Eamon Dunphy was right in December 1992 to remind readers of the Sunday Independent of the political pedigree of Democratic Left which was then being canvassed as a partner in government.
Proinsias De Rossa, Pat Rabbitte, Eamon Gilmore and others in that party had been members of the Workers' Party throughout the 1970s and 1980s during a particularly turbulent period.
In October 1992 The Irish Times published a copy of the now famous "Moscow Letter", which appeared to throw some light on the history of the party. The letter was an appeal by the Workers' Party to the Communist Party of the Soviet Union for funds. The letter said that the need for funds arose because the party could no longer rely on "special activities" as a source of funding.
Proinsias De Rossa denied any knowledge of the letter, but for some the letter was seen as evidence of a link between the Workers' Party and "special activities".
Of course, this letter and the general issue of their recent past were not the only relevant considerations in determining the suitability of Proinsias De Rossa et al for government. Also relevant was the outstanding parliamentary record of De Rossa, Rabbitte and Gilmore, the seriousness of their purpose in politics, the intelligence each of them brought to public life, as well as their policies and programmes.
But it was fair to raise these issues at a time when Dick Spring was, apparently, manoeuvring to bring them into government. Not alone was it fair but it was an important public service. Eamon Dunphy was the only journalist to raise these issues at the time, while others, including myself, who had perhaps a greater familiarity with the history of the Workers' Party, ignored that pertinent issue.
How then did the De Rossa-Sunday Independent case arise? And how did it end in an award of £300,000 damages and costs of over £1 million?
The first problem was the article itself. It was recklessly written, leaving open the suggestion that Proinsias De Rossa had been engaged in "special activities". The second problem concerns perhaps the most curious element of that saga: the refusal of Eamon Dunphy and of the Sunday Independent to make the concession at the time which they subsequently made repeatedly in court. This was that they accepted that Proinsias De Rossa had not been involved in any such activities. Had such an acknowledgment been made at the time there would have been no libel action.
The third problem was the manner in which the case was defended by the Sunday Independent in court. Far from "standing by" his journalism, as Eamon Dunphy claimed after the conclusion of the case, the Sunday Independent did precisely the reverse. Its defence was, in effect, that the article did not say anything. And then, to compound the confusion, it conducted the case as though it were trying to prove that De Rossa was indeed implicated in special activities.
If it was going to defend the action, it is difficult to understand why it did not plead fair comment or justification and defend the article on its merits. It might, for instance, have argued that the issues Eamon Dunphy raised were important issues raised on matters of public concern and that a degree of latitude should attach to the manner and style in which such issues were presented for public consideration.
It still might have lost the case but at least it would have "stood by" what it had published and in doing so could have raised important questions about our libel laws.
One such question might have been whether the defence of "qualified privilege" attaches to material published or broadcast on matters affecting the public interest.
Qualified privilege attaches to communications between a person, who has a duty or an interest in communicating information, to another person, who has a duty or an interest in receiving such information.
Therefore if, for instance, the editor of the Sunday Independent were to write to the managing director of Independent Newspapers about Eamon Dunphy concerning his suitability for continued employment and if that letter contained false defamatory material about Eamon Dunphy, such a letter would be covered by the defence of "qualified privilege", unless it was established that the letter had been motivated by malice or reckless disregard for the truth.
But in a democratic republic, surely citizens have an interest in receiving information and opinions on matters affecting the public interest? Such information and opinion enable citizens to participate meaningfully in the government of society. And therefore should not the defence of "qualified privilege" apply?
As it happens this very issue was deliberated upon in the last few weeks (on July 8th) by the Australian High Court (the superior court of Australia). This was in a case brought by the former New Zealand prime minister, David Lange, against the Australian Broadcast Corporation. In a unanimous judgment the seven-judge court held:
"Each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it.
"The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege."
That judgment should be a persuasive authority for the Irish Supreme Court. Someone should test it soon.