The overturning by the Supreme Court of an award of £250,000 in libel damages to businessman Denis O'Brien suggests a more media-friendly legal regime may be on the way. Although right-thinking media people might be expected to welcome this development, the decision appears to me to raise some unexplored issues.
It is little more than a year since the Supreme Court upheld an award of £300,000 damages to Proinsias De Rossa. On the face of it, the defamation of Mr O'Brien by the Irish Mirror was hardly much less damaging than the defamation of Mr De Rossa in the Sunday Independent.
And yet, only Mrs Justice Denham, of the five Supreme Court judges, said this award should also be reconsidered. Since Mr O'Brien's relative prosperity can hardly have been a factor, it appears the court is becoming convinced of the case made by media operators about the size of libel awards.
The main plank of this is that libel litigants should not be entitled to awards comparable to people who suffer serious personal injuries. The Chief Justice, Mr Justice Keane, and his colleague, Mrs Justice Denham, made specific reference to this argument in their judgments.
But there is surely a distinction to be made between injuries which occur by accident - and without any possibility of profit for defendants - and defamation, which is sometimes more like an assault which contributes to the enrichment of the perpetrator.
While a fair number of defamations occur accidentally, more serious libels are frequently in the nature of studied and even malicious attacks, for which there is no sanction other than the imposition of libel damages. It is inevitable that such journalism will be more attractive to the consuming public, and therefore be a more lucrative "product" for media operators. For this reason alone, the comparison with personal injury cases is not sustainable.
Neither is the notion that high defamation awards threaten democracy. Whenever there is a challenge to the media's ability to operate without hindrance, vested interests summon up apocalyptic visions of the threat to freedom. We are reminded that the media are "a pillar of democracy", central to the security of the State, and an essential element of a free society.
However, media in this society do not exist primarily to provide information or a channel for exchanging viewpoints, but to make money. The fact that media provide their services for payment from consumers makes their operation a different matter than if they provided these services on, for example, a statutory basis, funded from the public purse.
The result is a degree of distortion and noise in the system which, though not necessarily a problem, becomes so because of media people's unwillingness to admit to the existence and preeminence of the economic imperative.
Only those who pay in can participate in media-created discourse. This immediately transforms the service into a privilege rather than a right, and a product rather than a resource. The alleged freedom created by media is experienced less by citizens than by consumers, and the only sanction available to the public is to opt out of the discourse.
SECONDLY, media are naturally subject to all the imperfection in the human condition, but differ from other institutions in not having any useful process of external accountability. More and more, media are subject to sensationalism, trivialisation, invasion of privacy, agenda-peddling, prejudices, vendettas, offences of omission and selectivity, abuses of power and lack of even-handedness, but there is almost no means other than libel litigation by which they can be called to account.
Media are relatively better at holding other institutions accountable for their actions, and most effectively provide for the free exchange of information and comment when their own interests are not at stake. A good example is the treatment of discussion about defamation law, in which the argument is almost always presented in favour of liberalisation.
Institutions such as parliament, the police or the health system are paid for from the public purse and are relatively subject to the will of the people. Media, being almost entirely privatised, are perhaps most analogous to the legal system, which also demands money for what is supposed to be a fundamental democratic right.
The costs to consumers are vastly different, but the principle is the same: only those with the means to buy the product - "justice" in one instance, "truth" in the other - are accorded what are asserted as rights of full democratic citizenship. In fact, the availability of legal aid for the impecunious means the legal system is somewhat more democratic than the media.
Because the main impulse of the media is to create a product for sale, it goes without saying that, while the public interest may well be served by the attentions of the media in a given situation, this does not occur as a primary consequence but as a collateral benefit.
A garda carries out an interview with a witness so a mystery can be solved, justice done or relief obtained for an injured party. An interview conducted by a journalist may have the same effect, or may feed into the same process in a beneficial way, but its primary objective is to create interesting copy for publication, and hence add to the profitability of the newspaper or broadcasting channel. The publication can be regarded as contributing to the free exchange of information only at a secondary level.
The issue of money and media, therefore, needs to be looked at in a different light to personal injuries. It should not be forgotten that in publishing a defamation, a newspaper or broadcaster does not simply damage someone's reputation: it then offers that defamation for sale.
jwaters@irish-times.ie