The Fear of Libel

Article 40, section 1, sub-section one of the Constitution states:

The State guarantees liberty for the exercise of the following rights, subject to public order and morality:

The article is hardly a ringing assertion of the freedom of the press and its repetition of the caution on public order and morality is indicative of some hesitancy on the issue by the constitution-makers of 1937. Nevertheless the authority of the constitution is given to "the right of the citizens to express freely their convictions and opinions" - it is time that this fundamental right were carried through into the laws of the State and the spirit of public opinion.

The production of the May issue of Magill, which contained the first part of our investigations into the arms crisis of 1970, illustrates vividly how our laws and practices are at variance with the admittedly guarded spirit of our constitution.

Only one of about 20 printers approached in connection with the printing of the section containing the arms crisis article agreed to print and this printer hadn't the capacity to do it. Eventually we arranged to have the section printed in England and our intention was to ship that section back here and have it bound and collated with the two sections printed by our usual printer. However in the hysteria created by the libel threat by Mr. James Gibbons T.D., the company which was engaged to do the collating opted out at the last minute and we had to ship the two sections from here to London, collate them there with the third section printed in Oxfordshire and then ship the lot back to Ireland.

Both our regular distributors refused to handle the issue and we were forced to make ad hoc distribution arrangements with freelance distributors which proved chaotic. Then, in spite of the importance of the disclosures in the article not a single Irish newspaper would publish even a summary of the main points. An RTE Frontline programme based on the article was cancelled on the direction of the Director General and the This Week programme was also warned off.

We report these matters not to complain on our own behalf, for with the huge public demand for the magazine there could not possibly be grounds for complaint by us in spite of the inconvenience. Rather we do so to illustrate the fragility of the right-to-press freedom as at present exercis ed here.

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It is wrong to lay the blame at the door of the printers, distributors etc. who refused to handle the issue, because the fault lies with the laws that permit a printer and distributor to be sued for something over which they have no control. It is surely arguable that the facility to extend a libel suit beyond the publisher is unconstitutional, being effectively a means of denying press freedom as guaranteed in Article 40 of the constitution.

Indeed the atmosphere in which threats of libel can be thrown around so glibly, especially on issues of public interest, is itself a negation of the spirit of the constitution. Again it is surely arguable that the libel laws which make no distinction effectively between matters of public and private interest and impose the same burden of proof in both cases are also unconstitutional. And, although these issues have not - yet - arisen in connection with these articles, surely the sections of the Official Secrets Act and the contempt of court rules which also inhibit the freedom of the press are also in breach of the constitution.

In the United States the freedom of the press has become well established through constitutional action and it may yet be necessary to travel that road here to ensure that the public gets the information it needs about the operation of public officials to make democracy function meaningfully. But it is not just the laws of the land that are at fault, although the legal framework does condition public attitudes. The tradition of caution and timidity within our newspaper and broadcasting establishments is inimical to the operation of our democracy and the notion of a free and open society.

There are many issues which need to be investigated and ventilated - many, such as the operation of the Gardai and the Special Criminal Court, the massive financial frauds that are becoming commonplace are of greater public significance than the 1970 arms crisis - but which because of the timidity of our established media are never exposed.

This is unhealthy. Journalists, print workers and the public at large should exert whatever pressure is necessary to change not just the laws but the climate of press freedom to ensure that we get the information we need to operate our democratic system.