OPINION/Vincent BrowneConceit is not the preserve of hospital consultants, bishops and barristers. It is shared by journalists, editors and publishers, whose tendency to perceive the public interest as neatly overlapping with their own self interest or grandiose perception of their self-importance is by now almost reflexive.
And, before we go any further, let me acknowledge myself having indulged this tendency repeatedly.
We perceive ourselves as bulwarks of democracy, crusading for transparency and openness and, on a good day, accountability as well. If only the tiresome constraints of the law, particularly libel, were removed, we could sweep away all the humbug, corruption and double standards of public life, leading to a golden age of democracy, openness and, on a good day, accountability as well.
Not much room in our self-important lives for reflection on how we pursue profits for our media companies by invading privacy to boost circulation, by causing pain and hurt to private (and public) individuals for profit and self-aggrandisement, by traducing reputations unjustly because of unprofessionalism and impetuosity. All in the name of freedom of the press, another of the virtuous basket of "basic human rights".
We have patented this "freedom of the press". It is ours, for our licence, for our indulgence, for our enrichment. Freedom of the press is for the owners of the press, for writers and broadcasters, for that elite and no one else. That elite is becoming even more exclusive with the concentration of media ownership and the huge aggregation of power by these media conglomerates and the ever-escalating hubris of "public service broadcasters".
At times, many of us believe that we exercise "freedom of the press" as proxies for the "common" man and woman. Such is the scale of our self-delusion. And it has been with that mindset that many of us have pursued for many years the reform of the libel laws, the rules governing contempt of court including the impertinent rule requiring journalists to give evidence in criminal trials as every other mortal is required to do.
The libel laws at present seek to protect the reputations of individuals against unjust accusation or comment and, by extension, deter a rapacious media from seeking to maximise profit and/or self-aggrandisement at the expense of people's good name. But these laws also preclude the public being informed on matters of public importance because of the difficulty in meeting judicial standards of proof. And this happens even where all due care is taken to establish the truth. I recall some years ago prominent people in public life making careers for themselves from strident protestations of their commitment to peace and condemnations of the Provisional IRA, while secretly themselves running a murderous gang in the shadows. We could establish this was so through independent sources but could not rely on these sources giving evidence in public at a libel trial. The public was thereby precluded from being alerted to the staggering hypocrisy of that outfit which was seeking the support of the public.
We now are aware of how powerful individuals avoided public exposure for corruption through the threat of libel action and how public servants deter inquiry and comment into their activities through the threat of libel actions backed by the State - for instance we have to be very careful in our wonderment over how a file on the DIRT tax fraud remained untouched by the Revenue Commissioners for years and years and was activated only when pressurised by the media. (The sheer brass neck of the Revenue Commissioners in recently congratulating themselves on the €700 million-plus they got from that scam is an unintended reminder of the constraints of the libel laws.)
The penalty for a simple error that is seen to damage the reputation of someone has been exorbitant, both in the damages awarded and the costs of libel trials. As a consequence, the costs of pre-trial settlements have also been enormous. The effect of this has been to discourage the emergence of new current affairs media and any robust comment or inquiry into matters of public importance. And a further difficulty has been the extension of liability for libel beyond the original author, editor and publisher to the printer and distributor. This too has deterred the emergence of new media as well as robust comment and investigation.
Last autumn Michael McDowell established a special task force, chaired by Hugh Mohan SC, to review the libel laws and proposals for reform and to make recommendations. The challenge for any such group is to balance the appropriate protections for reputation against unjust attack on the one hand and the right of the public to be informed on matters of public interest on the other. The Mohan group has done that impressively and I will deal with its main recommendations here next week.