FG libel proposals leave much to be desired

There was a feeling that Fine Gael expected to be congratulated when the leader, Mr Michael Noonan, announced proposals for reforming…

There was a feeling that Fine Gael expected to be congratulated when the leader, Mr Michael Noonan, announced proposals for reforming libel and establishing a press complaints mechanism. That the press, journalists and even the people of Ireland should be grateful because Fine Gael took out the Law Reform Commission's report on libel of 1991, cherry-picked the recommendations it liked, ignored others and then offered an ill-thought-out press complaints procedure, is bizarre.

The real impression, rather than the one Fine Gael tried to manufacture, was of a hastily-cobbled-together document, ill-thought-out and frankly idiotic in places.

It appears that the document was rushed out in the week when Europe's Press Ombudsmen are meeting in Dublin and as rumours abound that Fianna Fβil is to make some sort of announcement concerning libel.

Fine Gael is not proposing that the burden of proof be placed on the plaintiff. Libel is the only area of law where the burden of proof rests with the defendant, and this is wrong. In 1991, the Law Reform Commission had no problem in recommending that this be changed. Today, the story is that the Fine Gael backbenchers "would not wear it", in the words of one TD.

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Many of the Law Reform Commission's other recommendations are included in Fine Gael's proposals.

Why then, with all the fine words about the need to reform our democracy and the place of a vibrant media within it, and even with Michael Noonan quoting Thomas Jefferson on a free press, could the party not have listened to those words itself and gone the full way?

If the press is to be free, why - under Fine Gael - will it remain subject to a burden of proof which no other area of law imposes?

The press complaints mechanism being proposed is a two-tier one, with a Media Complaints Commission, for editors and publishers, who will be asked if they will appoint members from outside their ranks. This body will appoint the Media Ombudsman and an "independent" chairperson.

The employers do not want the journalists' union on this body, so rather than propose what it thinks would work best Fine Gael is asking the employers and the union to come up with an agreed position. There is probably little chance of this ever happening.

The Media Council will be a consultative body.

It will include the journalists, the social partners and the wider public interest. Why Fine Gael has ignored the best international practice - with the exception of the UK - by giving the major role in a complaints mechanism to editors and publishers is a mystery.

There are other serious flaws in the proposals. It is intended that the Code of Conduct of the National Union of Journalists be recognised in the legislation. It is also intended that a code to be drawn up by the editors and publishers on the Media Complaints Commission be likewise recognised. There is no indication as to what happens if the two codes contradict each other.

But there are other considerations: can a code that is subject to change and amendment at the NUJ's annual conference be recognised in law?

How would a journalist who is not a member of the NUJ feel about being judged against a code he or she never agreed with or signed up to?

If the proposal is that the Code of Conduct be frozen as it stands when the legislation is enacted, then how will NUJ members feel about not being able to amend their own code? More particularly, how will British members of the same union feel?

One must, however, acknowledge that Fine Gael is the first party to take media law reform and accountability seriously. This makes it even more of a pity that the proposals were rushed.

The Government is committed to bringing the European Convention on Human Rights into Irish law and with it a body of jurisprudence relating to the media, their rights and responsibilities.

This is the context in which reform of media law should be viewed. Fine Gael, for instance, had little to say about contempt of court and the right of a journalist to protect the anonymity of confidential sources of information.

The European Court of Human Rights has already ruled on this and found that a journalist has such a right.

It is proposed that talks will take place with the British Press Complaints Commission with a view to ensuring that the Irish voluntary system can be applicable to the British titles which circulate here.

What if British editors baulk at having to be cognisant of two systems of voluntary regulation? If that happens, one wonders if Fine Gael will look at statutory regulations.

There is much that will and should be welcomed in the proposals. Reducing the statute of limitations; making an apology grounds for mitigation, rather than exposing a newspaper to further damages; allowing a payment into court without admitting fault and allowing judges to issue guidelines to juries as to the level of awards are all welcome and long overdue.

There is one aspect that Fine Gael proposes to legislate for, but has no details as to how it will be done: that is libel of the dead.

One looks forward to the case in the High Court of Eoghan Harris v Kevin Barry.

Michael Foley is a lecturer in journalism at the Dublin Institute of Technology and a media commentator