Defamation (Amendment) Bill 2024: Report and Final Stages
Seanad Éireann — 2026-01-21
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Jim O'Callaghan (FF), Dublin Bay South

I thank the Leas-Chathaoirleach. Obviously I listened very carefully to what Senators said on the last occasion. I am aware we are very much focused on certain legislative provisions within the amending Bill but if it is enacted by the Houses and promulgated by the President, there will be two parts of it that will stand out as being changes of significance, or maybe three. The first will be the Norwich Pharmacal provision being put on a statutory basis, which is a very significant development. Second, I have to concede that the removal of juries from High Court actions is a significant part. The third such part is the amendment of what is section 26 of the Defamation Act, which will be seen as a very significant change to the legislation. Section 26 has been a problematic provision, in that I am unaware of any occasion it has been operated or successfully invoked. If that is the case and it has been in place for 15 to 16 years, that must raise a question of why it has not been.
My amendments are based on the amendments put forward by Senator McDowell, predominantly, and others on Committee Stage. It is a notable change that the reference to "fair publication" on a matter of public interest was not included in the Bill I got through the Dáil and brought here. In light of that I am proposing three amendments, namely, amendments Nos. 6 to 8, inclusive. The first proposed change is to the subheading of section 26. I had in the original Bill that the heading would be "Publication on matter of public interest". I agree with the Senators who suggested the word "fair" should be included, so if this amendment is agreed it will now refer to "Fair publication on matter of public interest". Should amendment No. 7 be agreed, the first line of subsection (1) of section 26 will read "It shall be a defence (to be known as the 'defence of fair publication on a matter of public interest')". Should amendment No. 8 be agreed then later in that subsection the Bill will provide:
It shall be a defence ... to a defamation action for the defendant to prove that the publication was fair in all the circumstances of the case—
(a) the statement in respect of which the action was brought was on a matter of public interest,
My experience of statutes being interpreted by the courts is the court will pay very close attention to what the general objective of the Oireachtas is as is evident from the words used in the statutory provision. That is the test set down by the Supreme Court in Heather Hill. The court will look at the words. The words are the best example when trying to decipher what the intention of the Oireachtas is. By including the words "fair publication" in section 26, in light of what Senators suggested, I think we will convey to a court interpreting that section the publication has to be fair in all the circumstances of the case. I was concerned, having listened to Senators on the last occasion, that the removal of the word "fair" could convey a meaning to a court interpreting the matter that fairness was not really a central issue when it came to the defence of fair publication on a matter of public interest. There has to be fairness at the heart of it. That fairness has to be to the plaintiff as well as to the defendant and the amendments I am proposing will give that general, broad interpretation and the courts will apply an interpretation that recognises there has to be fairness in this publication. In general, when a court is interpreting a provision like this it adopts a broad approach to what the intention was here and the inclusion of the word "fair" I propose in these amendments will convey to a court this defence cannot succeed unless there is a fairness in what was done. If something was done in an underhand or unfair way that damaged the interests of a plaintiff then in those circumstances, I do not think the court will permit a section 26 to apply.

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Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2026-01-21/debate/main
Retrieved: 2026-08-14T04:54:31+00:00
Sitting date: 2026-01-21