Despite its curate's egg aspects, the Fine Gael plan to overhaul the libel laws is the most coherent contribution to this discussion so far. It raises most of the right questions, and adopts a reasonably balanced view of the conflicts between individual rights and public interest. The commitment to introduce a new Privacy Bill to be enacted in parallel with the Libel Reform Bill is particularly welcome.
Some of the solutions could do with a little more time in the oven. One such is the proposed introduction of a media complaints commission, a media ombudsman and a media council to represent the viewpoints of the industry. This sounds messy. Moreover, the British experience of such initiatives is not encouraging for those hoping to put a rein on the more poisonous media elements.
The Fine Gael plan has been guardedly received by bodies representing media organisations and journalists, who clearly see its concessions as a starting point from which further gains can be made before legal changes are set in stone. I believe these proposals are about as radical as we can afford to be without damage to rights at least as fundamental as freedom of expression. It is therefore worrying that we depend for a full discussion of these issues on parties with a particular axe to grind.
The NUJ has already complained that journalists will not have a guaranteed place on the media complaints commission.
Other spokespersons for the media perspective have been more strident. The media commentator and lecturer, Michael Foley, writing in this newspaper on Thursday last, described the Fine Gael plan as "ill thought-out and frankly idiotic in places".
This intemperate opinion seems to be founded primarily on the fact that Fine Gael has not recommended transferring the burden of proof in libel cases from defendant to plaintiff. Mr Foley said: "Libel is the only area of law where the burden of proof rests with the defendant and this is wrong."
To begin with, there are several areas of law in which the burden of proof rests, in practice, very firmly with defendants. Fathers accused in family proceedings of sexually abusing their children must prove their innocence, frequently of charges made without evidence, before they are allowed to have contact with their children again.
Similarly, men accused of domestic violence can be barred from their homes even before they become aware that an accusation has been made against them. These procedures are far more worrying than anything suffered by media defendants in defamation proceedings, but because such things occur at hearings to which the in camera rule applies, the public rarely gets to know about them. Strangely, the same media people who become exercised over democratic freedoms when it comes to protesting our allegedly draconian libel laws, have nothing to say about such matters. One might remark that media commitment to democratic values appears to major on issues where the media's economic interests are at stake.
There are very good reasons why the onus of proof in libel cases should remain with the defendant. A libel action will have arisen because the defendant has made serious allegations against the plaintiff. Since the issue at stake is the truth or fairness of such allegations, it is logical and just that the onus of proof should remain with the party who has made them. To suggest otherwise is to propose there is a presumption of guilt in the allegations made in the media.
Libel is indeed quite unlike any other area of law. Some onus of proof does currently reside with the plaintiff - he must prove that he is the injured party, that the words at issue were capable of having a defamatory connotation, and that there existed the potential for damage arising from this. After that, quite properly, the onus of proof shifts to the party who has made the allegations. It is not unreasonable to expect that such allegations should be capable of substantiation in a court of law.
When you consider that media operators are frequently massive conglomerates with immense powers to disseminate information, it becomes clear that it would be deeply unjust to oblige a private citizen to prove his innocence of charges made without any onus of proof. Among the difficulties with such a notion is that it might oblige an individual to incur further intrusiveness in responding to the initial charges.
Michael Foley referred also to the failure of the Fine Gael document to deal with contempt of court issues and "the right of a journalist to protect the anonymity of confidential sources of information". This is an old tune. Any journalist who is being honest will admit that protecting sources relates to pragmatism rather than principle. It would take very little provocation for me to reveal the name of the senior editor on a leading national newspaper who, far from being content merely to expose a confidential source, actually filed an affidavit in court proceedings alleging that a particular individual was the source of a story in his own newspaper, when the reporter involved was adamantly declaring that this was not so.
The editor was counting on the fact that the proceedings were governed by the in camera rule and, despite his periodic fulminations about freedom of expression, was quite prepared to hide behind the protection afforded him by this.