebody is writing a reference for somebody who is about to be employed in another job, we will protect that communication, even though there may be a statement in it that is false. The reason we do that is we think it is in the public good that this type of communication is protected by way of qualified privilege. If a former employer writes to a future employer and makes a statement about an employee which is false, wrong and defamatory, there will still be protection for the publisher of that reference, provided he or she has not acted maliciously or disproportionately.The reason we have that is because that is the type of communication we believe should be fully protected. Similarly, a doctor writing to a consultant may make an allegation about the patient's spouse being involved in some sort of wrongful activity or criminal assault. That will also be protected provided the communication was not made maliciously or disproportionately. There are a whole series of defences that are available to publishers in circumstances where the statement that the publisher has made is false. That is part of the reason I am introducing this retail defence. People have not met it with huge support or endorsement but it is a very significant change in our law. If a shop owner says to an individual they believe that person has something stolen in their bag and the owner wants to check the bag, if that turns out to be false, the shop owner will still have a defence because we, the Houses of the Oireachtas, have decided that it is the type of communication that should be protected because it is for the common good. They are examples of where statements are made that are false but yet the legal process and our statutory scheme provides a defence to it.

Another area where, historically, under the common law there was a protection was in the area Senator McDowell loosely referred to as public interest journalism or communications about issues of public interest. If you look at the Schedule to the Defamation Act, there are a whole series of things that have protections under it. For instance, the fair and accurate report of court proceedings is one. A fair and accurate report of the Houses of the Oireachtas is another. Whatever about one of us saying something here, because we have an absolute privilege, somebody's fair and accurate report of something that happened here will also attract qualified privilege, as it is known. That developed over the years in the common law so that, in certain instances, journalists would be protected in their publications even if it was the case that what they said was false but, notwithstanding the falsity, the broad thrust of the publication was in the public interest, was properly researched and the journalist engaged in inquiries in advance of it.

That was the whole common law development of what we now call public interest journalism. As Senator Mullen said, we then had the development of the Reynolds case. It is noteworthy that the former Taoiseach was involved in a case that led to one of the biggest developments of the law of qualified privilege in that area within England and Wales. It said that there would be a form of qualified privilege defence for what is referred to as public interest journalism in circumstances where the publication had got aspects of the story wrong but in general it was in the public interest.

I am conscious of what Senators said on the last occasion. I did not come up with this in the office. It is not as though I have decided that we should change the law completely so that, if someone says something that is false, we should now protect them. That has always been the case the since the development of the common law and with the establishment of the Reynolds case. We know in Ireland that in the early part of this century and the end of the last, there were decisions of the superior courts which said that Reynolds-type defence does exist in Irish law. When Senator McDowell was Minister for justice, he recognised that rather than having a vague common law rule about Reynolds where we have to go back and look at judgements from the House of Lords and other subsequent judgements such as Jameel, it was much preferable if we, as an Oireachtas, set out in statute what we believe is the appropriate statutory defence for what was called fair and reasonable publication on a matter of public interest. I believe it was his intention and the effect of the Houses' enactment of section 26 that the Reynolds defence was abolished. However, there is some doubt about that if you look at some of the authorities from the Supreme Court. Mr. Justice Collins, when he was on, I think, the Court of Appeal, gave a decision in Desmond against The Irish Times where he said there is doubt as to whether Reynolds has been completed replaced by section 26. In truth, and I think for purposes of efficiencies, we are better off trying to codify the Reynolds defence in our own statutory section. I believe Senator McDowell did that with his section 26 introduced many years ago and enacted.

That is the background of where we are in section 26. It has existed for 16 years. I cannot think of any case - perhaps Senator McDowell can - where it has been successfully invoked. That is a reason we, as an Oireachtas, and I, as a Minister, should give consideration to trying to change it so that at some stage it can be invoked successfully.

The purpose of section 11 and the new section 26 is to try and make it more manageable. One of the difficulties with the old section 26 was that, similar to this section 26, it was set out in two subsections. It set out that the statement had to be published in good faith, was for the discussion of a subject of public interest, that in all circumstances the manner and extent of the publication was sufficient and that it was fair and reasonable to publish. It then went on and, for the purpose of determining that, set out a whole series of factors that had and should be taken into account when determining whether the publication was fair and reasonable. What was actually happening in practice was that people were going through each of these 11 or so characteristics in paragraph 2 of section 26 and stating that they did not comply with it, so that meant they could not avail of it.

Because of that, it was unquestionably the case that section 26 did not succeed in defamation actions. It may have been invoked in many, but I cannot recall anywhere section 26 succeeded. There was work done in respect of it. There were views sought during the review and there was a committee review in respect of it as well. A number of individuals made submissions stating that section 26 should be amended. Perhaps I can go through some of them in a bit of detail. By the way, it is the people in this House and the other House who make the law. Just because stakeholders have made submissions in respect of it, it does not mean that I, as Minister, or the Members, as legislators, are required to comply with it. Nonetheless, they should inform our discussion in respect of it. For instance the Bar Council of Ireland, the Business Journalists Association of Ireland, The Irish Times, Newsbrands, the National Union of Journalists, RTÉ, McCann FitzGerald, and Ronan Daly Jermyn, along with academics such as Professor O'Dell made submissions to the review of the Defamation Act 2009 indicating that the existing defence in section 26 was overly complex, lacked clarity and set too high a hurdle for the defence to be successfully pleaded.

The Irish Council for Civil Liberties shared this view and indicated that it considered that the existing defence might not meet the standard required by Article 10 of the European Convention on Human Rights, ECHR. It recommended removing the requirement to demonstrate that a publication was fair and reasonable in all of the circumstances and the adoption of an approach similar to that in section 4 of the Act in England and Wales, which requires a defendant to provide that the statement was or formed part of a statement in the public interest and that the defendant reasonably believed that publishing the statement was in the public interest. McCann FitzGerald and MGM submitted that a judge should be required to consider whether the defence was made out and direct the jury accordingly given the complexity of the defence.

Part of the reason section 26 may not have succeeded in many cases in the past was because it is a very difficult statutory provision to involve a jury in. It is extremely complicated and difficult to set out in questions to a jury in an issue paper at the end of a case how they should apply section 26. One of the consequences of cases no longer being determined by juries - if that is enacted by the Houses of Oireachtas - is that we will see more invocation and use of section 26 by judges sitting alone and making decisions.

There were a series of concerns in respect of it.When I look at a statutory provision, I have to consider to what extent it has been effective. I can look at the qualified privilege section. Another defence I have not referred to is the defence of honest opinion. I can look at that and cite examples of where that has succeeded. However, as Minister, if I am presiding over a piece of legislation and I cannot identify one case where section 26 has succeeded - it may have been invoked a couple of times but I have no clear example of it ever being successfully invoked - that must raise a question mark in respect of it.

As mentioned on the last occasion, traditionally this was a defence for responsible journalism. Given the way the communication world has progressed, I think we should extend it beyond people who are technically referred to as journalists. There was much reference on the last occasion to the McLibel case. Individuals who were the defendants in that case were individuals who were not journalists but who sought to say they were putting forward a publication that was in the public interest, so there is a benefit in trying to extend it beyond journalists. I know everyone in this House agrees that although some of the cases in this area involve high-profile individuals, defamation law in many respects is not simply about high-profile individuals. It is about the individual who can find themselves subject to a very serious article which is defamatory of them even though they have no public role. That can happen frequently.

The reason the amendment to section 26 is being introduced is that the consensus among the majority of stakeholders who made the review to the 2009 Act on section 26 was that the defence of fair and reasonable publication is overly complex, lacks clarity and sets too high a hurdle for it to be successfully pleaded. Those stakeholders were not just media organisations, as I say, but also included, as I mentioned some moments ago, the Bar Council and the Irish Council for Civil Liberties. Senator McDowell correctly notes that an amendment to section 26 was not included in the Bill as published. However, it was included in the general scheme as published in March 2023 and the intention to include it in the Bill by way of amendment was flagged when the Bill was introduced in Dáil Éireann. Head 16 of the general scheme of this Bill proposed an amended defence which required a defendant to prove: that the statement was in the public interest; that the defendant reasonably believed publishing the statement to be in the public interest; and that the defendant complied with the standards of responsible journalism when verifying and publishing the statement. It also provided that, where the statement was published by a journalist, the third obligation should be modified to a requirement to act reasonably.

At pre-legislative scrutiny the justice committee recommended that the defence set out in the general scheme be further simplified. Again, the feedback from witnesses to the committee was that the inclusion of too many stages and criteria in the existing section 26 has meant it is difficult to reach the threshold for the defence, resulting in greater uncertainty, an increase in the amount of litigation and higher costs overall as well as the underutilisation of the defence. The feedback from witnesses to the justice committee in relation to head 16 of the general scheme was that the requirement to comply with standards of responsible journalism should be re-evaluated as the proposed wording might restrict use of the defence to journalists, to the exclusion of other relevant groups - this is a point I mentioned a few moments ago - such as academics or whistleblowers, whose work would fall within the sphere of public interest and who might be targeted with defamation claims. Those witnesses included the Bar Council, academics, the Anti-SLAAPs Network and, as I said, the ICCL. Taking on board that feedback, the updated defence requires a defendant to establish three things in order to avail of the defence: first, that the statement was on a matter of public interest; second, that the defendant reasonably believed that publishing the statement was in the public interest; and third, that the statement was published in good faith.

When it comes to determining whether the defendant reasonably believed that publishing the statement was in the public interest, subsection (2) provides that the court shall have regard to whether the "belief was arrived at after the making of such enquiries and checks as it was reasonable to expect of the defendant". It is certainly going to be the case that, to use Senator Mullen’s example, if a source has come forward and made a statement about an individual that is defamatory, a publisher could not just decide that they have a source who said it and they will just publish that. That would not fit within the statutory test.

Senator McDowell remarked during the debate that the question of whether an attempt was made to verify a story would be swept aside with the introduction of this defence. However, I find it difficult to see how a journalist who had not taken steps to verify a story could persuade a court that he or she had carried out such inquiries and checks as was reasonable to expect of him or her. There is also case law from our own courts, the English courts and the European Court of Human Rights which makes it clear that a statement can only be considered to be in the public interest if it is on a topic which has the capacity to impact the rights and interests of the public and where the information in question is reliable, properly researched and presented and published in an objective and unbiased manner. That body of law which has been established by the Irish superior courts is not going to be swept away with the enactment of this new section 26, if it is enacted, because the issue of public interest has already been considered by our courts and there is no difference between the public interest that exists at present and the public interest that would be introduced if this new provision was enacted. Material which is salacious or improperly researched or verified will not be considered to be in the public interest.

Senator McDowell is correct that the reference to fairness is being removed from the section. I will reflect upon that when it comes to Report Stage. It used to be the defence of fair and reasonable publication on a matter of public interest. Now the test, as provided for in the new section 26, is that it is just reasonable. At this stage I do not believe the removal of the reference to “fair” in itself impacts on the standard of protection. This might be best illustrated by looking at subsection (2) of the existing section 26. The factors listed under the existing section 26(2) either go to whether something was a matter of public interest or whether the defendant reasonably believed that publishing was in the public interest having made such inquiries and checks as was reasonable to expect of that defendant. It is difficult to envisage how a statement could pass the test set out in the proposed section 11 which requires that it be in the public interest, that there be a reasonable belief based on conducting reasonable checks and inquiries that it is in the public interest and that it be made in good faith and not be regarded as fair.

Senator Mullen referred to the abuse of politicians and public figures, which should not be countenanced. I echo the concern both he and the Ceann Comhairle have expressed in respect of that. However, I do not see how it could be countenanced by the defence available in the proposed updated defence. This is not a charter for the abuse of any figures, whether they are political figures or other individuals in the public eye. Section 26 as amended by section 11 contains an explicit requirement to act in good faith and also requires a defendant to conduct reasonable inquiries as to the veracity of the statement in question. It is the case that subsection (3) of the proposed new defence provides that a defendant should not be required to take steps to verify the truth of an accurate and impartial account of a dispute. The purpose of that subsection is to allow for a neutral reportage on issues so that the media can carry out what has been termed a watchdog function. In other words, as well as being in the position to investigate and report on stories in the public interest, it will be possible for journalists and those reporting on matters in the public interest to neutrally report what is being said by two parties to a dispute without needing to investigate the facts of the allegations where there is a public interest in awareness of the existence of the dispute and the allegations as distinct from the substance of the allegations themselves. This is in accordance with the case law of the European Court of Human Rights, which has found that punishment of a journalist for assisting in the dissemination of statements made by another person would seriously hamper the contribution of the press to the discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so.

This House will be acutely aware of issues that can arise in the public domain where there is a dispute in a statutory body or, indeed, within government whereby the newspapers should be entitled to report on the fact that allegations are being made by one element within a statutory agency against another or, indeed, you could have a situation where Ministers could find themselves in dispute. There is a public interest in the public being apprised of that dispute and it being properly reported in the media. By the way, I fully accept - I know people in this House are not just talking about politicians - that public figures and indeed private figures are entitled to their good name and should not be subject to scurrilous, abusive or vindictive statements. However, we need to be conscious that sometimes a person can find themselves unfairly in the public glare if a false allegation is made against them to An Garda Síochána and the gardaí are required to investigate it. If the person being investigated is completely innocent, but the gardaí have to investigate because of the complaint, it is truthful to say that the gardaí are investigating somebody because of a complaint that has been made. The reason newspapers do not generally publish stories like that is because they have a legitimate and understandable concern, and this will continue after this legislation if it is amended, that by reporting that, for example, Jim O'Callaghan is being investigated for corruption, the meaning of the article could be assessed by a court in a certain way. It could be decided that it was stating that I am involved in corruption, as opposed to being investigated for it with no substance to it.

Newspapers are cautious and careful when it comes to publishing statements such as that. We need to recognise there is an entitlement to publish stories which are true. Publishing a story which is true is not necessarily the same as saying there is substance to the fact that an allegation was made against somebody. If an allegation is made against somebody, it may be false, but it is true to say it has been made. It is a difficult area.

I know Senator Craughwell mentioned on the last occasion issues about information being provided by An Garda Síochána to newspapers, which is something that, if it is done illicitly and in breach of the statutory rule, would constitute a criminal offence. It is reprehensible. However, there is a remedy available to a person who has had a story about them leaked by An Garda Síochána to a newspaper. Their claim is of a breach of duty by An Garda Síochána in providing the information. I know it is an extremely hard case to succeed in because you have to have evidence that it was actually done, but in terms of the newspaper publishing it, the correct way to deal with it is to ensure the law is complied with in the first instance.

As public figures in a democratic society, we must be prepared to accept a level of scrutiny. Most Members of this House and the other House, and most people in government, expect and tolerate a level of scrutiny. Obviously, the public must be entitled to engage in discussion and debate in relation to our actions insofar as those actions relate to matters of public interest. No one here will disagree with that. I consider that section 11 will provide for an appropriate balance between those competing rights and will provide a workable defence in appropriate cases. For that reason – I am conscious it is going to be opposed in the House - I will proceed with pushing for the adoption of section 11. Nonetheless, I will reflect on the matter, particularly the point about there being no reference to the term or adverb "fairly" or to the word "fair". As I said with regard to many of the issues that were identified here on the last occasion, there are other protections in place for individuals when it comes to privacy rights and the statutory protection available under the type of legislation I mentioned, such as the Garda Síochána Act.

I wish to see if I have left out any of the other points that were made on the last occasion. The biggest problem we have with defamation at present is with people being defamed by anonymous people on social media. The really important part of this legislation is to ensure we provide a mechanism whereby people can apply promptly to court to get information about the individuals and identification of the individuals who are defaming them. I believe the section 26 I am proposing - the amended version - is not going to result in the realisation of the fears expressed by many Members of the House today and on the previous occasion. I think it will simply provide a more effective and efficient mechanism for defendants to be able to say they acted fairly, in good faith and in the public interest. They will be able to say that even though factually it was not correct, notwithstanding that they should be given protection. That is a line of defence that was not invented by me; it has been in common law for many years. Senator McDowell, as Minister, gave it statutory effect in section 26 of the 2009 Act. I do not think this is going to pose a significant change to it. I think it will improve it.

Finally, Senator Mullen spoke about section 12 and the abolition of the Reynolds defence. That has been included for the purpose of removing any ambiguity. The Reynolds defence seeks to give effect to the public interest defence of fair and reasonable publication. We do not need both of them. We do not need lawyers to be able to go to the court and argue about relying on section 26 but also on the Reynolds defence, which is more vague. We as the Houses of the Oireachtas in Ireland should be able to formulate our own defence. We are better off doing that rather than adopting a defence from the House of Lords in the UK, notwithstanding that the plaintiff was a former leader of my party.

Pat Casey (Fianna Fail)
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I thank the Minister. Before I go to Senator Lynn Ruane, I welcome Deputy Farrelly and his guests to the Public Gallery.

Lynn Ruane (Independent)
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I did not initially have any questions but I had similar concerns as others that were previously raised. I did not have any additional questions until the Minister’s contribution. My questions can probably be answered quite easily without me having to look at submitting future amendments on Report Stage. This may see seem like a side point compared to the conversation here today, but I ask the Minister to bear with me.

The Minister mentioned references as an example of something that may be protected; for example, if an employer gives a reference for somebody. For me, that brought up a concern around the use of non-disparagement clauses, which are being written into contracts before someone takes up employment. This is being done in order to future-proof any hypothetical situations that may occur between an employer and an employee in a certain profession or whatever. The reason I bring this up is specifically in relation to non-disclosure agreements. Currently, the non-disclosure agreement legislation - I introduced the initial Bill before the Government passed its own version last year - does not address retrospective non-disclosure agreements. What is the role of this legislation in relation to employment references? I ask that question in the context of circumstances in which somebody in employment - there may not have been a criminal case - may have a record of harassment, bullying or other particular behaviours. What I am hearing is that an employer would be protected in what they say about that person in a reference. The problem is that people may be giving references for problematic employees in order to move them on to other vulnerable places of work. This is especially important if that person has harassed women within the role. I say all of this from experience. It is where the initial non-disclosure agreements Bill came from.

A non-disclosure agreement may mean that a manager who is providing a reference, having been asked to do so by his or her senior, has to collude in giving a false reference for an employee in an attempt to pass the trash, which is what it is called internationally. This means that the employee in question is basically protected within the reference by the non-disclosure agreement. The employer gives a false statement about the employee purely to move them on because they are so problematic within that workforce. When the Minister spoke about how references will be protected, I wondered how that fits with the new non-disclosure agreement legislation, which provides that such agreements are no longer legal. How we can retrospectively protect people by ensuring false statements are not given in references, which to me seems completely and wholly wrong?

We must also look at the use of non-disparagement clauses.Currently under non-disparagement clauses an employer has the potential to take someone to court if, perhaps, they called out the employer. I will use a random example of a deli that is supposed to freeze a certain food after a certain amount of days and they do not do so. Perhaps an employee takes umbrage with this and goes out on social media and speaks about the practices there are blah blah blah. It may be, however, that it is actually written into the contract that you cannot disparage your employer in any way, shape or form. How do non-disparagement clauses, which also I feel are wrong, intersect with the defamation legislation, section 11 specifically?

I suppose Members are all very focused on how the media may represent us or other people in the public eye, but there are people who are a lot more vulnerable who are commented on in public and in the media a lot. It is often not a cohort whom people want to protect from further reputational damage because I think there is a feeling that this cohort's reputation is already damaged and they do not deserve to reassume a good name. Consider, for example, people currently serving prison sentences. The red-top media in particular will often say "a source has told us" or "a source has said". Even if this is proven wrong, the person was never taken to court or the situation was not actually as it was, these people are so vulnerable and so on the margins that they will never be in a position to actually take a case against those newspapers. This relates also to the language of hyperbole that some of the red-top newspapers use. They may say things that are quite fictional like "psychotic" or "doesn't show any remorse", a view that may be given by a secret contact, which is usually a prison officer who has no contact in a therapeutic way with the individual.

What do we believe to be a good name? On a very philosophical level, does someone have such a right? Reputational damage has already happened to them, potentially from being involved in criminality, they engage in psychology and rehabilitation, get their degree through the Open University or in college, they start volunteering, they have a job on the land and they are working their way out, and then we we allow the newspapers to write anything about them because it is like once you have a good name, you only have it as long as you have that forever. Does a person have an opportunity to develop and reassume a good name, good character and good reputation? If we do not have an opportunity to develop our reputation and our name and to right the wrongs we may have done in the past, that is really problematic because we do not give anyone a chance to re-engage in society and to be able to become trustworthy citizens who want to contribute to society in a much better way and do no more harm. How do we ensure that people who are much further away from systems and with no platforms are also protected, whether it is through the original section 26 in the original Act or through this legislation? What do we actually understand to be a good name and do we allow people to reassume their good name because they may have got into particular situations due to particular circumstances?

On the right to reply, with politicians and other people, if something is in the media, in most cases people are offered the right of reply. When people are in much more marginalised situations, especially if they are serving a sentence, nobody is given the right of reply. Does that mean that, even though your liberty is removed and certain rights are removed due to imprisonment, defamation law does not apply to people in prison? Do they not have those same rights of right of reply, which do not currently happen?

The other question relates to public interest and public benefit and the difference between the two. The original defamation legislation referred to "public interest" and qualified that with "public benefit". In this new section, it only says "public interest". What is the difference between those two thresholds? I would imagine that public interest can be a much wider thing and that public benefit would be where you have to show that it actually benefits the public, which obviously feels like a different bar from just public interest. Will the Minister give me insight into what the difference is between public interest and public benefit?

Rónán Mullen (Independent)
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I have some sympathy there and Senator Ruane has raised some very interesting points on the right to recover a reputation. It reminds me of that idea of the right to be forgotten as well. Some of us have been reflecting on that in recent days with the question of whether a person who had a conviction for firearms could be employed in the precincts of the Oireachtas. I remember thinking that they should certainly have to go through the scanner for a few years anyway but there should certainly be a focus on allowing and enabling the rehabilitation of a person over time. I do sympathize to some degree with what Senator Ruane has raised in that regard.

On the Minister's reply to the concerns I raised, it does seem that the media, and not just the media but others the Minister mentioned - academics, etc. - are having extended to them here a form of qualified privilege, which I would say at best is only mildly qualified. As I have heard Senator McDowell say, there is a case for adjusting what is there already in section 26. The question is whether the Minister is going too far here, and I think he is. The Minister has made the point that he is concerned the section 26 defence has never to his knowledge been successfully invoked. I heard a form of that argument here last year when we were discussing the hate speech legislation, when it was said we were not managing to get convictions or, as I believe it was then Taoiseach, Deputy Simon Harris, who said, one of the reasons for changing the legislation was to make it more possible to get convictions. I find that a troubling line of argument. Surely there is every possibility that the reason section 26 has not been successfully invoked is that it is acting in the preventative way the law should, which is to prevent false or defamatory statements from being made. Is it not the correct question for Minister to ask himself and to address here what type of stories or things we are now aware of that should and could have been reported in the past but for the fact that there was not a strong enough public interest defence for publication? Are we talking about situations in the past whereby if journalists had a stronger public interest defence, they could have reported more freely on allegations that politicians were taking money from donors, illegally or otherwise? Even at that, I cannot understand how it can ever be right to say that there are circumstances where the court is not interested in whether the defendant took steps to verify the truth of an imputation that it conveys, which is the subsection (3) exception: "Where the statement in respect of which the defamation action was brought was an accurate and impartial account of a dispute", and that the court can disregard the defendant's failure to even take steps to verify the truth of the imputation conveyed by it. In what world and in what circumstances is that get-out fair? Surely as a matter of precaution it should always be the case that there should be an absolute obligation to try to verify. They might not succeed in verifying or satisfying themselves one way or the other to a court level of certainty, but that it might not be to their disadvantage that they did not even try is a concern.

The defence the Minister gave for that, and I do not want to put words in his mouth, was that he wanted to protect neutral reportage of issues and to protect the media watchdog function. We all know that media, various media and some media, are capable of selective watchdoggery.The Minister must have in mind the possibility that the media might be interested in particular potential villains and less so in others. I remind him of what happened with RTÉ and Fr. Kevin Reynolds, for example. There was a widespread discussion at the time that one of the reasons for the failure to check facts was that there was at the time a certain odium around church people, particularly in the context of abuse cases. The media dropped its guard and as a result an innocent person was libelled. But for the particular circumstances of the libel, that person might not have had the recourse they were eventually able to get.

We are operating in a climate where the media does not always have clean hands, is not always scrupulously impartial and does not always subject everybody to the same test when it comes to hearing about, investigating and reporting wrongdoing. I do not see how we subtract from the ability of good bona fide media or journalists, in particular - I know the Minister is not exclusively talking about journalists - to do their jobs by not giving this get-out that they do not, in certain circumstances, have to take steps to verify the truth of the imputation they convey. I cannot think of a single example where that get-out for journalists could be shown to be necessary. How is it ever not strictly required that you try to verify?

The Minister is allowing this exception in circumstances where an accurate and impartial account of a dispute is brought forward. Senator McDowell has already asked what exactly is meant by "dispute". If we were talking about court cases, we could all understand. As the Minister rightly says, it is not just possible and permitted but necessarily possible and permitted to report proceedings in court cases even where the facts of what is reported to be alleged have not necessarily been established.

The Minister, however, is not talking about court cases; he is talking about an accurate and impartial account of a dispute. Let us suppose that somebody makes a horrible accusation about the Minister, and that the Minister chooses not to dignify that allegation with a response. Can someone then give an accurate and impartial account of the dispute? They could claim it is a matter of public interest because the Minister is a public person against whom X has made a horrible accusation. They could claim that they gave the Minister the opportunity to respond and he said he would not dignify the accusation and would see the person reporting in court if they publish. If that person publishes, he or she is entitled to ask the court to disregard the fact that no steps to verify the story were taken, other than asking the Minister if it was true. Is that what is meant by taking "steps to verify"? Is that all you have to do? Do you even have to do that? I do not understand how it is possible to give anybody a get-out on the requirement to take steps to verify the truth of something that they choose to put in the public domain.

I completely get the Minister's distinction between the fact of an allegation and the facts or otherwise contained within an allegation. However, the person who takes on the responsibility to publish is the initiator of the problem. If they do not, in certain circumstances, even have to take steps to verify the truth of what they are saying, it is a serious problem.

The Minister rightly talked about the problem that exists now on social media with people being constantly defamed and subjected to abuse of various kinds, including defamation. I worry that what is going on here is that he is bringing everybody down to a lower standard of behaviour and not addressing the problem. I do not deny that the Minister is attempting to address the problem and that he intends to address it, but what is contained here facilitates less, and not more, responsible behaviour at a time when attention to standards in the publication of information, claims and allegations has never been more important. While I note what the Minister has said about considering whether the concept of fairness should be brought back, much more careful consideration needs to be given to this get-out in regard to the obligation to take steps to verify the truth. That needs serious consideration. It is dangerously problematic as it is set out at present.

Michael McDowell (Independent)
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I was interested by the Minister's evocation of the debate that occurred here when I introduced the Bill for what became the 2009 Act. He referred to the then Senator Norris's response and remarks. There was a vogue at the time to describe me in the media as a rottweiler. I have some very interesting cartoons over my mantelpiece at home showing me doing various things to other people's legs. I also remember that on one occasion, I think in Dáil Éireann, a spokesperson or Deputy from the other side of the House referred to me as a rottweiler. Somebody else described me as more like a labrador than a rottweiler, and asked the person on the other side of the House "What does that make you?", or "What dog are you?". In a nasal voice, the then Deputy Des O'Malley said, "Maybe I should suggest the word 'shih tzu'." Thank God I have escaped from the canine pound and am here.

There are a number of things I wish to say. I want to go back over the genesis of section 26 because the Minister has spoken about it. A divergence had arisen between England and Ireland after the House of Lords decided on a journalist-based defence, which it made as a kind of common law judicial development of the law of libel in Britain to provide a defence for responsible journalism. The decision of the House of Lords set out criteria by which that could be evaluated. That followed a jury decision in respect of a claim brought in London by the former Taoiseach, Albert Reynolds, against an English publication. We must remind ourselves that there was doubt in Ireland about whether there was an equivalent defence here. I do not know if it was Mr. Justice Charleton or Mr. Justice Ó Caoimh, but somebody handed down a High Court judgment that appeared to state that it was the law in Ireland to follow-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It was the Louis Blom-Cooper case.

Michael McDowell (Independent)
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Yes. I cannot remember who the judge was.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It was Mr. Justice Ó Caoimh.

Michael McDowell (Independent)
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That left the law in that condition. There were people who said this was a correct decision of Mr. Justice Ó Caoimh, and others who said it should be done by the Legislature and not by a High Court judge. There were suggestions that we were not to slavishly follow decisions of the House of Lords in England, whether we agreed with them or not, where they changed the substantive law of defamation to provide a new form of defence.Without wishing to delay the proceedings in the House on this Bill, it should be noted that it was in that context that the Defamation Act 2009 had to deal, in section 26, with setting out what was or was not to be the law as regards the freedom of newspapers to publish what is prima faciedefamatory matter but done in good faith and for the purpose of discussion that was for the public benefit. That was the context in which section 26 in its present form came into existence. As I said on the previous occasion, there was very considerable worry at a political level at the time that in attempting to formulate a statutory version of a defence of this kind, the floodgates would be opened in a manner the former Senator Norris so graphically described in his contributions in this House. His view was that the pre-existing law was perfectly good and should be maintained.

It is true, as the Minister said, that lawyers who appeared in defamation cases found it very hard to predict how a jury confronted with the statutory hurdles and criteria set out in section 26 would come to implement them. However, given the Government is now determined to abolish jury trial, we have to say there is no difficulty in asking a High Court or Circuit Court judge to interpret criteria laid out in a section, even if they are extensive. What the Minister is achieving - in inverted commas - by abolishing jury trial robs of their weight a lot of the doubts and criticisms that were levelled at section 26 because a judge confronted with that section could easily understand each and every part of it. I am of the view, as I have stated in the course of the debate on this Bill, that section 26 should be simplified. I support the Minister in that respect but I was doing it also in the context of my opposition to the abolition of juries.

Nonetheless, I still think it could be justified by the removal of the third condition in section 26(1), which states, "in all of the circumstances of the case, it was fair and reasonable to publish the statement". I understand that particular clause was the subject of a question given recently to the jury in the Gerry Adams v. BBC case, in which I appeared on a different issue to do with reputation, as to whether it was fair and reasonable to publish the statement. From memory, the jury thought it was not fair, that the programme, in effect, was not fair and, therefore, did not go along with the section 26 defence mounted by the BBC. The kind of catch-all provision that "in all of the circumstances of the case, it was fair and reasonable to publish the statement" has perhaps, particularly with a jury, given an out. The jury members could say, "Yes, we have listened to all the arguments but, in the end, that was not fair and we are holding for the plaintiff and against the broadcaster." That is the first point I want to make. Section 26(1)(c) is probably too vague a provision even if the matter is to be determined by a judge. In the end, it is highly subjective as to whether something was fair and reasonable if all the other criteria were satisfied.

The Minister mentioned stakeholders. That is a word I find slightly alarming. Who are the stakeholders? Are they newspapers, the NUJ and lawyers who appear habitually for or against plaintiffs in defamation proceedings? Is McCann FitzGerald, traditionally the solicitors acting for Independent News & Media up to a point, a stakeholder in any real sense? Looking to the other Reynolds case, Fr. Kevin Reynolds was represented by a single-man firm in Robert Dore & Company. Is Robert Dore a stakeholder who should be considered in matters of this kind? The smaller firms probably do not have departments that can deal with every aspect of public discourse. Of course, every solicitor firm that litigates is its own litigation department.

It would be sensible to look at section 26(1)(c) and perhaps to excise the phrase "in all of the circumstances of the case, it was fair and reasonable to publish the statement". I am going to ask the Minister to answer particular questions. The Reynolds defence was to do with journalism and, as we know now, journalism is not the entirety of the problem if we understand it as printed newspapers or licensed broadcasters. We now have satellite television channels and we do not know who owns every channel we see. We have online publications, which cannot be bought in a newsagent, such as The Ditchand gript.ie. Then we have the whole concept of people being entitled to start their own news channel, commentary channel or online magazine or publication, be it periodical or not. At the time of the Reynolds decision, people knew what journalism was. It was participation in the coverage of current and historical events in particular forms of publications. Now we have a very different world.

The funny thing about the Minister's new section is that it proposes, in effect, the same test for everything when it comes to the defence of publication on a matter of public interest. Is a loner sitting in a bedsit in front of his or her computer and about to upload a comment onto social media entitled in the end to the benefit of the Minister's new section?Is that person entitled in the end to the benefit of what is provided for in the Minister's new section? I believe they are. I do not believe there is any distinction to be made regarding the kind of publication we are dealing with. An individual may decide now to publish something in the public interest in good faith, reasonably believing that publishing it is in the public interest. Somebody sitting alone in a room can come to that conclusion and can, if later sued, invoke the defence the Minister is offering. Therefore, we are not now dealing with the media in the same sense as the House of Lords was at the time of the Albert Reynolds decision; rather, we are dealing with somebody who becomes convinced that he or she is in possession of facts that should be brought to the public's attention via posts on social media. We are saying that instead of having the media-oriented provisions of section 26 as eventually passed by the Dáil in 2009, we should have a new, simplified defence that covers all publications of any kind whatsoever.

Section 26(2) of the Minister's proposed section states:

Subject to subsection (3), a court shall, for the purposes of determining whether subsection (1)(b) [which refers to a defendant reasonably believing that publishing the statement is in the public interest] is proved, have regard to whether the belief was arrived at after the making of such inquiries and checks as it was reasonable to expect of the defendant.

What are the reasonable checks expected from a man or woman sitting in a bedsit about to upload something onto social media? Do they involve the individual having seen relevant information in a newspaper, on television or in a foreign periodical? Before an individual says something defamatory, must they knock on the door of the person about whom they are writing and ask whether it is true that they did A, B or C? I wonder how that would really work.

Senator Mullen raised and developed a point that I mentioned. The proposed section 26(3) states:

Where the statement in respect of which the defamation action was brought was an accurate and impartial account of a dispute to which the plaintiff in the defamation action was a party, the court shall, in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest, disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.

What kind of dispute are we talking about? If two teachers in a secondary school are in dispute as to whether one of them is a child abuser in the school, does that qualify as a dispute that can be impartially and accurately brought to the public's attention? Teacher A may say teacher B is a child abuser and teacher B may hotly deny it, saying teacher A is malicious and has no grounds for making the accusation. Is that a dispute? If, say, the dispute goes to the board of governors of the school and the governors are divided 50:50, is it a dispute that can be fairly described impartially by stating the following six governors think X and the following eight think Y and that the substance of the issue is that a party to the dispute had been defamed and it was in the public interest that the public should know about it?

The media and public-personages aspect of the existing law is reflected in the proposition, in section 26, that one of the criteria the court have to consider is “the extent to which the statement concerned refers to the performance by the person of his or her public functions”. That was to reflect the Reynolds decision, implying there are people and things already in the public domain that may be treated differently. That criterion is to be scrapped.

What is a matter of public interest? Is it a matter of public interest that the lollipop man outside a certain school has been accused of child abuse? Arguably it is because children will be crossing the road every day under his control and interacting with him in doing so. He is not a person you would normally think of, such as a politician or officeholder, as attracting the Minister's defence; however, there is no criterion set out in the Minister's proposed section that distinguishes whether the man is fair game for a publication about whether he is a child abuser and whether parents should be informed of serious allegations to that effect if they surrender their children to his temporary control every day on the way to school. There is nothing in the Minister's section that differentiates between his activity and a member of the Oireachtas taking bribes, and that worries me considerably.

The second point that has to be borne in mind, and which was mentioned by Senator Mullen, is that you can have people who consider themselves to be watchdogs in the public interest and who post online for consumption by the public but who are highly selective. I do not have to remind this House this week that there are very many people who put up on social media items to do with crimes alleged to have been committed by asylum seekers and migrants. The same people, some of whom actually use online magazines, do not seem to be interested in whether an Irish person perpetrates the exact same crime. We had a case the other day, publicly dealt with, in which apparently an Irishman brutally stabbed an Irishwoman with whom he had had a relationship, because she was ending it.She suffered grievous injuries. I noted that none of the online publications that would have been the first to point out if he was a migrant did not bother with that story. They were not interested in that case. If there had been a minor stabbing involving a migrant, it would get top billing in certain online publications. What Senator Mullen said about being a selective watchdog is very true. We think and we hope that, let us say, RTÉ is not selective in that way and that it does not just look at foreigners committing crimes in Ireland, but looks at everybody who commits crimes in Ireland and reports fairly on all of those news stories. There is no obligation at all to be fair in that kind of way, cast by the Minister in the proposed section. One view of the public interest apparently can be that particular crimes are committed by immigrants, migrants, asylum seekers, or people who are here illegally. That is newsworthy, but the others are not.

If section 26(1)(c) were excised, that would leave the other criteria in section 26(2) of the existing statute to be considered. The first one is the extent to which the statement concerned refers to the performance by the person of his or her public functions. Let us take the case of an entirely private dispute about whether somebody sexually abused his or her own daughter or whatever the case may be. Is it in the public interest that the person be exposed or is it only in the public interest for the person to be exposed if he or she is a public figure in any event or carrying out some kind of public function? The Minister's section just does not deal with that issue at all. The second point is the seriousness of any allegations made in the statement. The court is to look at the context and content of the language used in the defamatory statement. The extent to which the statement draws a distinction between suspicions, allegations and facts is very important. I have seen in my own lifetime people who are, let us say, dissatisfied with the outcome of investigations, going to the media and saying the DPP would not prosecute or the chief superintendent would not send forward this file or whatever, but here it is and it makes a very serious allegation against a person in public life. In those circumstances, outside of the criminal law, are we to have situations where there can be discussions about people tending to suggest that there is an allegation or a suspicion that they have engaged in criminality, based on good sources?

The funny thing about the recent Gerry Adams case before the jury was that the producer of the programme, as I understand it - I was not there for most of the case; I only saw the bit when I was there as a witness - said that she had very good anonymous sources for the accusations that were made against him. Is it legitimate for someone to say that they have very good anonymous sources, that people are trustworthy and that they tested them out and what they were telling seemed correct? Is that to be a criterion by which, once satisfied, defamatory matter can be published about somebody, as in that case where there was an untrue allegation that Gerry Adams had been party to the decision to kill Denis Donaldson? Is it legitimate at all to put forward a programme of that kind if you are entirely dependent on off-stage actors who either are disguised and appear in profile and shadow, or who are just sources who are dependable and who you have checked out carefully? I wonder if any of us were the subject of an accusation of very serious criminality, whether we would be content for a broadcaster, online newspaper, a newspaper or an online poster from a bedsit to be able to say: "Well, I believed very much that the source, which I'm not going to reveal to you, was true. I was told that in total confidence by somebody who is absolutely trustworthy." Are we going to accept that kind of publication and say that it is a good defence for any of that spectrum of publishers to say that they acted in good faith in publishing it?

In paragraphs (f) and (g) of subsection 2, the whole idea of the Press Council was brought in. I just want to remind the House about what the background to that was. There had been a proposal in the programme for Government for the establishment of statutory press council. A report was done and submitted to me as Minister, which effectively recommended that there should be a press council. Members will be glad to hear that I was to appoint most of the members of it. I said to myself that this is absolutely unacceptable. Any press council that gets statutory recognition, as this gave it, would have to be entirely independent of the State. That is what happened. The provisions of the Defamation Act 2009 made it clear that if the media in Ireland established a press council, it could be recognised for the purpose of that section, but not otherwise. I disregarded the report recommending a ministerially appointed press council.

Another issue is the extent to which the plaintiff's version of events was represented in the publication concerned and given the same or similar prominence as was given to the statement concerned. As in the Gerry Adams case, is it fair if at the end or at the beginning for someone to say that Gerry Adams denies the following and then have 20 minutes of anonymous allegations made? Where does the Minister's proposed revision of this section deal with that? He does bring it in respect of disputes because it has to be an impartial and accurate account but that issue does not seem to have any weight at all for other defamations. The 2009 Act states, "if the plaintiff's version of events was not so represented, the extent to which a reasonable attempt was made by the publisher to obtain a response from that person; and ... attempts made, and the means used, by the defendant to verify the assertions and allegations concerning the plaintiff in this statement". Then you go to the Minister's subsection (3). Effectively, it is predicated on there being a dispute. It does not say a public dispute, but a dispute between the plaintiff in the action and somebody else. In those circumstances, if you are impartially and accurately describing the dispute, you do not, if you are the publisher, have any duty to take any steps to verify the truth of the imputation conveyed by the publication. I think that is wrong. That is not a simplification of the law. That is the introduction of an entirely new species of reporting. There is a dispute. A says B is a child abuser. B says he is not. This dispute exists between them. I am going to fairly, impartially and accurately print the fact that this dispute exists. It is a defence to the imputation against the person accused of child abuse. It is a defence that it was in the public interest to publish it about him. No duty is cast on the publisher to ask if it is true or whether it rings true. You might say it was done in good faith. That suggests, somehow, that you could not publish something that you believe is a wildly incredible allegation, and I go along with such a view. If, however, two people are standing up in public and accusing each other of bribery, theft, corruption, sex abuse or whatever, you name it, and I say here is a dispute, I will tell you all about the dispute impartially and accurately, and I have no obligation to check out whether the fundamental allegation in that dispute is true, I cannot understand how the Minister proposes to bring that into law.

The Minister gave the background to how section 26 came to be in the Bill, and I accept what he said about that. When I checked the Dáil record and looked at the interaction between him and Deputy Matt Carthy of Sinn Féin, none of these matters were considered at all. Nobody really looked at it at all. It was just nodded through. As Senator Mullen says, the same happened with the hate speech legislation. It was just plonked into this House, largely unconsidered as to what exactly it would mean. It was when it was put under the spotlight that people began to have questions about whether it should or should not be passed.

I am glad the Minister says that he is prepared to entertain proposals for changes to section 26. Apart from opposing his version in its entirety, it is difficult to ask this House to come up with an entirely different piece of law where we have not had any consideration of it by the Dáil. The Minister mentioned the word "stakeholders". Everybody is a stakeholder in this. Every single citizen is a stakeholder in this. Just because you run a newspaper, an online magazine or because you call yourself the Irish Council for Civil Liberties, ICCL, a body which I greatly admire, it does not mean that you have some special function, especially when the ICCL approached it, and rightly so, from the point of view of freedom of speech. That was its particular perspective. Politicians, by the way, are stakeholders in this. They will find out if it is passed in its present form just how much they were stakeholders and ignored their own self-interest. Every single citizen is a stakeholder in this because every single citizen has an interest in protecting their good name or the good name of members of their family. It is not just politicians; it is politicians' spouses and families. To see somebody defamed with immunity and impunity because the newspaper thought it was in the public interest that it should be made public, the devastation that can cause to the child of a public figure, to see their parent plastered all over the front of a newspaper, the subject of an in-depth RTÉ investigative report, attacked mercilessly by one of the online magazines or just simply under siege from a constant barrage or anonymous online postings, is huge. Everybody is a stakeholder here.

That is something that it is very easy in our new society to forget. You set up an NGO such as the Irish Council for Civil Liberties, voluntarily or by the State, it does not matter, or you listen to McCann FitzGerald, which is a very substantial legal firm that specialise in defending newspapers and perhaps broadcasters. You then say that the Bar Council is a stakeholder. I wonder are they really stakeholders who should be listened to more than the interests of the public and the individual citizen represented by TDs and Senators. That is what was so disappointing about the debate on section 26 in the Dáil. It never even looked at what the difference actually was between the new section 26 and the old one, what would and would not be permitted and what defences would or would not be put in place. The debate in Dáil Éireann never really examined the change that was being made. When the Minister says that he is prepared to consider looking at his proposed section 26, that is good. I presume he will do it with an open mind and pay attention to what has been said in this House, at the very least, in relation to it.

It is extraordinary. Not one word of the debates in this House has been published by the stakeholders. You can search RTÉ or every newspaper, but not one comma of this debate has been published. That is because they hope it will go through unscrutinised and unchallenged. That is what is going on. You might think that they are interested in this. I think Professor Eoin O'Dell, an academic, is the only person who has said a word about it.Not one word about the issues we have been debating here for the last two days has been put in the public domain by the so-called mainstream media, the non-mainstream media, all of the online commentators or even the academics. Why is that? It is because the stakeholders stand to benefit from the Minister's amendment. They want to wave it through unchanged. It suits them very well, thank you very much. They talk about the importance of the legislative process and holding Members of the Oireachtas to high standards but when their own interests are concerned, there is not a peep out of them. It is depressing. That is all I will say.

If this Bill goes to Report Stage, and I have no doubt that it will, there is provision in the rules of this House to remit the consideration of whatever section is put forward or any amendments that are put forward to Committee Stage, in other words, to reopen the matter at Committee Stage so that a genuine discussion can be held rather than what happens on Report Stage, which is that Members may make one speech and that is it. That does not really work in this context so I am glad that the rules of the House so provide. At this stage, I am entitled to ask the Minister whether he believes in the existing section 26(3), which states:

The failure or refusal of a plaintiff to respond to attempts by or on behalf of the defendant, to elicit the plaintiff’s version of events, shall not— (a) constitute or imply consent to the publication of the statement, or

(b) entitle the court to draw any inference therefrom.

Does he believe in that? Are we changing that law? Are we saying courts can draw an inference from the fact of a person saying nothing or that one's solicitor says "publish and be damned"? Does the Minister agree with section 26(3) of the existing law? It is hugely important. If that subsection is deliberately being taken away by this House, the courts will notice that it used to be law that no adverse inference could be drawn but that it is no longer the law. They will say that Seanad Éireann and Dáil Éireann deliberately swept that safeguard aside. Is the Minister content to get rid of that safeguard? I will finish now but it is very easy to write a story and say that you contacted Senator Conway, who failed to respond-----

Joe Conway (Independent)
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On three occasions.

Michael McDowell (Independent)
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-----on three occasions. In future, is that to be material in determining whether the story as published should have a defence under the revised section 26? If it is to cease to be material, that is fine, but let us tell the people that. We should let the people of Ireland know that, in the future, adverse inferences can be drawn if you say nothing. Let us tell the people that is the change we are proposing. I am putting my trust in the Minister that he is willing to take another look at section 26 because it is not just me but also other Members of this House who are worried about this. The Irish political system is only one potential casualty. As the Minister has said, this applies to all publications in all forms, including social media. On the face of it, it seems to apply to anybody whose behavioural standards or the like comprise a matter of public interest. You do not even have to show that the publication was for the public benefit. That is going to be got rid of. I will leave it at that.

Gerard Craughwell (Independent)
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I know it has been a long afternoon for the Minister. His remarks that he is willing to have a look to see what changes he might make were promising and encouraging. Senator McDowell referred to the impact on families. In his response a little while ago, the Minister made the point that, where a Garda investigation is taking place into an individual, it is in the public interest for that information to get into the public domain. Is it? Is it really right that, when somebody is being investigated, for whatever reason, that information should go into the public domain? First and foremost, let us think of what happens to the immediate family of the person who is the subject of the allegation. Let us say it is a child abuse issue. The immediate family have to cope with that but then the extended family have to cope with it, followed by the community and that person's employers. It becomes a massive issue because somebody indiscriminately passed on information that should never have got into the public domain. I would be rather shocked if we were to say that it is not defamation to print or publish something that says an individual is under investigation.

I will go back to the story I opened with last week, the Irish Independent article about a senior politician being involved in a charitable event. Of course, the politician could not be named for legal reasons but the story had originated with An Garda Síochána. First and foremost, that brings An Garda Síochána into disrepute. As the Minister pointed out, there is a criminal case ongoing as the result of a garda leaking information. I believe there is only one such case.

Michael McDowell (Independent)
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There have been a few.

Gerard Craughwell (Independent)
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It is a criminal offence and yet we see the term "Garda sources" in the media constantly. In that particular story, three or four Garda sources were quoted without naming any. Of course, if you were to take a criminal case against that particular publication, it would claim journalistic privilege. The journalist would say that he or she is not releasing his or her sources but that he or she got the information from a garda and believes it to be true. That journalist might never have got that information from a garda. The Garda might know nothing about it. That story was printed on that Monday deliberately to impact the election prospects of a candidate in the current presidential election. It has to be a criminal offence to try to influence the outcome of an election by printing a story that had no basis. Of course, the candidate in question had to make a statement the following day. It is rather sad that is the way it went.

Moving on to social media, some of the stuff being said on social media about another candidate in the presidential election is absolutely outrageous. The claims that are being made as factual are absolutely outrageous but those making these claims are anonymous. As Senator McDowell referred to, it is people sitting in their box rooms or wherever publishing blogs they believe to be 100% accurate and 100% true and believing that people have a right to know and that they are saying what they are saying in good faith. Under section 26 of the 2009 Act, you have some cover. It is very little. You have to jump over a number of hurdles before you can go anywhere with the thing.I have heard in this House statements, particularly when we talk about migration issues, that lead to misinterpretation in social media and all sorts of allegations, and we finish up with something like we had last night in Citywest. Again, a statement made here might refer to one or two things and it is taken out of context on social media.

Last week, I spoke about a teacher accused of interfering with a child where some years later it turned out there had been no interference with the child. The teacher in question looked for a timetable and the school was somewhat reluctant, based on there being no smoke without fire and there having to be something, even though the investigation showed nothing. I discussed this at the weekend with some friends and I said it was outrageous that the teacher was not immediately handed a timetable and reinstated on the staff. The answer I got back was to hang on a minute because that school probably had 300 or 400 parents who were concerned, and the concerns of the parents had to be taken into account before the teacher would be reinstated. My uncle had a saying that the sped arrow and the spoken word can never be retrieved. I believe the same applies when it comes to the written word.

The Minister rightly points out that we all have recourse to the courts to find out who on social media has just made some outrageous comment about one or other of us in the House or about a member of the public. Not everybody can afford to go to the courts. Going to the courts is not for the faint-hearted. Why should we have to go to the courts to find out who is making statements about us? People using social media can use any ridiculous name they want but why is it not mandatory that their full details be available in the event of a statement being made? Anybody in the House could then go to the Garda and say the person using this particular handle on social media was making outrageous claims about them and could ask the Garda to go and do something about it. Are we afraid of the social media companies? They are the ones with the money. They are the ones who should be held liable for what is published on their platforms and I do not know why they are not.

I know the Minister has sat through quite a lot this afternoon so I will make just one more comment. We all in this House get emails now almost daily. There are some people who write to me, and because I look at the email address I can see they are writing to everybody in the House, and they are making outrageous claims about Ministers, the President, the European Union and all sorts of things. Is this publishing? Once it is sent to more than one person, it is not an email to me but to the entire Houses of the Oireachtas. Is this regarded as publishing? If it is, what recourse does the President of Ireland or the Commissioner in Europe have against the person? They are fortunate insofar as they can afford to take them on. What is the point of taking on somebody who has nothing? I do not know whether the Minister remembers a Senator here who was subjected to horrendous interference and trolling on the Internet. She eventually got the case to court and they eventually identified the individual. He was brought to court on criminal charges. When that Senator came to defending her name, the same guy did not have two red cents to rub together. Defamation is for the brave and for anybody who wants to take it on but we should set the bar high for those who publish. The dúirt bean liom go ndúirt bean leí type of defence is simply not good enough, in my belief.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Members for their contributions, to which I have listened very carefully . I will begin with Senator Ruane, who made a number of interesting points. Her first point was on non-disparagement clauses and she inquired as to the interlink between non-disparagement clauses and the defamation laws that operate at present. My view is there is no link between the two. If somebody has signed a non-disparagement clause, say with a former employer, this does not restrict them from making comments about the employer in defamation. However, it does restrict them in terms of the provision that exists in contract. Senator Ruane gave the example of a former employer at a delicatessen with foods that were completely inedible and in breach of safety regulations. If somebody worked there and had signed a non-disparagement clause, there is nothing in the law of defamation that precludes them from making comments accurately about the condition of the deli, stating the food is in breach of food safety laws. However, they would probably find themselves subject to a claim for breach of contract, or even an injunction to stop them, because they are not complying with the non-disparagement clause to which they had agreed. I suppose if people agree to them, it can have consequences in terms of restricting their freedom of expression but the defamation laws are not the laws that interfere with that freedom of expression.

Senator Ruane also asked about non-disclosure agreements and their use in references. If somebody is writing a reference in respect of a former employee who they believe had harassed or bullied colleagues, they are perfectly entitled to say this in the reference. If it is true it is true, and they are perfectly entitled to say it under the defence of truth but, as I said earlier, generally anything contained in a reference, provided that reference is not malicious or disproportionate, is protected by law of qualified privilege. Senator Ruane also gave the example of somebody giving a false reference. If an employer knows in fact that the employee was involved in bullying or harassment but decides in order to get them off the books to give them a good reference, the only liability that arises there is that the new employer may have an action in negligence against the old employer who gave what was an inaccurate and dishonest reference.

Senator Ruane also asked about more vulnerable people. My experience is that very many people who fit within the description of vulnerable people have taken defamation actions and have succeeded in them. Certainly I am aware of very many people with criminal convictions who have taken defamation claims and have succeeded in those defamation claims. There is also a reported judgment, to which I am entitled to refer as a result of this, in Hill v. Cork Examiner Publications Limited. A man who was a prisoner in Cork Prison with a conviction for serious assault was identified in a newspaper as being in a section of the prison that accommodated persons who were guilty of sexual assault. He took an action in defamation and he succeeded and was awarded significant damages. It is certainly the case in my opinion and my experience that people who have convictions and people who were or are prisoners are just as entitled to take defamation claims as anyone else. Obviously, their reputation is damaged as result of getting a criminal conviction but this does not mean they have lost their reputation completely. There are different gradations in terms of damage to reputation.

Senator Ruane also asked about the right of reply. Obviously, if somebody does not issue a defamation claim but decides to go down the route of the Press Council, the Press Council can require the publisher to issue a right of reply. There is also a provision in the Defamation Act that is not affected by this Bill, which refers to the right to make amends, whereby a defendant can say they have made amends to the person who was defamed.

Senator Ruane asked about the public interest and how the legislation discusses whether something is for the public benefit or in the public interest. The new provision simply limits this to the public interest. We are better off not having different types of standards such as public benefit and public interest. I am trying to simplify the section 26 defence. This is part of the reason we have removed the section regarding publication being of public benefit also.

I will now deal with what Senator Mullen stated in his contribution.Senator Mullen spoke about section 26 operating in a preventative way and that he wished to ensure it continues to operate in that preventative way. That is not the intention of the section, however. It is not there to prevent stories being published. There are other aspects of defamation law to deal with that. We have the provision dealing with a defamatory statement where something is said that lowers a person’s reputation and the right of reasonable members of society. The rest of the Act sets out the protections for the right to one’s good name. Section 26 is not supposed to be there to prevent people publishing stories. As I said at the outset, it is there to ensure that some level of protection is given to articles published in the public interest in respect of which the publisher has gone to lengths to ensure they have checked their sources and verified the story.

Senator Mullen asked me to provide an example of where this section would apply. As Senator McDowell mentioned, section 26 was invoked unsuccessfully in the case involving Mr. Gerry Adams. You could certainly think of situations where a broadcaster or a newspaper has carried out a thorough investigation into something that is clearly in the public interest. For example, by looking at the performance of functions of a statutory agency, a newspaper or broadcaster might have been able to establish there were deficiencies in what a statutory agency was doing, it was not fulfilling its statutory role and that was having a significant negative impact on the public. Clearly, that is a story that is in the public interest. However, within the story, they may have stated something that was not correct in respect of, say, an official at senior management level within the statutory agency or someone on the board of the statutory agency. That may be troubling for that individual who could say they were not responsible for any of that. The purpose behind this, however, is to provide some broader protection where the substance of the story is true but one part of it is wrong in circumstances where the publisher has gone to significant lengths to ensure the story is properly inquired into and investigated.

Senator Mullen also spoke about section 26(3) and expressed concern about the fact that, “the court shall, in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest, disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.” This is in respect of defamation action brought where there was an accurate and impartial account of a dispute. In the first instance, it has to be an accurate and impartial account of a dispute.

Indeed, Senator McDowell asked what we are talking about with this subsection. We are trying to provide some form of statutory protection to the reporting of a circumstance such as the following example. I will use the example of a dispute in the Government between two Ministers, where one Minister says he believes the other Minister met a specific individual while fulfilling a part of his ministerial functions, while the other Minister denies this. There is a significant dispute between these two Ministers in respect of this matter. From a newspaper’s point of view, it is in the public interest that it be able to report the fact that there is an ongoing dispute between two Ministers. It could alternatively be between two senior officials in a statutory body. The newspaper’s ability to report on the matter is in the public interest. What we are seeking to do here is to say that they do not have to identify which one of the disputing Ministers or officers in the statutory body is correct. It does not have to be checked whether the publisher is making efforts to figure out the truth of it. The story and the fact that there is this dispute is in itself in the public interest. It should be reported without the necessity, as is generally the case, of verifying the truth of the imputation conveyed by it. Obviously, the truth of the imputation by the Minister in my example is that the other Minister had been involved in wrongdoing by seeking to meet this other person whom the other Minister denies meeting. The purpose behind the drafting of this provision can, therefore, be seen. It is designed to deal with disputes that clearly have to be in the public interest.

Senator Mullen also mentioned “watch-doggery”, and he referred to “selective watch-doggery”. It is unquestionably the case that newspapers in Ireland do not have to be impartial or objective. There is no requirement on any newspaper to be impartial or objective. They can be as completely biased as they want to be. That obviously applies to online publications as well. The only time the State imposes an obligation on a publisher or broadcaster to be impartial and objective is when it is providing them with a licence. The Broadcasting Act imposes obligations on broadcasters to ensure impartiality and fairness in the treatment and broadcast of current affairs. We have to recognise that newspaper can have a political agenda that suits them. They do not have to be fair or unbiased. They are entitled to put forward opinions that other people disagree with.

Senator Mullen mentioned the case of Fr. Kevin Reynolds. That is an example of someone who was the subject of a significant, damaging and defamatory story, who did not have much wealth or influence, but was able to vindicate his good name because of the defamation laws. That will not change under the current legislation.

Senator McDowell came in and he started by mentioning a third form of canine that has been mentioned today, although I will not get into that. He probably makes a valid point in stating that, with juries gone, section 26 will probably become more navigable. The judge hearing the case will be able to apply and operate the difficult statutory scheme in a more navigable way than would be the case with a jury.

Senator McDowell recommended the removal of section 26(1)(c) of the Defamation Act 2009. I know he is just putting this forward as a recommendation and I will consider it. Section 26(1)(c) imposes the requirement on the publication that, “in all the circumstances of the case, it was fair and reasonable to publish the statement.” I wish the Senator to note, however, if that is removed, my understanding is that all of section 26(2) would be removed because it states: “For the purposes of this section, the court shall, in determining whether it was fair and reasonable to publish the statement concerned, take into account such matters as the court considers relevant including any or all of the following------

Michael McDowell (Independent)
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That is a good point.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Yes. I will go back and reflect on it. I like the idea of having a provision that is just reflective of section 26(1). Section 26(2) makes it a complicated and difficult statutory defence to operate.

I hear what the Senator said in respect of section 26(3). My assessment in that regard is that it will not mean that if someone does not reply, it is an inference that they are happy with it. That is not the case. If the Senator looks at the provision that will be inserted in section 26, it states that where “such enquiries and checks as it was reasonable to expect of the defendant.” That means something. Reasonable inquiries and checks must be made by the defendant seeking to verify the truth of the story.

I agree with the Senator in respect of his comments about Mr. Robert Dore. He is one of the finest defamation solicitors we have in the country. I also recognise what he said in respect of stakeholders. It is a term I use and it is probably one of these words you find yourself having to use when you become Minister. When it comes to any legislation, however, the real stakeholders are the citizens of Ireland, whose representatives are in this House and the Lower House. The primary stakeholders and the people who determine law are the elected representatives. It is nonetheless the case, however, that many individuals will have an involvement in particular aspects of legislation. It is unquestionably the case that newspapers, the NUJ and lawyers, in their capacity as representatives of litigants, will have an ongoing interest and involvement in this matter.I do not think there is any downside to hearing feedback from practitioners. I am well aware, as is everyone else in this House, that when you get a communication or representation from an entity - as Members of the Oireachtas, we all get a lot of them - they all come with their own agenda. I am fully aware that newspapers have an agenda and it is to ensure they can have greater flexibility to publish and they want greater defences when it comes to defamation claims. Just because they have an agenda does not mean I cannot agree with part of it. I have to try to balance the right to protect one's good name and the right to freedom of expression. I will not allow myself to be planted into one group exclusively or the other. Newspapers should also recognise that there is an obligation on this House to respect and vindicate the good names of individuals. In general, we have a responsible media. I am not including social media. We do not see the type of wild stories sometimes referred to in the debate here or elsewhere such as X is a child abuser. That does not happen in media in Ireland.

Gerard Craughwell (Independent)
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It did last week.

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

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

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

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

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

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

Michael McDowell (Independent)
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What about RTÉ?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It shows the usefulness of the Upper House that we are having a very detailed discussion about this. I also note what Senator McDowell said about Report Stage. I did not know that. I am not guaranteeing anything but I will consider whether amendments can be tabled to take into account what Senators said.

I want to clarify for Senator Craughwell that I did not say it was in the public interest that the Garda investigation would get into the public domain. I said the defence of truth allowed it as a defence to say there was a Garda investigation. I recognise that can be a breach of statute and a criminal offence. It can also constitute a breach of a person's privacy. Senator Craughwell spoke about the impact on families. That is certainly the case. It is part of the consequence of defamation that is not really recognised in our statutory scheme. There have been prosecutions for the release of information from An Garda Síochána about investigations. There have also been convictions. The Senator spoke about social media and said there are outrageous publications on social media. That is the case. In many instances, if somebody wants to get information about the publisher on social media, at present they have to go court to get a Norwich Pharmacal order to get the details. Like the Senator said, they can use whatever name they want. Ultimately, people will still have to apply to the social media company to get the details identifying the publisher. Social media companies say that has to be through a court process because they want the protection of a court process.That, eventually when we get to it, is apparent from the new statutory scheme I am introducing later in this Bill. There was mention of emails coming in making outrageous allegations. Unfortunately, we live in a world where lots of people produce crazy defamatory publications about people. If it is published to one person it is defamatory, but because of the proliferation of defamatory publications a lot of us do not bother doing anything about them. I used to think people believed everything they read but as time goes on, people are becoming more discerning and they recognise not everything they read is true. I will push section 11 to a vote.

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

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

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

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

Joe Conway (Independent)
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Or is a person of interest.

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

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

Joe Flaherty (Fianna Fail)
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Before I call Senator Craughwell, I take the opportunity to note that several groups visited the House during the deliberations on this matter. We had groups hosted by Senators Sarah O’Reilly, Imelda Goldsboro and Sharon Keogan. Senator Keogan's guests were Councillor Grainne Maguire, Shane Cleary and Samantha Boden.

Gerard Craughwell (Independent)
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The Minister said that those on social media would never accuse somebody of being a child abuser. I was accused of being a child abuser.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I never said that.

Gerard Craughwell (Independent)
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I was.

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

Gerard Craughwell (Independent)
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In recent weeks, I was also accused of being responsible for the deaths of 50,000 babies, which is why I closed down my Twitter account completely.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I said ordinary media.

Gerard Craughwell (Independent)
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Maybe I misread what the Minister said. In the context of social media, and I know that is coming later, you contact the likes of Twitter, make a complaint and find that the most outrageous things are not against its rules. The bottom line is that I have no interest in Twitter any more.

On the impact that wild statements have on families, yesterday I brought up the issue of migration in this country. Constantly we are hearing, "Oh, they are rapists", or they are this, that or the other. I made the point yesterday that there were 6,683 rapes in ten years in this country. It would be no harm if the Department published the nationality of those who were convicted of rape and maybe put an end of those types of wild stories.

The Minister mentioned the flood of emails. I do not read such emails, and I sincerely hope most of the people in this House no longer read them. If I get an email that begins "Dear Member", I just dump it. I do not read them any more. It is interesting that they can be defamatory.

I have serious issues with good faith and the public interest. How do I prove or disprove that somebody wrote something in good faith? How do I say that something is not in the public interest? I mentioned an article in the Irish Independent. That was deliberately written to impact the current presidential election campaign. Allegedly, that story originated from the Garda Síochána. Have we reached a situation where a member of An Garda Síochána can decide, "I don't like Michael McDowell. Therefore, I will publish something and make sure he is never elected to the House again."? Particularly when we are talking about young politicians coming in here in their first term - and I have seen some wonderful work by some of the young politicians who were recently elected - to have an impact on them, all you need is for somebody to print a story based on some innuendo that a garda said something. As Senator McDowell said, if this Bill passes, it will be possible to name people. In such instances, journalists will say that they are not disclosing their sources. That is the concern I have. I will leave it at that.

Joe Flaherty (Fianna Fail)
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If no one else wishes to comment, I will put the question.

Pat Casey (Fianna Fail)
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I take this opportunity to welcome the group from Galway to the Gallery. Former Minister and Deputy Frank Fahey was in earlier. I also welcome Deputy John Connolly and Councillor Cillian Keane. I hope the people from Galway have a good day. I hope Senator Ollie Crowe and Deputy John Connolly will look after them well for the remainder of their visit. I am sure they will provide free entertainment and free meals. I thank them all for coming.