Go through the cuttings library of any Irish newspaper and search the file marked libel or defamation. There you will find the names of business people, politicians, leading and senior churchmen, lawyers and even journalists.Under those names are the stories, about lawsuits, threats, settlements - usually out of course - and writs.You will find few names belonging to the lower-middle classes, the working classes or the unemployed. In Ireland, the main threat to press freedom is not the Official Secrets Act, or other forms of state control, as bad as they may be. It is the daily and constant attack, in the form of libel and defamation actions. It is as if censorship has been privatised, with mainly well-off individuals taking actions that protect their reputations and have the effect of ensuring they are protected from scrutiny.The State, meanwhile, is involved less and less with controlling the media, whether through the Official Secrets Act or other censorship.In a small media market, libel is a real threat, especially as Irish juries tend to give very high awards. Newspaper proprietors, broadcasters and the National Union of Journalists have long campaigned for a change in the law on defamation, but the situation is getting worse. The number of libel cases is increasing, and the amounts awarded in damages are going up.The biggest category of those who take actions against the media are business people and professionals. Within that group, lawyers are the largest single group. Politicians, who used to represent about 10 to 11 per cent of plaintiffs, now constitute 23 per cent. There is also a large number of repeat plaintiffs. Ironically, journalists themselves account for about 10 per cent of those taking action against the media.Money talksThe only people who get financial aid to take libel actions are public servants, who are in a sense at the heart of the Establishment, have a special arrangement to facilitate access to the courts in defamation cases. They are funded by the State, the only group that gets so funded. If they win, they get to keep the award made by the court; if they lose, the State looks after legal costs.For those lower down the social scale, the law does not afford their good name much protection, as there is little chance of access to the courts without large amounts of money. There's no free legal aid for taking such a case.Payments in libel actions can be enormous. It leads to journalists adopting the adage, "if in doubt, leave it out"; at other times, journalists are warned that a certain person has taken action against the media organisation before - the chances are he will again.Some public and prominent people become known within journalistic circles as being litigious - that is, likely to sue. Such a reputation will not endear you to journalists, but it undoubtedly provides strong protection from any exposure or scrutiny by the press.When cases go to court - which is not often, it must be said, because media organisations prefer to lessen the costs and settle rather than fight - the most common defence is that of fair comment; it is pleaded in over 40 per cent of cases, but is successful in only 5 per cent. The problem for the media with this common defence is that a newspaper or broadcaster must show that the words being complained were comment rather than verifiable fact. In reality, that can be very difficult to prove. In most cases, therefore, much of the court's time is taken up with quite abstract sounding arguments about the nature of language, whether a phrase is comment or verifiable fact.In one case, for instance, an editorial comment stated that a particular "slip up" over diplomatic immunity was difficult to understand. A lawyer employed by the State, who had been handling the case (but was not named in the article) sued. Even though a newspaper's editorial is normally accepted as comment, the judge held that to say there had been a "slip up" was verifiable, and therefore a statement of fact rather than comment. So the newspaper lost.A huge minefieldIn the Irish media, the legal minefield extends from news pages, court reports, the editorial page and opinion pieces to restaurant reviews and even letters to the editor.It is not as if Irish journalists are particularly careless. The cost to the media is simply too high for journalists to act irresponsibly. Awards and legal costs come to well over £3 million a year for the national newspapers alone. For a small media in a State of 3.5 million people that is a lot of money - and it does not take into account what broadcast organisations or the weekly local newspapers have to pay out.Small errors bring the full weight of the law down on the media. Even understandable mistakes are paid with large sums of money. An apology given as quickly as possible might be taken into account, but not necessarily.Why does a modern European democracy retain laws that can be used to restrict press freedom? Why do juries feel it necessary to punish the media with such high awards?There are two important principles at play, sometimes competing: the right to one's good name and the right to freedom and expression. The latter includes the freedom to communicate thoughts, opinions and criticism, to receive and impart information and to engage in public debate.We do need libel laws, but as the professor of law at University College Cork, David Gwynn Morgan, wrote in The Irish Times: "What we do not need is this remarkable relic which comes down to us from the days of the Court of The Star Chamber."He traces a direct line from the present laws in the Ireland of the 1990s to those of the 17th century court, whose function was to suppress any word or deed which was in opposition to he king. When the court was abolished after the English Civil War, the common-law courts took over its jurisprudence in the field of libel.Prof Morgan finds several features in Irish law today which have come down to us virtually unreformed since the 17th century. One example, he said, is that in a libel case he plaintiff does not have to prove negligence or that the defendant failed to exercise reasonable care. Secondly, action can be taken against the publication of material that was already in the public domain, even when no action was taken before - so that at no time does information become safe.The third factor is that "alone among legal causes for action", the libel plaintiff does not have to show that he or she suffered any loss or damage: "The law obligingly presumes that to be so."A weak ConstitutionIn Ireland the Constitutional statement on the freedom of the press has always been considered too weak to have any real impact on the common-law approach to defamation, says Marie McGonagle, Ireland's foremost expert on media law and author of the main work on the subject, A Textbook on Media Law.In direct contrast, the United States Constitution, with its strong First Amendment commitment to freedom for the press, has dominated and reshaped the tort of defamation in that country. "In Ireland, as a consequence of following developments in Britain, which has no such guarantees, the tort of defamation has continued to operate along common law lines as if the Constitution did not exist," she says.The contrast with the US is seen in the landmark case there of the New York times v Sullivan (1964). The judgement in that American case held that if the plaintiff is a public figure and the libel refers to something of public interest, then the person taking the defamation action cannot succeed unless he or she can establish malice on the part of the defendant.One of the most expensive libel actions and one that became a major legal case was that involving Count Tolstoy. A London jury made an award of £1.5 million against him after he wrote a pamphlet. The case went to the European Court of Human Rights, which ruled that this level of award was so high that it constituted an infringement of his right to free expression under Article 10 of the European Convention of Human Rights. Unfortunately for the freedom of the press in Ireland, in 1980 the Irish Supreme Court decided not to use the freedom-of-speech guarantees in the Constitution to Import New York times v Sullivan into Irish law.In fact, in Ireland it can be argued that public figures get extra protection. We have seen what little impact a fair comment defence generally has; well, the situation is similar for a public-interest defence, while public figures - far from having to establish malice in order to succeed - have often received higher awards from Irish juries.Reputation is richesMarie McGonagle has argued that given Ireland's history of dispossession and material poverty, it is understandable that human dignity, and with it a person's good name, should occupy a special place in the value system."This may go some way to explaining why a jury made up of 12 citizens will sometimes award higher damages for reputation than they would for physical injuries. It is also a fact of life that the higher a person's material wealth and standing in the community, the higher the amount of damages likely to be awarded. The more ordinary the person, the lower the damages - if the person can afford to bring an action in the first place," she writes.Since the early 1990s, especially since the beef tribunal, all political parties have promised more openness and transparency and insisted that they favour the end of Ireland's culture of secrecy.It is, however, highly unlikely that any government will make reform of defamation law a priority, when it remains so lucrative and useful. In recent years, official reports have not been placed in the public arena, for fear that, if they are critical, people implicated in the workings of whatever institutions being examined will sue. That means, despite a commitment to openness - which is implied in the Freedom of Information Act - the law on defamation effectively allows information to be withheld.The defamation laws effect every aspect of writing and reporting Books are fully "lawyered" before publication.

Distributors and newsagents have refused to stock some publications for fear of libel - because in a defamation case a plaintiff can go for the writers, the editor, the publisher, printer, distributor and seller of the offending material.The Law Report Commission, a government-funded body that examines laws and recommends change, published a report in 1991 recommending reform. Nothing happened. The recommendations did become the basis of a proposed Bill, prepared by the publishers' lobby organisations, the National Newspapers of Ireland (NNI).The NNI hired a highly qualified lawyer to draw up a proposal for legislation, which was presented to government.

Government said "thank you" - and it has not been heard of since.European HopesIt would appear that the only real hope is for a case to be challenged under the European Convention of Human Rights. Article 10 of the Convention, which Ireland has signed, is a strong declaration in favour of freedom of expression. It has been used to extend and project freedom of the press.So significant has Article 10 become that many feel that the only hope for a genuine protection for press freedom is for the European Convention of Human Rights to be brought entirely into Irish law and so replace the weak and circumscribed Article 40 of the Irish Constitution, which surrounds its provision for freedom of speech and of the press with so much qualification as to make it nearly useless. Britain's new government has promised that the Convention will be brought into Britain's law.The European court of Human Rights, which sits in Strasbourg, has a growing body of decisions which has sought to balance an individual's rights, such as the right to one's freedom of expression, where the two collide. Its judges have understood the complex role of the media in modern democracies. It has also ruled in at least one case, a British one, that a high libel award had the effect of limiting freedom of expression.Until a case is taken to Europe, media organisations will continue to settle out of court as a method of reducing costs. The media will remain a sort of lottery, in which nearly everybody who enters wins something.