ONE OF the less highlighted provisions of the Defamation Act 2009, which represents the first major reform of libel law since 1961, came into effect this week. It allows witnesses who appear before committees of the Oireachtas a right of absolute privilege in their evidence. This change in the law rectifies a long-standing imbalance between the legal rights and protection afforded to Oireachtas members of committees and those who attend as witnesses. Under the Constitution, TDs and Senators enjoy absolute privilege for what they say in parliament.
Accordingly, they cannot be sued for defamation or face criminal prosecution on that account. That legal protection ensures that politicians can express themselves freely on issues of public concern.
It enables them, as public representatives, to do their job effectively on behalf of their constituents. Heretofore, witnesses attending Oireachtas committees were always first reminded that their evidence had qualified privilege. That meant they enjoyed less legal protection than politicians for the statements they made. That distinction no longer applies.
There is a twist. Where witnesses are directed by an Oireachtas committee to cease giving evidence on a particular matter, and they fail to do so, they will lose the protection of absolute privilege. From that point their evidence will enjoy the lesser legal protection of qualified privilege, which would leave them open to possible legal action.
That provision is included to prevent an abuse of freedom of speech, where witnesses misuse the legal privilege afforded; either by raising issues unrelated to the subject under consideration, or by making unsubstantiated charges against named persons or entities, thereby damaging their good name and reputation.
In the Dáil, the Ceann Comhairle tries to ensure that members do not abuse parliamentary privilege. They rarely do. Now, with the extension of that extra legal protection to witnesses attending Oireachtas committees, there is no reason to believe they will behave with any less responsibility than parliamentarians. The change in this aspect of the law is welcome and overdue. It should help ensure a more effective and accountable committee system in Leinster House.
The new Defamation Act extends absolute privilege to proceedings before a committee of the European Parliament and before tribunals. The net effect should be beneficial, ensuring that witnesses are more willing to attend, given the extra legal protection that is now afforded to their testimony.