Our libel and defamation laws need to be changed. Not because we live in a society where freedom of expression or the rights of investigative journalism are shackled but because these laws are in some respects archaic, in other respects daft, and in some cases without great point.
They have not kept pace with the changes in media practice and technology - which is hardly surprising since it is over 40 years since the last changes were made in these laws. Nor is it a question that we do not know what changes need to be made.
Over a decade has passed since the Law Reform Commission made 59 proposals for change. The 1997 Commission on the Newspaper Industry endorsed these proposals. The present Taoiseach promised that we would have the heads of a Bill by the end of 1999.
It may well be that many politicians do not share the same sense of urgency as the media. They see in Ireland a media with strong constitutional protection and a strong economic basis, and have difficulty in seeing where freedom of speech is curbed.
It is difficult to argue that a society in which people such as Vincent Browne, Fintan O'Toole, John Waters, Eamon Dunphy, Gene Kerrigan, Ryle Dwyer and many others have regular access through newspaper and airwaves is a society where the free expression of opinion is hampered. Add in the savagely brilliant cartoons of Martyn Turner and the multiplicity of local radio talk shows and the case is even harder to make.
It is argued regularly by journalists that politicians have a vested interest in maintaining the present libel laws because so many have done well out of them. If, as is alleged, politicians are quick to sue, the reason may be a simple one: politicians are the people most often attacked in the media and the ones most likely to have a sense of grievance. Sometimes they win but, as Ms Beverley Cooper-Flynn TD knows, sometimes they lose.
Indeed on this point it should be noted that journalists themselves are no slouches when it comes to recourse to the courts. Pat Kenny and John Waters are just two recent examples - and there are many more, including at least two editors who issued writs, and collected. Even Vincent Browne is not above threatening legal action.
It is the universal experience of politicians that journalists are notoriously thin-skinned when their own probity or sense of honour is called into question. And most journalists know this is so.
These points are made to indicate that the question of libel law reform is not one of black and white, of repressive politicians versus crusading journalists. The issues are bigger than that and at their heart is the balancing of two fundamental rights: the right of the individual to his privacy and to his good name, and the right of the public to know how those in authority carry out their public duties.
All power is open to corruption and this includes media power. Concentration of ownership can result in undue influence over the electoral and political process as media owners weigh up the balance of their commercial interests and not just throw their weight behind those parties most likely to favour those interests but demonise those who are seen as a threat. This is an issue rarely tackled head-on by the proponents of reform.
There is another problem with reforming the libel laws which few journalists care to address - theirs is not a homogenous profession. Standards vary and there are segments of the industry which can be intrusive, abusive of privacy, even vindictive. Not all agendas are necessarily open; not all media people are models of ethical restraint.
The legitimate right to privacy is also fundamental. Politicians must expect to take the rough with the smooth but intrusions into the lives of family members, details of extra-curricular activities, which may be titillating but have no public relevance are now commonplace. Intrusions into private grief and tragedy can be enormously hurtful and frequently it is the more vulnerable people, the children and widows, who are most at risk.
THE surprising thing about the debate on media reform is that it has never actually taken off, in large part because neither side has been willing to accept the good faith of the other. But where there has been debate, it quickly emerged that there are broad areas of agreement, perhaps to the surprise of both sides.
So what can and should be done?
For a start there should be a speeding up of the libel litigation process. The period within which an action can be taken should be shortened and the process accelerated.
Secondly it should be possible for a judge in a defamation case to give financial guidelines to a jury when deciding awards. The present award system is something of a lottery but there is no guarantee that judicial intervention will mean lower awards or greater consistency. When juries were abolished in the insurance sector awards did not drop. And since judicial consistency is not always a feature of our system, the end result may change little. But it is still a change which should be made.
It is wrong that defendants in defamation actions cannot make a lodgement in court without admission of liability. This law, abolished in England in 1933, is archaic and leads to delay and added cost.
A matter of real importance is the question of apologies. Journalists often work under great pressure and honest mistakes are made. At present an apology is an admission of liability and there is no scope for the making of a genuine, speedy and full apology. A simple legislative amendment could change this.
The question of qualified privilege is more problematic. This would require a plaintiff to prove recklessness and/or malice before being entitled to compensation in a libel case. It would be helpful if those making this case could explain it more fully.
On the other side of the fence there is a need for some give from the media interests. The obvious action here is the establishment of either a commissioner or ombudsman within the industry, funded by the industry but independent and guaranteed to be so, who could resolve complaints speedily, fairly and at low cost. Such a person must be seen to have real powers, have the full backing of all sectors of the industry and be a person of accepted standing in the community. The establishment of such an office would be seen as a confidence-boosting measure, though in fairness it should only be expected in tandem with genuine reform.
The debate on media reform has been largely one-sided and it has gone on too long. The onus for change is now firmly on government and parliament and there is no justification for further delay.
Maurice Manning is a Fine Gael senator on the Cultural and Educational Panel, a historian and commentator.