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Submission on Report of the Legal Advisory Group on Defamation

School of Communications, Dublin City University

December 2003

The School of Communications, Dublin City University, welcomes the opportunity to comment on the Report of the Legal Advisory Group on Defamation. The School has been a leader nationally in journalism education and research for two decades, and is extensively involved in international media research networks. Staff at the School include former editors, producers, reporters, correspondents, sub-editors and consultants in a wide range of print, broadcast and online media; some members of School of Communications staff have served on media policy advisory and regulatory bodies.
The points of this submission relate to
1. the structure and general character of the report
2. the report’s recommendations on defamation law
3. the report’s recommendations on the establishment of a press council.

1. Structure of the report

The School of Communications notes that the legal advisory group’s terms of reference required it to consider the defamation regime in this country and the “nature and extent of any statutory intervention” related to the establishment of a regulatory body for the press. The School believes that these are two quite distinct tasks: the law of defamation relates to a small part of what a regulatory body for the press might be expected to cover.
The advisory group was mistaken, in our view, in binding the two aspects of its report so closely together. In this respect, it appears to have exercised a political judgement about the perceived necessity for a “trade-off” rather than a soundly based legal judgement. The error is compounded by the inclusion in a proposed Defamation Bill of the definitions of the composition, operation and powers of the Press Council in a wide range of matters that go well beyond defamation.
The group’s integration of two distinct dimensions of its work have contributed to some of the confusion that has marked the public debate around its proposals, and to the obscuring in this debate of the report’s specific recommendations on the law of defamation.
We propose the removal from the draft Defamation Bill of all sections concerning the Press Council.

2. Report’s recommendations on defamation law

The School of Communications welcomes most of the report’s recommendations on reform of the libel law. We acknowledge that the report’s proposals on the defences of reasonable publication, of justification, of fair comment and of innocent publication clarify some difficult and controversial aspects of the law. We support the proposals that plaintiffs in defamation actions be required to lodge an affidavit detailing their claim, that defendants be permitted to make lodgements in court in certain circumstances, and that the criteria for assessing damages be more tightly defined. We also welcome the proposals for plaintiffs to be permitted to plea summary relief and for the (modest) broadening of the authority of the Circuit Court in defamation cases as potential means to ease access to the courts system for those with legitimate complaints against the press.
The School notes, however, that the legal advisory group rejected the recommendations of both the Law Reform Commission and of the Commission on the Newspaper Industry in relation to the “presumption of falsity”. The report claims that “this is an issue which has tended to attract very divided views”; this formulation obscures the fact that two authoritative reports covering the law of defamation, and from which the legal advisory group draws inspiration in other respects, agreed that the burden of proof in libel actions should be shifted from defendant to plaintiff. No substantive case is made in the report for departing from this recommendation, which is cogently argued in both the reports quoted.
The report is silent on another key recommendation of the Law Reform Commission’s report, namely the proposal that a prerequisite to instigating a libel action should be that the plaintiff has made a timely request for retraction.
We propose that the legal advisory group reconsider these two aspects of defamation law, with a view to adopting the Law Reform Commission’s recommendations.

3. Report’s recommendations on a Press Council

The School of Communications offers the following observations on the report’s proposals on a Press Council in the context of its over-riding view that the two matters of defamation and press accountability should be handled separately. We consider the preparation of proposals for press accountability to be a matter for consultation, negotiation and agreement, and not properly the responsibility of a legal advisory group to government.
The School agrees that media accountability for transgressions of ethical behaviour and professional codes can best be achieved within an appropriate structure. We note that newspaper publishers, editors and other journalists might have done more in the past to facilitate this. We do not accept, however, that historical failure to put voluntary regulation in place must mean that voluntary or independent regulation is either undesirable or impracticable.
The School of Communications notes the report’s proposals for a statutory, government-appointed press council that draws up a code of conduct with which compliance is mandatory. The School believes that such a council would represent a very significant departure from the current international trend and, potentially at least, a shift to an unacceptably authoritarian regime.
The School of Communications favours a voluntary press council. However, we accept that some statutory intervention, as mentioned in the legal advisory group’s terms of reference, may well be necessary to underwrite an acceptable balance of freedom of expression and the rights to privacy and a good name. But the statutory intervention proposed in this report runs entirely in one direction and threatens to accentuate the present imbalance, which arises not least from the lack of any adequate statutory protection for freedom of the press.
We believe that the report’s suggestion of an (eventual) merging of press complaints and broadcasting complaints mechanisms is mistaken, as it fails to take account of the very different regulatory regimes for the two branches of media. In view of other remarks in the report, we are concerned that the suggestion of a “unified regime” might involve the extension to the press of licensing requirements currently in place for radio and television broadcasters.
The School of Communications proposes that the establishment of press accountability mechanisms be approached in two phases:

Phase 1: Publishers, editors and journalists would be expected to put in place, on a reasonable timescale, a regulation mechanism that includes a Press Ombudsman and Press Council, whose status and operations would be the subject of consultation with government and with representatives of various social interests. The Ombudsman would be recruited by the Press Council through a public process that is independent and fair to applicants for the position, and the Council would include significant representation of press employees and of civil society.
The self-regulation structure envisaged would have two principal areas of activity: (a) matters relating to which legal action is currently an option (principally defamation); and (b) matters of taste, privacy, journalistic standards etc., not currently covered by legislation. In relation to the former, limited statutory action on a number of issues would be essential to buttress the activities and authority of the self-regulatory structure. These would include, for example, the provision that the refusal of a plaintiff in an action for defamation to accept a reasonable offer of an apology should be capable of being introduced in mitigation of damages by a jury, and a change in the law to allow an apology, accompanied or not by a payment into court by a defendant, without admission of liability.
In relation to matters not covered by legislation, the effectiveness of such a structure could be considerably enhanced by joint efforts of the National Union of Journalists and National Newspapers of Ireland to agree a code of conduct which could act as a base-line for decision-making.
These independent regulatory mechanisms, funded by an industry levy, would be given, say, five years to prove themselves. If a formal review of their operation pointed to significant deficiencies that cannot reasonably be addressed within that independent regulation framework, then a new regime might be put in place.

Phase 2: In the event of a voluntary press council, as outlined above, proving to be unsatisfactory, modifications to the independent regulation mechanisms would be implemented or a new regime would be instituted, based on the establishment of a Press Ombudsman within the public service and a Press Complaints Appeals Board.
The Ombudsman would be appointed by government following a public recruitment process and on the advice of an independent recruitment panel appointed in consultation with media owners and unions. The powers of the Ombudsman to order retractions, corrections, replies or other redress (other than financial compensation) would be defined in statute. The Appeals Board would adjudicate on appeals by publishers and authors, or by complainants, against rulings of the Press Ombudsman and its powers would also be defined in statute.
The two agencies would be supported through a mix of state funding and industry levy. Appointments to the Appeals Board would be based on nominations or elections within defined constituencies.
We propose that no action be taken on the report’s recommendations on a statutory Press Council, and that negotiation be opened immediately on the establishment of independent regulation and accountability mechanisms.

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