Our laws do not do enough to protect the right to free speech
When Tánaiste Frances Fitzgerald announced a review of existing defamation legislation last November she explained libel laws need to strike the right balance between two important rights.
These are the rights to free expression and the right to protect your good name and reputation against unfounded attack. Both are enshrined in the Constitution, but it has long been argued Irish law is over-protective of the right to a good name and under-protective of the right to free speech.
This imbalance has been the source of comment for three decades or more and is one that must finally be sorted as part of the review process underway at the Department of Justice.
In its submission to the review, Independent News and Media, in common with industry body NewsBrands Ireland, has focussed on four key areas where action is needed to avoid prolonging the chilling effect draconian libel laws are having on public interest journalism.
The first is the need to abolish the use of juries for defamation trials in favour of a hearing before a judge.
The jury process is seen by publishers as something akin to Russian roulette, with unpredictable awards all too commonplace.
A limitation on costs is another key measure being sought. It is difficult to fathom how our justice system has no effective scale for damage to a person's reputation, similar to that used for personal injuries.
As a result awards here can end up being many multiples of what would have be awarded in other European countries.
A third key issue is the need for clarity on liability for user generated comment. While Facebook and other social media sites are effectively given carte blanche, traditional news publishers are punished quite harshly for what people say in comments sections. The playing field is far from even and specific protections should be afforded to news websites.
Measures should also be considered to target the fake news phenomenon, which is increasingly impinging on the viability of reputable media.
The fourth area is of "serious harm". For a case to be deserving of damages in court, a plaintiff should have to demonstrate "serious harm" was done to their reputation. This test is in place in England and Wales.
It is a sensible suggestion and one which would help channel complaints towards the Press Ombudsman rather than the courts.