Seanad report:Minister for Justice Michael McDowell said the new Defamation Bill supported the concept of an independent press council such as that launched by the newspaper and magazine industry on Tuesday.
He said the Bill would allow the print media to put into practice its self-proclaimed determination to bring forward an independent, effective and industry-funded press council operating a proper code of practice.
The code must provide an added protection to citizens' privacy and dignity from media intrusion and violation. Nothing less would be expected or acceptable to the public, he said. The proposed press ombudsman service must be empowered to deal with complaints from those affected by breaches of standards as set out in the code.
The Minister was initiating the second stage debate on the Defamation Bill which was, with the exception of David Norris (Ind), given a general welcome.
A key provision of the Bill makes clear that a judge in a High Court defamation action shall give directions to the jury in relation to damages. The Supreme Court, on appeal, may substitute its own damages.
Mr McDowell said, in the context of libel reform, that the Bill put on a statutory basis a new defence of fair and reasonable publication on a matter of public importance.
It should be clear that this defence was designed to facilitate responsible journalism. "It is not a charter to engage in casual defamation or character assassination. It is not a licence for sloppy practice by journalists or editors.
"It will be for the courts to decide what credence to give to an editor or a journalist who tries to cloak himself or herself in such a defence without proper regard for its purpose."
Plaintiffs and defendants in a defamation action would be required to submit a sworn affidavit verifying assertions and allegations, and to make themselves available for cross-examination.
It would be an offence for a person to knowingly make a statement which was false or misleading. Defendants in defamation proceedings could lodge in court sums of money without admission of liability.
The defence of fair and reasonable publication on a matter of public importance was designed to facilitate public discussion where there was both a benefit and an interest in such discussions taking place.
A limitation period of one year would apply in relation to the bringing of defamation proceedings unless, in the interests of justice, a court directed otherwise. The Circuit Court could make awards of €50,000 compared with the current level of just over €38,000.
A new offence of publication of gravely harmful statements would apply where a person intentionally published a false statement causing grave injury to the reputation of another.
Deputy Government leader in the House John Dardis (PD) stressed the need for journalists to be allowed to protect their sources. He instanced the case where an editor and a journalist had been summoned to appear at a tribunal hearing to explain who their source was.
"Under the ethics of their profession they said 'no' and they are open to prosecution or to being held in contempt, and there have been cases in the past where people went to jail."
Mr Dardis said the Oireachtas All-party Committee on the Constitution, of which he was a member, had been looking at freedom of assembly and speech and the matter of privacy. Within the past week, the group had visited Berlin and Vienna, where they had had detailed discussions with newspaper editors, leading constitutional lawyers and parliamentarians about these issues.
"In general we must ensure that journalists are secure in regard to their sources and that their sources are not exposed. There have been cases where journalists have had to go back to their sources perhaps on two, three or four occasions and eventually the sources agreed to the journalists publishing their names. That is not a very desirable way to proceed."
David Norris said he did not really welcome the Bill. The press council and the press ombudsman would be toothless.
The Bill provided a curious protection of judges which should be taken out of it. Why should a judge be allowed to defame a citizen in giving a judgment? Criticising the defence of "honest opinion", Mr Norris said this was kow-towing to editors.
The Minister had given up on privacy. The Bill had been supposed to be a balancing act, but this had not happened "because we have given in".
Dr Maurice Hayes said he had no doubt about the industry's desire for the proposed ombudsman to be independent.
Noting that the Minister would be able to withdraw certification from the proposed press council if it was not performing in accordance with the requirements set out for it, he said: "It is important that peer pressure be exerted within the industry to ensure that all interests respect the decisions of the proposed ombudsman and press council.
"I hope the industry will go further in that regard by making it part of the terms of employment of editors, for example, to respect the press council and its findings. That is part of the testing ground."
Jim Walsh (FF) said he did not fully share the Minister's confidence in self-regulation. "We have too many examples, including the legal profession, of where self-regulation does not work as effectively as it should."