Discussion and Feedback
David Mc Munn from TV3 stated that TV3 and the Independent Broadcasting Sector think that the reforms are a good idea. As with publishers it's hard to make a business case to invest in this sector with the current laws especially libel laws. However, he believes it might be good to have an incremental introduction, lodgments and statute of limitations dealt with first and the other more thorny areas such as the press council could be dealt with later.
Pamela Cassidy from BCM Hanby Wallace wondered how the recommendations would work in practice. Regarding Fast Track, ie a correction order with no damages, this could be irrelevant to most cases as the measure of damages is often a measure of how bad the defamation was. In the UK fast track does include damages with a limit of €10K. Often compensation is an important part of vindication. She suggested adding compensation with a ceiling of perhaps €18k. Regarding and apology with liability where if a publisher offers an apology it is not seen as an admission - is it realistic to believe that this apology could be ignore at trial? Regarding Defence of Reasonable Publication Pamela wondered whether this was necessary, if the objective is certainty then she doesn't believe this is needed here.
Brian Trench from DCU observed that Hugh Mohan said that the relationship between defamation law and the introduction of a Press Council was not quid pro quo. He believes that the Legal Advisory Group has made it look like quid pro quo by embedding the press council in a draft bill on defamation. He recommended removing Part 7 from the draft bill and allowing discussions on a Press Council to proceed at a different time. (See submission from Brian Trench, DCU)
Frank Cullen from the National Newspapers of Ireland agreed with Brian Trench. He also agreed with speakers who said that Norway law was not relevant here. One third of all papers sold here are UK papers and UK law has been modernized. Our legal framework should not disadvantage Irish media.
Ronan Brady for the NUJ addressed the Reynolds formula and the vagueness of that. He said that a person's reputation couldn't be qualified in pounds, shillings and pence. In the US there is a requirement for 'Proof of Malice' before prominent people engage in defamation activity. Is it possible to bring this into law here? Would there be a constitutional problem due to 'freedom of speech'.
Steve MacDonogh from Mount Eagle Publications said that he spends a lot of time dealing with legal threats. He feels that the lack of a 1st amendment tradition places anti-democratic constraints on the media. He wondered why the proposals were not enacted in legislation after the report of the Labour Relation Committee. He welcomes the changes proposed but does not agree with the attachment of the separate issue of a Press Council. He feels this issue should be decoupled and we should change the defamation laws without further delay.
Maurice Hayes spoke in support of Fergal Tobin and the publishing industry and he feels that scholarly publications may be threatened. He mentioned a book by a prominent scholar that was withdrawn because one retired politician objected to one reference. That reference was from a publication that was widely available 20 years ago. If scholars have to validate every quotation they may wish to use it would severely restrict them.
Seamus Dooley from the NUJ mentioned that the Dundalk Argos went out of business because of a €70k libel action. As a result it was taken over by the Independent News and Media Group.
Vincent Kelly from the Evening Echo and Thomas Crosbie Holdings said that controlling rogue journalists is not the function of a press council. It is the function of the Newspaper management. He felt that terms used in the draft need to be properly defined. He also said that as a group they welcome this move.
Karyn Woods from McCann Fitzgerald made 2 points. Regarding apologies, currently libel laws are skewed in favour of litigation. A newspaper cannot currently give an apology without leaving itself very exposed. If a request was just for an apology it would be ok but it is usually for damages as well. Secondly, she feels that this report only really deals with the press. Employers, retailers and banks are also sued for defamation and should be given some recognition specifically in terms of Qualified Privilege.
Mr O'Leary from MGN Ltd said that he has no doubt that plaintiffs would receive a more rapid and prominent apology if the newspapers did not have to run the gauntlet of enormous costs in high court proceedings. He said their first reaction would be to get an apology in but then this is thrown back in your face with a demand for damages. He said that currently nothing facilitates a genuine effort to resolve disputes. He said there should be a cap on damages in every case except where a newspaper has published recklessly or maliciously. In a case where they have published recklessly they deserve all they get, in a case where they have published maliciously, likewise. It is only in a case where there is ungenuine publication that damages should be high. He feels that defamations cases should not go to the high court except in cases of reckless or malicious publication. Where a newspaper has made a genuine effort to confirm the truth they should not be punished.
Michael O'Brien from O'Brien Press said that most people who attack freedom of speech in terms of what's published in books are politicians. He wondered will the minister be able to get this report through the Dail, is there a strong enough political will? He said there is a consensus here for major change and it should be done quickly.
Michael Kealy from William Fry Solicitors urged the group to resist defamation of the dead. He said this could have an impact regarding scholarship issues later.
Michael Tyrrell from Matheson, Ormsby Prentice Solicitors said that the Legal Advisory Group had done a tremendous job. However, he felt that the heads as they are are are riddled with way-outs with sub-sections saying get out of this if it's in the interest of justice, at the discretion of the court, etc. What will happen with these opt-outs when dealing with different cases and different judges? It might be better to have opt-outs only in truly exceptional circumstances.
Eoin O'Dell from the Legal Advisory Group intervened to say that the group did not recommend any course of action regarding defamation of the dead, only that if the plaintiff has sworn an affidavit and then dies then the case of action continues in the same way as any other case. Basically it only provides for an existing course of action to continue. (See report section 38 survival of actions).
Vincent Browne said that we me must change the libel laws along the lines of what was discussed in the report, we must develop laws with regard to privacy and we must have laws concerning concentration of media ownership. He felt that the concern on the Press Council issue was vastly overblown.
Michael Foley from the School of Media, DIT supported what Vincent Browne had said in that we need to address the issue of privacy. Both journalists and individuals need to be able to exercise their individual rights to freedom of speech.