It imposes a timetable on the Government and on 14 November I expect this legislation to be dealt with on Committee Stage. There are a number of desirable proposals in the Bill which could be taken on board immediately.They could be detached from the main body of the Bill and implemented in law now. I have not heard any satisfactory explanation as to why the Government will not do so.
The Bill proposes to abolish the distinction between libel and slander. That is an uncomplicated, simple proposal. The only function of the present definition is to cause confusion. I do not see why the distinction cannot be abolished. Deputy McDowell proposes, in line with the Law Reform Commission, that there be a new definition of the term "defamation".The only aspect of the proposed definition which might cause difficulty is the phrase "tends to injure". The use of the phrase "material which tends to injure someone's reputation" can be criticised on the grounds that the plaintiff need not necessarily show actual injury to reputation. Having said that, it must be borne in mind that there is a presumption that damage flows from a statement which is itself defamatory.The common law definition of defamation on which we are relying at present includes the phrase "tends to injure" so there is nothing exceptional or revolutionary about it.
The Bill proposes that it should be made quite clear that an apology is not an admission of liability. Section 17 of the Defamation Act, 1961 enables a defendant in a defamation action to give evidence that he tendered an apology in order to mitigate damages. Despite that, because of uncertainty as to whether it constitutes an admission of liability, an apology is rarely tendered where proceedings are likely to be taken. It is sensible to make it quite clear in legislation that an apology does not constitute an admission of liability. We should make it quite clear that a judge has an obligation to give proper weight to an apology in this charge to the jury. That is not a revolutionary or exceptional proposal. It would not pre-empt the more difficult choices which must be made or damage the impending legislation or the law as it stands.
In any civil action a defendant can lodge money in court. Certain consequences flow from that from the point of view of cost. It is a regular procedure. If a defendant lodges money in court he must at the same time state whether or not he is admitting liability. However, in a defamation action the lodgment of money in court means the defendant must admit liability. That is unfair and wrong. I do not see why defendants in defamation cases who wish to lodge money in court are discriminated against vis-à-vis defendants in other civil actions. After all, it is a tort and we are talking about the general law of tort. The Minister stated we must find the origin of this rule which is peculiar to defamation cases. A similar rule existed in the UK but was abolished in 1933, more than 60 years ago, on the basis that it was discriminatory and there was no logical basis for it, yet it exists here. If the Government is serious it could take this proposal on board in advance of a more detailed consideration of the legislation. It would be of benefit to both plaintiffs and defendants and would be likely to result in a considerable reduction in the number of cases which come to court.
The proposals in the Bill for declaratory judgments and declaratory and corrective orders are based closely, if not exactly, on the proposals of the Law Reform Commission. Declaratory and corrective orders are quite unexceptional and should be added to the judgment a person receives for defamation or for libel. The proposal for declaratory judgments is sensible. It allows a plaintiff a speedy, cheap remedy.He can proceed by way of special summons to get a declaration that he has been libelled or defamed. The proposal appears to be logical and should be incorporated into law. In many cases if a person feels their reputation has been injured it is sensible that they have a speedy way to correct the injury and limit the damage caused rather than having to wait for three or four years before the matter is rectified. Much damage can be caused to their reputation in that time and they can collect a pile of cash to cure it. When the Government decides to deal with the Bill on Committee Stage there will not be much opposition to that proposal. The proposals in the Schumer Bill in the United States which proposed that certain defendants should have the right to convert an action for damages into one for a declaratory judgment were rejected by the Law Reform Commission and the parliamentary draftsman, who were wise to do so. It goes too far. In the United States the law on defamation is not balanced.
I consider the Law Reform Commission and the draftsman of the Bill were wise to reject that proposal because it clearly goes too far. Even in the United States where the law on defamation is also out of balance, it is titled the other way, against the plaintiff, that particular rule being confined to certain types of plaintiff only. The Law Reform Commission took the view that, as it were, plaintiffs will rush out all over the place to seek declaratory judgments when that option is introduced, claiming there will be a substantial reduction in the number of actions for general damages. While I hope that will be the case, I am not sure. Declaratory proceedings, to some extent — and this is a matter for debate — should be open to the defendant. For example, at present there is a procedure where somebody is allegedly libelled and seeks an apology. Usually, they get their solicitor to draft an apology, one which is almost invariably out of line with the alleged libel. They send this into a newspaper saying it is the form of apology they want printed, the newspaper will say it is clearly going too far and effectively, the libelled person can maintain that they sought an apology but did not receive any. A speedy procedure should be devised whereby a court can declare on that.
More seriously perhaps — I put this forward merely as a suggestion — a defendant should be allowed to institute declaratory proceedings on the basis that this would not prevent a plaintiff subsequently seeking damages, the result of the declaratory proceedings being taken into account ultimately when damages are being awarded to the plaintiff.
I am worried also about the rules of court on pre-trial discovery in relation to declaratory proceedings. In many such cases it would be very unfair to expect a defendant to defend these proceedings without discovery. Journalists get their information from third parties, tip-offs and so on, and may be unable to properly defend an action for a declaratory judgment without pre-trial discovery.The plaintiff may have documentation of great significance. Surely the defendant should not have to defend a case against such a plaintiff without discovery?
A court should be obliged to take a correction order into account when assessing damages. I note there is no provision for costs in the section dealing with declaratory actions. It should be made quite clear that, if and when anybody succeeds in getting a declaratory judgment, he or she will also get costs.
The Bill contains a number of provisions in relation to defences. For example, it is proposed that the defence of justification be replaced by a new defence of truth. This appears to be clear, unambiguous and reflects the wording in the pleadings and the charge to the jury. It should not be necessary for a defendant to prove that what was published was literally true in every detail. "Partial truth" is dealt with in section 25, I have grave difficulty with its wording even though I know it comes directly from the Law Reform Commission proposal but, as we will not be taking the Bill in Committee for some nine months, I shall express my reservations then.
The areas of absolute and qualified privilege have become unnecessarily complicated and are in need of clarification.The proposals here at least carry the merit of clarity. While I could quibble with their individual details, they constitute a vast improvement on the present position.
Section 22 replaces the defence of fair comment with a new defence of comment based on fact. From a reading of this section it is clear that if the defendant cannot sufficiently establish the truth of the fact on which the comment is based, he can still be liable, even if he showed "reasonable care" in trying to ascertain the truth of the facts on which the comment is based but the sanction will be confined to either special damages or a declaratory or corrective order. Therefore, perhaps it is not as bad as it appears at first sight. Nevertheless, there should be some explanation in the Bill on what constitutes "reasonable care"; the criteria should be clearly specified.
Section 26 affords a general defence in relation to stated facts, not comment, to a claim for general damages where an allegation of fact is made if the defendant exercised "reasonable care". While an alternative remedy is provided in section 22, section 26 says it is a defence to a claim for general damages. I take it the intention is that there would still be provision to recover special damages there, and provision for a declaratory and correction order, but that has not been spelled out. Again, in section 26 — it is a fairly radical, revolutionary concept — the circumstances in which "reasonable care" will be held to exist should be clearly and fully spelled out.
The most revolutionary aspect of the Bill is the proposal to change the burden of proof. Defamation is the only area of the law of tort where an essential ingredient of the plaintiff's case does not have to be proved by the plaintiff but rather disproved by the defendant. The general position in tort law is that the person who brings the case, namely, the plaintiff, must prove each and every ingredient of his or her allegation. Defamation stands as an exception to that because, in the overwhelming majority of cases — because it is often quite clear what is and is not defamatory — the most important ingredient in what the plaintiff has to prove does not have to be proved by him at all but rather disproved by the defendant. That seems to me to be quite illogical, wrong and unfair. There is an onus on those who seek to support its continuation to clearly explain why; so far, it has not been explained to my satisfaction and I think it should be changed.
The Minister referred to the views of the minority of the Law Reform Commission about proving negatives etc. That is really more relevant to criminal law where one must prove something beyond reasonable doubt. We are talking here about the civil law. In the civil courts, every day of the week, people have to prove that something is true, false, is right or is wrong.
There is also a misconception that getting rid of the presumption of falsity is in some way shifting, creating another presumption, a presumption of truth. Of course, that is not the case. Removing the presumption of falsity does not imply that there will be a presumption that what was said was true. What is proposed is that the law would merely take a neutral stance and, as in all other areas of tort law, compel the plaintiff who is bringing the action to prove all the ingredients of the tort he or she is alleging. The present position has caused some difficulty for defendants; here I am not thinking in terms of multinationals or conglomerates but rather of the small, provincial newspapers who may be quite sure, on some occasions, that what they publish is true but may have difficulty in establishing it in court. I know of cases of plaintiffs, who knew very well that what was said was true but who knew also that the defendant could not prove it, have taken an action to court and got settlements; they took the action in the full knowledge that they would not have to give evidence or face cross-examination. Surely, that is not satisfactory?
I welcome the provision in the Bill in relation to printers, publishers and so on. As far as I can recall, the proposal of the Law Reform Commission was that no liability should attach thereto. That proposal has been modified in the Bill to some extent — they can be liable if they publish the matter intentionally, knowing it to be defamatory, or if they are "recklessly indifferent". I welcome that provision. Given the technological advances in printing and distribution it is unreasonable to expect printers and distributors to check all publications which come into their hands for alleged defamatory matter. I shall conclude because I am sharing my time with two colleagues, to whom I apologise, because I had forgotten until I saw them behind me.