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

In terms of the amendments that are put forward here, amendment No. 9 in the name of Senators McDowell and Craughwell wants me to put in a further paragraph at the end of subsection (1) that will say, "the publication of the statement was fair having regard to the rights of the plaintiff including the right to his or her good name."
I believe amendments Nos. 6, 7 and 8 which I have tabled achieve that objective because they have put back in, front and centre, the requirement that the publication be fair on the matter of public interest, and that the defendant is required to prove the publication was fair in all the circumstances of the case. I do not think it is necessary to put in an extra paragraph (d) that states, "the publication of the statement was fair having regard to the rights of the plaintiff including the right to his or her good name". I would have thought fairness applies to everyone, and it cannot just be fairness applying to one litigant before the courts. Obviously, when it comes to section 26 on fair publication, the court is going to look at whether or not the publication was fair, primarily from the point of view of the plaintiff. I do not think what is proposed in amendment No. 9 is necessary and I cannot accept it. Amendment No. 10 is consequential on that. Since I am not supportive of the inclusion of the extra paragraph (d) in amendment No. 9, there will be no need for me to agree to the amendment in section 10, which asks for that paragraph (d) to be included subsequently.
I turn to amendment No. 11. Senators McDowell and Craughwell propose that I would insert after subsection (2) of the new section 26 the following:
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...
As I said on the most recent occasion, the purpose of section 26 is to provide protection to a publisher in circumstances where the publication they made was false. There are a lot of protections within the defamation law in Ireland that provide protection. Obviously, for a publisher that publishes something that is true, we have the defence of truth. However, there are also many defences that operate to provide a defence when something is stated that is false. For instance, if I say something in this House that is completely defamatory of another person and is completely false, I still have a defence, because we have decided as an Oireachtas that we will defend publications in the Houses of the Oireachtas with the defence of absolute privilege. Similarly, we have decided in the legislation provision dealing with retail protection that if a shopkeeper stops somebody to say they have not paid for something or wants to know if they have paid, the implication there is that the person has stolen it. We are providing a defence to the retailer by stating this will be recognised as an interaction deserving of protection and, even though what was said is false, we are still going to provide protection to them. That is what qualified privilege is in general. There is a separate statutory defence for the retailer. If you look at the traditional qualified privilege, there is the letter from the former employer to the prospective employer of a person, where they set out something in a reference, without malice, that is false. Even though it is false, we have decided as an Oireachtas that it is still an occasion deserving of protection because we want to protect that communication between a former employer and a prospective new employer in respect of an employee. We have also decided that a letter from a doctor to a consultant should be protected, but if the doctor writes something in it about the patient, which is defamatory and false, but not malicious, we still provide protection. I know everyone in this House understands this, but sometimes the public does not appreciate that the law of defamation does provide a number of defences for when a publication is made which is false.
Similarly, section 26 is designed to provide protection, to be frank, in respect of responsible journalism, to publishers who have published something that has turned out to be false. I know instinctively the response of some people will be that if it is false you have to be liable for it and there should be no further steps. That is not how our common law has developed. That is not how section 26 was intended. It was introduced by Senator McDowell when he held my office may years ago. It was intended to provide protection for a responsible journalist or broadcaster who carefully investigated a matter, took steps to ensure it was true and then published it. The issue we are looking at here is the extent to which they tried to get a response or answer from the person about whom the story was being written as to whether or not the story is true. Senator McDowell said there is a lot to be said for somebody just saying nothing, but there is another side to this. I disagree with Senator McDowell when he states that we just need to look at it from the point of view that a person should be entitled to just state nothing. With the greatest respect that is like the Homer Simpson defence, where in one of his shows he is accused of something and says, "Prove it." If there is a serious investigation into me and people believe they have information suggesting I have been engaged in wrongdoing, and a journalist sends me an email saying they have received information that I have done something, and sets out in detail what it is, and I decide to say I will not answer that, that is a decision I make. However, the fact that I do not answer it is something that a court is entitled to take into account if I subsequently issue defamation proceedings against the broadcaster or the publication. They may say they published this story about the Minister. They had information they got from credible sources. They contacted him and he did not bother to get back to them, and never said a word to them. They contacted him again and gave him a week, ten days and two weeks and got no response. That is a factor the court is entitled to take into account in determining whether or not the publication was a fair publication on a matter of public interest. It is a public interest issue, so to a large extent we are talking about people such as us or people in the public sphere who are involved in issues which may give rise to a matter of public interest. I think we, and others, have a responsibility to respond. If a person do not respond it does not necessarily mean that he should be criticised for that, but it means the publisher is entitled to say at the hearing of the action that they wrote to him and asked him repeatedly, and he never even bothered to respond to them. If Senator McDowell were representing the publisher in court and I were giving evidence he would say to me that I received emails on three occasions asking me whether or not I was involved in this wrongdoing and that I never responded, and it was unreasonable of me not to respond. I think it would have been unreasonable for somebody in my position not to respond to something like that.
I know it is moving on to another amendment, but Senator McDowell also raised the issue about subsection (3) of section 26. The purpose of this is to try to deal with a situation where a publisher is reporting on a dispute between two parties. There is a dispute that has obviously got public recognition. It does not have to have gone to court, but there is a dispute. It could be a political dispute between two individuals, like two Cabinet Ministers having a row about what was agreed or about the carrying out of their functions. There is a dispute that will necessarily involve allegations or coverage that will be defamatory of one of the Ministers. In that instance, as it is on a matter of public interest, and we need to remember this, the section simply seeks to ensure that the publisher is entitled to report accurately and impartially the dispute ongoing between the two Ministers. They do not then have to investigate by contacting me or my predecessor Deputy McEntee to try to identify which of us is telling the truth. It is in the public interest for them to say the dispute is ongoing and what it involves. Again, I provide assurance to Senator McDowell and other Senators that the purpose and benefit of having the word "fair" back in it is that a court will look at all the circumstances of the case like how this story was prepared, whether the person was given an opportunity to respond, whether the highlighting of this dispute in the newspaper was in the public interest and whether it was impartially and accurately reported.
Disputes happen between people. There was a dispute between President Trump and the aforementioned Mr. Musk that went on for quite a period of time. Terrible things were said about each other. I think President Trump made allegations of drug use against Mr. Musk. Are we to say that a newspaper cannot publish details of that dispute without trying to verify whether the things said by President Trump about Mr. Musk were correct? That puts too much of a burden on a publisher.
Senator Craughwell asked a number of specific questions about whether a person or victim can be named. They are all separate issues. When it comes to a court considering a publication and trying to determine whether the publication is defamatory and, in this context, whether a publisher is entitled to the defence under section 26 of the principal Act, the court will look at it in the round. This section is designed to protect responsible and fair publications that have made efforts to identify and get feedback from the person who is the subject matter of the article. If it is not fair, it will not get the protection. If the individual who is the subject matter of the article decides not to engage with that, it does not mean there is no cause of action against the publisher. Rather, it means the publisher is entitled to present these as factors that should give it a defence.

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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