The statutory regulation of the media must be faced up to by Irish journalists to protect standards and individual rights - including the rights of journalists - argues Michael Foley
The decision of the Minister for Justice, Mr McDowell, to set up an expert group to report on reforming libel law is a brave and welcome one.
It is brave in that most of his political colleagues would prefer to leave well alone: TDs are active libel litigants with a deep distrust of the media. The decision is welcome in that the expert group will also look at other issues including privacy rights and the idea of a statutory press council.
For the first time, questions of media law have moved out of the ritualistic demands for reform of libel, with a recognition that the relationship of the media to society and the rules that govern it is a complex one.
The basis for libel reform has existed since 1991 when the Law Reform Commission made a number of recommendations, which were not acted upon. The expert group will look at those recommendations - including the truly staggering anomaly that the burden of proof now lies with the defendant, the only area of civil law where that is the case.
However welcome the examination of libel reform might be to the media, the idea of examining the feasibility of a statutory press council will be viewed with horror. Unusually, both proprietors and journalists, in the shape of the National Union of Journalists, agree on this.
But can a voluntary council work?
One observer of the British scene, eminent civil rights lawyer Geoffrey Robertson, in his book Freedom, The Individual and the Law, says the British newspaper industry "has established a sophisticated public relations exercise called the Press Complaints Commission (PCC) to convince parliament that its ethics are susceptible to what it optimistically describes as 'self-regulation'.
"But the PCC is a confidence trick which has failed to inspire confidence and 40 years of experience of 'press self-regulation' demonstrates only that the very concept is an oxymoron."
Journalists here do not argue for the abolition of the Broadcasting Acts which regulate, among other things, journalism in radio and television. On the contrary they see the legal requirement for fairness and balance as a protection of their professional standards.
So why not something similar for the print hacks who could then appeal to a statutory body to protect their own professional standards?
There are other problems with voluntary codes in this country. How could voluntary regulation accommodate the British newspapers which circulate in such high numbers here? Why would the editor of the Sun, currently subject to the strictures of the British Press Complaints Commission charter, voluntarily agree to be subject to another code for his Irish edition?
Following a lead from the British press, Irish owners and editors have always rejected a privacy law and never suggested it as a quid pro quo for libel reform. They must, however, know that privacy could be dealt with in the courts at any time, if someone wanted to take a case, with possibly awkward consequences for the media.
Privacy is a right included in the European Convention on Human Rights, to which any citizen can appeal. If the Oireachtas brought in a privacy law, based on the constitutional protection of privacy, it would have to include a public interest over-ride so as to be in accordance with Article 40 of the Constitution's support of freedom of expression and also the much more strongly worded article 10 of the European Convention on Human rights.
If this was not included, it would risk a challenge to the European Court of Human Rights in Strasbourg which, given the way it has favoured press freedom on recent years, and the complainant would in all probability win.
IN A CASE some years ago, model Laura Birmingham took a case against the Irish edition of the Mirror. It published pictures, taken without her knowledge, of her changing costumes backstage during a fashion show. She took a case based on her constitutional right to privacy.
It never went to court, but if it had it could have created a precedent with which every other media outlet would have had to live.
If the Government agrees on the sort of legislation the expert group seems to be considering then there are important implications for journalists and journalism.
If the concept of qualified privilege becomes a defence in libel for instance, then journalists will have to show, to the satisfaction of a court, that they worked to the highest professional standards.
A few notes scrawled on the back of an envelope might not convince a court as to your professionalism. It might mean working within the terms of a code of conduct, administered by a statutory body.
On the plus side, if journalists can show a high level of professionalism in pursuing the public interest, they might find a level of protection for good journalism that has not existed heretofore.
Given the implications for journalism and the Minister describing the group he has set up as "expert", it would have been appropriate if a journalist had been included.
One hopes the expert group will also examine the question of a legal right for journalists to protect sources of confidential information.
Some of us recall Michael McDowell demonstrating outside the Dublin District Court some years ago when the journalist Susan O'Keeffe, whose television documentary Where's the Beef? led to the establishment of the beef tribunal, faced court proceedings for refusing to tell the tribunal who her informants were.
Michael Foley is a lecturer in journalism at the Dublin Institute of Technology and a member of the Irish executive of the National Union of Journalists
