Senator Maurice Manning's intervention in the on-off debate about libel reform is timely, coming in the wake of proposals by the National Newspapers of Ireland (NNI) for media self-regulation. I must admit to being more impressed with his timing than his opening argument.
Senator Manning acknowledges the need for libel reform but admits that many politicians, presumably including himself, have a real difficulty in accepting that freedom of expression is curbed in Ireland. He contends that the need for reform arises chiefly from changes in media practice and technology, and cites - among other things - the freedom enjoyed by star columnists and broadcasters.
The senator seems to think we ought to be grateful that the State allows Martyn Turner the right to lampoon politicians through his piercingly perceptive cartoons. This is a simplistic approach to the legal constraints on freedom of expression. Incidentally, it also ignores the restrictive censorship laws and the secretive manner in which the Censorship of Publications Board carries out its duties on behalf of the State.
The case for libel reform was accepted by the Law Reform Commission, the 1997 Commission on the Newspaper Industry and Mr Abid Hussain, UN special rapporteur on the promotion and protection of the right to freedom of expression, in his report last year. Mr Hussain's recommendations mirror the Law Reform Commission and are firmly rooted in the principles of Article 19 of the International Covenant on Civil and Political Rights.
It is extremely difficult to ascertain the impact of our libel laws on journalism. The Beverly Cooper-Flynn case provided an insight into the cost of libel actions, but that is not the full story. The unpredictability of jury awards means that media organisations frequently settle out of court, usually on the basis of a confidentiality clause, rather than contesting libel actions.
For journalists, this can be a frustrating experience, since the settlements are usually the product of wrangling between lawyers, with little input from the author of the story. In one newsroom in Dublin city centre there is a list on the wall of well-known people about whom no stories can be written because that editorial veto formed part of the out-of-court settlement.
For regional newspapers, the prospect of a costly legal action is especially daunting. It has been estimated that the regional media alone pay between £40,000 and £50,000 per week on out-of-court settlements.
The chilling effect of the libel law should not be underestimated. How can we prove that journalists would have exposed corruption among the political and economic elite in the 1980s and 1990s if the libel regime had been less restrictive? We can't. I worked long enough in journalism to know that there are in effect two sets of editors - those who are employed as journalists and those engaged as lawyers. When there is a doubt, the lawyers win out.
It might be useful to look at the precise purpose of libel law. Libel and defamation legislation was introduced to offer redress to those who had suffered at the hands of the media. It was never intended as a means of enforcing media standards.
Every citizen has the right to protect his or her good name, and in the intermittent debates on libel reform it is easy to overlook this important principle. But while there is a real link between libel reform and exposing, the current law does not offer protection to ordinary citizens. For most citizens, the stakes are simply too high, the risks too great to contemplate seeking legal redress, so in effect the legal process protects only the rich and powerful.
There is a marked political reluctance to address the issue of ownership, not least, one suspects, because of the perceived threat of a backlash from powerful media players. The involvement of Tony O'Reilly in the Valentia consortium raises serious issues about cross-ownership. Media ownership is not just about newspapers or who owns TV or radio stations; O'Reilly's association with Chorus, the cable and MMDS distribution system, and with iTouch, the mobile phone service provider, already gives him an inordinate influence on the flow of news and information.
The NUJ welcomes the NNI commitment to a self-regulatory system, but it is a source of bewilderment, as well as regret, that the newspaper owners should exclude from their consultative procedures those who work as journalists, the men and women who gather the news which fills the space between the
lucrative advertisements. This is not a healthy omen for the future of a system funded by the newspaper owners and the din you hear is the sound of alarm bells ringing in newsrooms throughout the country.
The NUJ favours the establishment of a Media Ombudsman whose office would be funded by the media industry. The Ombudsman must have total freedom and independence and we have suggested that the establishment of a Media Council, to whom the Ombudsman would report, would underpin this independence.
This council would be based on the social partnership model, which, as employers regularly remind unions, has been a very successful model of co-operation between the Government, IBEC, ICTU and the voluntary sector.
The Ombudsman must serve the citizens of the State rather than media owners, and so participation in the process of accountability should not be controlled by the newspaper industry.
It would be folly to establish a Newspaper Ombudsman rather than a Media Ombudsman. The regulatory system must set a standard for all media. Clearly, this causes difficulties, given the existence of the Broadcasting Complaints Commission, and it remains to be seen if UK newspapers will be prepared to buy into a self-regulatory system. There is a clear incentive for them to do so, if the return is a change in our libel laws.
I dislike the notion of the trade-off of libel reform for self-regulation. The case for libel reform is compelling and stands alone.
Furthermore, the Media Ombudsman should not just act as a complaints body but should set standards which serve the media and the public. It is time media owners and workers together set about putting our house in order.
Seamus Dooley is Irish organiser of the National Union of Journalists