The high cost of reputation
The news that RTÉ had requested the Mayo County Sheriff to collect from Beverley Flynn the sum of €1.8m owed in costs arising from Flynn's unsuccessful libel action against the station would, in a properly functioning democracy, have occasioned outrage. The untrammeled glee in media circles at Beverley Flynn's situation is not merely unedifying – it reminds us yet again of how poorly adapted our media are to promoting the interests of democracy.
The protection of personal reputation is a fundamental element of citizenship, at least as important as freedom of speech. Article 40 of Bunreacht Na hÉireann guarantees inter alia that the State shall "defend and vindicate the personal rights of the citizen", including the right to equality before the law and, in the case of injustice done, to the vindication of the person, good name and property rights of the citizen.
A reputation, therefore, is not a luxury, but a basic entitlement. And what does the state provide as a mechanism for vindicating this entitlement? Grotesquely expensive court proceedings, costing many times the average citizen's means. €1.8m is in excess of the total lifetime income of a citizen earning the average national wage. In what sense does such an obscenely expensive procedure amount to a system for vindicating a fundamental right? Regardless of the facts of any particular case, it should be possible for the protagonists in a dispute about reputation to walk into a room and have their arguments ventilated without the imposition of costs other than perhaps a charge of about €20 for light, heat and photocopying.
This is what a healthy media would have been saying this past week. Instead, we witnessed undisguised delight at the downfall of someone who had the temerity to take on the media and the misfortune to lose. Every last detail of Beverley Flynn's humiliation was delightedly replayed by a media intent upon using her plight as a salutary warning to anyone who might consider questioning the media's "right" to say what they please about anyone.
It may well be the case that Flynn's action was ill-advised. But every defamation action must have a winner and a loser. To suggest, therefore, that, by virtue of suing and losing, Flynn has placed herself beyond public sympathy is to say that the interests of the media are the highest morality of all.
The issue here is not the rightness or wrongness of any citizen's claim or defence, but rather the question of access to one of the most fundamental resources in a civilised society. It is true that media defendants, when they lose defamation actions (as they almost invariably do), are obliged to shell out sharpish. But if, instead of constantly engaging in special pleading about libel laws, the media had over the years campaigned for a sane and practical approach to the resolution of disputes about reputation, the costs of losing might by now be manageable for both sides. The reason no such campaign has ever been mounted is that, in spite of the constant media whingeing about libel, the present system works relatively well for the media in helping to minimise the numbers of defamation action which are pursued.
As it stands, the risks of defamation are, in all but the oddest of cases, utterly unbalanced between plaintiff and defendant. Anyone, other than a multi-millionaire, who initiates libel proceedings against a media organisation invites certain ruin in the event of defeat.
Certainly the present system works far better for the media than a system that would take seriously the constitutional guarantee to vindicate the reputations of citizens. You may not regard Beverly Flynn as an appropriate object of sympathy, but one day it could be you opening the door to the sheriff because you took seriously what it says in the constitution.