All the news the law allows

THE idea that restriction of the press and media should be the exception rather than the rule has not always found favour in this country certainly not among some politicians and governments. In 1975, Patrick Cooney, then Minister for Justice, defended the Section 31 ban at least partly on the grounds that to allow RTE maintain a neutral journalistic approach "would tend to confuse the citizens".

It may be that some would still advocate such a view of the media's role, and the vulnerability of the citizenry, but Marie McGonagle, in her new study of Irish media law, demonstrates a keen appreciation of what ought to be the proper role for the media in a democracy. How a society resolves the conflict between the various competing rights in this arena sheds a great deal of light on the "national character", according to the author, and she makes a compelling case for limiting the extent and severity of media restrictions.

McGonagle suggests that such media protections as do exist in, our law typically are worded in negative rather that positive language. For example, the formulation in the Irish Constitution of the right to freedom of expression appears to McGonagle to amount to a rather "tentative and qualified" right, whereas the European Convention on Human Rights sets out a right to freedom of expression "boldly and positively... unencumbered by any mention of restrictions, other than the power to license particular forms of media".

The author devotes a lengthy and detailed chapter to Defamation, including a vast number of footnotes and references and even throws in a useful "checklist" for journalists. She argues that the currently high level of defamation awards risks undermining the freedom of the press and in consequence, the level and quality of public debate and information in this democracy.

Certainly it is true, as she asserts, that some stories simply are not being published, and others are so watered down as to be almost unrecognisable. The proper approach advocated by McGonagle and others (including the Law Reform Commission) would be to replace the focus on financial compensation with the use of other means, such as correction or declaratory orders, to vindicate reputation.

In recent years, an increasing number of politicians have been taking libel actions against the press and media. McGonagle includes a discussion of the public/private plaintiff distinction, notably as it operates in the United States, where politicians and public figures cannot succeed in libel actions without proof of malice on the part of the media. Under such a regime, would Sinn Fein Councillor Christy Burke have obtained damages of £15,000 as he did recently against the Sun and RTE?

The majority of Irish libel plaintiffs are male, and are businessmen or professionals we learn. These are by State employees, and there after lawyers and politicians, whereas women represent only 15 per cent of libel plaintiffs.

McGonagle also deals with the law of privacy, reporting the courts, and the law of contempt. In the latter, she identifies a somewhat over protective approach, and questions the conventional wisdom that the media have such a capacity to affect the outcome of court eases, or to influence juries in the manner often suggested. She agreed with the approach of Mr Justice Morris in a contempt ease involving RTE, when the Judge held that even views expressed by Gay Byrne would not necessarily find universal support.

As an academic, Marie McGonagle is well placed to deal with the law as it currently stands. As a respected commentator on media law and media rights in Ireland, her refreshing and highly engaging critique will be all the more valuable as will the unique glossary she provides of Tearmai Dlithiula Gaeilge. {CORRECTION} 96062200085