THE DEFAMATION Bill has concluded its passage through the Oireachtas, with a few deserved wobbly moments on blasphemy, and now awaits the signature of President McAleese. It will set the template for the practise of journalism in the years ahead. Successive governments promised in general elections to change the draconian and out-dated Defamation Act of 1961. But, it was Michael McDowell, as minister for justice in 2003, who initiated the lengthy consultation process to amend the Act. His successors, Brian Lenihan and Dermot Ahern, brought the changes to fruition. After almost half a century, a new regulatory regime for journalists has been put in place.
The amending of the 48-year-old Defamation Act has been a long time coming. It is a welcome development, not just for journalists but for citizens too. It comes almost quarter of a century after the then editor of this newspaper, Douglas Gageby, first proposed that a committee be established to pursue changes in the law. And as editors, indeed newspapers, came and went, Frank Cullen, co-ordinating director of the National Newspapers of Ireland, became its constant champion.
The new regime for journalism will operate on twin pillars. The Bill attempts – quite successfully – a balancing of constitutional rights: between the public’s right to know and the citizen’s right to a good name.
The changes will bring defamation into line with the norm of the civil law. Newspapers can make an apology when they know they have got things wrong without admitting liability. Judges can give directions to a jury in assessing damages and parties to the proceedings can make submissions on their scale. All plaintiffs have to file an affidavit to verify the particulars of their defamation claim, thus neutering the common “gagging writ”. These, and other reforms, are important changes in the processing of defamation actions after they arise.
The concession to the practise of journalism is the new defence of “reasonable publication” allowing newspapers to publish stories of public importance for the public benefit if they can be shown to have been thoroughly investigated and done in good faith – even if allegations made in them turn out to be untrue.
The quid pro quo for these changes is the Office of Press Ombudsman and an independent Press Council which are given legal privilege for their findings in the Bill. These offices give readers a formal and free complaints system which has been in operation for more than a year. The Irish Timessupports them wholeheartedly. They face a huge challenge to stem the slide in standards in Irish journalism.
The new rights in the Defamation Bill, however, also impose new responsibilities on journalists. Some in our profession believe that freedom of expression can be invoked as the constitutional cover for publishing stories that are invasive, uncorroborated, or wrong. The Monica Leech case is a recent example. She was defamed by the Evening Herald. The €1.87 million in damages may be an excessive award. But it was no threat to freedom of expression as some sought to suggest.