An advisory group has proposed the setting up of a statutory press council and code of conduct, writes Carol Coulter, Legal Affairs Correspondent
Asked if the proposals of the legal advisory group on defamation would have allowed the publication of allegations of corruption in the planning process when they first surfaced years ago, its chairman, Mr Hugh Mohan SC, replied unequivocally "Yes".
It is now widely known that these allegations were circulating among certain politicians and journalists over a decade ago, but the defamation laws meant that, unless people were willing to go to court and swear they had either given or received bribes, they could not be published. Many of these charges, and other charges relating to different payments to politicians, later became the subject of lengthy and expensive tribunals.
As the Minister for Justice, Mr McDowell, pointed out at the launch of the report yesterday, many of the facts now emerging in tribunals came out as a result of the tribunals' coercive powers of discovery, and no amount of investigative journalism could have forced their disclosure. Nonetheless, one of the proposals from the advisory group that journalists and media organisations be provided with the defence of "reasonable publication" could greatly open up investigative journalism in Ireland.
In order to use that defence, a journalist or his employer must show that the matter concerned an issue of public interest, and that airing it was of public importance. The court will take into account the extent to which the matter related to the performance of public functions; distinctions made between allegations, suspicions and facts; the sources of the information; the steps made to verify it; and the seriousness of the defamatory imputations against the individual.
While the report does not proposing removing the burden of proof from the defendant (usually the journalist) of proving that a statement complained of is true, it does make it more difficult for individuals to brazenly lie when alleging they have been libelled. It requires people making such claims to swear affidavits outlining the facts they claim are true.
This means that if a businessman, for example, thinks a journalist cannot prove a statement he made, even if it is true, he cannot take action without exposing himself to the danger of prosecution for perjury.
All of this is likely to be welcomed by members of the press. But there is a quid pro quo, in the form of a statutory press council.
This differs from the voluntary Press Council that exists in the UK, mainly composed of representatives of media organisations, which has been criticised as lacking teeth.
Under these proposals, the press council would contain representatives of the public interest, of the public as readers, of media organisations, and of journalists. It would draw up a code of conduct, and investigate breaches of it.
This council would deal with issues such as alleged breaches of privacy. It would not impose damages, but could effectively issue reprimands and order the publication of retractions.
This proposal is likely to be controversial, as many argue that any statutory regulation of the media inhibits the freedom of the press. But the proposal as formulated allows the media itself to play a major role in designing the code of conduct, and the proposed council contains no Government representatives, so the independence of the media should not be compromised by it.
It was made clear by the Minister for Justice yesterday that more leeway on defamation would have to be balanced by the press's willingness to accept supervision in adhering to the highest ethical and professional standards.