Michael McDowell has promised a Bill to reform the defamation laws every two months for each of the last three years. It appears he is soon to deliver on these serial promises and also on a promise to introduce a privacy Bill, writes Vincent Browne.
No doubt when he gets around finally to doing this he will be lionised in the media, or rather lionised again in the media, for although the media is disconcerted at times by his tantrums, broadly it supports his reactionary agenda.
The Bill to reform the libel laws may make no significant change at all to the current legal position on libel, although it will be presented as a radical departure. I write this hesitatingly because I do not know what the law on libel is at present, but neither does Michael McDowell or anybody else. And the reason we do not know what the legal position is on libel is because a few years ago a judgment of the High Court radically changed the law on libel, but since this was not appealed to the Supreme Court we don't know whether the changes introduced in that judgment would stick. But if the law is as the judge, Aindrias Ó Caoimh, in that case (Hill v Duckworth) said it was, then Michael McDowell's Bill will change very little.
That Hill v Duckworth case arose from a pamphlet written by an English barrister, Louis Blom Cooper, for Duckworth publishing company about the Birmingham Six case. And in the pamphlet there was the suggestion (outrageous, in my opinion) that the Birmingham Six were in fact not quite as innocent of the Birmingham bombings as was popularly believed since they were cleared by the English Court of Appeal. (Anyone who seriously believes those men were not innocent is, in my view, off his/her head but that is another matter.)
Not surprisingly one of the Birmingham Six, Patrick Hill, sued for libel and did so in the Irish High Court. Under the libel laws as we have known them, Hill would have had an open and shut case. Any jury here would have found what was published an outrageous libel and would have awarded very handsome damages.
However, the defendants, Duckworth and Louis Blom Cooper, pleaded the defence of "qualified privilege" and cited in support of their defence the judgment of the House of Lords in the case taken by Albert Reynolds against the Sunday Times.
"Qualified privilege" is a defence known in the law of libel which applies where there is an interest or duty to communicate certain information on the part of the person communicating the information, and an interest or duty to receive the information concerned on the part of the recipient. This applied to private communications, say, between a former employer and a prospective employee of a worker communicating information relevant to the suitability of the worker for further employment. But now the idea of "qualified privilege" has been extended to communications in a democracy between sovereign people and the media, where obviously there is a right to communicate and a right to receive communication relevant to the conduct of public affairs.
This essentially was what the House of Lords held in the Albert Reynolds case: that if the media, in reporting on matters of public interest, made reasonable efforts to establish the facts and published the material without malice, then qualified privilege would apply. The decision changed the law of libel at a stroke and when followed here the law of libel seemed to have been changed at a stroke also. But we can't be sure since the Supreme Court did not have a chance to uphold the judgment of Aindrias Ó Caoimh or to reject it.
Michael McDowell's Bill apparently will put in legislative form these changes or changes very similar to them. But will it change the law? His Bill also will probably include provisions for some technical changes to do with lodgements and apologies, which are important but not central.
On the privacy issue all the indications are that Michael McDowell has missed the point. The point is that while there is protection for privacy in the Constitution it is not of much use, since most people would never take an action for invasion of privacy for the very taking of an action would cause further invasion of privacy.
So the only protection that can be relevant is that afforded by an independent agency that would act, independently of the person wronged, in cases where there were unjustifiable invasions of privacy. Act, that is, in a way that would deter future invasions of privacy, ie through stiff penalties for improper invasion.
The idea of self-regulation by the media is even more ludicrous than the idea of self-regulation in the medical and legal professions. It has to be an independent agency, independent of government and of the media, established under statute, which would mean that its decisions would be reviewable by the courts, which ultimately would determine the proper boundaries of privacy and the justifications for invasion.
Have no doubt any change will be presented with triumphal self-congratulation - but will it make any difference?