The Defamation Bill and the red herring school of debating

With the Defamation Bill, 2006 (Department of Justice | Oireachtas (pdf)) on the agenda for the Seanad again today, now is good time to observe that the debate so far seems to have attracted more than its fair share of red herrings.

First up is the rather fishy reaction to Fintan O’Toole’s piece Free press essential in democracy in the Irish Times (sub req’d) a fortnight ago (Tuesday, 6 March 2007). It was a largely positive piece, with only some relatively mild criticism near the end:

The general tenor of the debate was suspicious and grudging, with no real sense of press freedom as being an essential aspect of democracy, to be restricted reluctantly and only so far as is necessary.

I couldn’t agree more. Yet, to this gentle rebuke caused the unedifying sight of senators seeking to find their dignity in order to stand on it, and provided some wonderful red herrings to the debate that afternoon (html | pdf) as they referred to the piece rather than discuss the Bill.

Second, section 18 of the Bill recasts the existing defence of fair comment, and renames it the defence of honest opinion. And on this defence, Senator Norris (whose prognostications on the Bill have already featured on this blog) made two points of note. In his role of Defender of the English Language, he requested (html | pdf) that

the Minister return subsection 18(3)(a) to the draftspeople and ask them to draft it in comprehensible English? It states:

Where a defendant pleads the defence of honest opinion and the opinion concerned is based on allegations of fact to which subsection (2)(b)(i) applies, that defence shall fail unless the defendant proves the truth of those allegations, but the defence shall not fail by reason only of the defendant’s failing to prove the truth of all of those allegations if the opinion is honest opinion having regard to the allegations of fact the truth of which is proved.

How in the name of God could an ordinary person or a qualified lawyer understand this collection of gobbledegook? If I read that in a Trinity essay, I would fail the student. It is a collection of suspended clauses and deferred premises. It is ghastly. Perhaps some of my brighter colleagues know what the subsection refers to, but I lost the principal clause by the time I was half way through.

Could the draftspeople insert an occasional full stop as a courtesy to the weary reader and to break up the sentence? It would give one an opportunity to know what the law is about. Good law is understandable by the citizen and does not require a legal Einstein to know what is happening. I am not blaming the current draftspeople because I have a feeling this wording was lifted from the 19th century and stuck into the Bill. When we lift these archaic paragraphs, they should be expressed in plain English. (186 Seanad Debates, col 626 (28 February 2007)).

The need for plain English in drafting, so far as possible, is fair point in general, made here with characteristic and entertaining elan by Senator Norros, but misguided in this context. The drafting of s18(3)(a) was indeed “lifted” from an earlier provision: it recast section 23 of the Defamation Act, 1961, in part to take account of renaming the defence, and the Minister did promise to rethink the subsection in the light of its earlier statutory incarnation; a redraft with full-stops cannot be ruled at Report Stage. To be fair to Senator Norris, he did also have a point of principle, and his complaints about grammar and style are more bound up with this more general point:

I am opposing section 18 because the notion of honest opinion seems to be a libeller’s charter, as it was known for some time. One must be careful about allowing someone to put something in a newspaper because he or she believes it to be true when it is untrue. It would not be fair, particularly when combined with the extraordinary distinction drawn later in the Bill, implicitly if not clearly stated, between public figures and ordinary citizens. This follows an American judgment some years ago. It is not enough that people believe something is right. They should be required to prove the sting of the libel to prove they are right. (186 Seanad Debates, col 626 (28 February 2007)).

This is a matter of philosophy. Those who consider that freedom of expression matter in a liberal democratic society take the view that it should not be unduly fettered, and that public debate is fostered by allowing the expression of opinions honestly held and inferred from stated facts. Those who consider that reputation matters more would deny this kind of discussion. Even the common law of defamation, more a friend of reputation than of freedom of expression, has allowed for a defence of fair comment in these kinds of circumstances. It would be an extraordinarily retrograde step for Irish law to abolish it, as Senator Norris appears to want. Indeed, the Bill rather grudgingly restates the defence, without much if any relaxation of its terms. Moreover, were section 18 or an equivalent not there, Irish law would be in contravention of Article 10 of the European Convention of Human Rights (on which Senator Norris placed much reliance at an earlier stage of the debate). The article itself begins: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions …”, and the European Court of Human Rights has long held that the freedom to express opinions and value-judgments is protected by Article 10 (see, eg, Oberschlick v Austria 11662/85 [1991] ECHR 30 (23 May1991); Oberschlick v Austria (No 2) [1997] ECHR 38 (1 July 1997) (mentioned here on this blog); Wille v Lichtenstein 28396/95 [1999] ECHR 107 (28 October 1999); Feldek v Slovakia 29032/95 [2001] ECHR 463 (12 July 2001)). In other words, the philosohy to which Senator Norris subscribes is not one that is now open to Irish law, having regard to Article 10 of the Convention.

On the same day, the Bill’s provisions relating to offers of amends (sections 20 and 21) and apologies (section 22), proved controversial and were closely debated. Nevertheless, they were very quickly passed when the debate resumed on 6 March 2007 (html | pdf | Irish Times report (sub req’d)), as was the equally controversial provision relating to lodgments; and the debate centred on to the defence of fair and reasonable publication in section 24 of the Bill.

The problems with that defence have been discussed in an earlier message on this site. Many of them would have been resolved by the amendment to s24(1) suggested by Senator Maurice Cummins (FG), who would have substituted for the existing subsection a draft modelled on that proposed in the Report of the Legal Advisory Group on Defamation (pdf here and pdf) in 2003 [disclosure: I was a member of the Group]:

24. (1) Subject to subsection (4), it shall be a defence (to be known, and in this section referred to, as “the defence of fair and reasonable publication�) to a defamation action for the defendant to prove that the statement in respect of which the action was brought was published in good faith and in all the circumstances of the case, it was fair and reasonable to publish the statement.

Senator Cummins tabled this amendment on the basis of his “belief that newspapers may have too many hoops to jump through in proving fair and reasonable publication” (see 186 Seanad Debates col 780 (6 March 2007)). I could not have put it better myself, and it gladdened my heart to see the amendment being tabled. However, he nevertheless declined to press it on the basis that the media had published “untruthful newspaper allegations”, “untruths”, “lies” and “rubbish” during the previous week and had not apologised for it (see 186 Seanad Debates cols 780-781 (6 March 2007)). As a consequence – and, I feel, rather cravenly – he withdrew the amendment. That is a shame. The publications in question would never have benefitted from the defence of fair and reasonable publication, and to withdraw it because they did not apologise is irrational. Indeed, this episode is symptomatic of the debate as a whole. Senators often complained that (i) “the press is naughty”; (ii) giving an example of the naughtiness; and therefore (iii) decided “let’s not give them this concession”; – even where the so-called concession in (iii) is entirely unrelated to the example of naughtiness in (ii). Call this the red herring school of debating. So it was in the case of the failed attempt to press the amendment to s24: the naughtiness of the press in publishing the articles to which Senator Cummins objected had nothing at all to do with the defence of fair and reasonable publication. I hope, therefore, that if and when the Bill makes it to the Dáil, FG will once again seek to amend s24 in line with Senator Cummins’s amendment.

Another example of the red herring school of debating was supplied by Senator Norris. He characterised the net impact defence in US law associated with the case of New York Times v Sullivan 376 US 254 (1964) (findlaw | oyez | wikipedia) as being the introduction of “negative advertising whereby people can say whatever they like about their opponents in election campaigns and can pay people to lie on public television and get away with it. Is that what we want?” (see 186 Seanad Debates col 781 (6 March 2007)). Whether or not this is an accurate description of the impact of New York Times v Sullivan (and it isn’t), it is certainly not a correct characterisation of the defence of fair and reasonable publication in s24(1)(a) of the Bill (which he described as a “squalid piece of work”), and it is tendentious to say the least of Senator Norris to rely on such a mischaracterisation as a reason for rejecting the defence.

On the other hand, Senator Jim Walsh, who had so often agreed with Senator Norris on other aspects of the Bill, revealed himself to be entirely in favour of the defence; and I leave the last word on this issue to him:

It might well be argued that the defence of fair and reasonable publication is a concession to the media. I take a different view. I think it is a concession to free expression and it is one I fully support in the Bill. It is a significant shift and modifies our defamation laws substantially, but it is right that it should do that where issues of public importance and matters of public benefit can be placed as a defenc. (186 Seanad Debates col 790 (6 March 2007)).