The State is constitutionally obliged to see that every citizen's reputation is sufficiently protected from 'unjust' attack, writes Jim O'Callaghan
Newspapers have recently devoted considerable coverage to the associated issues of reform of our defamation laws and press accountability. Last week's series of articles by Fintan O'Toole was a valuable contribution to this ongoing debate.
The vast majority of these articles, including O'Toole's series, start from the premise that the central issue in the debate is how the media's constitutional right of expression continues to be restricted through the operation of our draconian defamation laws. There is, however, a different premise from which to start this debate, and it is one to which newspapers have failed to give adequate attention.
Equally as important as the constitutional right to freedom of expression is the constitutional right that every citizen has to his or her good name. This latter constitutional right imposes an obligation on the State to ensure that every citizen's reputation is sufficiently protected from "unjust" attack.
The media, supported by reports of the Law Reform Commission and the expert group which recently inquired into defamation, contend that our current defamation law unfairly balances these two constitutional rights in favour of the citizen's right to his good name.
It is argued that this has a consequentially damaging impact on freedom of expression. At present, a newspaper or broadcaster can publish, without legal consequence, any story it wishes, provided that the story does not infringe upon any of the limited statutorily-protected rights of privacy (such as identifying the persons involved in family law cases) and provided that it is true. If an untrue story which damages the reputation of its subject is published, the injured party is granted the redress in law of being able to initiate proceedings against the publisher.
Fintan O'Toole's article provided some harrowing examples of how this law has been misused. His account of the treatment of two RTÉ reporters, Pádraig Mannion and Joe Murray, arising from their broadcast in 1989 of a true story about AIBP's involvement in a meat fraud investigation, was presented as an example of how our defamation laws have prevented the dissemination of the truth. (An apology was published by RTÉ and the two journalists were found guilty of negligence by an internal RTÉ inquiry).
An examination of the story run by these journalists reveals that it was not our defamation laws that restricted its publication but rather an overly cautious attitude adopted by RTÉ. Any action initiated by the meat company or its senior managers could have been successfully defended.
The fact that witnesses were in Iraq does not mean that their evidence could not have been procured by sending a commissioner to take the relevant evidence in Iraq, as was the case in Proinsias De Rossa's case, where the evidence of a witness was obtained in Russia. RTÉ would also have been entitled to secure discovery of documents from the Department of Agriculture and AIBP which would have confirmed the irregularities subsequently identified in the beef tribunal.
What is undeniable is that litigants who have sought to restrain the honest reporting of journalists have misused the defamation laws. Unfortunately, this misuse succeeded in creating within the media a culture of subservience to any threatened claim, particularly in the 1980s and 1990s.
This misuse of the law should now be confronted through the introduction of a requirement that any person bringing a defamation claim must, before that claim is initiated, swear an affidavit confirming that they have an honest and legitimate claim.
It is proposed to introduce this requirement in respect of personal injuries actions and there is no reason why it should not equally apply to defamation actions. Anyone who thereafter brought a claim, which he knew to be false, would be committing a criminal offence.
Part of the blame for this subservient attitude to threatened proceedings must also rest with the media organisations and their legal advisers, who regularly caved in to admitting liability in proceedings which could have been successfully defended. All too often, media organisations have put profit before principle in determining whether to fight such proceedings.
The problem with presenting the argument exclusively in terms of those who have misused the defamation laws is that it ignores the cases of the vast majority of defamation litigants who have had false and damaging stories published about them.
If one was the subject of such a story, the only option available, when faced with a publisher who fails to correct the story or apologise, is to bring that publisher to court.
The changes sought by newspapers, and indeed recommended by the expert group on defamation through its proposed defence of reasonable publication, are that certain stories which are untrue should now also be protected. The argument advanced is that a story, although false, should be protected provided that the journalist has taken reasonable care in its preparation.
This argument fails to recognise that the rights of the person about whom an untrue story has been published must be given protection. Most persons who are falsely accused of serious allegations by the media will not perceive their constitutional right to their good name as having been vindicated simply because the newspaper exercised reasonable care before publishing the story.
It is difficult to see how the introduction of such a statutory provision can be read as consistent with the duty of the State to protect the good name of each citizen from "unjust" attack.
In many respects, the argument about reform of the Defamation Act is irrelevant. Even if the whole Act was repealed, the right of every citizen to initiate proceedings against the publisher of a false story still remains under the Constitution. If the media want to limit the right of citizens to initiate proceedings as a result of certain publications, the argument they should be advancing is that the unqualified right of each citizen to his good name should be removed from the Constitution.
It is difficult to see how any self-respecting republic could remove the right of each citizen to his or her good name.
Rather than being a relic of British colonialism, the right to one's good name was one of the progressive provisions introduced by the drafters of Bunreacht na hÉireann. Its origins extend beyond the narrow constraints of the English common law. In the early Roman law of the 12 tables, the signing of defamatory verses was punishable by death. More importantly, under Brehon Law (Bretha Nemed Deidenach), the offence of publicising an untrue story which caused shame required payment of the victim's honour price.
Jim O'Callaghan is a barrister