Libel law one of the remarkable features of the Irish legal landscape
THE potency of our libel law was illustrated once more last week. I refer to the news that the reports of two official groups of responsible, non partisan experts set up to inquire into matters of public interest and disquiet - the Madonna House inquiry and the Mountjoy Prison Visiting Committee - have been gutted because, it was plausibly claimed by the Government, of fear of legal proceedings.
Plainly we do need a libel law of some sort to provide a defence against unjustified attacks on a person's character. What we do not need is the remarkable relic which has come dawn to us from the days of The Court of The Star Chamber.
The main objective of this 17th century court was to suppress any word or deed which was in opposition to the king. After parliament had vanquished the king in the English civil war, this court was abolished; but the common law courts took over its jurisdiction in the field of libel.
Our libel law is still distinguished by several features, virtually unreformed, of the law as it developed in the early 17th century. One example is that there is no need for the plaintiff to prove negligence, that the defendant failed to exercise reasonable care.
Secondly, the re publication of material which, as non lawyers might think, is "in the public domain" is a wrong even though no action was taken on an earlier publication. This rule is relevant in the case of the Madonna Report, where some of the facts have already been published.
Thirdly, alone among legal causes of action, there is no need for a plaintiff in a libel case to show that he or she has suffered any loss or damage: the law obligingly presumes this to be so.
Even where there are some restrictions on this blunderbuss, they are often uncertain and the advice of the prudent lawyer will usually be: "If in doubt, leave it out".
In the case of the present reports, opposition spokespersons have claimed they could be published under Oireachtas privilege. This is a reference to The Committee of The House of The Oireachtas (Privileges and Procedure) Act, 1976, which bestows privilege on "the documents of a committee".
Thus, one possible device used successfully (in that no writs were issued) in the case of the Kelly Fitzgerald Report would be to publish the reports as part of the Oireachtas committee's proceedings.
However, the key phrase here is "the documents of a committee", which is innocent of judicial interpretation. Thus it is uncertain whether it applies to reports which originated as material for the committee or whether it would apply, more widely, to cover such a laundering exercise, as the Opposition advises here.
Given the extreme preference of our courts for individual, as against community, interests, there must be a substantial fear that in any libel action the court would take the narrower interpretation.
But it might be asked: even if this pessimistic forecast be correct, should not the Government publish, running the risk of being sued, and seek to defend itself by proving the truth of the allegations?
The Government response to this would presumably be that in the circumstances it would be difficult for the Government to Secure the necessary evidence to discharge the onus of proof.
Another possibility, of course, is that the Government has its own reason for not wishing to publish the reports and the libel claim is just a fig leaf. Even if this is so, the law on this point is so draconian that it makes a very convincing fig leaf.
For if one were a legal tour guide, showing a visitor around the more remarkable sites of the Irish legal system, high on the itinerary would be the libel law and especially the way in which it is administered by our juries.
Even if the visitor were a British lawyer, he would be surprised by the scale of awards handed out by juries, significantly greater than those in Britain, especially considering the greater resources of the news media there.
And if the visiting lawyers were from the US or Australia or some other jurisdiction with a written constitution, he would be even more surprised. For such jurisdictions have followed the epoch making case of New York Times v Sullivan.
This held that if the plaintiff is a public figure - a wide term which includes public officials as well as politicians and would probably extend to the possible plaintiffs in any action arising out of the reports - and if the libel involves something of public interest, then the plaintiff can only succeed if he can establish malice, which is extremely difficult to do.
Regrettably, the Irish Supreme Court, in Hynes O'Sullivan v O'Driscoll, rejected the opportunity to use the Irish Constitution to import the New York Times ease into Irish law.
In the absence of any help from the Irish courts, what, if anything, can be done'? One possibility arises from the fact that in 1991 the Law Reform Commission produced a sensible set of recommendations. The principal of these was that a defence should be established of "reasonable care in libel proceedings. Moreover, libel law reform has been on the programmes for government since the Fianna Fail/PD coalition of 1989.
The trouble with reform by way of legislation is that it requires the co operation of politicians. And in reality politicians - both government and opposition - for their own sufficiently obvious reasons, quite like things the way they are. Even the present Government, which is seeking to introduce freedom of information legislation, has assigned to a lowly place on its agenda libel law reform, in practice so much more important in moving towards an open society in that it strikes at the right to publish information which is often readily available.
So it might be best if the newspaper associations were to direct its attention towards the European Court of Human Rights, for Article 10 of the European Convention speaks of "the freedom to receive and impart information and ideas". Not very many libel cases have come before this court because the continental jurisdictions do not have such strong libel laws as the common law countries.
However, in 1986 the European Court found that the Austrian courts had violated the free speech guarantee in awarding the then Austrian chancellor damages against a journalist who had accused him of "the basest opportunism".
The court held that the limits of acceptable comment are wider as regards a politician than a private individual, echoing the New York Times case mentioned earlier. "A politician knowingly lays himself open to close scrutiny of his every word and deed."
Again last year, even more pertinently, the court in the British case of Tolstoy upheld a claim based on the level of libel damages. (admittedly high at £1.6 million) and - even more significant - the total absence of any criteria for fixing them.
Strictly speaking, the Irish State, as a signatory of the European Convention, is under a duty to implement these decisions in Irish law. In practice it is unlikely to wake up until an Irish case is taken to the Strasbourg court. The two authorities just cited, as well as others, suggest that this could be well worth doing.
Apart from libel the other legal basis on which it is said that at any rate the Madonna House Report could not be published, was that it might influence downstream civil litigation or criminal prosecution arising out of the events covered in the report.
The danger referred to here is that the publication of the relevant portions of the report could interfere with the fairness of these trials. This is the well known subjudice rule. But this contention appears to overlook several recent authorities which indicate that the sub judice rule is less restrictive than in the past.
Two precedents are particularly significant here. The first is that of the Z case, the prosecution of the man who abused X (the girl at the centre of the 1992 abortion case). This prosecution was allowed to continue, notwithstanding the massive publicity given to the case.
And Z, be it noted, was a criminal case and the sub judice rule is stricter in criminal than civil cases because the consequences for the accused are more serious and because a jury is involved.
Secondly, in 1993 Goodman International attempted unsuccessfully to secure a court order to stop the beef tribunal in its tracks, partly on the basis that there might be later prosecutions and the tribunal and its attendant publicity would prejudice these.
The Supreme Court was unimpressed by this argument. Thus here, too, the Attorney General's office appears to have erred on the side of caution.