Caught between free expression and protecting citizens from unjust attack

Regulating the media Irish law rooted in the democratic nature of the Republic rather than in the heritage of British monarchy is required, writes Fintan O'Toole in the second part of a series about the media and accountability

Supporters of the current libel laws often point out, rightly, that a person's reputation is so highly valued in Ireland that it has specific constitutional protection. The Constitution obliges the State to "protect as best it may from unjust attack and, in the case of injustice done, vindicate the good name of every citizen".

There is, however, an obvious problem in this regard. Our libel law in fact takes little account of the Constitution or of the European Convention on Human Rights and Fundamental Freedoms which has a similar status. It is essentially English, both in the sense that the Defamation Act of 1961 is almost a direct copy of British legislation and because the whole common law framework in which it is interpreted is rooted in English history.

Our notion of libel does not arise from a genuine attempt by a republican democracy to balance the competing rights of the media and the individuals on whom they reflect.

The Constitution suggests that Irish law should try to reach an equilibrium between the right to a good name, the right to freedom of expression (guaranteed by Article 40.6.1) and the right to communicate (not expressly guaranteed but protected by implication by Article 40.3.1). There is no real attempt to do this in the Defamation Act. Instead, we have a law which assumes that free expression is a bad and dangerous thing and then grudgingly qualifies this assumption in a concession to democracy.

The earliest form of libel known to English law was the offence known as scandalum magnatum (the slander of great men). This offence was created by a statute in 1275 in the reign of Edward I, and demanded that "\ be so hardy to cite or publish any false news or tales whereby discord or occasion of discord or slander may grow between the King and his people or the great men of the realm; and he that doth so shall be taken and kept in prison until he had brought him into court which was the first author of the tale".

In 1476, William Caxton set up the first printing press at Westminster and in 1488, the Star Chamber was set up to monitor and suppress criticism of church and state. Because the Star Chamber was anxious, too, about the prevalence of duelling among the ruling classes, it also took to itself the job of providing an alternative means of vindicating one's honour in the courts.

These two aims of suppressing criticism of the authorities and preventing disorder were the well-springs of libel law in Britain and therefore in Ireland. In neither case did it matter whether the statement complained of was true. Sir Edward Coke, the 17th century jurist who is the fountainhead of much of the common law ruled that: "It is not material whether the libel be true, or whether the party against whom it is made, be of good or ill-fame; for in a settled state of government the party grieved ought to complain for every injury done him in an ordinary course of law, and not by any means to revenge himself, either by the odious course of libelling, or otherwise."

In other words, it was a bad thing even to publish that a murderer was a murderer because it might create resentment and disturbance. Since people were more likely to be hurt by accurate accusations than by false ones the common law evolved the dictum "The greater the truth the greater the libel." This notion, rooted in an autocratic world view that silence was best for good government, formed the template for the law of libel.

It is a general rule to which the law, under pressure from the gradual emergence of democracy, allowed qualifications and exceptions.

It was reluctantly conceded that some revelations might be permitted in the public interest and that some expression of opinion would have to be tolerated. But the assumption that these are in fact exceptions to the rule and not good things in themselves has never been altered even, and perhaps especially, in republican Ireland.

The democratic attitude suggested in the Constitution and the European Convention - that free expression is desirable but must regrettably be contained sometimes - has never been reflected in Irish law.

This failure is reflected in two ways in the current law. One is the absurd situation in which, in a libel action, a published statement is assumed to be false until proved otherwise.

This means, as the Law Reform Commission pointed out in a report on libel in 1991, that in cases where those accused of libel cannot physically produce witnesses who are prepared to testify that the allegation is true "the plaintiff . . . can issue proceedings for defamation in respect of perfectly truthful statements in the knowledge that he does not have to give evidence and face cross-examination",

The other obvious vestige of the autocratic origins of libel law is the fact that, unlike other areas of civil law, it is not a defence to show that reasonable care was taken. If a worker is killed on a building site, the builders can try to show in court that they followed all the appropriate safety guidelines, behaved responsibly and are thus not liable.

In a libel trial, by contrast, it is no defence to show that both the journalist and the newspaper or broadcaster behaved professionally and took reasonable care to establish the truth of what was said. It is striking that the Law Reform Commission noted in passing that this may very well be unconstitutional: "In our opinion, it is at least doubtful whether the existing state of the law infringes the constitutional guarantees as to freedom of expression."

This points to the fact that while the Defamation Act arguably gives expression to the constitutional protection for one's good name, there is no counterbalancing legislation giving effect to the constitutional rights to free expression and communication.

If there were, it would surely reflect the LRC's strong recommendation in 1991 that reasonable care in attempting to establish the truth of an allegation would be a defence against a claim for general libel damages.

Arriving at a reasonable balance between free expression and the protection of citizens from unjust attack, then, does not require any great revolution in Irish law.

Indeed, what it requires is precisely Irish law, rooted in the democratic nature of the Republic rather than in the heritage of British monarchy.

If we start from the assumption in the Constitution and the European Convention that free expression is a good thing and then consider what exceptions have to be made to this general principle, the way forward will become a lot clearer.

Tomorrow: Protecting the public