Good Journalism Dependant On Libel Reform

national | arts and media | opinion/analysis Tuesday December 09, 2003 16:41 by Cormac Cahill corcahill at hotmail dot com

No More Government Dithering On Reform and Press Council Issue

In relation to the meeting of the Legal Advisory Group (LAG) at UCD last week in a bid to reform the libel laws in Ireland and also to debate the introduction of a press council, statutory or self-regulated. It is of the utmost importance to journalism in Ireland that the libel laws are reformed and a press council to suit this be implemented.

Last week, in University College Dublin, the Legal Advisory Group (LAG), lead by Hugh Mohan SC, met with leading journalist practitioners, members of the National Union of Journalists (NUJ) and others within the industry, to discuss and debate the need for libel law reform and the possible implementation of a press council in Ireland.

The LAG have been working under the Minister for Justice, Michael McDowell, for some time now and it is still unclear whether the government will favour a statutory press council or a self-regulated, UK style Press Complaints Commission (PCC). The print media, in general, favour the latter as they believe a statutory body will lead to government interference with the ‘free-press’ system that is in operation today.

The proposed press council has come along side with the long over-due libel reform issue and the two are now seen as going hand in hand. It is believed, the new libel laws will include more room for journalistic freedom and the inclusion of “reasonable publication” when over-riding considerations of the public interest come to the fore. One is lead to believe that Ireland could at long last move away from the arcane libel laws that continue to prevent what is considered ‘good’ journalism from taking place.

When considering Irish libel laws, the lack of direct correlation between its statutory enforcer, Defamation Act, 1961, and the citizens right to freedom of speech, contained in the Constitution, has proved to be its major defect. The proclamation of freedom of speech within the Constitution, Article 40.6.1 states, “The right of citizen to express freely their convictions and opinions”, is not matched in the Defamation Act. So, while a journalist may wish to pursue a story of relevance due to a glance at the Constitution, they will soon find that there is no statutory backing, inscribed in law, to encourage them to persevere with their endeavours. Could it not be the case that statutory backing of ‘within the public interest’ be made law. “Instead, we have a law which assumes that free expression is a bad thing and then grudgingly qualifies this assumption in a concession to democracy.” - Finton O’Toole, The Irish Times, Wednesday, October 22nd, 2003. This is indeed an unfortunate feature of the current Irish system which journalists must work within. They must juggle what is said in the Constitution, Defamation Act 1961, Law Reform Commission 1991 and not to forget the often overlooked NUJ Code of Practice. It is unfair to the journalist to be expected to do this.

Within the civil law frame work the burden of proof falls upon the plaintiff. They in-turn take a case against the defendant. If the defendant can prove that they acted responsibly to ensure that the incident did not happen, and the plaintiff cannot prove to the contrary, they may well be cleared.

This is not the situation when dealing with libel. In such cases the burden of proof lies with the defendant. It is not a defence in a libel action for a journalist to say that they were responsible and acted in good faith. Journalists who feel that they can no longer continue with a story due to the fact that a libel writ will be made against them and the witnesses to fight the writ may be hard to track down or maybe unwilling to testify in court, will not risk pursuing their story for fear of legal action. It is therefore of extreme importance to journalism that the burden of proof lies with the plaintiff as opposed to the defendant. If this aspect of the law is not changed it is argued by some that it is indeed un-constitutional, as the Law Reform Commission noted, “In our opinion, it is at least very doubtful whether the existing state of our law infringes the constitutional guarantees as to freedom of expression.”
- The Irish Times, Tuesday, 22nd October, 2003.

Ireland’s current system also infringes upon the European Convention on Human Rights. It is felt that journalists are not given the freedom that others, within the European Union, enjoy. This cannot be a good thing for democracy. “The European Convention on Human Rights does not permit signatories like this country to limit the kind of discussion ‘necessary in a democratic society’. Scrutiny of the powerful is necessary in a democracy. As ling as our law fails to allow that, it is in breach of the Convention”. - Ronan Brady, The Irish Times.

These laws must be changes at once if the good, investigative journalism is to prevail. The real stories will be kept back as journalists, editors and media owners refuse to print due to concerns of a libel writ.

The Irish laws have, in the past, prevented the revelations of Charlie Haughey from being exposed. Superb journalism from members of the Evening Press in 1983, discovered that Haughey had a debt of £1 million with Allied Irish Banks. The paper was then forced to carry a denial from AIB and, on advice from its lawyers, dropped the story altogether. If the LAG introduce new libel laws that include “reasonable publication” among them, corruption, as in the case of Haughey, could have been exposed at the time of it actually happening. Good journalists knew it was happening, as did their editors, the newspapers lawyers. But, could they print it in the name of ‘public interest’. No they couldn't. This is a major scandal, in my view, of the Irish legal system and it must be changed.

The introduction of new laws to strengthen journalism is therefore long over-due and must be encouraged to work under a ‘free-press’ framework. But what is the ‘freedom of the press’? Within a statutory press council, it could be said that the government has the freedom to do as it wishes. Within a self-regulated press council, it could be said that the owners have the power. But which is more conducive to ‘good’ journalism?

If you consider the British model, the Press Complaints Commission (PCC), whereby the press regulate themselves there are differing views, but the consensus would indicate that it has failed. “The Press Council was found to be so totally ineffective that the British Government had to step in with the Calcutt committee and restructure it into the current Press Complaints Commission. Anyone reading today’s British tabloids may be forgiven for wondering just how effective this Press Council Mark II is.” Willie O’Dea, Sunday Independent, Sunday, 30th November, 2003.

However, within the same publication comes another opinion, “...so it is difficult to see what is so wrong with either the British or Swedish experience of self-regulation, that a similar model cannot be adapted to work here.” - Editorial - Sunday Independent.

Such editorials are hardly surprising coming from the Sunday Independent as the self-regulating press council proposed by the National Newspapers of Ireland (NNI) would comprise of a healthy number of representatives from the Independent Newspapers group that maintain a stronghold on the industry in Ireland and would therefore have un-due influence over a self-regulating press commission. Many journalists would not be happy with such a scenario.

An Taoiseach, Bertie Ahern, agues the point that journalists should therefore be monitored by a statutory body the same as doctors, lawyers etc. “The days of self-regulation in society, with all of the competition and regulatory issues, is not a good way. I do think a statutory press council, legislatively based, should be looked at in this country. Any other one is of no meaning.” - The Irish Times, Wednesday, 22nd October 2003.

Once again, what is being said must be looked at. The government are known to be distinctly un-trustworthy of the media and Mr. Ahern has personal experience of this regarding intrusion into his private life. So it would be in the governments own interests to introduce a statutory council to keep one eye on proceedings within the media and the other on a 3rd term in office. This cannot please many journalists either.

So which would be better for journalism? It is unclear. Within Irish journalism the Independent Newspaper group have an unfair proportion of the market. If the NNI had their way a UK styled, self-regulating press council would be in operation. Considering the Independent Newspapers’ domination of the industry, it would be them who would ultimately control it. This is not the idea of the exercise. A statutory body on the other hand, could bring clarity to proceedings but brings its own problems as the Fianna Fail led government try to hold on to their stronghold of the market. The findings of the LAG will be made public soon but it looks increasingly likely that a statutory council is on the cards, while not necessarily being the way to go.

What is clear, however, is the need for libel reform. This is of the utmost importance. Without it, the good journalist will be gone. Journalists will not be forced to get their good investigative story for the newspaper and they will ultimately get lazy and resign themselves to run-of-the-mill celebrity profiles. The future of journalism is at stake and the government must deliver on libel reform, and quick.