WITNESSES APPEARING before Leinster House committees have now been given absolute privilege in respect of their evidence, an Oireachtas spokesman has said.
The change, which took effect this week, follows the introduction of the Defamation Act 2009.
The rule-change under section 17(2)(l) of the Act is likely to make a significant difference to the proceedings of Oireachtas committees, since witnesses will now enjoy the same protection from legal action as TDs and Senators.
Formerly, committee chairmen were obliged to inform witnesses: “Before I call on you to make your presentation, I want to draw to everybody’s attention to the fact that members of the committee have absolute privilege, but this same privilege does not apply to witnesses appearing before the committee.”
The new wording runs: “By virtue of section 17(2)(l) of the Defamation Act 2009, you are protected by absolute privilege in respect of the evidence you are to give this committee.
“If you are directed by the committee to cease giving evidence in relation to a particular matter and you continue to so do, you are entitled thereafter only to a qualified privilege in respect of your evidence. You are directed that only evidence connected with the subject matter of these proceedings is to be given and you are asked to respect the parliamentary practice to the effect that, where possible, you should not criticise nor make charges against any person(s) or entity by name or in such a way as to make him, her or it identifiable.”
Clarifying the distinction between absolute and qualified privilege, the Oireachtas spokesman said: “Absolute privilege, which is a complete defence to a defamation action, applies even where the words complained of are published with knowledge of their falsehood and with the intention of injuring another. Malice is irrelevant to the applicability of the defence.
“Qualified privilege, arises where a communication is made upon an occasion of qualified privilege and is fairly warranted by it; it is a good defence in the absence of malice.
“An occasion of qualified privilege arises where a person who makes a communication has a duty (legal, social or moral) or an interest to make it to the person to whom it is made, and the person to whom it is made has a corresponding duty to receive it.”
The legislation, brought in by Minister for Justice Dermot Ahern, provides that it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought was, “made in proceedings before a committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas”.
A similar provision applies to proceedings before a committee of the European Parliament and to “proceedings before a tribunal established under the Tribunals of Inquiry (Evidence) Acts 1921 to 2004, where the statement is connected with those proceedings”.