ALBERT REYNOLDS could make history in a manner he may not have expected and may not welcome. He could achieve this in his libel action against The Sunday Times but for reasons divorced from the accuracy and fairness (or otherwise) of what was written about him - and I am not here commenting on the fairness or journalistic competence of that article.
The historic potential of this action arises from the nature of part of the defence being offered by The Sunday Times, a defence which, if accepted by the English High Court, would transform the law of libel in England. This, in turn, would have great persuasive force in the Irish courts and it could lead to a freedom of the press in Britain and here akin to the freedom enjoyed by the press in the US.
The part of the defence pleaded by The Sunday Times which could have such far-reaching consequences is based on the contention that publication of the article complained of was "an occasion of qualified privilege".
There are two kinds of privilege which can be pleaded in defence of a libel action: absolute privilege and qualified privilege. Absolute privilege attaches to statements made in the Dail and during judicial proceedings. Nobody can succeed in a libel action over anything said in either of these circumstances, irrespective of whether malice was involved or not.
This means that no legal action can be taken against a TD who makes even the most outrageous allegations about another person and even when the TD in question knows that the allegations are untrue. The justification for this absolute privilege is that the democracy requires that parliamentary debate be free from any legal consequences.
Qualified privilege arises in special circumstances, including those where the person communicating the information complained of has a duty or interest to communicate such information and where the person receiving such information has a duty of interest in receiving it.
Thus, for instance, if a headmaster were to write a damning evaluation of a teacher and communicated this information on request to a prospective employer of that teacher, it would be covered by qualified privilege, provided that the headmaster was not motivated by malice.
It has been argued for several years here that this qualified privilege should also cover reportage of public affairs. The contention has been that journalists have a duty and interest to communicate such information to citizens who, as participators in a self-governing democracy, have an interest in receiving such information.
It was on this basis that the law of libel was transformed in the US by the Supreme Court ruling in the famous 1964 case "New York Times v Sullivan". The New York Times columnist, Anthony Lewis, has written the authoritative work in this case, Make No Law, and in it remarks: "It is questionable whether the press could have done as much as it has to penetrate the power and secrecy of modern government or to confront the public with the reality of public issues . . . The ultimate beneficiary was not the press but the public, which was able to hear criticism and exercise its voice.
BUT in Britain and Ireland and in other countries where the old common law systems applied, there was judicial hostility extending the bounds of press freedom and of the concept of qualified privilege, at least until recently. This was, perhaps, because of a historical hangover from an attitude that citizens had no right to know what was going on.
But in the Albert Reynolds case, an attempt is being made to persuade the English High Court to accept the defence of qualified privilege. It is being argued that the article in question concerned a matter of legitimate public interest and concern to readers in Britain that "a full account should be published in the United Kingdom of the reasons for the withdrawal of the Labour Party from the Fianna Fail-Labour government, leading to its collapse and the resignation of (Albert Reynolds) as Taoiseach and as leader of Fianna Fail
This was because "those matters were of vital significance to United Kingdom interests because of the critical stage of the Northern Ireland peace process and ceasefires, and (Mr Reynolds's) and Mr Spring's personal identification with that process".
It is claimed that The Sunday Times and the other defendants "were under a duty, had a legitimate interest and were entitled . . . to communicate the information and opinions contained in the words complained of to their readers who had a legitimate interest in receiving such information and opinions".
One of the counsel appearing for The Sunday Times, Lord Lester of Herne Hill QC, has written in the journal Public Law (Spring 1995). He points out that the English Law Lords in a 1993 case, Derbyshire County Council v Times Newspapers, had held that "the organs of government, whether central or local", could not use libel law to vindicate its reputation because to do so would be an unnecessary interference with free speech in a democratic society.
In that case, one of the Law Lords, Lord Keith, said: "What has been described as `the chilling effect' induced by the threat of civil actions for libel is very important. Quite often, facts which would justify a defamatory publication are known to be true but admissible evidence capable of proving those facts is not available".
IN A subsequent English case (R v Central Television 1994), Lord Justice Hoffman stated: "A freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which "right-thinking people regard as dangerous or irresponsible".
Thus, the courts in England and elsewhere have been pushing out the bounds of press freedom, under the guise of qualified privilege, for some years and the Albert Reynolds case may be the crucial turning point in press law in this part of the world.
Of course, British legal precedents are not binding on the Irish courts but they do have powerful persuasive effects. The surprise here is not that the Irish courts would not follow the lead from an English court on press freedom but that the Irish courts did not lead the way. This is because we have a written constitution which guarantees (sort of) press freedom and from which the democratic rights of citizens to access to information could be asserted.
But the issues were never pleaded in a libel case and the Law Reform Commission, in its report on libel, timorously balked at going the route now being urged on the High Court in London.