If proof was needed that Irish politicians will never put in place a sensible, coherent and progressive set of laws for the media unless forced to do so, it was the account of the Attorney General's recent session before the UN Human Rights Commission. In response to the commission's concerns about threats to freedom of expression in Ireland, Mr Michael McDowell admitted that Ireland might be forced to limit excessive libel awards by the European Court of Human Rights. He also told the commission that the Government was introducing reforms to defamation laws during the life of this Dail, including a provision allowing journalists to defend their confidential sources of information.
In fact, this is also being forced on the Government. The European Court of Human Rights has ruled that compelling disclosure of sources was not necessary in a democratic society, and that protecting confidential sources was "an essential means of enabling the press to perform its important function of public watchdog and should not be interfered with unless in exceptional circumstances where vital public or individual interests are at stake".
This has been admitted in court here on one occasion at least, and on the advice of the then Attorney General, a Circuit Court judge did not force Mr Barry O'Kelly, then a journalist employed by The Star, to divulge his sources, even though he had no protection in Irish law. When journalist Ms Susan O'Keeffe was charged with contempt over her reporting of the beef tribunal - and became the only person to appear in court following the tribunal - politicians promised to change in the law. Mr McDowell, then an opposition TD, actually demonstrated outside the court and attempted to introduce legislation. That was in 1993. Nothing has happened since.
But is the Government seriously committed to reforming defamation law? Libel reform was first recommended, not by the newspaper industry, but by the Law Reform Commission in December 1991. Nothing has changed since. During the last election the then Labour Party leader, Mr Dick Spring, even forgot that libel reform had been included in his party's election manifesto.
Politicians will tell you privately that they have no intention of reforming the law of libel. Mr McDowell told a student gathering at the Dublin Institute of Technology earlier this year that, in his opinion, there was little chance of politicians agreeing to libel reform while newspapers were reluctant to admit their mistakes.
The debate has now become a ritual. The newspaper industry makes its annual appeal for change on World Press Freedom Day. The rest of the year it lobbies without success. Politicians accuse the press of irresponsibility and call for regulations and press councils. The newspaper industry has offered to fund a press ombudsman, but says it cannot do so until libel is reformed.
While the industry is justifiably suspicious of the motives of politicians - they are one of the largest groups of libel litigants - newspaper proprietors are not necessarily operating from the purest motives. Libel reform will save newspapers money.
But there are other issues apart from the right to maintain the privacy of anonymous sources, such privacy, press accountability, press councils, an ombudsman, and ethics.
We deserve a more imaginative approach. Libel reform will have to be part of a package that includes protection of privacy, an appeal mechanism, and an emphasis on ethics not just for journalism schools but for mid-career journalism. Such a package will also have to deal with ownership and profit, because that is often where the root of falling standards can be found. Politicians will have to accept that it is not necessarily possible or desirable to regulate for every bad judgment or even venal decision. They must also face the fact that it is better to have a free press that makes mistakes than a controlled one that does not.
The newspaper industry could show good faith by conceding a privacy law. If the Oireachtas brought in a privacy law based on an unenumerated constitutional right to privacy, it would have to include a public interest over-ride to be in accordance with Article 40's support of freedom of expression and also the much more strongly worded Article 10 of the European Convention on Human rights. Otherwise a challenge could be taken to the European Court of Human Rights in Strasbourg and given the way it has ruled recently, the complainants would in all probability win.
The alternative is to wait for a really problematic case to be taken which will than introduce a legal precedent that will be much harsher than anything the Oireachtas might bring in. This came close to happening when a model took a case against the Irish edition of the Mirror over the publication of pictures showing her changing clothes backstage during a fashion show. She took a case based on her Constitutional right to privacy. The case was settled out of court. Had it gone ahead, it might have created a precedent every other media outlet would have had to live with.
With reformed defamation laws, legal protection for a journalist's right to refuse to name confidential sources, and a privacy law in place, it might be possible to examine some sort of forum to negotiate between the media and the public to agree standards of acceptable behaviour and the means of making amends by correction or apology, when these are breached.
It is always assumed that bad behaviour is the habit of the individual journalist, who lives either by accepting free trips or free goods, with his or her foot in the door of a victim of press intrusion. But much that passes for unethical behaviour happens because too many journalists are taking too many decisions too quickly, because proprietors have not invested in journalism. It is difficult for a journalist to simply refuse to write a particular story when a proprietor sees circulation or readership potential.
While it is to be expected that newspaper publishers are concerned with only the bottom line, society can impose some restraints by ensuring diversity of ownership with limits on how much of the media can be owned by one company. This might in turn have the effect of ensuring that competition is not just commercial, but also journalistic, and ensuring that newspapers are equally critical and analytical of all business interests, including those of their own proprietors. Any debate about standards has to examine a range of issues. We must look to the law and the need to convince Government of the importance of journalism to a vibrant democracy. We must seek to put in place meaningful, accessible remedies, and ensure that journalists are educated in what it means to be ethical. Finally, we must confront the ethical standards of those who own the media and employ journalists, as it is they who determine the style of journalism we get.
Michael Foley is a senior lecturer in journalism at the Dublin Institute of Technology and a media commentator. Breda O'Brien is on leave.