Libel laws can protect your good name or they can be used to hide bad deeds

There is an air of grandeur about the outcome on Thursday of Proinsias De Rossa's libel action against the Sunday Independent. After a titanic struggle in which he put his reputation, his political future and his financial security on the line, a brave man's trust in the judgment of his fellow citizens has been vindicated. In the public arena of the courts, a determined individual has taken on a very powerful media empire and won.

In the afterglow of such an epic triumph, though, it is easy to miss a simpler and less heroic truth. Proinsias De Rossa was libelled over 4 1/2 years ago. To get to the point he finally reached on Thursday afternoon, he had to endure three trials, face an army of lawyers, and wait a very, very long time.

He had to risk, not just his public standing, but his private well-being. He had to be irrationally stubborn, to persist when any objective assessment would have told him to quit.

And, after all that, the jury could merely compensate him for the damage he had suffered, not undo the harm. A central part of his case was that Eamon Dunphy's article was published at a time in 1992 when he was negotiating with the Labour Party with a view to entering government.

But no award of damages in 1997 can change what happened in 1992. Because of the extreme delay, vindication, however sweet, comes in a very different set of political circumstances.

So how good, after all, is the system?

Journalists are expected to complain about the libel laws, but are they all that good even for the victims of what are judged to be journalistic abuses? Eamon Dunphy's article was, in the eyes of the jury, one of the most serious acts of defamation in the history of the State.

Yet, in the way the system works now, most people in Mr De Rossa's position would not have pursued it. Without exceptional courage, exceptional tenacity, and an exceptional ability to withstand what must have been almost intolerable pressure, Proinsias De Rossa would not have achieved justice. And there is something very wrong with a system of justice that depends on exceptions.

That system, moreover, can be used to prevent justice as well as to deliver it. Remember that right up to the beginning of July, no journalist could say that Charles Haughey's luxurious lifestyle was funded by big business. References to Charles Haughey were, for instance, dropped from an RTE investigation into the collapse of Patrick Gallagher's banking and property empire. What kind of justice is that?

And the laws do not merely prevent the publication of accurate information, they actually, on occasion, force journalists to publish or broadcast things they know to be untrue.

In 1990, for example, the libel laws forced the Irish Independent to issue an abject apology to Michael Smurfit for a statement that subsequently turned out to be true - that he had a financial interest in the site in Ballsbridge, Dublin, which Bord Telecom, of which he was then chairman, had purchased for its headquarters.

Likewise, Goodman International was able to force RTÉ to read out a very long and very humble apology for alleging that the company was abusing the export credit insurance system. The truth, as it turned out, was much worse than the allegation.

Such cases are by no means rare. These two can be cited only because judicial investigations subsequently uncovered the truth and made it possible for journalists to say openly that the apologies were in effect false statements issued under duress.

But in dozens of other cases, which cannot even be hinted at here, the libel laws act, not to protect good names, but to protect bad deeds, not to vindicate the truth but to propagate lies.

But shouldn't the media stop whingeing and just accept the risks as an integral part of the business of journalism? There are two answers to that question. One is that frequent libel actions are not inherent in the practice of journalism. In the United States, where the law takes free speech seriously, libel threats are very rare. And the other is that the scale of the risk is now quite extraordinary.

As a multinational media corporation, Independent Newspapers will be badly bruised but not fatally injured by the loss of over 1 million on the De Rossa case. For any other Irish newspaper, the outcome of the case would be catastrophic. The Irish Times would survive, but would face severe difficulties. The Sunday Tribune, the Title or the Sunday Business Post would, in all probability, go to the wall.

Ironically for someone like Proinsias De Rossa, who has long been a champion of media diversity, failure to reform the libel laws carries the real risk of increasing the power of the one newspaper group with deep pockets. Most libel cases are not epic duels between well-known public figures like Eamon Dunphy and Proinsias De Rossa, but low-level private affairs in which solicitors' letters are sent and writs issued, but no court case ever results. There are completely unintended libels - small typographical errors ("willingly" instead of "unwittingly", for example) can lead to big damages. There are honest mistakes - even an immediate correction and apology is not necessarily a defence against an action.

There are people chancing their arms - simply processing an entirely groundless complaint still costs thousands of pounds. And all of this is getting steadily worse. In 1988 The Irish Times received 25 threats of legal action. In 1996 it received 70. They discourage journalists from admitting mistakes.

The Sunday Independent's decision in the early 1990s to turn up the volume on the abuse of well-known personalities arguably had more to do with private gain than with the public interest. The kind of crass bad taste shown by the Evening Herald and the Star in their decision to publish photographs of a man murdered in Australia this week has done much to make the public cynical about journalism in general.

But the current libel laws are a very poor substitute for the kind of constructive system of media regulation that might encourage free, diverse, and responsible journalism.