Fianna Fáil is not going to indulge Michael McDowell's partiality for reform of the libel laws without a substantial quid pro quo, and Fianna Fáil is right, writes Vincent Browne.
There is no justification for granting further licence to a rapacious media to abuse people's rights for profit and aggrandizement, without some in-built protections for ordinary and even extraordinary citizens.
The recent task force report on libel suggests a quid pro quo in the form of a statutory press council, which is expected to meet with vigorous opposition from the media. What is proposed does not go far enough.
There is a public interest in allowing the media more latitude in reporting and commenting on public issues. The present laws inhibit such reporting and comment and they discourage the emergence of new public affairs media. As a result, the public is deprived of information it might otherwise obtain and is denied a variety of robust and outspoken comment that otherwise it might enjoy.
Because of a succession of high libel awards and massive legal cost awards, the media is more cautious than it needs to be even in the current legal environment. That caution is actually more restrictive than the laws governing the media, but it will prevail until there is a change to the laws. (For obvious reasons, it is difficult to give examples of this.) Change could well come about via the courts, as has happened in Britain, Australia and the United States. In all these countries the courts have broadened the latitude allowed to the media, where the material in question concerns public affairs and where the media has not acted with recklessness or malice.
The recent task force report on libel has proposed something similar here through what it calls "reasonable publication" but it is so hedged with qualification and caveat as to make it unworkable. The extension of the defence of "qualified privilege" is a more obvious and clear-cut remedy.
By the way, members of the Oireachtas have what is known as "absolute privilege" which allows them say in the Dáil or Seanad what they like about anybody, whether they believe it to be true or not and this is justified on the basis that any restriction on what they might say would inhibit public debate. What is proposed here for the media is nothing as extreme as that.
This new "qualified privilege" would apply only to material dealing with public issues. It would not apply where there was malice or reckless disregard for the truth and a few other caveats could be inserted, such as a requirement to incorporate all sides to the story or at least attempt to do so.
There are several other recommendations of this task force, chaired by Hugh Mohan SC, that are worth incorporating in any reform proposals. Among them is the proposal to permit a defendant in a libel action to make a lodgment of a sum of money in court even where there is no admission of liability.
This means that a defendant (e.g. a newspaper or a broadcast station) could offer to settle a libel action for a reasonable amount and if that was not accepted by the plaintiff then to lodge that sum in court. If the outcome of the case was an award of damages less than the amount lodged, then the plaintiff would have to pay all the legal costs of the case from the time the lodgment was made.
This would transform the politics of libel actions, for at present lodgments can be made only where there is an admission of liability. A similar reform is proposed in relation to the publication of an apology (at present this amounts to an admission of liability).
Fianna Fáil is probably reflecting the mass of public opinion in its hostility to the media and such hostility arises in large part because of the media's abuse of personal privacy. Such abuse regularly arises with media intrusions into private grief, following a tragedy.
But there is also anger at the intrusion into the private lives of politicians and others in public life. For instance, stories concerning the private relationships of Bertie Ahern amount to an unjustifiable infringement of his privacy and the privacy of others affected. The old adage - what is of interest to the public may not be of public interest - applies.
The British have struggled unsuccessfully with proposals on the regulation of the media's intrusion into privacy. Clearly, media self-regulation has not worked. Here, there is constitutional protection for privacy and, if asked to do so, the Supreme Court is very likely to define the nature of such constitutional protection. But there is also statutory protection here in the broadcasting Acts and the question arises as to why such protection should also not be provided for in legislation covering the print media. Journalists can hardly object, for the NUJ code of conduct forbids unjustifiable intrusion into people's privacy.
So here's a deal: the politicians give the media a half-baked version of the privilege they themselves enjoy and, in return, all the media is subjected to tough privacy laws, if necessary backed up by criminal sanction.