Media Law and Regulation, TCD School of Law Seminar (part two)

This is the second and final part of a report on the Media Law & Regulation seminar hosted by the School of Law, Trinity College Dublin. For part one, see here. Three very different issues were addressed in this session – the protection of sources and two defamation topics, trial/pre-trial procedures and damages. Again, this is a report without links, they’ll be added later.

Luan Ó Braonáin SC, a barrister, spoke about the ‘Protection of Journalistic Sources’, comparing Gray v Minister for Justice (Quirke J, HC), where it was noted that a “questionable privilege” was asserted by the journalist, and Mahon v Keena (Divisional HC), where it was agreed that it was well established that there was a privilege against non-disclosure. Choosing deliberately to begin his analysis with Article 34 of the Constitution (explaining that judges and courts administer justice and not parties, witnesses or the media) and the role of the law of contempt of court, he summarised the accepted law on privilege as relating to legal professionals, religious (sacerdotal) situations and members of the Oireachtas (in respect of parliamentary utterances). Under Irish jurisprudence, he argued, journalists “don’t have a privilege not to answer questions in a court if directed to do so by the court”.

He reviewed the history; in 1991, a Law Reform Commission consultation paper expressed the view that the law (as it was) shouldn’t be amended; the law at the time was Re Kevin O’Kelly (a case where a journalist was jailed for three months for refusing to disclose a source). The language of the LRC was not the most positive towards the media and their role; they found pretty quickly that the media went crazy about this! When the report was published in 1994, criticism was noted and principles examined in more detail but a majority of the Commission agreed not to disturb O’Kelly; a minority favoured the British (statutory) approach, being section 10 of the Contempt of Court Act 1981. Subsequently, the European Court of Human Rights found that the British protection of sources itself was inadequate, in Goodwin v UK.

What has happened in Irish jurisprudence since the LRC and Goodwin in relation to the protection of journalistic sources? Ó Braonáin turned to the recent decisions.

Turning first to Gray, where there was a claim for damages in relation to privacy (information was leaked by the Gardai to a journalist, who wrote a story about the Grays ‘harbouring a sex offender’; see a summary from Eoin O’Dell’s blog *here*), the question was what evidence could they (the Grays) produce that there had been a leak? The journalist testified saying that he had received an anonymous phone call from a woman, but refused to answer whether he had spoken to members of the Gardai as this would disclose the source of his information. Asked if the statement that Gardai are ‘not commenting’ in the article is true (yes), then asked if they ever did comment (no answer) – thus the plaintiffs established it to the satisfaction of the judge (no other conclusion possible). The judge took an approach which avoided disclosure (through nuanced, clever questioning without having to force), but also expressed scepticism about the existence of the privilege. This subtle approach is the “correct approach”, Ó Braonáin said, as this is not actual privilege, which journalists are not entitled to. But while this is not a privilege, there is nonetheless an interest on the part of a democratic society in allowing information to reach the media. Our Constitution makes provision for freedom of expression and that the people have an entitlement that is not to be interfered with unnecessarily.

In Mahon v Keena, the Court focused entirely on the Convention aspects, made “fairly swinging findings” that there was a principle of non-disclosure (although in the context that the parties did not dispute this which is very relevant). The problem with the O’Kelly approach was that it was in a context of judges trying to assert their authority by compelling witnesses to answer a question – but now, because of the constitutional and Convention contexts, judges are more willing to seek ways to avoid such a conflict (as in Gray). There’s little doubt that the High Court would have jailed Kennedy and Keena if they could have. He concluded by saying that we await litigation between a newspaper and a litigant where the latter doesn’t accept the Convention stance.

Karen Harty (McCann Fitzgerald) spoke next. Harty is a solicitor, she explained, who has specialised in media law since being an apprentice, but does a balance of plaintiff and defence work. Her comments related to procedural deficiencies in the libel law system, but she noted that she is ‘not a fan; of the Defamation Bill. If procedures not operating efficiently or effectively, the law can be irrelevant. She added that some aspects of the Bill seemed to be (as in the classic Father Ted episode) running the risk of destroying the car by trying to fix a dent with a hammer; the motor theme was continued by the metaphor of the High Court as the ‘engine’ that must work correctly if the system of defamation law is to stay on the road. The system from publication to decision was explained and criticised, noting problems with delay, information and more.

On the issues raised in earlier talks, it was wondered whether the drafters of section 24 have thought about the practical implications of what they drafted? It is clear in the Bill that the jury decides whether the defendant has complied with responsible-journalism requirements; in the UK, the practice has developed that in a jury case, the judge is the arbiter of fact in relations to Reynolds. Therefore the jury will have to be presented with a detailed list of questions to be answered. Also relevant is the fact that such defences will lead to detailed particulars being sought by the plaintiff (i.e. in pre-trial phases) of the responsible steps taken by the journalist.

Harty’s wishlist for reform included assigning judges to the jury list who could build up expertise, reforming the time and scheduling elements of the listing process, the introduction of case management and more. She hoped that academic members of the audience would come away with a better perspective on the realities of libel litigation for the people involved.

Paula Mullooly (McAleese & Co), also a solicitor with significant defamation law experience, spoke about damages in the law of defamation, discussing the role of aggravated and exemplary/punitive damages. Apologies for the lack of a report here (a technical error of my own making); Mullooly discussed in particular Crofter v Genport, the recent (non-libel) Shortt case (where significant punitive damages were awarded), the taking of the defendants’ means into account in Steel & Morris v UK (the famous “McLibel” case), the ‘unofficial’ cap on damages in the UK, and more. She also reviewed the amounts awarded by the Irish courts in various cases such as the libel actions brought by Denis O’Brien and Proinsias de Rossa, and also discussed the slander action (itself a rare beast in Irish law…) by Joseph Murphy Jnr (where €300,000 was awarded!)

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