Defamation (Amendment) Bill 2024: Report and Final Stages
Seanad Éireann — 2026-01-21
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Michael McDowell (IND), National University of Ireland

I move amendment No. 9:
In page 10, to delete lines 10 to 12 and substitute the following:
"(b) the defendant reasonably believed that publishing the statement was in the public interest,
(c) the statement was published in good faith, and
(d) the publication of the statement was fair having regard to the rights of the plaintiff including the right to his or her good name.".
Amendment No. 9 gives the court guidance, in paragraph (d), as to what we mean by "fair" - that it is "fair having regard to the plaintiff including the right to his or her good name." That is an important provision to remind the court that, in this context, the plaintiff's good name has to be protected and the concept of fairness is qualified, not merely by the overall meaning of the term "fair" but by the right of the plaintiff to his or her good name, which every plaintiff starts with in a defamation action.
Amendment No. 10 is to facilitate amendment No. 9.
In relation to amendment No. 11, I remind the Minister of the following. Although he may not love the original section 26, it is not sufficient to say it was not successfully invoked in reported case law. Undoubtedly, it would have had an effect on opinions received by the media, in particular, as to whether they could or could not publish certain matters. It was guidance to the media as to what tests they had to abide by to avail of the original section 26 defence. Amendment No. 11 states, and I passionately believe, that:
Failure or refusal by a plaintiff to respond to any attempt by the defendant to elicit a response to a statement proposed to be published by or with the involvement of the defendant shall not—
(a) constitute or imply consent to the publication of the statement, or
(b) entitle a court to draw any inference therefrom adverse to the plaintiff.
The reason we tabled the amendment is to make the point clearly that when considering fairness, there is a notion a reporter can ring you up on a Friday and say, "In our Sunday edition, we propose saying X about you." That transaction should not in any way prejudice somebody told by his own solicitor not to respond to it under any circumstances. These things happen in emails. A reporter will write: "We propose to write the following about you on Sunday; your response would be appreciated." The problem with all of that is that if you respond and say it is untrue, the newspaper can then say, "Senator Craughwell denied the allegation which was made against him". That is one headline - "Craughwell Denies Story". If someone is advised by a solicitor, a close relative or whoever it may be that, under no circumstances, should they give life to that story and they should say absolutely nothing and let them publish and be damned, there should be no adverse implication for somebody who takes that advice. If that happens to you, you should be entitled simply not to reply to the email.
The newspaper may be free to say an allegation has been made against Senator Craughwell but it has to show it was fair to publish that in the circumstance. Saying it gave the Senator a chance to deny it and have "Craughwell denies" X allegation or Y allegation is no defence of his good name. He is on the front page of a newspaper, whereas if he keeps shtum, says nothing and the newspaper publishes, naming him in the manner proposed in the email it sent him, it knows full well that it will have caused people in the community to think the worse of the Senator because of the defamatory nature of the allegation it carries.
It is essential that this provision, which was mirrored in section 26 of the existing law, should be repeated now in the context of what is or is not fair. First, it does not imply consent to the publication of the defamatory statement. Second, a court, that is, a judge, confronted with the fact that the plaintiff refused to answer the question put in an email on the Friday afternoon, may not draw any inference adverse to the plaintiff from that refusal. I know from experience as a barrister and politician that there are many occasions when you simply say nothing to a journalist, who is then confronted with the question of whether to run the allegation with no response and whether that would be fair. The journalist cannot rely on the fact they gave you an opportunity to respond and you, for one reason or another, failed to avail of that opportunity.
Then we come to lines 17 to 23 on page 10. I want to ask the Minister about this. I cannot understand what subsection (3) actually means. It 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.
When you consider it, that is an extremely far-reaching proposition. Somebody tells a newspaper "Public figure A raped me". The public figure obviously denies they have raped this person and states that they are innocent. This subsection means that where there is a dispute and the court becomes aware, for instance, that a solicitor's letter was exchanged between those two people, "in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest, [the court shall] disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it."
What are we doing here? This is what I want the Minister to explain. Why should the court disregard any omission on the part of the defendant to take steps to verify the truth of the imputation conveyed by a defamation? Why should we make that part of our law? Where did this come from? I take it that the newspapers cooked this little lad up. It is quite extraordinary and this is the point that I really want the Minister to explain. To what kinds of dispute does this subsection apply? "You raped me". "I did not". Is that a dispute? In an impartial account that Ms So-and-So alleges that Mr. So-and-So raped her, there is a dispute between them because he does not accept that. In those circumstances, is the defendant - the newspaper - under no obligation to take steps to verify the truth of the allegation? That is a pretty shocking proposition. That is why I wanted to recommit this section. Precisely what kind of dispute does the Minister think he is dealing with? Is it like a dispute between Ryanair and Elon Musk, a public thing, or is it any dispute of any kind whatsoever? Can a private accusation of rape, sexual assault, theft or anything else like that be put on the front page and as long as the newspaper is satisfied that the proposed plaintiff denies the matter and has disputed the allegation, the newspaper is entitled to put on its front page the fact that there is a dispute as to whether So-and-So is a thief, a rapist or whatever, with her saying he did do it and him saying he did not? In those circumstances, we go one stage further and say that the newspaper is under no obligation whatsoever to work out if the accusation is true or false. How can we possibly enact that as our law? The Minister has never come to this House and outlined the category of disputes he has in mind, or has said this particular situation is restricted to newspapers talking about particular forms of accusation that are in dispute. It is a charter to any newspaper to say it does not have to take any steps to verify the truth of a defamatory accusation as long as there is a dispute involved. The Minister owes this House and the Irish public an explanation as to what this is all about, because as far as I am concerned, it is grossly unfair and arguably unconstitutional. I am making the point seriously that it is unconstitutional to say that a newspaper that is publishing a clearly defamatory allegation, because there is a dispute as to its truth, is free to publish it on a he says this, she says that basis and is under no obligation to take any steps to investigate whether the fundamental accusation being made against the plaintiff is truthful. I think this is a catastrophic mistake to put into our law.
I strongly urge the Minister to take out subsection (3). It does not add anything. Its parameters are vague as to what a dispute is. Is it a public dispute or a private dispute? If a public figure is accused of a private wrong, such as sexual impropriety, is it seriously to be the case that because people know he disputes it that they can publish her accusation and his denial without taking any step at all to determine where the truth lies? That is unconstitutional, because that is designed to subvert the good name of a plaintiff. A newspaper might say Miss So-and-So says that politician A raped her and he denies it, here is an objective account of her claim and his denial. The newspaper is under no obligation whatsoever, in respect of such a dispute between them, to take any step to inquire as to where the truth lies and to verify the truth of the imputation conveyed by the statement. To me, this is fundamentally important, and that is why I moved the recommittal of this section. We are being asked to enact unconstitutional law because the mere fact that one person says X, the other says Y and they are in dispute over it cannot allow a newspaper to make that public without any obligation to assess whether the defamatory imputation of the accusation that is in dispute is true.

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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