Michael McDowell's new defamation legislation raises serious concerns, and his privacy Bill is disproportionate and unnecessary, writes Andrew O'Rorke
Cathal Goan, the director general of RTÉ, in welcoming Michael McDowell to the 10th annual RTÉ/UCD lecture series on Broadcasting Society and the Law, quoted Robert Fisk as stating that the object of journalism was to challenge authority. In delivering his address, the Minister went off script and wondered as to this contemporary analysis of journalism. I imagine the public would regard the function of journalism is to report, record and perhaps comment.
How does the Government, in the broader sense, regard media? Suspiciously, but there to be used? Seán Duignan in a diary on his time as Government Press Secretary recorded on his second day: "N.B. They're all media mad here. This obsession with everything to do with the media cannot be overemphasized - repeat - cannot be overemphasized!". His perception may or not be accurate - some to whom it referred found it unfair. But it does identify the dependence of politicians, of all sides, on the media and the media's need for politicians.
About 20 years ago Douglas Gageby, then recently retired as editor of The Irish Times, was appointed by the National Newspapers of Ireland to lead a campaign for a much needed review of Irish defamation law. A report was prepared by Kevin Boyle and Marie McGonagle, the first serious review of the law which contained a number of reasonable recommendations, set in the context of our Constitution and the European Convention on Human Rights to which Ireland was a signatory.
The report was referred to the Law Reform Commission but notwithstanding the commission's seminal report in 1991 and many other proposals for reform, progress was not made. Each of these attempts ended up as minor footnotes in the history of reform.
The Defamation Act 1961 is the product of another era in terms of society and communications. "Broadcast" and "wireless telegraphy" were defined by reference to the Wireless Telegraphy Act of 1926, the days of 2RN.
While there have been more recent amendments to the broadcasting legislation, the Act is steeped in the ethos of a different era. The need for amendment was evident and acknowledged by the legislators but antipathy between them and those seen to benefit, the communicators, has resulted in rather extensive long fingering.
The media and politicians feeding off each other cannot be friends in a healthy democracy, but they need to respect each other and, more importantly, observe their obligations to the third element in this relationship, the recipients of their laws and communications, the general public.
Public outrage is a valuable and robust ally often wrongly claimed by journalists and politicians alike. It is feared by politicians and deadly when in full force. Contrast the real anger at the coverage of the death of Liam Lawlor with that of the circumstances relating to his imprisonment not too long beforehand. Public opinion was utterly hostile and then became sympathetic to him and his family in their grief. Fairness is an overriding requisite of a balanced society, one which we claim to be and broadly justifiably so.
There is no public demand to reform libel laws, but there is probably a belief that the law should reflect contemporary society and fairly adjudicate on the conflict between two cornerstones of any democracy, the protection and vindication of a good name and freedom of expression.
The Defamation Bill published by Michael McDowell suggests that good sense has at last prevailed. A plaintiff must now swear an affidavit in proceedings verifying assertions or allegations of fact, which if false amounts to the commission of an offence. The defendant in turn has to swear an affidavit verifying any assertions or allegations of facts upon which he relies.
By publishing or broadcasting an apology, a defendant will not be regarded as admitting liability. An offended person can seek a declaratory order, which will result in quick and prompt restoration of a reputation if deserved. How often this remedy will be sought is a matter of conjecture. We are a litigious nation. How many people will forgo the right to damages in substitution for a prompt speedy means of redress where the only finding is that the matter in question was defamatory?
A plaintiff may seek a corrective order, which will allow for damages, and specify the terms of any correction which a court orders on behalf of a complainant.
Defendants will now be able to make lodgements without admission of liability, bringing defamation in line with other civil actions. A judge will be able to direct a jury on the question of damages. Up to this, a jury was given no guidance on damages - a position which was upheld last year by the European Court of Human Rights, to the surprise of the media industry in Ireland. In simple terms, a jury could be informed that it would not be appropriate, if it finds for the plaintiff, to make an award comparable to those in England where circulation is a multiple of 20 that of an Irish newspaper.
These are practical reforms which are not radical, but merely reflect contemporary realities and introduce, in some instances, similar principles to those in other civil actions.
Much has been written about the introduction of the Press Council and how it will operate. Media organisations representing national and regional newspapers, magazines and book publishers have always intended the Press Council as a means of establishing a forum for persons with genuine complaints, other than defamation, as a means to give a public remedy to those offended. The media was lethargic in establishing a Press Council long before now. There will be heated debate as to whether the legislation gives the Minister of the day ultimate power over its membership and operation.
The wording of the relevant provisions is not as was anticipated but genuine debate must take place between now and the formal introduction of the legislation in the Oireachtas and during the parliamentary debates. Differences between the Minister and some of the media can be tweaked.
Two concerns arise regarding the Press Council and the operation of the proposed new defence of fair and reasonable publication, purportedly based on Albert Reynolds' action against the Sunday Times. It introduces a more limited definition of the defence, a further matter for Oireachtas debate. It also requires a defendant who invokes the defence to prove adherence not only to the code of standards of the Press Council but also to previous decisions of that body.
This has to be a recipe for disaster. Inevitably it will lead to a trial within a trial where a plaintiff may well seek to prohibit the defendant's right to avail of this defence. It will raise a completely unconnected matter, ie that the defendant has allegedly failed in its obligations to a separate body in a matter over which the court has no jurisdiction.
The Minister, introducing the draft Defamation Bill last Tuesday, simultaneously introduced the draft text of a Privacy Bill. The political reasons for doing so were anticipated and have been recounted in detail since, and regrettably may yet delay defamation reform. The Minister will understand when I quote from his speech at a conference on defamation in December 2003 when he said:
"I have committed myself to a consultative approach because the issues that we are dealing with are of huge importance. Reform in this area is not just another process of modernisation or policy initiative.
"We are talking here about the very essence of a democracy - the right to freely communicate facts, opinions and comment. This is no area for casual experimentation or adventure. Any change in this area must be carefully thought through in all its implications. We cannot afford to get this wrong.
"I make no apology for proceeding carefully and with circumspection. I make no apology for engaging in consultation and reflection. On the contrary, I believe that any other approach would be inexcusable, bearing in mind the vital importance of the subject matter."
While introducing the draft Privacy Bill, the Minister also published for the first time the Report of a Working Group on Privacy, dated March 31st, 2006, running to 110 pages. The group consisted of chairman Brian Murray SC and three civil servants, from the Attorney General's Office, the Minister's department and the Department of Communications respectively. The report is a welcome examination of the law on privacy in this and other jurisdictions but cannot purport to be the result of "consultation and reflection" as envisaged by the Minister.
The following is extracted from the report selectively but not unfairly:
". . . we have been specifically requested in our terms of reference to identify specific offensive forms of invasion of privacy and to prescribe remedies and sanctions in respect of such specific conduct . . . The probability is that there is in any event a pre-existing cause of action in respect of privacy interests afforded by the Constitution. The real question . . . is whether . . . that cause of action should be clarified and regulated not whether it should exist."
"Privacy, it has sceptically been said 'is the claim of individuals, groups or institutions to determine for themselves when, how and to what extent information about them is to be communicated to others'."
And therein lies the nub of the matter - not so much in the concept of protection of people's rights as the exercise by a few, from a position of strength and power, of rights not realistically open to other citizens.
As a lawyer practising in this area not only for publishers but also for plaintiffs both in the public eye and private citizens, I am very conscious of the hurt caused by unscrupulous journalists and in one particular private matter of professional thuggery let loose and condoned by a newspaper proprietor. A balance is needed. Society demands the protection of people's privacy and of the segregation of their public and private lives and of the need to protect families of public people. The proposed legislation is not the answer. The Press Council was proposed precisely to cover the concerns of people subjected to unjustified intrusion into their private lives.
The rights which the Bill purports to defend are already largely identified and protected under existing law - the Murray Report states: "At present, the overwhelming probability is that the Constitution does afford a cause of action to provide protection for infringements of privacy." However what is now being proposed is legislation which is difficult to follow, that does not define privacy but sets out (section 4) "Matters to which the court shall have regard". One of its provisions denies a defendant's right to show that at the time of the disclosure (of information) the disclosure "was contained in a register or other similar document to which members of the public or a section of the public had access" or where the plaintiff "had already disclosed [ the information] to members of his or her family or to his or her friends". It fails to define family or friends.
The interpretation and construction of this Act will be a lawyer's delight but will the public want the person who claims his or her privacy has been breached to have a right under Section 13 a) to apply to the court in advance of any publication or purported publication to injunct a journalistic investigation which may be in the public interest, and b) have this application heard in the journalist's absence and in private with nobody else present, and c) allow the court to direct that the identity of the applicant should not be disclosed and d) that there should be no publication of the application or the order? Compare this with Article 34 of the Constitution which provides: "Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public."
I do not believe we require to introduce legislation of this nature or that the third member of this debate, the general public, will express approval for such disproportionate proposals.
Andrew O'Rorke is chairman of Hayes Solicitors and the senior defamation adviser to The Irish Times