Saturday 23 March 2019

Freedom of expression protects us all

Robust and vigorous journalism is essential for the proper functioning of a democratic society, writes Senator Alex White

The quality of public discourse should be a concern for all of us, especially for politicians. When we debate our defamation laws, as we did last week in Seanad Eireann, we have a responsibility that extends beyond self-interest and special pleading -- whether by politicians or others offended by harsh criticism in the media, or by newspaper proprietors concerned with maximising sales and profits.

Of course, the law must vindicate the citizen's constitutional right to his or her good name. Where damage truly is done to a person's reputation there must be a means available to rectify that harm.

But we must preserve the widest possible latitude for the expression of opinion -- however odd, offensive or extreme the opinion may be. And in the case of factual material, the law should require the highest standard of accuracy. But there must be a realistic appreciation for how journalism works in practice. Robust and vigorous journalism is essential in a democratic society. This is why I supported the re-casting of the "honest opinion" defence in the Defamation Bill, as well as the new defence of "fair and reasonable publication on a matter of public interest".

It has been suggested that a journalist or writer might dress up a false statement as the expression of an opinion, and then gain the protection of the honest opinion defence. This is not so. Where the opinion is grounded on supporting facts, these facts must be referred to in the article, or otherwise must be known to the reader. We cannot apply the same treatment to an allegation of fact as to the expression of an opinion. They are two different things.

As the law currently stands, if a newspaper or broadcaster carries an apology this can be used as an admission of liability if the apology is not accepted and the case goes to court. It is right that this will no longer be the case.

However, I regret that my amendment to give special treatment to apologies published within two weeks of a complaint was not accepted. This would have ensured that timely apologies by newspapers or broadcasters would gain more favourable treatment when it came to the assessment of damages by a court. And it would be consistent with the thinking behind the welcome new provisions for declaratory orders.

We should be encouraging swift action to restore a person's reputation rather than lengthy battles in the courts, where the measure of loss of reputation is financial compensation -- often many years after the offending statement.

A person in the public domain is in a different position to a private citizen. Politicians and other public figures typically have opportunities available to them to counter criticism, or to deal with attacks made on them in relation to the conduct of their public duties. It is overly defensive for politicians to complain when newspapers or the broadcast media are rigorous in criticising them. So long as there is a means to reply there should be a wide degree of latitude here also.

That's why I support the new defence of "fair and reasonable publication on a matter of public interest". It does not give a carte blanche to the media to say what it likes about public figures. It contains a number of safeguards, including that a protected statement must have been made in good faith on a matter of public interest, and that it must refer to the performance by the person of his or her public functions. Also, if a newspaper seeks to rely on this defence a court can consider the extent to which the new Press Council's code of standards (or a standard equivalent to that code) was observed by them.

Supporting and defending freedom of expression does not imply support for any particular opinions or views which may benefit from that freedom. We are rightly quick to criticise governments or regimes that curtail freedom of the press. But we should be equally vigilant in our own country to ensure that short-term or sectional interests do not cloud our vision of what freedom means. And politicians can be a sectional interest without perhaps intending to be so.

Freedom of expression is not something that should be in the gift of politicians. It must not be offered or withheld by governments as a quid pro quo as has been suggested in the case of the proposed (and misconceived) privacy legislation. Nor is freedom of expression the property of media barons, bean barons or otherwise. It is the property of the people, and an essential pillar of any truly democratic society. By freedom of expression I do not only mean sensible and progressive defamation laws; I have opposed, and will always oppose, political censorship for precisely the same reasons.

As the US Supreme Court Justice Louis Brandeis observed more than 80 years ago: "Falsehood and fallacies . . . the remedy to be applied is more speech, not enforced silence".

Alex White is a Labour Party senator

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