MEDIA & MARKETING:JOURNALISTS AND publishers have long complained that the law relating to defamation has acted as an impediment to investigative journalism. So, will the new legislation relating to libel prompt more hard-hitting stories in the future?

The Irish Daily Mailand its sister Sunday title have been a happy hunting ground for libel litigants in recent years.

According to Paul Drury, managing editor of both papers, the potential financial penalty arising from a libel action has been the biggest deterrent to investigative journalism in Ireland in recent years.

He said: “These are very tough economic times for media owners, and they do not want to risk a libel action under any circumstances. In the past, publishers and broadcasters often settled actions on the steps of the High Court, not because they believed they were wrong but because the cost of defending a High Court action and the risk of punitive damages was too big a financial burden to bear.”

The new defamation law will not reduce the cost of High Court actions, but it does strengthen the defendants’ arsenal. One of the most important changes is that a publisher or broadcaster can now issue an apology without that apology being deemed by the court to be an admission of liability.

Defendants will also be able to make lodgements in court without admission of liability. Where this happens, if the damages awarded to the plaintiff are less than the amount lodged, then the person taking the action could be liable for costs.

The Defamation Bill, introduced to the Oireachtas by then justice minister Michael McDowell three years ago and finally shepherded over the line by Dermot Ahern, has also established a new defence of fair and reasonable publication on a matter of public importance.

This widens the scope of the previous defence of “fair comment”, though the new provision is studded with caveats that will provide endless diversion for our learned friends in future years.

Two other important changes are that a judge will be able to direct a jury on the quantum of damages, and anyone suing for defamation will have to swear an affidavit verifying assertions contained in their pleadings.

The aim of this latter provision is to discourage bluffers.

Speaking a few years ago, McDowell observed: “There has been at least one celebrated libel case by a person who knew that the article was true, but managed to extract an apology and a payment to a charity by a newspaper just simply on the basis that he knew the paper would never be able to prove it.”

Drury added: “Allowing judges to give juries guidelines on damages makes it more reasonable. In future years, a publisher will have a general idea of the potential damages at stake in a defamation action.

“We all agree there has to be a defamation law, but with the old law the damages awarded was like a lottery.”

However, the unpredictability factor for defendants remains, as in this legal arena the jury still reigns supreme.

Frank Fitzgibbon, Ireland editor of The Sunday Times, said the reform of the defamation law has changed the balance between the plaintiff and the defendant. "It is now a much more level playing field," said Fitzgibbon.

“For the big bucks plaintiff, it means he or she won’t find it as easy to issue a gagging order on a story as soon as the reporter starts asking some questions. For the plaintiff with no money who feels aggrieved, they can now secure a cheap and speedy resolution through the Press Council and the Ombudsman.”

Despite the changes, defamation will continue to keep the legal fraternity in clover. The Defamation Bill 2006 runs to 12,640 words and has more clauses than a gathering of the worldwide Santa clan.

For example, the defence of “fair and reasonable publication” depends on the defendant proving that the statement complained of was “in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit”.

Further, the defendant has to show that “in all of the circumstances of the case, the manner and extent of publication of the statement did not exceed that which was reasonably sufficient, and in all of the circumstances of the case, it was fair and reasonable to publish the statement”.

So McDowell’s colleagues at the Bar are unlikely to be unduly concerned by the reforms. In fact, they’re probably patting him on the back.