I’ve just noticed something odd about the Defamation Bill currently before the Seanad, and I’ve been looking at it for so long now that I’m annoyed with myself that I haven’t seen this issue before. I was recently asked a very simple question:
What is a “publication” for the purposes of the Defamation Bill?
Unfortunately, that simple question doesn’t have a simple answer. There is no definition of the word in the interpretation section (section 2) which is odd since by my count the word is used no less than 71 times in the Bill. The main useages are in section 5(2) of the Bill which defines the tort of defamation, section 10 on “multiple publication”, section 24 on the “defence of fair and reasonable publication”, section 25 on “innocent publication”, section 32 providing for the remedy of a court order “prohibiting the publication of a defamatory statement”, and section 35 providing for a new offence of the “publication of gravely harmful statements” replacing the outmoded crime of libel.
In principle, when a word is used in an Act, it should have the same meaning in every usage, unless the context clearly requires otherwise. Hence, in principle, all 71 times the word “publication” recurs in the Bill, it should have the same meaning each and every time! And it probably does, but this is not entirely clear. For example, section 5(2), it provides:
The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person), and ‘defamation’ shall be construed accordingly.
This plainly assumes a very broad understanding of the word “publication”, and this assumption seems to underly all of the other sections (sections 10, 25, 32, and 35) with that word at their hearts, with one important exception, section 24 of the Bill, providing for the defence of “fair and reasonable publication”. This seems to assume a media publication, and this assumption seems to be reinforced by the terms of s24(2) giving particular detail to the defence. On the other hand, since section 24(2)(f) specifically refers to a “statement published in a periodical”, it is arguable that the rest of s24(2) is not confined to periodicals or media publishers; and this, combined with the general principle that a term used more than once in a statute should ordinarily be given the same meaning throughout, would potentially bring the generality of section 24 back into line again with the general understanding of the word “publication” in the rest of the Bill.
But this semantic parsing would be unnecessary if there were a definition of the word “publication” in section 2, which clarified that it means (something like) “any communication by any means” (and the words “by any means” would then have to be deleted from section 5(2)). In this way, the ambiguity about section 24 would be cleared up; I would then have a simple answer to the simple question with which I began this post; and the Bill would be all the better for it.
I agree that publication in s 24 must be taken to mean something more than a narrow definition given the additional criteria/relevance re: the Press Council in s 24(f) for ‘periodicals’ (which itself is problematic as I have written).
But what exactly? I suppose you could distinguish between publication as an action and as an item (verb v noun, perhaps) – i.e. “the publication of …” is different to “a publication”, perhaps.
There’s also the important legal issue of what publication (verb) is in relation to a very minor circulation within the jurisdiction – see for example Dow Jones v Jameel (not *the* Jameel famous to libel lawyers, but his brother!), where the Court of Appeal disagreed with Eady J (always a fun sport) about abuse of process in relation to a small number of copies/website hits within England (Eady said it wasn’t, CoA said it was), thus (I believe) overruling Harrods v Dow Jones (Eady again) and calling Gutnick (Australia) into question.