McDowell's brazen hypocrisy
Michael McDowell has promised legislation to reform the libel laws since he first became Attorney General seven years ago. In spite of these serial promises, nothing has emerged so far. One of the obvious reform of the libel laws is to remove the liability of printers and distributors from libel suits. At present the common laws exempts distributors where the distributor had no way of knowing the publication they are distributing carried a libel. There is no such exemption for printers.
The retention of any liability for either printers or distributors is wrong. This is so for two reasons. Neither printers nor distributors, who are not themselves publishers of the publication concerned, have any means of knowing whether the material they handle is libellous in any respect. So it is unfair that printers and distributors remain liable for libel.
It might be suggested that printers and distributors who are alerted to the possibility of there being libel in a publication they are handling should be treated differently. If this were to be so, it would represent a continuance of a major curtailment on press freedom for it would perpetuate a "chilling" effect not just on the publishers, editors and journalists concerned,
but on third party distributors and printers. It is one thing that publishers, editors and journalists should be liable to being sued for libel. They at least are in the business of publishing material that may be found to be libellous and they know the risks. They are in a position to have a special knowledge of the facts backing up material that might be considered libellous. But in the case of printers and distributors, they are in no such position. When they are threatened with a libel action in advance of printing or distributing a publication their inclination, understandably, is to avoid all risks and decline to print or distribute. The vulnerability of printers and distributors to libel actions can be exploited by unscrupulous persons, whose objective is to avoid accountability by intimidating third parties from printing or distributing material that may be in the public interest. Freedom to sue the publishers, the editor and the author surely should be sufficient? Not so for Michael McDowell, the self-proclaimed libel reformer and defender of a free press.
Prior to the publication of last week's issue of Village we sent him a list of questions, arising from an interview conducted with the private detective, Billy Flynn. Michael McDowell had visited Billy Flynn at the latter's remote home in Co Meath in June 2005. This was less than a week before an important Dail debate which was to review McDowell's performance as Minister for Justice, Equality and Law Reform in his handling of the McBrearty issue. Michael McDowell answered our questions but said that if we published even his reply he would sue for defamation. He did not want us publishing, for instance, what was an obvious inference from his visit to Billy Flynn, his receipt of a document from Billy Flynn and his subsequent brandishing of this document on Questions and Answers. The interference being that the purpose of his visit to Billy Flynn was to get material that would show his predecessor, but one, as Minister for Justice, Nora Owen, in a bad light and this would assist him in escaping accountability for his own actions and inactions on the same mater ? ie the McBrearty affair.
The Sunday Tribune published the very assertion three days after we did, on 7 May, and have heard nothing at all from Michael McDowell. So we are entitled to assume either he believed the material published was not defamatory or that he would lose a libel action on the point. Nevertheless on that very same point, he threatened not only us but our printers and distributors as well. There were two other issues on which he threatened us. One was that he had made derogatory references to a person who holds a sensitive position in the public service. The other was that he had made derogatory references to another person who formerly held a significant public office position.
We submitted a further list of questions to Michael McDowell on 4 May. These questions related to very serious issues concerning him. He is not content merely to refute the implications in the questions but has gone on again to threaten us with a libel action. And again he has threatened our printers and distributors. We will seek to establish the veracity of his denials to us on the issues we raised and will then publish the results of our inquiries, having given the necessary proofs and assurances to our printers and distributors. And we will not be holding our breath on meaningful libel reform.