We all have a right to our good name and we all have a right to be compensated when that good name is taken away or damaged. Defamation or libel - the words are now used interchangeably - is the area of law designed to offer protection to a person who feels his or her good name has been injured.
There is, however, another value that is of equal importance: freedom of expression - the right to voice one's opinions and the right to receive information and engage in public discussion. Today that discussion, exchange of opinions, criticism and information takes place in the press, on radio and on television.
How we achieve a balance between freedom of expression and the right to one's good name tells us a lot about the health of our democracy. The media is central to democracy, as necessary as a democratic parliament or an independent judiciary. The European Court of Human Rights stated in a number of rulings that the press has a right and duty to impart information and that it has a watchdog role. In this State, the defamation laws can be traced back to the 17th century English Star Chamber, which developed the concept of defamation as an alternative to challenging a person to a duel. When the court was abolished after the English Civil War, the Common Law Courts took over its function in the field of libel.
Lawyers can point to several features in Irish law which have come down to us virtually unreformed since the 17th century. One example is that the plaintiff -the person making the complaint - does not have to prove negligence or that the defendant failed to exercise reasonable care. Secondly, action can be taken against 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 the plaintiff does not have to show that he or she suffered any loss or damage: the law presumes that to be so. In other words there is no presumption of innocence. So what does this mean for Irish journalists? In a small media market, libel is a real and daily threat, especially as Irish juries tend to give very high awards without any regard to a particular newspaper's circulation, a radio station's listenership or the viewing figures for particular stations or programmes.
In this State, the libel laws are applied in a way that does not take account of the nature of the offence. Small errors are treated as if they were major and made with malice. The expense means it is often easier to simply settle out of court, which encourages more people to seek compensation, knowing the case is unlikely to go to court. The defamation laws affect every aspect of writing and reporting. Publishers have books fully "lawyered". Distribution systems and major newsagents and newspaper and magazine shops have refused to stock some publications, for fear of libel, because in a defamation case a plaintiff can take an action against the writers, the editor, the publisher, printer, distributor and seller of the offending material.
Despite a campaign for reform of the defamation laws by newspaper publishers and the National Union of Journalists, the situation is getting worse. The number of cases is increasing and the amounts awarded in damages are going up. Business people and professionals form the biggest category of those who take actions against the media. Within that group, lawyers are the largest single group; politicians take a rising proportion of cases. The laws of libel do not offer a protection to all. They protect the rich and famous; others cannot afford the costs involved in taking a case against the media - and there is no legal aid. The effect on journalism can be chilling. Certain people in the public eye become known within journalists' circles as being "litigious". Such a reputation doesn't endear them to journalists, but it is a very big protection from any exposure, or scrutiny by the press. If the Irish media is timid, it is because of libel and the fear of the solicitors' letter or the writ.
Journalists are not alone in calling for the reform of libel laws, the Law Reform Commission has also made this call. This Government-appointed body published a detailed report on libel in 1991, recommending fundamental changes. None of the recommendations in that report have been implemented and there is no evidence to indicate that the present Government is willing to engage in any examination of media law. Instead, the media industry has been called on to do something about its own standards.
The libel laws, however, do not force the media to be more responsible. On the contrary, they hinder the establishment of a system of press self-regulation. As Louie O'Neill, a former chairman of the publishers' organisation, National Newspapers of Ireland, has said: "The law dictates that the only course open to persons who feel aggrieved, by a published article, is legal action. An individual may be happy to receive an apology, but media organisations cannot publicly apologise without an admission of liability."
Given the attitude of successive governments, it would now appear that only appeals to the European Court of Human Rights will change the situation. In one case, the court ruled that an award against Count Nikolai Tolstoy of £1.5 million was so high that it constituted an infringement of his right to free expression under Article 10 of the European Convention of Human Rights.
What happened? Tolstoy wrote a pamphlet, in 1989, about an incident at the end of the second World War when the British authorities, then occupying Austria, handed over 70,000 people, many of them Cossacks and non-communist Yugoslavs, to the Soviet and Yugoslav authorities. It was alleged that this was contrary to Allied policy, which said only Soviet citizens were to be handed over. Tolstoy called this a war crime and his pamphlet focused on the officer who signed to orders. Tolstoy's victory in this case, together with other cases, could provide the European precedents that Irish newspapers and broadcasters are crying out for.
Michael Foley is a lecturer in journalism at the Dublin Institute of Technology.
