The Government commitment to a statutory press council does not have to mean the type of council described in the report of the Advisory Group on Defamation, according to the Minister for Justice.
He was speaking at a conference on the report in Dublin yesterday. The model envisaged by the advisory group involved a Government-appointed council.
However, he stressed that the three issues of privacy, public protection and defamation law are inter-related. "I think it is naïve for anyone to think that they can dine à la carte at the table on which these issues are set out."
He added that he was "genuinely open-minded" on the exact substance and means of delivery in relation to reform in each of the three categories, and the conference yesterday was part of the consultation process leading up to the drafting of legislation.
Referring to the proposed statutory press council, he said: "It seems to me that the particular model examined by the legal advisory group is by no means the only, or, for that matter, the most obvious model for a statutory press council. I could envisage a body chaired by a judge, and composed of nominees of a variety of groups to reflect the different interests involved.
"Such a body could reflect the interests of the public, the media owners and journalists. The public interest might be represented in a number of ways, one of which would permit some form of proportionate selection by elected public representatives so as to ensure that the Government of the day could not swamp the council with its sympathisers."
He said he was not convinced that self-regulation was a bad thing in a democratic society. "But I equally believe that self-regulation at least carries with it the notion that there are some rules to which the injured parties can point in seeking redress from an abuse of press power in relation to them.
"Can press power be abused without defamation in a manner which seriously injures innocent and vulnerable people? What are the non-defamatory wrongs that the press can do to ordinary citizens?" Mr McDowell said there was a danger in arguing that all press activity should be capable of regulation in the interests of, say, good taste, good behaviour or conventional mores. "As a private citizen, and even more so as Minister for Equality with a special responsibility for the rights of people with disabilities, I may be angered or offended by, for example the Mary Ellen Synon article published about the para-Olympics. But does that sense of anger justify the creation of even a self-regulatory jurisdiction to prevent the publication of such an article?"
The Minister said the strongest argument for non-defamation protection of ordinary citizens lay in the area of privacy. Under the Act incorporating the European Convention on Human Rights into Irish law, which will become law at the end of the month, it will be a tort for a State body to violate the privacy of an individual.
"Does this mean that the State alone would be liable for such a violation of privacy where the press was also involved in the publication of sensitive matters?" he asked. Mr McDowell asked whether it would be better to legislate in this area, or allow the judiciary develop a new common law of privacy.
"My worry is that a statutory law on privacy could end up protecting 'the great and the bad' rather than the weak and defenceless in our society," he said.
Interested parties: what they want
National Newspapers of Ireland
A press Ombudsman based on the Swedish model, with a press council representing the industry, the NUJ and the public and paid for by the newspaper industry.
Regional newspapers
Same as NNI, but with the Statute of Limitations for libel actions to be restricted to not more than two years.
RTÉ
As well as reform of the law, a culture change to ensure that disputes about reputation and freedom of expression do not become "show trials" costing a great deal of money.
Independent broadcasters
Incremental change, with immediate legislation to deal with issues on which there is a consensus, like the Statute of Limitations and lodgement of sums of money in court, with further debate on the press council.
Internet service providers
A special provision for Internet service providers that they have an exemption from defamation law, based on the existing proposal for a defence of "innocent publication".
Book publishers
Reform of the law to shift the balance away from the plaintiff and distinguish between unwitting defamation and calculated character assassination.