A DEMOCRATIC REVOLUTION - PART 2
PRESS FOR CHANGE
A THOROUGH OVERHAUL OF THE LAWS OF LIBEL
presented by Fine Gael
This paper deals with reform under the following headings:
1. BACKGROUND TO THIS INITIATIVE
2. PROBLEMS WITH LIBEL LAWS
3. OBJECTIVES OF THE REVIEW
4. PROPOSED AMENDMENTS TO LIBEL LAWS
5. PROPOSED PRESS COMPLAINTS MECHANISM
1. BACKGROUND TO THIS INITIATIVE:
1.1 In 2000 Fine Gael published its proposals for a major overhaul of the Oireachtas, the Courts, the Legal System, political party law, local government accountability, and for a Constitutional Council. These were contained in a document entitled A Democratic Revolution. The proposals were based on the acknowledgement that this era of Tribunals represented a massive failure of accountability in the State and required a revolutionary transformation of the organs of the State starting with the Oireachtas. Fine Gael reiterates its commitment to the implementation, in Government, of A Democratic Revolution. We now go further in recognition of the fact that in any healthy democratic society a free and vibrant media is a key weapon in achieving greater accountability right across all sectors of society.
1.2 In spite of the growing importance of the media in our society little
or no progress has been made on the matter of eliminating avoidable constraints on the media in Ireland under the Defamation Act 1961 and associated legislation. We also recognise that this can only happen if there are countervailing safeguards and arrangements.
1.3 The question of libel law reform and the newspaper industry have been the subject of a number of reports and submissions over the past decade:
1.3.1 The Law Reform Commission published a Consultation Paper in 1990 on the Civil Law of Defamation.
1.3.2 This was followed by a Report from the Commission in 1991.
1.3.3 A Private Members Bill on Defamation was introduced in Dáil Éireann by Michael McDowell in 1995, then a Deputy and now Attorney General. This Bill was rejected by the then Government because the Department of Law Reform and Equality was working on its own proposals at the time. This has also been the stance of the present Government up to now.
1.3.4 The 1996 Report of the Commission on the Newspaper Industry under the chairmanship of the former Chief Justice, Mr. Thomas Finlay, formally recommended the establishment of a press complaints procedure. Five years later there are still no Government proposals either to amend the defamation laws or for the establishment of a press complaints system as an alternative to the Courts.
1.3.5 The National Newspapers of Ireland (NNI) have produced their own set of proposals and have had them set out in a draft Bill. They have also now published their outline proposals for a press complaints system.
1.4 Up to now there has been no general consensus among media organisations on the subject. Now, however, partly because of the seriousness of the situation and, partly because of Fine Gael's initiative, the NNI have been joined by the Regional Newspapers Association of Ireland (RNAI) and both are now speaking with one voice. The National Union of Journalists (NUJ), although coming from a different perspective, nonetheless has reached significant common ground with the NNI and the RNAI. British newspapers circulating in the State have no representative body here but it is fundamental that they, and magazines published or circulating in the State, should be covered in the reform process.
2. WHAT ARE THE PROBLEMS WITH THE IRISH LIBEL LAWS?
2.1 The NNI, the RNAI and the NUJ are absolutely united in claiming that Irish defamation laws are more restrictive than the laws pertaining in most other developed democracies. Fine Gael accepts that they have a case.
2.2 The NNI and RNAI claim that the libel laws are costing Irish newspapers almost £10 million per annum which are overwhelmingly legal damages and costs.
2.3 All sides agree that, especially because of legal costs, for the greater part only very wealthy individuals can afford the costs of suing newspapers. Both the NNI and RNAI claim that they have been frustrated, over the years, in exposing fraud and tax abuse because of the libel laws even where they had solid evidence. Ultimately, in their view, this restriction contributed to the need for the establishment of several tribunals.
2.4 All sides agree that there is a major need for a speedy, inexpensive and effective remedy available to complainants where their good name is at stake.
3. OBJECTIVES OF THE REVIEW OF LIBEL LAW
3.1 EQUALITY OF ACCESS TO REDRESS
3.1.1 Citizens who feel wronged by press coverage relating to them have no option but to go before the Courts. The high cost of litigation means that many individuals who have genuine grievances cannot afford to defend their right to a good name. As a result, resort to the libel laws is often the preserve of individuals with sufficient resources to sustain the potential legal costs. No Civil Legal Aid exists for libel.
3.1.2 Furthermore, the only remedy available for many complainants is financial compensation in the form of damages. Many would settle for immediate clarification and/or apology but the media cannot afford to make this gesture under the current legal regime under which an apology can be used in litigation against them. So we are left with the absurd situation where the complainant does not receive immediate satisfaction and the media are forced to bring in the lawyers.
3.1.3 Therefore, an important aim of this initiative is to take the Courts out of the system as much as is reasonably possible, to create a speedy and effective mechanism to give citizens a quick remedy for any wrongdoing perpetrated by the print media, while ensuring that the constitutional rights of the media and public are preserved.
3.2 INCREASED ACCOUNTABILITY IN OUR SOCIETY / ACCOUNTABILITY OF THE MEDIA
3.2.1 In the document A Democratic Revolution Fine Gael committed itself to increasing levels of accountability across our society. To this end, we support an independent, effective and free press as a key pillar of an open democratic society and a vital element in an accountable, democratic system of parliamentary democracy and governance.
3.2.2 Yet the media complain frequently about the curtailments and restrictions of our libel laws. Many members of the media maintain that the current spate of Tribunals might never have been required if journalists and newspapers had not been hindered by the libel laws. In A Democratic Revolution we had come to a similar conclusion regarding the Oireachtas. We recognise that a package of reforms is now timely to secure certain press freedoms.
3.2.3 However, a common perception exists that some parts of the media are also capable of being reckless in relation to facts and in relation to people's reputations. We are particularly conscious of the unacceptable standards of certain newspapers in the U.K., some of which have a wide circulation in this country. There is a growing realisation of the greater need for accountability in the media. Consequently, our final objective is to outline a new system that is designed to maintain acceptable standards in the media. Given the vital importance of a free press and media in a democratic society, great care and sensitivity has to be exercised in relation to any attempt to re-define the rules goveRNAIng this sector.
4. REFORM OF THE LIBEL LAWS:
4.1.1 It is unacceptable that our media remain subject to a forty-year old Defamation Act. Massive social and technological changes have occurred in the interim. The NNI, the RNAI and NUJ are now largely ad idem on the need for major reform of our libel laws.
4.1.2 It should be noted that they are all coming from different perspectives given that NNI members usually have to pay any damages resulting from the libel actions and hire "in-house" lawyers to prevent further litigation. On the other hand, journalists are unhappy with the unnecessary restrictions this law places on the practice of their profession and the negative consequences for freedom of the press and our democracy.
4.1.3 Fine Gael, having carefully considered the matter and subject to agreement being reached with the newspaper and journalistic representative bodies, recommends:
a) the establishment of a Media Complaints Commission
representative of all the print Media and the public
interest and with an independent Chairman;
b) the selection of a Media Ombudsman by the Media Complaints Commission and its adequate resourcing by the newspapers and
c) the establishment of a Consultative Body, possibly
referred to as the Media Council, representative of
Editors, Publishers, Journalists, the Social Partners and the public interest.
Fine Gael undertakes, in Government, to implement most of the proposals made by these bodies in the area of libel law reform together with some of our own amendments. Our full list of recommendations including our indicative proposals in relation to a Media Complaints Commission, Media Ombudsman and a Media Council are set out below.
Our recommendations are as follows:-
4.2.1 AMEND STATUTE OF LIMITATIONS
Defamation actions only become statute-barred after six years has elapsed. This requires newspapers to set aside contingency funds for long periods in case of a libel suit. We believe that this period should be reduced to one year after the alleged libel occurred with special exemptions for minors and those suffering from legal incapacity.
The current law has been a major obstacle to speedy
clarifications/apologies by newspapers, which would, in a large number of cases, resolve grievances. An apology leaves the newspaper further exposed to a libel suit. One of our key objectives is the speedy resolution of complaints. Therefore, we believe that a prompt and unambiguous apology, published by a newspaper in a manner designed to adequately redress the damage done by an erroneous report, should be grounds for mitigation before the Courts rather than, as at present, further ammunition against the publisher.
4.2.3 READERS' REPRESENTATIVES
We propose that all newspapers circulating in the State with a circulation above a certain agreed figure should have within their organisation a person who acts as Readers' Representative and to whom readers can turn in the first instance. The Representative should have an agreed status within the newspaper and his name and phone number should be prominently published on the Editorial page in each edition.
It is a standard legal strategy for a defendant in a civil action to make a lodgement in a Court that is his estimate of the actual damage caused by them to the plaintiff while not admitting fault. Therefore, he can make a payment into Court without an admission of liability.
In libel actions plaintiffs are as much concerned with their reputation and the vindication of their good name as they would be with damages. The current law on lodgements reduces the likelihood of an individual with a genuine defamation complaint accepting a lodgement because the Courts procedure does not permit him the public vindication of his good name.
Therefore, in the event of a lodgement being accepted at the option of the plaintiff, we believe that he should also be entitled to a public declaration from the Court. There should be a requirement on the publication concerned to publish the declaration and a suitable apology. This declaration would outline the cause of action and the fact that a sum of money had been paid into Court and was being accepted in settlement of the action. This reform will result in lower legal costs through earlier settlements (10 days after lodgement made by the defendant) and lower legal costs through the complainant receiving some public acknowledgement of the source of his grievance.
This objective can be met through the Rules Committee of the Superior Courts amending Order 22, Rule 6 of the Rules of the Superior Courts.
4.2.5 RETENTION OF JURIES IN DEFAMATION ACTIONS
The NNI lobbied strongly for the abolition of juries in such actions. They claimed that juries prevented the development of a recognised case law in defamation litigation, resulting in the emergence of a "lottery-like" awards system. However, the NUJ strongly supported the retention of juries given what they saw as the importance of public participation in the resolution of disputes involving the media. Our recommendation is that juries should be retained. Levels of awards have actually increased since the abolition of juries in personal injury cases. We see no reason why this would not also be the case in defamation actions.
4.2.6 JUDICIAL GUIDELINES
However, we further propose that judges should be enabled to issue guidelines to juries on awards. Such a reform will bring greater consistency in libel actions, something which is in the interests of all the players in this sector.
4.2.7 ACCESS TO COURT RECORDS/COUNCIL MEETINGS
This issue has frequently been at the heart of "inadvertent libel" actions. It particularly affects regional newspapers. It is in the interests of any democratic society that the media should have prompt access to the records of Court hearings other than Court hearings held in camera and local authority meetings (including Councils meeting in Committee) given their place in the decision-making machinery of our State.
4.2.8 INADVERTENT LIBEL
Where an inadvertent libel (i.e. a genuine mistake) occurs Fine Gael feels that an apology and clarification with equal prominence by the media organ in the next or earliest possible edition of the publication should act in mitigation of damages in any libel action.
4.2.9 IMMUNITY OF PRINTERS
Given that printers can be sued where damages from the author
are not available we consider it fair that printers should be generally immune from suit except where the name of the publisher is not given on the libellous material in question.
4.2.10 LAW OF PRIVACY
Fine Gael acknowledges that the question of the right to privacy is very closely connected to the issue of defamation. It is a matter of great importance. We have decided to draft a new Privacy Bill that will be enacted in parallel with the Libel Reform Bill. The terms of the Privacy Bill will be discussed, in advance, with representatives of the media. It will comprehend the terms of Article 8 of the European Convention of Human Rights.
4.2.11 GOOD NAME OF THE DEAD
The present legal dictum is that the dead cannot be libelled. It is our intention to provide in the Libel Reform Bill protection for the good name of those deceased, including providing certain rights for their next of kin.
4.2.12 DECLARATORY ORDERS
We have already adverted to the fact that damages are the only remedy the current legal regime affords to disgruntled citizens in libel suits. This is, in our opinion, a major defect in the system. If necessary, the Rules Committee of the Superior Courts should amend the Rules of Court to effect a change whereby an individual could apply to a Court for an order compelling the offending newspaper to provide the complainant with adequate redress in their pages.
This innovation will lower legal costs and provide the complainant with rapid and relatively cheap relief. It may have a particular relevance after the proposed Voluntary Newspaper Code of Practice and Office of Media Ombudsman are established. This could arise where a media organ refused to comply with the directions of the Media Ombudsman. The complainant could then seek a declaratory order with the advantage of having already received a favourable adjudication on his complaint from the Media Ombudsman.
4.2.13 REASONABLE CARE
The NNI and NUJ are agreed on the introduction of a defence of "reasonable care" with the former supporting the LRC recommendation that proof of reasonable care should be a defence against general damages but not a defence against specific damages such as financial loss. Fine Gael considers that the introduction of this defence would disturb the balance between plaintiff and defendant. The media organ would then be free to make a lodgement to the value of the special damages and claim the reasonable care defence in relation to the claim for general damages (which are usually greater in value). Instead we believe that it should be open to a defendant to claim he exercised reasonable care in mitigation of damages in any libel action.
4.2.14 FAIR COMMENT
Fine Gael accepts the LRC recommendation that to avoid confusion the defence of "fair comment" should be re-named "comment based on fact". Fine Gael may consider further aspects of this issue at a later stage.
This issue was raised with Fine Gael by the NNI, the RNAI and the NUJ. It is of particular concern to the Regional Newspapers. We would be willing to undertake a constructive review of this area with these groups with a view to updating the list of bodies enjoying qualified privilege under the Defamation Act, 1961.
4.2.16 ONUS OF PROOF
The NNI and NUJ are ad idem regarding the reversal of the current position whereby the burden of proof is placed on the defendant in any libel action. Having considered these arguments Fine Gael was not convinced that the current position should be changed.
4.2.17 JOURNALISTIC ETHICS
Statutory recognition of NUJ Code
The NUJ has a detailed and impressive Journalists Code of Conduct for its members. However, it acknowledges that there are difficulties in enforcing the Code on its members nor can it be imposed on writers or contributors who are not members of the NUJ. We recommend that the proposed Libel Reform Bill should recite the NUJ Code and thus give it statutory recognition.
No effective complaints procedure within NUJ
Fine Gael accepts fully the commitment of the NUJ to the highest standards of accuracy, fairness and ethics for their profession. However, Fine Gael believes that the current complaints mechanism of the NUJ, which has no public interest or outside representation, is inadequate. Fine Gael sees a lack of any effective machinery or mechanism within the NUJ to make judgements on complaints against one of its members as a serious omission. It is difficult to see how the NUJ could, with its limited resources and lack of immunity, establish an effective complaints mechanism.
No complaints from public provided for
Moreover, under the present Code, a complaint against a journalist can only be made by another journalist. On the other hand, to open the complaints procedure to the public at large could lead to the undermining of the process by attracting a lot of baseless or vexatious complaints.
4.2.18 COMPLAINTS AGAINST NEWSPAPERS AND
JOURNALISTS TO OMBUDSMAN
Fine Gael therefore proposes that an individual may make a complaint in writing to the Media Ombudsman against:
· an individual journalist/contributor whether or not they are members of the NUJ and/or
· an Editor and/or
· a Newspaper and/or a Media Organisation.
Any such complaint to be measured:
· in the case of a journalist against the Journalists Code of Conduct of the NUJ.
· In the case of an Editor or a Newspaper/Media Organisation against the Newspaper Code of Practice
The Media Ombudsman will be specifically empowered to summarily dismiss frivolous, vexatious or malicious complaints. No such complaint shall be considered unless the complaint is accompanied by substantial or significant prima facie evidence in writing.
4.2.19 BROADCASTING COMPLAINTS
This document is principally addressed towards the print media but has proposals which are also very relevant to broadcasting. In line with this reform Fine Gael proposes to review the scope and terms of reference of the new Broadcasting Complaints mechanism. This review will include consideration of extending its remit to include adjudication on complaints of defamation, apologies, lodgements and inadvertent libel.
5. OFFICE OF MEDIA OMBUDSMAN AND VOLUNTARY NEWSPAPER CODE OF PRACTICE: AN ALTERNATIVE COMPLAINTS MECHANISM
The 1996 Report of the Commission on the Newspaper Industry recommended the introduction of a voluntary system of regulation of complaints for this sector. While the NNI, the RNAI and the NUJ support this position Fine Gael discovered a wide divergence between the NNI/RNAI and the NUJ on the terms of reference of such a system.
No firm steps have been taken to date by the newspaper industry to establish a voluntary complaints system. This reflects the reality that the newspaper industry is made up of a number of parts.
5.2 DIVERGENCE OVER TERMS OF REFERENCE
The NNI, the RNAI and the NUJ are all agreed that the Newspaper Code of Practice governing any new complaints process should be a voluntary one i.e. that it should not be imposed on the newspaper industry from outside and especially by politicians.
The difficulty with this arrangement is that, if it is completely voluntary, a "rogue" newspaper could break ranks, ignore the Code and at the same time exploit the relaxed libel laws.
The NUJ believes that any regulatory body should have a broad remit. It would address issues such as education and training in the industry. They would also favour extensive public participation in any press complaints process.
The newspaper publishers and editors envisaged a more limited role for this Office, confined to assessing whether complaints breached the Newspaper Code of Practice or not.
5.3 IMPORTANCE OF UNIVERSAL EFFECT OF SCHEME
5.3.1 Fine Gael strongly believes that any media complaints mechanism should have universal effect i.e. that it should cover all publications circulating in the State including magazines and British newspapers. Whether such a mechanism is to be statutory or self-regulatory is of secondary importance. In the first instance, Fine Gael proposes the introduction of a voluntary Newspaper Code of Practice so as to protect current media freedoms while providing a clear incentive for those availing of the new schemes.
Access to this process for individuals and the speedy delivery of this service are other issues of priority.
Securing the participation of magazines and the British media in Ireland has yet to be finalised but is fundamental to the success of the proposed scheme.
5.3.2 The following matters are still being discussed between Fine Gael and the media:
1. The title of the new process
2. The composition and title of the body appointing the person who will preside over this process; and its terms of reference.
3. Public interest representation on the body.
4. The stature and independence of the person.
These issues have yet to be settled but are a vital
part of the package.
5.4 OPPOSITION TO STATUTORY REGULATION
The NNI and RNAI are opposed to any statutorily imposed Newspaper Code of Practice on the grounds that:
1. Editors would see it as a major incursion into their editorial freedom and
2. It could increase recourse to legal involvement and higher costs.
Anxieties regarding this issue were also raised by the NUJ but they were principally concerned about the implications any statutory system might have for the freedom of the press.
It was accepted by all, however, that in the event of self-regulation not working it would be incumbent on the Oireachtas to legislate for a press complaints system.
Given these considerations Fine Gael proposes the following model for a Media Complaints System.
5.5 A STATUTORILY RECOGNISED VOLUNTARY MEDIA COMPLAINTS SYSTEM
5.5.1 The reservations expressed by the NUJ and the
NNI/RNAI about political interference with press freedoms have to be allayed. At the same time, the scheme cannot be so voluntary as to permit easy opt-outs.
5.5.2 Therefore we propose that:
a) A Media Complaints Commission be established, with appropriate terms of reference, by and representative of newspaper Publishers and editors but with majority public interest representation from outside the newspaper industry itself. Fine Gael acknowledges the force of the arguments of the NUJ for direct representation on a body like the Media
Complaints Commission. We invite the NNI, the RNAI and the NUJ to come to an agreed position on this matter. The Chairperson of the Commission to be also from outside the newspaper industry and to be a high-ranking person of appropriate stature, and selected by the full Commission.
b) The Media Complaints Commission to appoint a Media Ombudsman who will be totally independent, have full security of
tenure, and have a full-time properly funded office, and enforce a Newspaper Newspaper Code of Practice, proposed by
the Commission itself, in an impartial manner.
c) Subject to the later provisions of this document the arrangements at a) and b) above will be set out in Schedules to the Bill and thus be given statutory recognition, and be applicable to all newspapers and magazines circulating in the State.
5.6 MEDIA COUNCIL
The NUJ were particularly keen on the tri-partite nature of the Australian Press Council. Representatives of Editors, Publishers, Journalists and the Social Partners sit on this Council. The NNI and the RNAI do not want such a Media Council to be confused with the body that decides the Newspaper Code of Practice operated by, and the appointment of, the Ombudsman.
Nonetheless Fine Gael is satisfied that there should be a Media Council at least for consultative purposes.
It will be representative of Newspaper Editors and Publishers, the NUJ, the Social Partners and the wider public interest.
It is recommended that the Media Ombudsman will issue his Annual Report to the Media Council with which he will consult, on a quarterly basis, on general issues relating to the Media.
5.7 FUNDING OF OFFICE
The Office of the Media Ombudsman to be funded by the industry based on market share of participating publications. This is agreed in principle by the NNI and the RNAI. The participation in funding by magazines and by British newspapers circulating in the State has yet to be addressed.
It is vitally important that the level of funding provided for the Office of the Media Ombudsman be adequate so that he/she is not hampered in the discharge of their duties.
5.8 IMMUNITY FROM SUIT
The Finlay Report, the NNI/RNAI and the NUJ were emphatic about the need for any such Office to enjoy immunity from suit. This legislation will provide for immunity from legal proceedings for the Media Ombudsman and his/her staff for acts carried out in the course of their duties.
5.9 REGISTER OF APOLOGIES AND CORRECTIONS
The Office of the Media Ombudsman should be required to maintain and circulate a Register of Apologies and Corrections so that a libel is not repeated inadvertently.
5.10 COMPLIANCE WITH THE SYSTEM
Any adjudication by the Media Ombudsman will be statutorily recognised and be admissible as evidence in Court in mitigation of damages in proceedings for libel. This provision should encourage greater compliance with the new regime.
5.11 MUTUAL RECOGNITION WITH U.K.
The high circulation levels enjoyed by many UK newspapers and magazines in the Republic also necessitates mutual recognition and enforcement of decisions of the UK Press Complaints Commission Newspaper Code of Practice. It is proposed that, before a Libel Reform Bill is introduced, there will be discussions with the UK Press Complaints Commission with a view to agreeing on a suitable mechanism.
5.12 LAW REFORM TO FOLLOW AND RECOGNISE
The enactment of a Libel Reform Bill implementing the proposals contained in this document is conditional on a satisfactory press complaints system along the lines proposed above being established by the newspaper industry.
5.13 EUROPEAN CONVENTION OF HUMAN RIGHTS
Fine Gael recognises the fundamental contribution to free speech and protection of the media afforded by Article 10 of the Convention. We also recognise the right to privacy afforded by Article 8. Future legislation will give effect to the rights and protections that are established under those Articles.
5.14 REVIEWABILITY OF SCHEME
Finally, there will be a reviewability clause inserted in this Bill which will allow the Oireachtas to examine the operation of this system after three years.