The decision of Mr McDowell, the Minister for Justice, Equality and Law Reform, to establish a Legal Advisory Group on Defamation is very much to be welcomed.
An initiative to bring a greater degree of sanity to the application and operation of the libel laws has long been sought from within the media - and mostly ignored by those with the power to effect change. This sterile situation has now been transformed by Mr McDowell's brave initiative.
Mr McDowell has charged the Advisory Group to examine the operation of the libel laws within this jurisdiction, and elsewhere, to see whether this State is adhering to best practice, and whether a more efficient defamation regime might be put in place. He has also asked the Group to consider whether a defence of qualified privilege should attach to media comment on matters of public interest. Further, he has asked the Group "to consider the nature and extent of any statutory intervention which might attach to any entity concerned with the regulation of the press".
The Group is to report to Mr McDowell by the end of this year and its views will form the basis of a Defamation Bill to be published by the middle of 2003. The media will doubtless have an opportunity to make submissions, but regrettably the members of the Advisory Group do not include at least one individual from the media, intimately familiar with their work. It is some consolation that the chairman of the Group, senior counsel Mr Hugh Mohan, has for some years advised newspapers on libel and will therefore have an enhanced understanding of the media perspective on the need for reform.
Change, clearly, is on the agenda. At the end of what will undoubtedly be an earnest debate between the Minister, the Advisory Group and the media, the application of the libel laws will be altered considerably. It is apparent too that a Press Council will be brought into being. Such a development deserves careful consideration and is not something which the media should reject instinctively.
Journalists make mistakes, just like everyone else. Mostly, such mistakes are honest errors, committed often under pressure of time. Good journalists, good newspapers and broadcasters, seek to correct such errors and, where appropriate, apologise. That is as it should be. But it has long rankled that such proper responses can be turned against the media and portrayed subsequently in court as admissions of guilt. And the burden of proof in libel cases lies with the defendant, a fact unique in the civil law.
A defence of qualified privilege as envisaged by Mr McDowell in cases involving the public interest might go some way to assisting the media - and hence society as a whole - in exposing the sort of corruption confirmed recently by the Flood Tribunal: corruption that was well known by the media but which remained hidden because wrongdoers had the libel laws on their side.