The best prospect of much-needed reform of Irish media law lies in taking test cases to the European Court of Human Rights and by that means forcing politicians to make changes, a prominent English lawyer said in Dublin at the weekend.
Anthony Lester QC, now Lord Lester, has campaigned for the past three decades for the incorporation of the European Convention on Human Rights into English law. He said that close co-operation was needed on the issue across the Irish Sea.
He added that he hoped the news media would make "common cause" with other interested parties by using the Strasbourg court more enthusiastically.
"One way in which we have been able to persuade the English legal system to take free speech seriously is by taking test cases to the European Court of Human Rights - thalidomide, Spy catcher, Goodwin, Tolstoy are examples - which have forced parliament and the courts to change the law," he said.
Lord Lester, who was speaking on Saturday at a seminar on developments in Irish media law organised by McCann FitzGerald solicitors, has argued many of the leading cases on free expression and its limits for English courts and the European Court.
"We need close co-operation across the Irish Sea. The problems facing both countries are similar. Both are making the Convention on Human Rights part of their systems - at last - and there's a pressing need for common standards of protection of free speech across both islands.
"Judges and legal practitioners in both countries need to give effect to the terms of the Convention.
"Both countries share a legacy of archaic, outmoded, colonial-style laws, especially in the area of defamation, contempt and official secrecy. Ireland has admirably reformed its law in terms of freedom of information, but in other areas it lags far behind the rest of the common law world.
"In the UK more than £5 million is being spent to train judges, magistrates and tribunals on European Convention case law, and parliamentary committees are being set up to monitor legislation against Convention standards. Every law school and law publisher is taking Convention case law seriously.
"I very much hope that similar measures will be taken by the legal, executive and judicial branches of Government in Ireland, and that the media will make common cause in that respect - as well as using Strasbourg to force much-needed changes."
Mr Kevin Feeney SC told the seminar that it was clear from any analysis of the De Rossa versus Independent Newspapers case, in which Mr Proinsias De Rossa was awarded £300,000 in libel damages, that a majority of the Supreme Court was not prepared to alter the traditional view of the unique position of the jury in defamation cases, "and the sanctity of such awards".
That principle was now firmly entrenched in Irish law following the De Rossa case, "and the Supreme Court will only intervene on an ad-hoc basis if it deems, on the facts of a particular case, that the award is disproportionately high," Mr Feeney stated.
"The Supreme Court will not go down the road of putting in place any additional items of judicial control."
Mr Feeney referred with approval to the dissenting judgment of Mrs Justice Denham in the De Rossa case in which she said, "In general, I favour the giving of guidelines to a jury on the level of damages. Information does not fetter discretion. If this is perceived as a more active approach by the judge, I believe it is in the interest of justice."
Mr Feeney also cited the Tolstoy case in which the European Court of Human Rights found that the scope of judicial control at the trial of that libel action had not offered adequate and effective safeguards against a disproportionately large award.
"The [European] court was describing a system similar to the one approved by the Chief Justice in the De Rossa case." The trial court had allowed a jury to go "to the top of the bracket" and award damages of the largest sum that could fairly be regarded as compensation.
The Supreme Court's 4-1 upholding of that £300,000 award was made against a background where the highest sum which that court would allow for general damages for the most catastrophic personal injuries would be in or about £225,000.