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Freedom of the Press and Defamation and Privacy Reform : A model of media freedom for Ireland and Article 40.6 gets some clout?
In the history of Irish Freedom of Expression jurisprudence there has never been any explicit judicial recognition of one model of media freedom as informing judicial decision-making or legislative drafting. It is arguable that a failure to recognise a single formula for media freedom has done disservice to the free expression of media organs especially when confronted with the tort of defamation – freedom of expression often having to bow in favour of the right to a good name.
In Ireland, “the law starts from the premise that the maker of a disparaging statement is liable and [it] starts therefore with an easily established and potentially immense range of liability” hence, freedom of expression “occupies an inferior position in the lexicon of Irish values”, one of those values being the right to a good name.
With the introduction of new Defamation and Privacy legislation in Ireland it is envisaged that the developments of both the Irish and European Courts will be reflected in the modernising legislation. Accompanying this development, it would be hoped that the new legislation reflects a robust commitment to a model of media freedom. With particular reference to defamation, a liberalising trend regarding that realm of the law, on an international scale has become discernable over the past twenty of years. Undoubtedly international treaties such as the European Convention on Human Rights (ECHR), the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) are answerable for this trend. The Defamation and Privacy Bills 2006 could be seen as symptomatic of Ireland honouring its commitment to the European and International covenants to which it has subscribed.
This essay will endeavour to decipher the model of media freedom that is evident in the recent case law of the Irish Courts (under the influence of the Strasbourg jurisprudence). Secondly, it will consider the provisions of the new legislation and identify whether or not the new legislation equally reflects such developments. Finally, it will consider whether recent decisions such as Leech v. Independent Newspapers may be leaning towards extending a more generous hand to media organs in their defence of free expression than is currently enshrined in the new legislation.
Before applying the theories of freedom of expression of media organs to the Irish context it is appropriate to “set-the-scene” of Media Freedom in general Ireland:
Article 40.6.1°of Bunreacht na hEireann guarantees freedom to express opinions and convictions , subject to considerations of public order and morality :
The State guarantees liberty for the exercise of the following rights, subject to public order and morality:
i. The right of the citizens to express freely their convictions and opinions.
The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.
The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.
Traditionally, the Irish Courts’ response to pleas for vindication of freedom of expression has been one of characteristic Common Law scepticism. Indeed, it is clear from the language of the Article that the emphasis in Irish Law is on the limitations to the right of freedom of expression rather than on the right itself. Citizens are supposed to have the right to express “freely” their convictions and opinions, yet how can they “freely” exercise this right if it is subject to public order and morality, as stated at the very beginning of the Article?.
Furthermore, “public order and morality” are not the only considerations which work to qualify this right in practice, for example, injury to a person’s good name or their privacy will also place limitation on the exercise of Article 40.6.1° It “includes enough qualifications to leave in some doubt the commitment of the Constitution to full, democratic, freedom of thought and freedom of speech”. The Press is specifically mentioned in Article 40.6. 1° (i), but in a type of parenthesis. The “rightful liberty” of the press, which includes criticism of government policy, has to be preserved but “the education of public opinion” is so important that the onus is on the State to ensure that the organs of public opinion are not used to undermine the important values of public order, morality etc. As McGonagle underlines; “The formulation is unfortunate and does little to secure media freedoms. The result has been that, until recently, the Courts did not pay much attention to the guarantee of freedom of expression particularly in the media context.
Other rights were allowed to take precedence over it. Long-standing common law rules, such as defamation and contempt of court were allowed to operate unperturbed”. There are relatively few Irish judicial decisions where Article 40.6.1 (i) is invoked in support of media freedom, examples of the Court considering that “..the matter of the freedom of the press and of communication ….cannot be lightly curtailed” include X v. RTE , AG for England and Wales v. Brandon Book Publishers and Cullen v. Toibin .
McGonagle points that in Ireland, the Constitutional statement on freedom of the press has been considered too weak to have any real impact on the common-law approach to defamation. She contrasts this with the approach of the United States “..with its strong First Amendment commitment to freedom of the press..” which has “..dominated and reshaped the tort of defamation in that country.” In Ireland, as a consequence of following the lead of Britain, which does not have a Constitutional guarantee of freedom of expression, the tort of defamation in Ireland operated in a manner (as in Britain) that virtually ignored the existence of our constitutional values protecting freedom of expression. McGonagle points that “there was an underlying assumption that the common law of defamation partly codified in the Defamation Act, had got the balance right”.
This opinion was ill-informed. Irish Law is aimed at achieving equilibrium between three Constitutionally-protected interests: Right of Freedom of Expression (Article 40.6. 1°), Right to Communicate (Article 40.3.1°) and the Right to a Good Name (Article 40.3. 2°). The Defamation Act 1961 mimics the equivalent British legislation and this has meant that Irish libel law has failed to take account of our own Constitutional values, outlined above. The Act makes no attempt to balance the three Constitutional provisions and has operated as a law that assumes that freedom of expression is a bad thing. In 1996 the Constitution Review Group asked “The essential question whether the defamation laws effect a fair balance between the right of free speech on the one hand and the need to protect individual reputations on the other?”.
The answer to their question had been provided a few years earlier by the Law Reform Commission in their Consultation on the Civil Law of Defamation 1991: “We believe that current Irish Defamation Law fails to serve each of these interests satisfactorily in many areas”. Since the 1991 Report, the jurisprudence of the Irish Courts has moved-on to take account of the influence of ECtHR jurisprudence (since it formed part of Irish Law at sub-constitutional level in 2003) and developments in the common law. In Goodwin v. Hamilton No.2 the Courts intimated that, with respect to Constitutional Rights, good name is not a “trump” card that takes precedence over all other rights. This could be seen as the first step towards a new “constitutionalising” of the tort of defamation.
This sets the backdrop to the introduction of the Defamation and Privacy Bill 2006. The Irish laws on Defamation and Privacy are long-overdue an overhaul, media law commentators such as O’Dell have highlighted the “acute need for the modernisation of Irish Defamation Law” and have criticised the delay of government in instituting this modernisation. McGonagle points that “Delay has meant that those affected by defamation, whether as plaintiffs or defendants as well as the public at large have had to soldier on under very outdated laws, drafted at a time when television was only beginning in Ireland and the Internet was not even heard of”. It is envisaged that the new Bills spell the end of, as in the case of the Defamation Act 1961, an over-reliance in decision-making by the House of Lords and the introduction of law that better-reflects Irish Constitutional mores and developments of the ECtHR. Both the Defamation and Privacy Bills 2006 have “conceptual implications” for the status of media freedom in Ireland and together, the Bills acknowledge a model of freedom of the press which has heretofore not been specifically recognised in Irish jurisprudence”.
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