The Ian Bailey libel case raises a few issues to do with libel and fairness, writes Vincent Browne.
First, it is surprising that Judge Patrick Moran found that the articles complained of were not defamatory of Ian Bailey (i.e. did not damage his reputation in the eyes of reasonable people).
The articles reported that he was suspected of the murder of Sophie Toscan du Plantier and, in doing so, appeared to convey the impression that he was in fact the murderer.
The test is what would a reasonable person reading the articles think - would they simply think he was merely a suspect or would they think he was the murderer. If some of them on reading the material would think he was the murderer, then the publication would seem to have been libellous, even where a denial of guilt by the suspected person was appended.
In the version of his judgment that I have seen, Judge Moran said in his view the articles did not suggest Bailey was a murderer, merely a suspect in a murder case. But it is not a question of what a trained legal mind would conclude the meaning of the articles were, but what an "ordinary" person might infer, as Judge Moran acknowledged. It is hard to believe, however, that such a person would not, "reading between the lines," infer that Ian Bailey was being identified as the murderer.
Perhaps the point Judge Moran was making was that Ian Bailey, in giving media interviews where he spoke himself of being the suspect, gave consent to what was published concerning him. If so, perhaps there is a point here. But this is a point that does not seem to have been argued in the course of the trial.
However, the suggestion that it is OK to publish that someone is suspected of a heinous crime must surely be false. For instance, if someone were suspected by gardaí of child sex abuse, the publication of that, while true in its literal sense (i.e. that this person was indeed a suspect), clearly would do enormous damage to that person's reputation, for the innuendo clearly would be that they were a child sex abuser.
Another point in relation to this case. The judge found clearly that Ian Bailey was a violent man and went to some lengths (according to press reports) to emphasise that. This was in the context of the horrific beatings he inflicted on his partner. It is therefore difficult to see how his reputation was damaged materially by the false (or unproven) allegation that he had beaten his former wife, as was published in the Sun and the Irish Mirror (Ian Bailey won €4,000 in damages against each of these newspapers).
Surely the "sting" of the accusation was that he was a wife/partner beater?
There is a further point. The costs of this Circuit Court case are estimated to be of the order of €600,000. How, conceivably, could any "ordinary" citizen contemplate taking a libel action with the threat of such a crippling penalty hanging over them, should they fail?
The libel laws are justified (in part) by the constitutional provision requiring the State to "vindicate" the good name of every citizen. How could a system that is so outrageously expensive be considered an adequate mechanism for the vindication of the good name of the citizen?
One way or another, this case does nothing to further the cause of press freedom and claims of vindication or victory are absurd.
Michael McDowell's promises of libel reform are dependant on a majority of the Cabinet agreeing to what he proposes and there is doubt that a majority want such reform. Some have quite enjoyed the protection that the present strict libel regime affords them.
Others respond to a general view that the corporate media (including RTÉ) already have too much power vis-à-vis the ordinary citizen and should not be allowed any greater freedom to abuse them.
There is now a problem with that latter argument. It is that Mr Justice Aindrias Ó Caoimh in the High Court has found, in a case taken by one of the Birmingham Six, Gerry Hunter, against a British lawyer, Louis Blom-Cooper, and a publishing company, Duckworth, that the principles set out by the House of Lords in the Albert Reynolds v Sunday Times case should apply here.
At one stroke this transforms the libel laws (unless overturned by the Supreme Court). It would insulate from libel awards publication of false material on matters of public interest, where some reasonable efforts were made by the journalist concerned to establish the truth of what was published.
This means that either the Cabinet can have a one-sided change in the laws governing the media, via the courts (as provided for in the Hunter v Duckworth case) or it can have what Michael McDowell would call a "balanced" reform, which would involve a trade-off between a liberalisation of the laws on libel with the introduction of new laws protecting personal privacy or a mechanism to achieve the latter. And such a mechanism would be a Press Council, the idea of which has provoked alarm amongst the corporate media, who want to generate even more profits at the expense both of people's reputations and their privacy, unimpeded by law (obviously this does not apply to RTÉ, which does not generate profits).