Michael McDowell
National University of Ireland · Independent · Ireland
“Then I think of this particular Chamber where people are polite and kind to each other and listen to each other respectfully. There is no baying or shouting down or whatever. It is a great tribute to the Seanad staff that that spirit continues to exist in this House.”
“I note that the whole scheme of the planning Act is that exempt development proposals are considered by the Houses. It is questionable whether this House has really considered the exempt development regulations. Without debate, we sent them off to a committee.”
“I am one of the people who disagrees with the substance of that report. We have to have a real solid debate on it here in this House, not merely a cursory one. It is an issue of fundamental importance. It cannot be avoided, one way or the other. Whatever your views are on it, it needs to be thrashed out.”
“Although coming up to the end of this term we are rushing things through, and the guillotine is well-oiled and slicing this way and that, we have a lot of work to do in the autumn.”
“The people who did that were brought before the International Court of Justice and condemned and imprisoned. If Ireland does not clearly state that there are to be consequences for people who do things like what Mladić, Milošević and Karadžić were brought to account for, if we are incapable as a State of publicly saying that what Secretar…”
“If we cannot, as a State, say publicly to Rubio, "Hands off the International Criminal Court", when they were quite happy when the people who did the 7,000 murders in Srebrenica got their just desserts, but when there is any suggestion that what has happened in Gaza, with 70,000 innocent people killed by aerial bombardment and land bombar…”
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“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?”
“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?”
“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.”
“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.”
“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 Ditch and 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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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 facie defamatory matter but done in good faith and for the purpose of discussion that was for the public benefit.”
“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-----”
“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.”
“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?".”
“The time has come for them to realise that there is change afoot in Ireland and that, if they got together and united as a political force, this country would be far better served than having them divided and mutually competing for electoral support instead of co-operating in government.”
“Right across the board there has been, I would say over the period of time that the Taoiseach and I have been Members of the Oireachtas, a gradual movement of executive capacity from Government Departments and Ministers to agencies which simply are not delivering. When it comes to compulsory purchase, when it comes to delivering on projects and when it comes to using public-private partnerships - by the way if they had not been implemented, we would not have our motorway system - there has to be a radical change, and that includes changing attitudes in the Department of public expenditure. One thought that occurs to me, and there are many Fianna Fáil and Fine Gael Senators in this House, is that the differences between those two parties really are very small.”
“The day before yesterday there was a good news story about rail travel in Ireland, how there would be hourly services on the Dublin to Cork route and Thurles would be effectively as close to Dublin as Greystones, which was an impressive thing. However, when you read to the bottom of the story the kernel of truth was that €5.6 million was being set aside to plan for these things. The plans are great. We have spent a lot of money on infrastructural planning, and we have a lot of ideas, but actually getting shovels into the ground and projects completed is our biggest problem. You do not have to talk about the children's hospital.”
“Nothing is inevitable in politics but that would have very serious implications for asylum seeking in Britain, especially in the context of the common travel area. It would also have very serious implications, I believe, for the attitude of loyalists in Northern Ireland to the Good Friday Agreement because of the nationalistic tones adopted by Farage and his supporters. We live in a world where there are very serious challenges coming down the road, potentially, for this country and there is no point in sweeping them under the carpet. The figures and the plans the Taoiseach has outlined are impressive. I support nearly all of the plans the Government has for infrastructure, but the biggest crisis in Ireland is one between planning and implementation. That is our biggest crisis. We need new laws for delivering infrastructure.”
“The great majority of Irish people would not be entitled to have a direct vote on the composition of this House. The people who hold degrees from the new University of Ulster or Queen's University, all of those people in Northern Ireland would have no say at all. It is about time the Taoiseach implemented the Manning report. We as a democracy live in close proximity and, in a sense, with close connections, politically and every other way, to the United Kingdom. One thing that we cannot be complacent about is that the latest opinion polls in England suggest that Nigel Farage and his Reform UK party would sweep the boards if an election were held at any time in the near future. That may change.”
“I welcome the Taoiseach here today and to remind him that it is now 12 years since he and I stood in the studios of TV3, as it then was, defending the existence of this House, and Mary Lou McDonald and Richard Bruton, I think, were proposing its abolition. That happened then and the people of Ireland thought that this House was going to be reformed. The people of Ireland thought that but it is ten years since the Taoiseach challenged the then Taoiseach, Enda Kenny, about the failure to implement the Manning report. I am not going to spend too much time on this but I am going to say this. Six Senators would be elected by only 60,000 university graduates registered for the new university constituency if there was a snap election tomorrow.”
“Once it is law, the dam is burst and trying to put it back will be virtually impossible because the media will say this is great, they now have free-fire conditions against people whom they disapprove of in public life, let us see them sue the media in future. Those in the Sinn Féin Party are fond of suing people and they did not oppose this in Dáil Éireann - big surprise. I will leave it at that.”
“If that story was given national prominence identifying him, the attitude would be one of let us see him deny it, let us see him defend it, let us see him pick up the pieces of what is left, and it is in the public interest American style. I really ask the Minister to drop this amendment and let Dáil Éireann have a second look at what he is proposing. I am not impressed by the fact that there was little or no opposition to it in Dáil Éireann. In that Chamber, there is a certain cowardice and deference to the media, and fear that if the media say X or Y, their party, their personal reputation or whatever will suffer, and if the media demand this, it should be done. If the Minister is willing to go along with it, so be it. However, both Houses and the justice committee in particular should revisit this before it becomes law.”
“In addition to that, people may now write whatever they like provided it is a matter of public interest, that the defendant reasonably believed the publication was in the public interest and that the defendant published it in good faith. In future, those will be the only criteria for assaulting people in public life and destroying their reputations. What it is the media want to publish now that they are being inhibited from publishing? Today's Irish Independent story is a very good guide to that. If the Minister's amendment had been made, the name of that woman or man would have been a front-page story in the Irish Independent and tomorrow in all the newspapers and in broadcast media.”
“Who would go into public life if journalists are given a free potshot at them as long as they can invoke the three grounds of the Minister's proposed section 26? Would it not be wiser to halt and reconsider whether the whole process of liberalisation, about which I wrote in today's edition of The Irish Times , can go too far? It can get to the point where democratic values are under threat and where participation in public life is unsustainable psychologically and from a family point of view to people who are tempted to play their part as citizens in the democratic life of the State. It cannot be allowed to have that effect. As someone who is on the wrong side of public opinion on occasion, I get to understand how intense the blizzard can be.”
“I can well imagine juries taking a bit of a run at the present law and saying it was all very well but it was not really fair and that is the end of it. Even if the word "fair" was recast to make it clear to juries what was involved, I would happily debate that and see if there was a formulation that was better. However, I cannot accept the proposition that the amendment proposed by the Minister would have anything except really harmful effects on public affairs in Ireland. I make one last point. In the context of the presidential election and the recent nomination process, very vicious things were written, not just the one online that Senator Craughwell described. Very vicious things were said. It struck me: who would put their head in the firing line to receive such vicious, often defamatory obloquy anonymously online about them?”
“If this afternoon the Members of Dáil Éireann looked at today's Irish Independent and realised that, had the Minister, Deputy O'Callaghan, managed to get this through the Seanad, that person would have been named this morning, they might wonder whether we were wise to permit such a change in our defamation law. I have made my points. I am not saying that section 26 is perfect. I am quite happy to acknowledge that somebody could in good faith believe it required amendment. However, the radical chopping down of most of the tree to leave it as simply a matter of public interest, publication in good faith and the requirement that its publication was believed to be in the public interest is a ridiculously low standard to apply if every other constraint in the current law is taken away at the same time.”
“If the Minister says it is too restrictive, I could go along with him in making the case to this House that it is too restrictive for any of the following reasons: this kind of publication is being wrongly inhibited; juries are confused by some of the language in the existing section 26; it is too long; it is too clumsy; or the reference to the Press Council is otiose and redundant. I will listen to any argument, but I cannot accept an argument that none of this should remain our law and should be entirely swept aside. I do not think its implications were adequately debated in Dáil Éireann.”
“Because I was involved in the political compromise and authorship of the existing section 26, I do not claim it is perfect. I can see that, to some extent, it requires some reform. I am happy to debate with anybody changing any of the existing protections or qualifying them in any way. However, when I am confronted with a proposal to sweep away virtually all the defences the ordinary citizen, or a person in public life at whatever level, has in the face of a public interest test of the kind proposed by the Minister, I have to say this goes far too far. It is not balanced at all.”
“It was clear from section 26(2)(a), which says that one of the matters the court must take into account is "the extent to which the statement concerned refers to the performance by the person of his or her public functions". However, this does not just apply to politicians. It applies to senior clergymen. It applies to child protection officers. It even applies, dare I say it, to members of An Garda Síochána. It applies to teachers, professors and university heads. It applies to people down the authority pecking order in the public service, for example, passport officers alleged to have taken a bribe. This protection applies right across the board. What the Minister is proposing to do is radically change this section.”
“It is not that the Garda has found it is true, but that it is investigating whether a senior politician fronted up for a charitable event and the money did not end up going to its charitable purpose. Why not name the politician? What protection is the Minister offering them? Absolutely zero. Why was this amendment to section 11 not much more widely discussed before it was made, and the terms of it and its implications more widely understood? I have put this in terms which are designed to appeal to Members of this House because they can see very clearly that they could be in the firing line, as could Members of the Dáil and members of the Cabinet. I put it in those terms without apology.”
“It was a necessary protection, particularly for people in the public eye, so they would not be ambushed by telephone messages saying "We intend to publish the following about you and want to hear from you by Saturday as our Sunday edition will be carrying this story." I cannot understand how anybody would think that the terms of the existing section 26 are unfair or unreasonable. Who is demanding that the politician written about in today's Irish Independent should be identifiable today? Who is demanding that? Is it the media? Is it the public? Is it curiosity? If that is true, we had better know who it is immediately because An Garda Síochána is investigating it, believe it or not.”
“That is where the protection lies. Today, if we pass this particular section, we are saying those safeguards no longer exist. I assure the Minister that all of this was discussed and debated in great detail at the time. For instance, the provision that failure to deny a story could never be relied upon was put into our law for very good reason. "Let us see him deny it" is the oldest journalistic trick in the book because the journalist can then say the Minister denies corruption, rape or whatever it is and shove that on the front of a newspaper, or even that the Minister says "No comment" on the record when confronted with allegations of a very serious kind. We put that into law because it was necessary to put it into law.”
“Why immunise a Minister who says he is not responding to an inquiry on advice from his lawyers and who does not even return the pressman's call? Why give the media the right to say, "Minister so-and-so was contacted and given three days to respond and we have not heard a word"? Why do that? Is that the standard we actually want to have? As Senator Craughwell has said, we have this very day an example of a newspaper publishing a story about a senior politician which looks extremely unfavourable to that politician and has all the characteristics of a major defamation, if any of it is untrue. However, the newspaper then says to the public that for legal reasons, it is not naming that politician. What are the legal reasons? The legal reasons are that the existing section 26 does not accommodate it in naming the politician.”
“So, the journalist is publishing Minister B's name and the name of the accuser, although they might give the name of the accuser some confidentiality because he was their source, which is fair too. There is no breach of that at all. Is this the standard we want to give to our journalists in future? The Defamation Bill introduced in 2006 was extremely carefully calibrated. It looked around the corners and asked itself what would be the outcome in Irish law of changing the law at that time to accommodate what was roughly the Reynolds defence in Britain. The balance struck was the balance I have outlined to the House. Now, we say that was the wrong balance. It is too clumsy, too difficult and too constraining on free expression on the part of the media. Why force the media to investigate the matter themselves?”
“He goes to a journalist and says, "I am fairly satisfied that Minister X received money or made that decision because his son or daughter has stood to gain from it, and here is why I believe that." The first Minister is therefore under suspicion, and it could be credible suspicion, of corruption. All of the ingredients in subsection (1) of the Minister's new section 26, as proposed, are satisfied. There is no obligation to bounce it off the victim of that statement, if it is a defamatory statement and is untrue. The journalist can say with abandonment, "I put this to Minister B and he failed to respond for the last three days." That carries with it, in many people's eyes, the suggestion that there must be fire because there is smoke there.”
“We are given a choice in this House, a choice that was not adequately debated in the House below, as to whether this should or should not be the new law in Ireland, that it should be possible to publish allegations which are of sufficient gravity to cross the public interest threshold in relation to publication, that are believed by a journalist or a newspaper to be true, and that the newspaper reasonably believed that publishing the statement was in the public interest. Let us look at a fairly simple situation. One public figure alleges that another public figure has behaved corruptly. For example, in a coalition government, one Minister accuses another of behaving corruptly in relation to the second Minister's functions as a Minister.”
“All the three ingredients in the Minister's formulation of publication on a matter of public interest are satisfied. It does not matter whether it is fair or reasonable to publish it. The concept of fairness is taken out of the equation. It is just belief that the public interest requires it and good faith on the part of the person publishing it - in other words, an absence of bad faith. It would be totally different under the Minister's formulation if the person knew it was false. However, where the person believes it is true, good faith in its publication is satisfied if the matter is of such public import that the public should be told about it.”
“I am sure in the corridors of this House there are people wondering who that is. It is a perfectly natural inquiry to make. What would stop somebody from publishing that politician's name this morning if the Minister's amendment becomes law? It is clearly in the public interest that, where a politician fronts up a charitable event, raises substantial money and the money is not applied for the purpose for which it is raised, that should be stated and publicly known. It is clearly in the public interest that, if that politician is so senior as to have authority or have had authority and those were the person's standards, that should be known as well. I have no doubt that the journalist who published that story today believes that every fact that he or she put in their story which we are reading about is true.”
“The publisher has looked at file and feels convinced by what he has seen, without the other party’s denials being there, that it is probably true. If it is true as the publisher believes, the public should know about it. Publication in the public interest is satisfied. Good faith is satisfied because the person believes it to be true and that it is wrong that this person should remain a Minister, TD, Senator or whatever else if all this information which they have been given in confidence is true. Senator Craughwell made a hugely important point. This very day in one newspaper a senior politician is stated to have fronted up a charitable event where the money was misappropriated and where it was only devoted to the charitable object after enquiries were made. That is a very serious allegation to make about somebody.”
“They think, "I will just throw it at a journalist and see if the journalist would make something of it, and damned if that person is going to get away with this misbehaviour." That is the kind of thing that happens. It is not just a matter of police activity; it is right across the board. It is people who are suspected of professional misconduct. Anybody in that situation is vulnerable to a file landing of the desk of a journalist alleging gross misbehaviour or gross criminal misconduct. Of course, the Minister's amendment will facilitate a newspaper to publish that because it is in the public interest that there is serious suspicion about a particular person in public life. It is in the public interest that they should know that.”
“That file, by the way, that file was handed over in a city centre pub, as we later found out. The next thing that happened was that women who were alleged to have had the abortions carried out - this was prior to the repeal of the eighth amendment - had a journalist knocking on their doors asking them to confirm that they had abortions by this doctor. Do gardaí leak files? Yes, they do. Thank God, the great majority of gardaí do not leak files and comply with their duty of secrecy and confidentiality under the Official Secrets Act, the Garda code and the Garda Síochána Act. There are often cases, however, where people who are frustrated that prosecutions are not be authorised and that the DPP said "No" and the evidence is not sufficient.”
“It will not be any good saying in court, "Why didn't you apply Press Council standards and procedures and advice to the way in which you handled this story?" It will not be any good to say that because the fairness requirement is gone. It has gone out of the window. Instead, we will have a brave new world where somebody will be able to say, "I have it on good authority from a member of An Garda Síochána, who perhaps should never have revealed this to me, but I have seen the file, and there are reasons to believe that Minister so-and-so or whoever is guilty of corruption." Do gardaí leak files? Yes, they do, on occasion. I was amazed way back to the time when I was Attorney General that a file was leaked to a particular newspaper and journalist that there was somebody carrying out abortions in Ireland.”
“There is a difference in making no comment under the proposed legislation because they will be able to publish "Senator accused of rape", with the details of the allegation they believe to be true, add that the Senator in question said "No comment" and stick it on the front page as their lead story. That is where we are going and nobody should be under any illusion about that. Why we are changing the law to permit this, I do not know. As I said to the Minister before, the present formulation was considered clumsy, but there are guarantees in it which are hugely valuable to people about whom public interest defamation may or may not be published. There are very serious safeguards which curtail media behaviour and impose good manners, such as Press Council standards, on them. All of that is to be swept away.”
“If you say you are not answering that, it does not mean you are consenting to its being published], or (b) [and this is crucial] entitle the court to draw any [adverse] inference... You may say you are not answering or have no comment, or you simply do not respond to a message left on your phone, saying "We intend publishing the following about you tomorrow". This happens, by the way. This is not me imagining situations. It happens weekly in our Republic that people get messages of that kind from investigative journalists, saying "We're publishing this and we're giving you an opportunity to deny it." At the moment, they know that if the person does not reply, they cannot rely on that in the court for any purpose whatsoever. That is the law.”
“A duty is cast by our law at the moment on the person publishing the statement to investigate it, rather than simply say: "The gardaí say such and such" or "This woman says that she was raped" or "This man says he was raped" and then say: As far as we're concerned that's enough to go on. We believe him. We had an interview with him in the newspaper office. We believe him in good faith and we believe that the public should know about this. This is the brave new world the Minister is trying to persuade this House and Parliament to bring about. Section 26(3) 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 [That is obvious.”
“Under existing law, someone is presumed to read the whole thing and the fact the person denied it is thrown in at the end, but the story is all over the front page of the newspaper. The subsection continues: (i) 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 and publish a response from that person; That is gone too. That is no longer part of this defence. What used to be fair and reasonable, is now public interest only. The next paragraph is: (j) the attempts made, and the means used, by the defendant to verify the assertions and allegations concerning the plaintiff in the statement.”
“It requires them not to publish things which could seriously damage other people unless they conduct an investigation of the matter themselves and unless they afford the person about whom they will write the right to rebut what was said or to convince them it was false. That is all guaranteed under the existing law. Section 26(2) goes on to refer to: (h) 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; It is very easy to write a story. The gardaí say X, Y or Z. They are relying on a whole series of things. Set that out in the story and then say at the end of it, "Senator So-and-So denied it".”
“Section 26(2) then refers to: (e) the extent to which there were exceptional circumstances that necessitated the publication of the statement on the date of publication; If, for instance, an allegation of corruption or child abuse was made, why publish it now? Why not leave it to a jury? Here is a very good point: when somebody is accused of sexual assault and brought before the courts, they are given anonymity for rape charges, pending the outcome of the case. Under the Minister's version, if so-and-so is suspected of rape or there is an allegation of rape against X or Y, a public person, that person's anonymity does not have to be respected because there is no court proceeding in existence. Then there is the business about the Press Council. The Press Council has laid down a code of conduct for journalists.”
“Let us then look at the additional protections in the existing section 26(2). It states: For the purposes of this section, the court shall, [must - this is not an option for the court] 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: (a) the extent to which the statement concerned refers to the performance by the person of his or her public functions; (b) the seriousness of any allegations made in the statement; (c) the context and content (including the language used) of the statement; (d) the extent to which the statement drew a distinction between suspicions, allegations and facts; The story must not be written as "Senator X corruption allegation"; the story and statement must draw "a distinction between suspicions, allegations and facts".”
“Section 26(1) (b) stipulates that "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". Front-page story or front-page headlines - that is gone as a requirement. Section 26(1 )(c) is the crucial one. It states that "in all of the circumstances of the case, it was fair and reasonable to publish the statement". Is it fair and reasonable to publish a statement that a public figure is suspected by somebody else of corruption or subject to allegations by somebody else, whether a garda, Opposition TD or whoever, relating to corruption? Is it fair to put that into the public domain without some form of legal adjudication as to whether it is true and without the matter going through the court process, at the very least?”