Last week the Minister for Justice announced that the Government proposed to publish a new Defamation Bill. Such a proposal is to be welcomed, as there are aspects of defamation law that would benefit from reform.
It is apparent, however, that these reforms will be insufficient to meet the demands of the National Newspapers of Ireland and the National Union of Journalists. They want the law changed so that in future the onus of proof, in proceedings where a publisher claims justification, does not rest with the publisher.
Representatives of the newspapers and the NUJ have argued consistently that the defamation laws are unfair because the onus of proof in such proceedings is put upon the defendant rather than, as they claim is the case in all other areas of law, on the plaintiff.
Despite the consistency of their argument, an examination of the legal procedures involved in a defamation action illustrates that such an argument is incorrect.
If a person claims he has been defamed by the publication of an article or broadcast and he decides to issue proceedings against the publisher, the onus of proof rests upon that person to prove he has been defamed by the publication and that consequently his reputation has been damaged.
The publisher, in its defence, has a number of options available. It can deny that the publication was defamatory and that no damage has been caused to the person's reputation.
Alternatively, and for the purpose of this article more relevantly, it can plead that the publication was true and that it will justify its publication at the hearing of the proceedings.
If the publisher pleads justification then the onus rests on it to prove that the publication was in fact true. It is this defence of justification and the requirement that the publisher must prove that the publication was true that gives rise to the newspapers' allegations of unfairness.
What does not appear to be appreciated, however, is that in virtually all other aspects of law a defendant who pleads such a positive defence must prove it.
For instance, if a defendant in a road traffic accident pleads that an accident was caused as a result of negligence or contributory negligence on the part of a plaintiff, then the onus of proving such negligence or contributory negligence rests with the defendant.
Also, if a defendant pleads that he is not liable in contract to a plaintiff on the grounds that the contract was frustrated, either through the acts of the plaintiff or some third party, then the onus of proving such frustration rests with the defendant. The reason for the onus resting on the defendant in these examples is the same as why the onus rests with a publisher who pleads justification.
The defendant is not merely denying that the plaintiff has suffered damage but goes further and makes a positive plea that in its defence it will prove certain matters that will deny the plaintiff the relief sought. Once this plea is made by a defendant the onus of proving these matters shifts onto that defendant.
Our civil law is full of examples of where an onus can shift throughout the course of proceedings from the plaintiff to the defendant, depending on what the defendant has pleaded in his defence.
There are extremely logical reasons why the onus of proving justification should rest upon a publisher. Take for example the situation where a newspaper publishes a story that a person is involved in drug pushing or child abuse - two of the most serious allegations that can be made against a person.
Assume that these allegations are completely untrue and the individual concerned issued defamation proceedings.
The law at present is that if the publisher takes the decision to plead justification, it must prove at the hearing that the person was involved in drug pushing or child abuse as alleged.
If the law was to be changed so as to put the onus of proof on the person accused of such behaviour, how could they possibly prove they were not a person involved in drug pushing or child abuse? If they called friends or members of their family as witnesses to say they had never encountered any such behaviour, this clearly wouldn't be sufficient to discharge the onus of proof.
It is hard to think of any evidence of probative value that could be adduced by those persons to disprove the allegations as made. At the same time, no obligation would be placed upon the publisher to prove the content of its allegations.
In effect, the individuals would be left in the impossible position of having to prove that the publisher's allegations were false.
No representative of newspapers or broadcasters has been able to state how a plaintiff in a defamation action, similar to those referred to above, could prove that what was published about him was false, or why the person involved should be obliged to prove that what was published by another was false.
The Oireachtas should be wary about tampering with this aspect of our defamation law. Article 40.3.2 of Bunreacht na h╔ireann provides that the State shall by its laws protect as best it may from unjust attack and vindicate the good name of every citizen.
Any law which sought to impose a requirement that a citizen, in order to protect his reputation, should be obliged to prove the untruthfulness of a publication concerning that citizen, whilst the publisher could simply avoid any responsibility in proving what it had published, would appear to be a law that failed to protect and vindicate that citizen's good name.
Finally, publishers should appreciate that the law will not interfere with their freedom of expression provided the facts contained in their articles are true. Surely such a law serves the interests of all concerned.
Jim O'Callaghan is a Dublin-based barrister who practises in defamation law.