At long last, a Government has indicated a serious intent to deal with the draconian law on libel which has curtailed legitimate media and public scrutiny of many of the issues now before costly tribunals.
Successive governments have promised in successive general elections to change the Defamation Act of 1961. The Law Reform Commission reported on the Civil Law of Defamation in 1991 and initiated a wide-ranging consultation process, but nothing happened. In a Coalition where the Taoiseach and the Tánaiste have had justifiable recourse to defamation actions and the Minister for Justice, Equality and Law Reform has had his son's privacy violated, there is no guarantee that this Cabinet will endorse any changes either.
The recent publication of the Report of the Legal Advisory Group on Defamation - the product of six months' deliberations by an expert committee - is welcome. It sets out the general scheme of a Defamation Bill which would repeal the Defamation Act, 1961, in its entirety. The Minister, Mr McDowell, has initiated a consultation process to allow interested parties to submit their views on the report's recommendations before the end of the year.
The Irish Times must declare an interest here. There is no insurance against libel costs in this State. That consideration is subordinate, however, to the newspaper's primary obligation under The Irish Times Trust: "to publish The Irish Times as an independent newspaper primarily concerned with serious issues for the benefit of the community throughout the whole of Ireland, free from any form of personal or of party political, commercial, religious or other sectional control".
At first reading, the proposals from the Legal Advisory Group seem to strike a reasonable balance between the media's right to publish and the citizen's right to a good name. The principle of the new Defamation Bill is worthy. A new defence of "reasonable publication" would allow media organisations to publish stories of public importance for the public benefit if they can be shown to have been thoroughly investigated and done in good faith - even if defamatory allegations contained in them turn out to be untrue. Judges could give directions to a jury in assessing damages and parties to the proceedings could make submissions on their scale. A newspaper could insert an apology without admission of liability. The requirement that all plaintiffs should have to file an affidavit to verify the particulars of their defamation claim could avoid the abuse of the "gagging writ". And the change in the jurisdiction of the Circuit Court to €50,000 could have cost advantages.
... ... * ... * ... * ... ...
The price of these changes is the establishment of a statutory Press Council - a concept which traditionally has been opposed by media owners as an unacceptable interference by the State in the independence of the press. The Council would be governed by high-minded principles which could not be opposed by any serious journalist. Its function would be to prepare and periodically revise a Code of Conduct; to receive, investigate and decide upon complaints; and to participate in public debate.
The statutory Press Council, set out in the draft Defamation Bill, would comprise nine members. All would be appointed by the Government. In making the appointments, the Government would have regard to the public interest in general, the interests of members of the public as readers, the interests of relevant publications and the interests of journalists and other employees of the publications.
The Code of Conduct proposed would recognise a publication's wide discretion on the content and presentation of material; and specify, subject to public interest, standards to be complied with and rules and practices to be observed by all media. But, the draft Bill goes far beyond that to regulate standards on such subjective concepts as the accuracy of any facts or information relating to the "honour or reputation" and "unreasonable encroachment upon the dignity or privacy" of persons, alive or dead; "taste or decency"; and "sensitivity" in dealing with children and "other vulnerable persons".
The Press Council would be financed by a subvention from the Minister, Mr McDowell, and an annual subscription fee relating to a newspaper's circulation. And a complaint could be made to the Council by people affected, directly or indirectly, by publication.
The changes in the law on libel, in the draft Defamation Bill, are very desirable reforms. They have been sought by journalists and newspaper proprietors for years. They would have enabled newspapers to tread openly, in the public interest, into the territories now in the domain of tribunals.
The Irish Times has called for independent rather than self-regulation of many professions during the spate of scandals in recent years. It cannot adhere to different standards for itself. But, the strong model of Press Council proposed by the Government would interfere with editorial integrity and the right to freedom of expression. It could compromise the independence of this newspaper as enshrined in the Articles of the Trust.
A statutory Press Council will be the price of necessary reforms in the defamation law. If it is to be established, it must be free from hacks, careerists and party time-servers. It must cherish the diversity in the print media while upholding basic standards of journalism. It cannot allow our political masters to adjudicate, in their own interests, on matters of taste, decency and honour for the living and the dead. Above all else, it must be independent of Government and be seen to be so. The media exists to serve the public's right to know and that principle is absolute.