The defamation report follows 12 years of inaction by successive governments, writes Marie McGonagle.
The Legal Advisory Group on Defamation, established in September 2002 by the Minister for Justice, Equality and Law Reform, Michael McDowell, reported in March 2003. Its report has now been published and a six-month consultation process ending on December 31st this year was announced earlier this week.
Normally, such an initiative would be welcomed and the process lauded. In this instance, however, it is difficult to muster any enthusiasm. After all, the only reason for the report and consultation is 12 years of inaction on the part of successive governments.
It is 12 years since the Law Reform Commission published its 467-page, carefully researched and cogently argued consultation paper on the civil law of defamation.
As the title suggests, the paper was followed by a consultation period, during which the commission says it received "numerous submissions" on its proposals. It held a seminar which was attended by representatives of the media, barristers, solicitors (including barristers and solicitors who had represented plaintiffs) and academic lawyers among others.
The paper provoked a "lively and thoughtful debate" and was followed shortly afterwards by a report, firming up the commission's proposals. Twelve years later, Mr McDowell's advisory group effectively "reviewed the very detailed proposals advanced by the Law Reform Commission for the reform of the civil law of defamation", to quote its own words in paragraph 62 of its recent report.
It did so, because after 12 years, despite many promises and statements of intent, nothing had been done to reform and update an area of law recognised by the Law Reform Commission in 1991 as being hopelessly out of date and serving neither plaintiff, defendant nor public satisfactorily. Five years later, the government-appointed Commission on the Newspaper Industry added its view that changes to the libel laws were "a matter of considerable urgency".
Indeed, in 1995 Mr McDowell, to give him his due, put forward a Private Members Bill based on the Law Reform Commission's work but the then government stated its intention to bring in its own bill and nothing happened. Governments since have made various promises; Fine Gael produced a document Press for Change in 2001 and the sitting government produced a scheme for a Bill before last year's general election.
One could be forgiven for being weary - and wary - enough to think that this latest exercise could be just another in that long line of dead-ends or stalling measures. That said, there is a purpose to the present exercise. The delay of 12 years means that the law in other countries has moved on even further and there is more catching up to be done here.
In fact, that is recognised in the agreed programme of government, which aims to bring the libel laws "into line with those of other states" and in the terms of reference of the advisory group, which was to suggest "such changes or additions . . . as may be consistent with best practice in other jurisdictions".
In the intervening period, the development of the Internet has also raised new issues. The group has given careful consideration to these matters and its recommendations on defamation law per se, when considered within the confines of its terms of reference, are for the most part even-handed and practical.
The proposed defence of reasonable publication, building on the decision of the House of Lords in the Albert Reynolds case and developments in other common law countries, is a necessary step in light of the jurisprudence of the European Court of Human Rights.
The requirement for judges to give directions to juries in assessing damages and a statutory provision that the Supreme Court could substitute its own assessment of damages for those awarded in the High Court are positive. The proposal to increase the jurisdiction of the Circuit Court to €50,000, however, seems somewhat arbitrary and the proposal to retain the presumption of falsity but require the plaintiff to file an affidavit is questionable.
Measures to deal with defamation on the Internet, online archives, a defence for live broadcasts, fast-track procedures and so forth are welcome additions to the recommendations of the Law Reform Commission in 1991. The reduction of the limitation period to one year is also sensible, given the speed of transmission and delivery in modern-day communications, but the residual or discretionary period of six years is excessive.
Research on court records to be published later this year reveals that of nearly 1,000 cases over a five-year period, only a handful were taken close to the six-year deadline and fewer than 10 per cent were initiated more than one year after publication. The possibility, even a remote one, of an action being taken up to six years after publication creates unnecessary uncertainty for defendants.
The other half of the equation in the agreed programme for government, or the quid pro quo for defamation law reform, is the establishment of a statutory press council.
The very idea runs counter to the trend in other countries. Across Europe, for instance, the Alliance of Independent Press Councils comprises self-regulatory bodies in some 25 countries and is the model being promoted in the newly emergent eastern European democracies.
It is remarkable that the Government here would pursue the idea of a statutory council and the advisory group endorse it so wholeheartedly when the stated intention, as noted above, is to bring the law into line with other countries. Indeed, the group notes that "self-regulation tends to be the norm" but goes on to recommend a draconian regime which could only be described as a policing measure in all the worst senses of the term, complete with dubious incentives and sanctions.
For instance, a publication could pay a subscription to the council and in return it would have a right to be consulted by the council and, extraordinarily, its subscription could be taken into account by a court when a defence of reasonable publication is pleaded in a defamation action.
The council would have a wide range of powers, some of which, it could be argued, would interfere with editorial independence. If a publication were to refuse to comply with a decision of the council for whatever reason, the council would be empowered to apply to the Circuit Court for an order compelling compliance.
The concept of a complaints body is good, as the public are entitled to a readily accessible and effective system of redress. However, while the detail of the current proposal requires further scrutiny, it is a sledge-hammer, going completely against the trend in media regulation generally, at both EU and Council of Europe level.
Given the stance of this Government to date on matters such as the Freedom of Information Act, one would not be overly optimistic that defamation law reform will be realised in the near future. One might be tempted to pin one's hopes instead on the effects of the implementation of the defective, but nonetheless important, Bill to incorporate the European Convention on Human Rights.
The legislature in Britain in 1996 updated the Defamation Act 1952, on which our current Act of 1961 is based, but it was the Human Rights Act of 1998 which provided the main catalyst for much-needed reform in that jurisdiction.
Marie McGonagle lectures in law at NUI Galway. A new edition of her book on media law is due to be pub-lished by Round Hall in the autumn.