New privilege for the press to report without fear
Following a recent court ruling, the media can now get things wrong, provided they have followed good practice, writes Michael Kealey
Almost unnoticed, the laws of libel in Ireland changed significantly last week. The courts were about to break for their summer vacation when the High Court gave a decision improving significantly the ability of the media to report on matters of public interest.
For the first time, Irish law has recognised that some press reports are privileged. In certain cases the print and electronic media will be protected from libel claims even where they publish something false which causes damage to someone's reputation.
In essence, where the defendant in a libel action has followed good practice in publishing material that is of sufficient public interest it will be afforded legal protection.
A High Court judge had been asked by an English barrister, Sir Louis Blom-Cooper QC, to find that a booklet written by him could not give rise to a claim of defamation by two members of the Birmingham Six. They had sued alleging that the booklet wrongly implied that the quashing of their convictions by the English Court of Appeal did not mean that they were entitled to be presumed innocent.
This was a preliminary application by which Blom-Cooper sought to stop the case going to trial where it would be decided by a jury. In effect, he argued that he had no case to answer.
The judge, Mr Justice O'Caoimh, rejected this. The jury would have its day. However, the decision went much further, particularly in its review of the types of defence open to media defendants.
Judge O'Caoimh recognised that the Irish courts had to balance the often conflicting rights of freedom of expression and that of the individual to his good name. The need for an appropriate balance was imposed by the Constitution and by the European Convention on Human Rights.
To help achieve this balance, Judge O'Caoimh adopted into Irish law the "flexible approach" of the House of Lords in England in a case brought by the former Taoiseach, Mr Albert Reynolds, against the Sunday Times.
They had decided that English law had to be developed to conform with that country's obligations under the European Convention on Human Rights.
The role of the press was crucial in a democratic society and, in certain instances, its duty to inform the public outweighed the rights of individuals about whom wrong things were written.
Each case would be decided on its own facts but, in deciding whether the press ought be protected, the House of Lords laid down 10 criteria to be taken into consideration.
These include the seriousness of the allegations. The more serious the charge, the more important perhaps that it be brought to public attention, yet the more misinformed the public and the more harm to the individual if the allegation is not true.
The court will also look into what steps were taken to verify facts, the tone of the article and whether it contained the gist of the wronged person's side of the story. The urgency of the matter is an important factor for the court, as news is often a perishable commodity.
The court would also look at the source of the information and its status. Clearly the closer the source to the subject matter the more the media can properly rely on it, even if the source is wrong.
This issue of sources has particular resonance with the ongoing public inquiry into the death of Dr David Kelly and the veracity of BBC claims that Alastair Campbell "sexed up" a dossier on weapons of mass destruction. The controversy also highlights the benefits to the press of the qualified privilege defence.
Let us suppose the Downing Street press secretary sued the BBC for libel for suggesting that he had insisted that the Ministry of Defence insert a claim into the dossier that Iraq could launch WMD within 45 minutes.
The television station could rely on the new defence even if their statement about Campbell was wrong. They would argue that their broadcast was on a matter of enormous and urgent public interest; that its tone was appropriate to the gravity of the decision on whether to commit troops; and that it was based on a senior and unimpeachable source.
The significance of the newly formulated defence is that, for the first time, the press can get things wrong, provided they have followed good practice. Previously, once a report was inaccurate, there was little the media could do to avoid financial penalty.
However, this does not give the press carte blanche. Its actions will be closely scrutinised to see if they meet the law's stringent criteria for the defence. The decision is, however, a significant step forward in efforts to liberalise the defamation laws here, which are regarded as among the most restrictive in Europe.
It seems only a matter of time before the law changes in other respects.
The Minister for Justice has recently received a report from the Legal Advisory Group on defamation recommending broad legislative change. In addition, Independent Newspapers is challenging the current system by which juries give awards in defamation cases here in a case which will be heard by the European Court of European Rights in October. It is widely tipped to succeed.
There are ironies in how the new defence came about. It took an Irish Taoiseach suing a British newspaper before the House of Lords to produce a decision favouring the media. It has now taken a failed application by an English QC to do the same here.
Michael Kealey is a solicitor with the Media and Defamation Unit of William Fry solicitors