Gag Reflex: Ireland's libel laws muzzle a free press

By Michael Foley

After Veronica Guerin's murder, the millions worldwide who read the accounts of her crusading reporting in the face of great danger undoubtedly admired her courage and persistence in getting her stories about the Irish underworld into print, but puzzled over her technique. Why had this young woman repeatedly provoked face-to-face confrontations with mobsters, even after she'd been threatened, beaten, and shot?

What seemed like inexplicable risk-taking to the outside world, however, was part of a deliberate strategy to circumvent Ireland's Byzantine libel laws. Those laws, so stifling to journalistic freedom in Ireland, led Guerin to put herself in harm's way. Lawyers had warned Guerin that published allegations of racketeering and drug-peddling could expose newspapers to libel suits, or provide legal grounds for the dismissal of future criminal charges against the subjects of her articles – unless, of course, these accused mobsters could be persuaded to respond to the charges on the record. These did not tend to be the type of people who returned phone calls. And Guerin was determined to get her stories in the paper.

When Guerin received the 1995 International Press Freedom Award from the Committee to Protect Journalists, she spoke of the need to reform her country's libel laws, expressing the views of most Irish journalists and publishers. She thought it was absurd that reporters were forced to take such risks and that criminal bosses could so easily deflect media scrutiny. She was outraged that one of her fellow crime reporters, Liz Allen of the Irish Independent, should be found guilty under Ireland's Official Secrets Act for publishing a document, available to police nationwide, which contained details of a bank robbery.

In Ireland, press freedom suffers primarily not because of the Official Secrets Act, or other forms of state control, as onerous as they may be. The principal impediment to vibrant and exciting media is the constant and daily threat of libel action. There is no definition of defamation in Irish law. Lawyers rely on judicial dicta that provide a working definition of defamation as a wrongful publication of a false statement about a person, which tends to lower that person in the estimation of right-thinking members of society, or to hold a person up to hatred, ridicule, or contempt, or causes a person to be shunned or avoided.

While the truth of a statement offers the best defense, there is a presumption in favor of the plaintiff, who merely has to show that the words referred to him or her and were published by the defendant. The onus is on the defendant to prove that the statement is true. For media organizations, this means demonstrating that the statement is true according to the legal rather than the journalistic standard: The words that are the subject of the libel action must be substantially true in themselves, irrespective of any context. In practical terms, such a standard creates a conflict for journalists seeking to protect the confidentiality of their sources, who may be unwilling to appear in court and offer proof.

Irish juries tend to give very large awards to plaintiffs in libel suits against the media, without any regard to a newspaper's circulation, a radio station's listenership, or the viewing figures for particular stations or programs. Despite a nine-year-long campaign for reform of the defamation laws by newspaper proprietors and the National Union of Journalists, the situation is getting worse. The number of cases is increasing, and damage awards are getting larger.

There was hope among reporters that in the outcry over Guerin's murder the stalled effort to reform libel laws would finally move forward. But straightforward law-and-order issues took precedence in the public's imagination, and the Irish news media seemed reluctant to plead the case for its own reform agenda.

For the Irish media, the legal minefield extends from news pages to court reports, the editorial page, opinion pieces on the op-ed page, even restaurant reviews and letters to the editor. It is not as if Irish journalists are particularly cavalier. The cost to the media is simply too high for them to act irresponsibly. Awards and legal costs come to well over $50 million a year for the national newspapers alone. For modest print media in a country of 3.5 million people, that is a huge sum; and it does not take into account similar expenditures by provincial publishers and broadcast news organizations or weekly local newspapers. Small errors bring the full weight of the law down on the media. Even understandable mistakes are paid for dearly.

The chilling effect of Ireland's defamation laws reach into all forms of written expression, even into ancillary industries. Publishers have books fully "lawyered." Distribution systems and major news agents and newspaper and magazine shops have refused to stock some publications for fear of libel, because in a defamation case a plaintiff can go after the writer, the editor, the publisher, printer, distributor and seller of the offending material.

All political parties in the Republic of Ireland are now officially committed to freedom of information, despite their past support of official censorship against members of Irish Republican organizations. For 25 years, Ireland's broadcasting law contained a provision, Section 31, allowing governments to ban from the public airwaves anyone or any organization. In 1994, Michael D. Higgins, the minister responsible for broadcasting, did not renew Section 31, although it remained on the statute books. Proposals for new broadcasting legislation currently under government consideration, if adopted, will in all likelihood repeal Section 31.

The commitment to freedom of information means that the Official Secrets Act, which effectively says that all government documents are secret unless specifically stated otherwise, will be amended in the coming year. That means that the presumption of secretiveness will be turned on its head, so that all documents are public unless specifically exempted. The Official Secrets Act will then no longer be a threat to the media.

Such broad public consensus on the importance of the free flow of information might seem to presage the onset of policies fostering openness and support for Irish media to perform their watchdog role with confidence. Instead, Ireland is experiencing a de facto privatization of control of the press: The rich and powerful understand that the country's sweeping defamation laws protect them much more efficiently than anything so crude as state control.

Go through the clippings library of any Irish newspaper and search the files marked "libel" or "defamation." There you will find a virtual who's who of business people, politicians, prominent religious leaders, lawyers – even the president. Under those names are the stories of threats, suits, settlements – usually out of court – and writs. You will find few names of people belonging to the lower middle classes, the working classes, or the unemployed, because in Ireland suing the media for defamation is an establishment pursuit.

Business people and professionals comprise the largest category of those who sue the media. Within that group, lawyers are the largest single category. Politicians, who used to represent about 10 to 11 percent of plaintiffs, now constitute 23 percent. There are also many repeat plaintiffs. Journalists themselves account for about 10 percent of those taking action against the media.

Is it reasonable to regard defamation law, as it is applied in Ireland, as a tool of the establishment? Yes, I would argue: Just consider the case of civil and public servants, those at the heart of the establishment. They have a special arrangement to facilitate access to the defamation courts. The state funds public officials' and civil servants' defamation actions; they are the only groups to receive such support. If they win, they get to keep the court-ordered award; if they lose, the state absorbs their legal costs. In other words, there is a strong incentive for public officials and civil servants to sue – effectively, they cannot lose.

In contrast, there is no legal aid available to ordinary citizens for defamation cases. Irish society clearly does not value the good name of those at the bottom of society's ladder as it does those higher up.

Although regrettable, the timidity of the Irish press is understandable, considering the potentially devastating effect of large libel judgments. This institutional reticence leads journalists to adopt the adage, "If in doubt, leave out." Lawyers frequently advise news organizations that a person who has successfully sued before is likely to sue again. Thus, individuals who've gained a reputation within journalists' circles for litigiousness effectively shield themselves against press scrutiny in Ireland. This was a battle that Guerin fought constantly, and valiantly.

One of her trademark techniques was to identify crime bosses only by their underground nicknames – "The Monk," "The Warehouseman" – and to omit other crucial identifiers, such as the incorporated names of their front businesses. If the subjects of these stories were contemplating libel action, they first had to prove that they were the allegedly nefarious individuals in question. Guerin's method was usually effective, but frustrating. While her readers still did not know with certainty who these people were, reporters for U.S. newspapers covering Ireland could publish the names and other details about Dublin's crime lords in stories that they based on Guerin's own reporting.

When libel cases go to court – which is not often, because media organizations prefer to lessen the cost and settle rather than fight – the most common defense for journalists is that of "fair comment," intended to protect expressions of opinion on matters of public interest. The journalist has to prove that the comment was fair, the expression of honestly held opinion, and based upon facts that were true to the extent necessary to support the comment. Although this defense is used in over 40 percent of cases, it succeeds in only 5 percent. Even though these are not very good odds, the success rate for fair comment defenses is higher than for those defendants claiming justification or other defenses. The defendant must convincingly argue that the offending words constitute "comment" – i.e., opinion – rather than "verifiable fact." The distinction can be blurry, and the law is unhelpfully vague. If a man of meager declared income is reported to live in opulence, is this to be taken as subjective commentary, or as empirical fact?

Consequently, arguments about the nature of language and close examinations of phrases to determine which rubric they fall under dominate most libel cases. In one instance, an editorial in the Irish Press stated that a particular "slip up" in a diplomatic immunity case was difficult to understand. A lawyer employed by the state who had been handling the case sued for defamation, even though he was not named in the article. The offending words had appeared in a context normally accepted as "comment," but the judge ruled that whether or not there had been a "slip up" was verifiable, and therefore constituted a question of fact.

How has Ireland, a modern European democracy, retained laws so antithetical to press freedom, and how is it that juries feel compelled to punish the media with such high awards? The answers to these questions involve an understanding of the two principles at play: the right to one's good name, and the right to freedom of expression, including the freedom to communicate thoughts, opinions and criticism, to receive and impart information and to engage in public debate. We do need libel laws, but as David Gwynn Morgan, a professor of law at University College Cork, said in The Irish Times: "What we do not need is this remarkable relic which comes down to us from the days of the Court of the Star Chamber."

Morgan traces a direct line from present-day Ireland's laws to those of the 17th-century court whose function was to suppress any word or deed in opposition to the king. When the Star Chamber was abolished after the English Civil War, the common-law courts took over its jurisprudence in the field of libel. Morgan finds several features in contemporary Irish libel law that have come down to us virtually unreformed since the 17th century. First, the plaintiff has to prove neither negligence nor failure to exercise reasonable care on the part of the defendant. Second, a plaintiff can initiate action against material that is already in the public domain. Thus, if in researching a story a reporter relates statements made in an earlier article that the subject deems libelous, the restatement is actionable, despite the fact that the words went unchallenged when they first appeared in print. At no time does information become safe for journalists to report. Finally, according to Morgan, "Alone among legal causes for action," the plaintiff in an Irish libel suit does not have to show that he or she suffered any loss or damage: "The law obligingly presumes that to be so."

The statement in the Irish Constitution on freedom of the press has always been considered too weak to have any real impact on the common-law approach to defamation, says Marie McGonagle, Ireland's foremost expert on media law and author of the authoritative work on the subject, A Text Book on Media Law. In direct contrast, she argues, the United States Constitution, with its strong First Amendment commitment to freedom of the press, has dominated and reshaped the American tort of defamation. "In Ireland, as a consequence of following developments in Britain, which has no such guarantees, the tort of defamation has continued to operate along common law lines as [if] the Constitution did not exist," McGonagle says.

The contrast with the United States is manifest in the landmark 1964 case, New York Times Co. v. Sullivan. That judgment by the U.S. Supreme Court held that if the plaintiff is a public figure, he or she must establish malice. The Court's 1974 decision in Gertz v. Welch made it more difficult for private figures involved in matters of public interest to maintain libel actions. Unfortunately for freedom of the press in Ireland, the Irish Supreme Court in a 1980 decision chose not to use the constitution to import the principles of New York Times Co. v. Sullivan into Irish law.

Thus, for defendants in Irish libel suits, a public-interest defense is generally as ineffectual as a fair-comment defense. And public figures, far from having to establish malice in order to succeed, often receive larger judgments than do private citizens from Irish juries – who not only decide defendants' culpability but also determine the size of awards. McGonagle has argued that given Ireland's history of dispossession and poverty, it is understandable that human dignity – and with it the importance of a good name – should occupy a special place in the value system. "This may go some way to explaining why a jury made up of twelve citizens will sometimes award higher damages for reputation than they would for physical injuries," McGonagle theorizes.

"It is also a fact of life that the higher a person's material wealth and standing in the community, the higher the amount of damages likely to be awarded. The more ordinary the person, the lower the damages – if the person can afford to bring an action in the first place," she maintains.

Since the early 1990s – especially since the long and expensive judicial inquiry into abuses in the beef industry and its links to powerful political interests – all political parties have promised more openness, insisting that they favor the abolition of the culture of secrecy that has pervaded Ireland since the founding of the state. The Law Reform Commission, a government-funded body that examines laws and recommends change, in 1991 published a report recommending libel law reform. The commission's recommendations became the basis of a bill drafted by the publishers' lobbying organization, the National Newspapers of Ireland. Nothing has been heard of the proposed legislation since. The political parties that came together to form the present coalition promised that they would look at defamation laws and reform them. But more recently the Minister for Equality and Law Reform, Mervyn Taylor, has stated that libel law reform is not a priority. It is unlikely that any government will make reform of the libel statute a priority – the status quo is just too lucrative and useful.

Civil libertarians and journalists' organizations are now beginning to look seriously outside the state, especially to the European Court of Human Rights in Strasbourg, as the only viable route to challenge the defamation laws. The Strasbourg court hears cases brought under the European Convention of Human Rights, which Ireland has signed. Article 10 of the convention, a strong statement in favor of freedom of expression, has been used throughout Europe to protect and extend press freedom. So significant has Article 10 become that there is now support from journalists and civil libertarians for its inclusion in the Irish Constitution in place of the existing Article 40, which has so many exceptions and caveats that it is nearly useless as a guarantor of press freedom.

The Strasbourg court has a growing body of jurisprudence which has sought to balance an individual's rights, such as the right to one's good name, against freedom of expression, where the two collide. Its judges have demonstrated understanding of the complex role of the media in modern democracies. In a 1989 ruling in the case of Tolstoy v. United Kingdom, the court found that a large libel award had the effect of limiting freedom of expression.

If a government loses a case in the Strasbourg court, it is obliged to change its laws to ensure that they conform to the ruling. Moreover, the rulings also exert a moral pressure throughout the region that can influence the application of law in other countries. A case in point in Ireland was that of Barry O'Kelly, a reporter for the Star, who faced jail for refusing to name his sources in a 1996 civil case in the Dublin Circuit Court. O'Kelly's lawyers cited Goodwin v. United Kingdom, in which the Strasbourg court overturned a British court's contempt of court ruling against Bill Goodwin, a British journalist, for refusing to name his sources. Just as Goodwin, with the support of Britain's National Union of Journalists, had taken his case all the way to Strasbourg, O'Kelly's attorneys argued, so would their client and his newspaper if the Dublin court found him in contempt. In response, the judge decided that O'Kelly did not have to name his sources.

The changes that Veronica Guerin advocated are likely to come to Ireland only when a newspaper, radio station, or television company has the will to challenge a libel case to the Supreme Court and if necessary, to continue on to the Strasbourg court. Unfortunately, that might not happen, so inured are Irish media organizations to out-of-court settlements as relatively inexpensive and quick fixes to the problem. If inertia prevails over a more visionary approach to the libel dilemma, the Irish media will remain a sort of lottery in which many of the players win. Freedom of the press will continue to be the big loser.