I very much welcome this opportunity to set out in the Seanad some of my thinking on defamation, with particular reference to the issue of reform of our existing legislation. This opportunity arises at the end of a somewhat hectic ten day period during which we have had several noteworthy events concerning the topic of reform of the law on defamation.
On 1 December, my Department organised a conference on defamation in the context of the Report of the Legal Advisory Group on Defamation and the commitment in the programme for Government to reform the law on defamation. I was gratified to see present at that conference a wide range of representatives from the major sectors of the Irish media. It was a very successful conference and I will draw today on some of the elements of my presentation on that occasion. I pay tribute to Senator Jim Walsh who was the only Member of this House who managed to get along to it. There was a good robust discussion at that conference, to which he can testify, with a wide range of views expressed by participants. I expect that all the contributions received on the day, as well as others received prior to that day, will soon be available on my Department's website to further assist and inspire further contributions. I did not respond to the issues raised on the day of the conference because I was there in a listening mode and decided it would probably be wiser to let everything sink in a little more. This debate is appropriate given that I have provided for a consultation period up to the end of January 2004. As I was in listening mode on that occasion, I stress that I am also in listening mode here today.
Last Friday, 5 December, I spoke at a symposium on freedom of expression organised by the Law Department of Trinity College Dublin. I note that in the intervening period a very important address was given by Onora O'Neill of the Royal Irish Academy on a related topic. I noted that growing attention was being paid to the right of freedom of expression and the responsibilities that flow from the exercise of that right. Given that the concept of freedom of expression or free speech is presumed to be a fundamental right in a modern democracy it is rarely subject to critical scrutiny. We are concerned here with something that is the very essence of a democracy – the right to communicate facts, opinions and comment.
Bunreacht na hÉireann may have been adopted as far back as 1937, but it still provides in Article 40 that, subject to public order and morality, the State guarantees liberty for the exercise of the right of citizens to express freely their convictions and opinions. Free media have always been taken as one of the essentials of an open and democratic society. One of the founding fathers of the United States, Thomas Jefferson, asserted on the principle of free speech, "If it were left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter." That pronouncement, while understandable when viewed from the perspective of the Revolutionary War in America towards the end of the 18th century, is perhaps today somewhat less reasonable, given the way in which so much of the newspaper industry is now sensitive to market forces, concerned as much with profit, shareholder value and market share as it is with the dissemination of what can be termed "news" and opinions. However, it must also be said with some regret, and I hope I will not be accused as I have been on occasion of shooting the messenger, that there has been an element of dumbing down of much of the print media and, to a lesser extent, the broadcast media. Nevertheless, our courts in recent times have upheld the role of the media as important in holding up a mirror to society and as upholding the citizen's right to be informed.
In a democracy government is accountable to the people. In those circumstances it is apparent that the people must be informed about what is going on in government, otherwise accountability means nothing. No one would suggest that government alone should inform the people of what it is doing, though in recent times many developed democracies as well as the emerging ones have introduced processes whereby government is seen to be more open, more transparent and more accountable. There still needs to be an independent mediator. Classically, in a democracy, that is a role assumed by the press which acts as a kind of watchdog on the affairs of government, mediating between the people and their government and what it is doing. Another American, Abraham Lincoln, once famously said, "Let the people know the facts and the country will be safe."
Senators will be aware that the programme for Government of 2002 contained a commitment that the Government would move, in the context of a statutory press council and improved privacy laws, to implement reforms of libel laws designed to bring them into line with those prevailing in other states. We are now at a key point in a consultative and legislative process which I hope can take us all the way through to a reform of the law on defamation. The focal point of this process was the Report of the Legal Advisory Group on Defamation, which was published in June of this year.
When I brought the report of the advisory group to Government in June 2003, I emphasised, and I emphasise again to Senators today, that the group's report was not a report by me to Government or a report of the Government. No decisions in respect of the substance of the contents of the report have yet been made. I emphasise that because yesterday I noted that the first few lines of an editorial in The Irish Times announced that I was retreating from my proposals to have a Government appointed press council. I do not know how many times I have to say that was never my proposal, is not my proposal and, in all probability, will not be my proposal. What the Government agreed was to have a consultation period, before any action might be taken on foot of the recommendations, which will run until the end of next January.
I hope today's proceedings will prove to be a valuable step in the consultative process feeding into one of the most important legislative processes that will occur in the lifetime of this Government. I have committed myself to a consultative approach because the issues with which we are dealing are of huge importance. As I said previously, reform in this area is not just another process of modernisation or policy initiative. It is not an area for casual experimentation but one of such serious importance that we have to get it right. I trust Senators will bring a sense of perspective and informed comment to the consultative process.
This is not an area for casual experimentation or adventure. Any change in this area must be carefully thought through in all its implications. We cannot afford to get this process wrong. Therefore, I make no apology for proceeding carefully and with a degree of circumspection nor for engaging in consultation and reflection. On the contrary, any other approach would be inexcusable, bearing in mind the vital importance of the subject matter.
It might be very useful to record some of the recent milestones in the area of defamation law. The key milestone in the process towards reform can be said to date from 1991, with the publication of the Report of the Law Reform Commission on the Civil Law of Defamation. In May 1994, the National Newspapers of Ireland published a draft defamation Bill. Their Bill was largely based upon the recommendations contained in the Law Reform Commission's report. The main differences were that the newspapers wanted the complete abolition of juries in defamation actions; that the making or offering of an apology should be taken into account in awarding damages; and that defamation actions should be commenced within one year of publication. The Progressive Democrats published a defamation Bill in 1995, which dealt with three separate areas, civil defamation, criminal defamation and contempt of court. That Bill was not voted down on its Second Reading, but was effectively parked by the then Government.
The Report of the Commission on the Newspaper Industry, which was published in June 1996, took the view that changes in the libel laws were necessary. The report dealt with issues such as the balance between privacy and press freedom and the introduction of an ombudsman for the newspaper industry to deal with complaints from the public.
My predecessor as Minister for Justice, Equality and Law Reform brought forward the scheme of a defamation Bill, which was agreed by the previous Government in December 2001. However, while that proposal is still extant, its progress has been influenced by developments, not least by the passage of time, the appointment of a legal advisory group and the commitment in the programme for Government to bring about change to bring Irish law into line with that prevailing in other countries in the context of reform of the law on privacy and the establishment of a statutory press council.
The Government had accepted for drafting a Bill in December 2001. However, when I became Minister, I felt that, in view of new commitments in the programme for Government, further exploration of certain issues was necessary. In that context, I established the legal advisory group in September 2002 to assess the legal changes that may be required if Ireland's defamation laws are to be brought into line with those prevailing in other states. This initiative was designed to give effect to the commitment in the programme for Government. The group was given three broad terms of reference, which are well known. The advisory group report contains 23 separate recommendations. The media coverage and comment since the publication of the report have perhaps understandably focused mainly on the statutory press council. There is a number of other important recommendations in the report which have not been the subject of much media comment or analysis, for example the proposed new defence of reasonable publication, the suggested re-balancing of the role which judge and jury have currently in defamation actions that are commenced in the High Court, the Circuit Court to have jurisdiction in all defamation claims where the amount of the damages claimed does not exceed €50,000, a suggested one-year limitation period, as the NNI suggested some years previously, and the enshrining in legislation of a defence to be known as the "defence of innocent publication" that would be available to, among others, broadcasters, distributors, printers and Internet service providers. A suggested text for a new defamation Act that would replace the Defamation Act 1961 was put forward by the advisory group, which was very useful. Since we are concerned with a potential legislative outcome it is very informative to see how the recommendations translate into legislative form.
Many of the recommendations put forward by the Law Reform Commission in its Report on the Civil Law of Defamation were endorsed by the advisory group. Among those were the recommendations touching upon the making of an apology, court lodgements and the rationalisation of the defences of absolute and qualified privilege. It is a mark of the excellence of the work done by the Law Reform Commission that the report it prepared on this topic remains so influential and that so much of it has been adopted by all involved, from whatever perspective they have approached this topic of reform.
Senators will also be aware that from 1 January 2004, the European Convention on Human Rights Act will require every Irish court to interpret every judgment made on statute law in a manner compatible with the provisions of the ECHR. The most interesting implication of this change in our law of interpretation is that long-established rules of common law will fall to be re-interpreted as necessary to make them fully compliant with the ECHR and the jurisprudence of the Strasbourg court. The somewhat different treatment of subjects such as privacy, reputation and freedom of expression which appear in the texts of our Constitution and that of the ECHR will have to be reconciled, bearing in mind that the Constitution always takes precedence in Irish law over any international convention. In that context, Dr. Gerard Hogan made a very interesting contribution in which he stressed that the differences between European convention approaches to privacy and defamation and the approaches of our own Constitution were not very substantial.
Much of our defamation law is contained in judge-made rules and rules of court which deal with topics such as the onus of proof, lodgements, apologies and the law relating to privilege. Other aspects of our law are to be found in the Defamation Act 1961. The coming into effect of the European Convention on Human Rights Act as part of our domestic law is bound to put hallowed principles of law and practice under the spotlight and is likely to result in different attitudes and emphasis in the future administration of our defamation laws by the courts. I mention the ECHR because the changes embodied in the new ECHR Act have the potential to alter the tone if not the entire substance of the debate on defamation law reform.
Another interesting matter on which I will not dwell too long is the case of Callaghan and Hunter v. Blom-Cooper in which on a preliminary issue Mr. Justice Aindrias Ó Caoimh in the High Court delivered a judgment on 31 July 2003. That judgment was the subject of a law report in The Irish Times recently but it has not really come to public attention. In that case, the author of a pamphlet is being sued for defamation by two members of the Birmingham Six. By way of preliminary issue, the author brought to the courts the proposition that by definition his pamphlet was an exercise in free speech and could not be unlawful. He sought to have the case decided in limine on that basis.
As Attorney General at that time, I was joined as a party to that preliminary issue by order of the court. I can furnish to Members of the House the submissions made, but briefly, the submissions made by the Attorney General were to the effect that the right to publish statements concerning matters of public concern was wider than had been previously generally recognised and that in some cases statements of fact, as distinct from statements of opinion, might be privileged from action in defamation as a necessary adjunct of the freedom of expression guaranteed by the Constitution and by the European Convention on Human Rights.
Judgment in the matter was reserved and delivered at a point after the holding of the last general election, the publication of the programme for Government and the establishment and report of the legal advisory group. In brief, the High Court has held that a defendant can avail of the reasoning set out by the House of Lords in Reynolds v. Times Newspapers. Mr. Justice Ó Caoimh stated the following: “In considering the various authorities open to this court I am persuaded that the flexible approach represented by the decision of the House of Lords in Reynolds v. Times Newspapers is the most appropriate way of approaching the problems in the instant case in the absence of a clear legislative framework.” In effect, the court ruled against Mr. Blom-Cooper's submission that publication of his pamphlet was per se protected by the Constitution and the ECHR but allowed him to amend his pleadings to invoke the privilege accorded by the Reynolds decision. In short, the Irish common law of defamation has moved on since the programme for Government was published and the consultative process was commenced.
The question is raised by the quotation cited as to whether it is now necessary or wise to attempt a statutory reformulation of that aspect of the law, either along the lines of Reynolds or along the lines of Australian and New Zealand cases, the approach of which was rejected by Mr. Justice Ó Caoimh. It could be argued that the decision in the Blom-Cooper case delivers in part on the Government's stated intention to align the Irish law of defamation with defamation laws in comparable common law states. On the other hand it could be argued that the Reynolds formula suffers from a good deal of uncertainty and that a clear statutory reformulation is desirable to make the developing common law in this area more certain. This latter argument presumes that there is a clear statutory reformulation available which would be sufficiently flexible to allow further development and qualification of the privilege. I have not come to any fixed conclusion as to whether this matter should be the subject of express legislation. I can see arguments both ways.
One of the most publicised recommendations of the advisory group was to establish a statutory press council with functions which would include the preparation of a press code of conduct and the investigation of complaints concerning alleged breaches of that code. The report sets out in some detail the main features of such a proposed council, including matters pertaining to its operation and structure. Its draft defamation Bill contains a template for the legislative intervention which the group believed would be required were such an entity to be established.
In proposing the establishment of a statutory press council, the programme for Government did not attempt to define in advance the nature or composition of such a body. It seems obvious that there is not and never has been any legal inhibition on the press in Ireland establishing a voluntary press council if it wished to do so. A purely voluntary press council would of course have no legal authority and no enforceable remedy as a matter of law. I stress that the term "statutory" does not necessarily mean a council of the nature and composition envisaged in the advisory group's report. It certainly does not mean that the Government of the day should seek to appoint the members of a press council as a matter of executive discretion.
The model in the report envisaged, as Members are aware, the appointment by the Government of a press council with substantial statutory powers to procure compliance with its rulings. There are two fundamental issues here which should not be confused. The first is whether a press council should be statutory or purely voluntary. That issue raises the question as to whether a press council, if it is desirable in the first place, should have power or status of any kind in statute such as to require the press to implement any finding made by it arising out of a complaint by a member of the public. Returning to the defamation conference, there seemed to be a consensus that any worthwhile press council would need statutory underpinning of some kind, no matter how the council was composed or who was appointed or elected to it. For very simple reasons, such as giving some form of legal privilege to its reports, that would be necessary. It has happened on occasions that an editor has apologised as demanded by a solicitor acting on behalf of a person claiming to have been defamed, immediately following which apology the journalist has sued the editor for defamation. If one has a system whereby there is any formal intervention in the suits between newspapers and those written about by newspapers, it is almost by definition requisite that there should be some form of statutory protection, at least from legal suit, for that council.
The second issue is as to whether, if a press council is statutory, it should be Government appointed or whether it could be otherwise constituted, for example, elected or nominated by bodies or groups which would be expected to create a balanced press council. The model examined by the legal advisory group is by no means the only or most obvious model for a statutory press council. I could easily envisage a body chaired by a judge and composed of nominees of a variety of groups to reflect the different interests involved. Such a body could reflect the interests of the public, media owners and journalists. The public interest might be represented in a number of ways, one of which might be a form of proportionate selection by elected public representatives to ensure that the Government of the day could never swamp the council with its sympathisers. Other models for the composition of a statutory press council may well be suggested. Some were suggested last Monday week, including the appointment of office holders, such as the Ombudsman or others, to function ex officio.It is in vogue these days to query the principle of self-regulation. As I said at the Department's seminar, I am not convinced that self-regulation is a bad thing in a democratic society. The media are now hoisted by their own petard because they have been uncritical opponents of self-regulation without once hesitating to see what the effect of that logic would be if it were turned on themselves. I am reminded of the scene in A Man for All Seasons when Sir Thomas More is talking to William Roper about legal protections. More asks Roper if he would cut down every bush to get at the devil, to which the enthusiastic young Roper replies that he would. More then asks Roper if he cuts down every bush and the devil then turned upon him and the wind blew the other way, what protection would he then have? The media have been in a coruscating mode of attack on all forms of self-regulation but have suddenly found themselves the victim of their own logic and rhetoric. I go against the current grain and say that I believe self-regulation, in many areas, functions very well indeed and that the state need not control everything in society.
I equally believe that self-regulation must carry with it at least the notion that there are some rules to which injured parties can point in seeking redress from abuse of press power. That is the nub of the issue. Can press power be abused without defamation – by intrusion on people's privacy – in a manner which seriously injures innocent and vulnerable people? If so, are such people to be given any redress or protection from such non-defamatory abuse? If a newspaper proprietor or editor were to thumb his or her nose at generally accepted ethics and seriously injure an ordinary citizen would that be a case of "it's just too bad"? If the answer to the last question is in the negative, the question arises as to whether a statutory press council, however composed, should have some capacity to right wrongs or to deter future wrongs.
In the past there has been a suggestion that people who are wronged by the media should have some form of redress from a press council. What form of redress could there be? The defamation group's report suggested that a jury might decide to accord the new defence of reasonable publication to a newspaper because of the extent to which that newspaper toed the line with the press council appointed under the Act. That was not sufficiently stressed at last Monday week's conference. The report tied the notion of reasonable publication to a willingness to accept press council decisions and to act on foot thereof. There is a subtle logic to that. It connects together the notion of a responsible press being allowed greater latitude. If the Irish Daily Bugle, for example, constantly ignored the press council, the defence of reasonable publication might not avail it because the particular politician of whom the Irish Daily Bugle had asked its question may have felt he would not get a fair deal from the newspaper since it had consistently ignored press council rulings.
The chief executive of the Equality Authority wrote an article in a newspaper last Sunday week suggesting that a press council might be a vehicle for spreading equality values. That is not my purpose in proposing a press council and I would be wholly opposed to it. No matter how laudable or questionable equality values may be, the purpose of a press council is not to act as an organ of a new civic religion established by law to tell the media what line they must take on certain issues. An article such as Mary Ellen Synon's on the Paralympics, which was deemed offensive by most people, is one which it is possible to write, even if it is offensive, without infringing the law. We must be very careful before we go down the road of censoring people's taste and requiring them not to be offensive. That could turn us into a very suffocating society indeed.
The Government's programme links the three issues of privacy, public protection in the form of a press council and defamation law. The three issues are inter-related. I am more confident speaking to a political house than to other bodies in saying that in the world of realpolitik to engage in a bold adventure in one direction without being conscious of the need for balance would be politically naive. For me to do so would be naive if I were a backbencher, let alone a Minister. The three issues are connected and people should not imagine they can dine à la carte at a table on which they are set out. The interrelationship is set out in the programme for Government and I stand behind that sense of realism. I am open-minded on the exact substance and means of delivery of reform in each of the three areas.
I come to this debate with a personal prejudice in favour of free speech and against unnecessary regulation but with a desire to ensure that we have vigorous and inquiring media functioning in our society. What I am trying to do, and will do in the lifetime of the Government, is to bring forward a reform which is sufficiently balanced to bring behind it the weight of a political majority in these Houses. It is in that context that I particularly value the input of this House. I welcome the fact that this House has chosen to discuss the issue at this point as part of the process which will lead to that balance being correctly struck.