THE failure of the jury in the Proinsias de Rossa libel action to reach a decision is in itself a rare occurrence. It is also rare in this State for a newspaper to defend a libel action successfully.

Only about 20 per cent of libel actions actually go to court but of those that do, the media succeed in only 4 or 5 per cent. This pattern has not changed significantly over the past 15 years. However, Eamon Dunphy and the Sunday Independent have been among that elite group before.

In 1990, a jury found that an article written by Mr Dunphy about Shamrock Rovers Football Club and published in the Sunday Independent did not defame the businessman who had sued.

A verdict either way in the De Rossa case would not in itself change the overall pattern of libel actions here. The fact that it would be a jury decision and in that sense a "once off" would mean that it would not have any great weight in terms of creating a precedent. On the other hand, there are a number of features of the case that could have longer term effects.

The first is that the plaintiff was significant developments in libel actions in Ireland in the past five years or so has been the increase in the number of actions being taken by politicians. Previously, they had made up about 10 per cent of those suing the media; now the figure is close to 20 per cent.

This is so despite the fact that open government has been a goal of recent coalitions and that a Freedom of Information Bill has been introduced.

It also defies the pattern in other jurisdictions. In the US, the Supreme Court in 1964 recognised in the New York Times v Sullivan the need for robust discussion of public affairs and for creating a breathing space for error in the fostering of public debate. Since Lingens v Austria in 1986, the European Court of Human Rights has consistently taken a strong stance in favour of media reporting and discussion of public issues.

In several cases from Austria, Spain, Iceland and the UK, among others, it has the democracy in acting as watchdogs on authority and informing the public on political issues and events.

Even in the UK, where defamation laws have been similar to our own, the House of Lords held in 1993 in Derbyshire County Council v The Sunday Times that local authorities and government departments could not sue for libel.

Lord Keith remarked, in words reminiscent of those of the US Supreme Court that it is of the highest public importance that any government body should be open to uninhibited public criticism.

THE same principle ought to apply to individual politicians also, at least when the publication relates to their political office and functions.

Such criticism may well be hurtful, distressing or embarrassing but it is part of the price of participation in democratic government. Besides, defamation law is concerned not with personal hurt, indignation or self esteem but with the effects of the publication on the esteem in which others hold one.

Mr Justice Moriarty in the De Rossa case told the jury it should have regard to the necessity that there be a free press entitled to comment and criticise robustly, even if in a way that might be hurtful at times, provided the laws of libel were not being breached.

It may be, therefore, that the jury's response reflects a greater tolerance of media criticism and greater expectation among the public that its politicians be more open and accountable, that they answer public concerns and take the heat when the media attack and criticise them.

Whatever our views of the media or of individual media organisations, we depend on them to inform us as to what is going on in political life and, while we might not always approve of their methods or ethos, they have uncovered some unsavoury aspects of recent politics. Juries, therefore, confident in their reactions to the media and cognisant of the media role, may well begin to reshape the course of defamation law, by taking a tougher, less sensitive attitude to media criticism and debate, particularly in the political field.

Another interesting facet of the present case is the judge's summing up and instructions to the jury. While the Supreme Court in Barrett v Independent Newspapers (Evening Herald) in 1986 - another case taken by a politician - indicated that juries must be given better directions and criteria for awarding damages, this has not always happened.

It is mandated in the UK also by the decision of the European Court of Human Rights in Tolstoy v UK in 1995, to the effect that damages must be proportionate to the harm done to the person's reputation and that the trial judge must direct the jury accordingly. Shades of that decision were seen in the Albert Reynolds case in the High Court in London, when counsel suggested specific sums to the jury.

MR JUSTICE Moriarty did not actually cite figures, although he explain that the purpose of damages was to put the plaintiff back into the position he would have been in if a wrong had not been done to him, and did differentiate between the possible effects of personal injuries, which were easier to assess than it was to set a value on damage to a person's reputation.

Crucially also, and in accordance with the Supreme Court judgments in Barrett, Mr Justice Moriarty instructed the jury to take the remarks complained of in context, to read the whole article. Surprisingly, this approach has not always been taken and there has been a tendency in the past to focus narrowly on the actual words complained of, essentially ignoring the broader context in which they appeared.

Other factors indicated by the Supreme Court in Barrett were that account be taken of the nature of the libel, the standing of the plaintiff, the extent of the publication and the conduct of the defendant at all stages of the case.

The jury should also be asked to reduce to actuality the allegation complained of and to fit that allegation into its appropriate place in the scale of defamatory remarks to which the plaintiff might have been subjected, for example if they were allegations of criminal, immoral or otherwise contemptible conduct, as Mr Justice Henchy put it. In other words, a realistic, commonsense approach was required.

Once that was done, all that remained was for the jury, as representatives of the public, to decide essentially whether the statement or article was likely to affect a person adversely in the estimation of reasonable people. The De Rossa jury has decided - if it has decided anything - that reasonable people would have reasonable grounds on which to differ: a mature, common sense approach.