No free press

Tension between the partners in this Government, Fianna Fail and the Progressive Democrats, may, for once, prove creative. It is quite right that there should be a balance between giving the media more freedom under a reformed libel regime and arrangements that would protect the privacy rights of citizens.

The media's portrayal of itself as the "guardian" of the public interest is bunkum. For the most part the media is a profit-driven industry, seeking to maximize sales/viewing/listenership figures, often through sensationalism at the expense of people's reputations and privacy. The granting of more freedom to abuse people's reputations for corporate gain or journalistic aggrandisement should be done with reserve.

Nevertheless, there is a public interest in the media having some further freedom, provided this is hedged in with safeguards. At present the media is inhibited from conveying to the public, information the public should have, as citizens in a "democratic" state, because of libel fears. It is not enough that the media tells the truth. The media, at present, must be able to prove by judicial standards the truth it asserts, and very often this is simply not possible, because informants often refuse to give their evidence in court.

The balance of public interest and fair protection for reputation that the British House of Lords outlined in the famous (infamous?) case Albert Reynolds took against The Sunday Times seems right. Provided the issue at stake is one affecting the public interest (not merely of public curiosity) and that the media has gone to all reasonable lengths to establish the truth of what was published, including (usually) allowing the impugned person an opportunity to give their side of the story, then what is known as "qualified privilege" should apply. A libel action would not succeed.

It is quite likely that the Supreme Court here would follow the House of Lords in the Reynolds case, given a comparable case, which means that Michael McDowell's reforms may be unnecessary, at least in that regard.

However, there are a few other reforms that would be welcome here. One of these concerns the practice known as "lodgments". In personal injury cases there is a widespread custom of the defendants (usually insurance companies) offering to settle a case for "X" amount and then, on this being rejected by the parties taking the action (the plaintiffs), the defendants lodging "X" amount in court. If, in the subsequent action, the plaintiffs fail to get "X" or more, then the plaintiffs have to pay all the legal costs from the time the lodgment was made (in all such cases, judges and juries are unaware that a lodgment has been made and unaware of the amount).

In libel cases lodgments can be made also, but only where the defendants are not defending the case on grounds, for instance, that what was written was true, or was "fair comment" or was privileged or whatever. A fair reform would be that a lodgment could be made even where the case was being defended. It would bring more realism to libel actions and the sense that a trip to the libel courts was like a free visit to a mega ATM machine.

The defence of "fair comment" needs to be clarified also (it does not mean "fair" comment, which is a problem for a start). It would also help if there were a clear statutory definition of what libel is.

But side by side with this must be privacy protection and this can be done only through the aegis of a press council or similar statutory agency. Simply codifying privacy rights and providing for remedies won't do, although that too would be a help. And the reason this won't do is simple: people who have had their privacy unjustifiably invaded invariably do not want to incur further privacy invasion by taking a legal action. Privacy can be protected only by an independent agency, such as a statutory press council. A voluntary press council would not work and, anyway, would be outside the ambit of the courts, which would be a pity. A pity because the occasional intervention by the courts could give proper clarification to the privacy rights established under law and under the Constitution.

The media palpitations about State interference with press freedom should be dismissed either as ignorant alarmism or as self-interested twaddle.

However, it is time it happened. But on both fronts.

Vincent Browne