A State-appointed Press Council will see publishers avoiding controversy for fear of libel writs, writes Steve MacDonogh
The Report of the Legal Advisory Group on Defamation, chaired by Mr Hugh Mohan, mentions the word "book" once, while mentioning the words "Press Council" 20 times. It mentions "magazine" once, "periodical" once, "newspaper" six times, and "internet" seven times.
Change in the antiquated defamation laws is long overdue, was strongly recommended 12 years ago by the Law Reform Commission, and is of serious concern to book publishers and booksellers. Defamation in itself has nothing to do with a Press Council.
The confusion of the two issues derives from the Government, which in its joint programme stated that it would "move to implement reforms of libel laws... in the context of a statutory Press Council". In the hands of the Mohan committee this has become: we reform the defamation laws; you lose the freedom of the press.
In the 1970s and 1980s, Irish publishers brought out controversial books which set the pace in contributing to debate on issues of current affairs. But in many cases the libel laws were invoked, books were withdrawn or never reprinted, and several publishers had to pay out hundreds of thousands of pounds in damages and costs.
Easons, the largest book wholesaler and bookshop chain, had to negotiate settlements on numerous occasions and, in order to defend its position, refrained from distributing some books which it felt might - on account of their subject matter - involve a libel risk.
In the late 1970s and early 1980s particularly, it considered a number of books related to the political conflict in the North to pose such potential risk. Thus was the stifling of debate through broadcasting censorship amplified in terms of books.
In the circumstances, some publishers cancelled plans for challenging and investigative books, others resolved not to seek the kind of contributions to informed public debate which might prove controversial.
Book publishers were far more vulnerable than newspapers. Costs and settlements could pose serious problems for newspapers, but they were owned by large companies, with large circulations and with income from advertising as well as sales.
Book publishers, on the other hand, were small companies, whose entire profit on even a best-selling book could be wiped out by a single libel settlement. In one case, a company paid out in settlement and costs in relation to just one book an amount that was in excess of its entire turnover for the year of publication. Book publishers knew they could be wiped out by a single libel action.
Furthermore, newspapers directly employed their journalists and could exert a significant degree of control over standards of research and reportage. Book publishers do not directly employ their authors but sign up books on individual contracts and must operate on the assumption that the author has conducted their research responsibly and accurately.
About 13 years ago, we made submissions to the Law Reform Commission on Defamation and were pleased, by and large, with the commission's report.
However, no government moved to implement it, and a deeply unhealthy situation was perpetuated in relation to book publishing, the news media and Irish democracy.
Kevin Boyle, professor of law and director of the Human Rights Centre at the University of Essex, indicated some of the consequences of the intimidatory effect not just of the libel laws but of the government culture even prior to the Flood and Moriarty tribunals.
"We have had a series of business scandals - Telecom, Greencore and Goodman, which of course has led to the Beef Tribunal. Behind this bewildering array of scandals has been a confusing mixture of unaccountable private and public power - business people, State servants, politicians - operating with all the advantages of secrecy that the law of libel and other laws and the government culture in this society present and offer," Prof Boyle said at the Let in the Light conference in 1993.
The changes now proposed by the Report of the Legal Advisory Group on Defamation certainly succeed in modernising the existing laws of defamation. To that extent, book publishers welcome the report but, while the Press Council is envisaged as operating in relation to the newspapers and not (presumably, although not explicitly) to book publishers, the fact is that the existence of State control of the press will inevitably influence the context in which book publishers work and will materially change the entire conduct of public debate.
It is a corporatist proposal which is completely out of keeping with the approach in other democracies. If implemented, it will poison the well of free speech which is so essential to the health of writing, public debate, literature, publishing, broadcasting, journalism and the right of the citizen to the free exchange of views and information.
The proposal is ill-considered and poorly researched. Whereas the part of the report that deals with defamation has at its back the careful considerations and consultations of the Law Reform Commission's earlier report, the part that deals with the Press Council shows little understanding of how the media operate and ignores almost all the international material which should inform any proper consideration of the issue.
There is a great deal of experience of press regulation in other European countries and in other common-law countries. Yet this is not drawn upon, and an advisory group composed entirely of lawyers opts for a judicial remedy.
Emerging from the background of the suppression of scandals and from 33 years of political censorship of the broadcasting media, it seems incredible that it is proposed to give government the power to control the media through a government-appointed Press Council.
• Steve MacDonogh is managing director of Brandon/Mount Eagle Publications. He is a former chairman of the Irish Writers' Co-operative and former president of CLÉ, the Irish Book Publishers' Association.