The law dissertation below has been submitted to us by a student in order to help you with your studies. A model of media freedom for ireland and article 40.6 gets some clout? in the history of irish freedom of expression jurisprudence there has never been any explicit judicial recognition of one model of media freedom as informing judicial decision making or legislative drafting. It is arguable that a failure to recognise a single formula for media freedom has done disservice to the free expression of media organs especially when confronted with the tort of defamation ndash freedom of expression often having to bow in favour of the right to a good name.

In ireland, ldquo the law starts from the premise that the maker of a disparaging statement is liable and it starts therefore with an easily established and potentially immense range of liability rdquo hence, freedom of expression ldquo occupies an inferior position in the lexicon of irish values rdquo , one of those values being the right to a good name. With the introduction of new defamation and privacy legislation in ireland it is envisaged that the developments of both the irish and european courts will be reflected in the modernising legislation. Accompanying this development, it would be hoped that the new legislation reflects a robust commitment to a model of media freedom. With particular reference to defamation, a liberalising trend regarding that realm of the law, on an international scale has become discernable over the past twenty of years. Undoubtedly international treaties such as the european convention on human rights echr , the universal declaration of human rights udhr and the international covenant on civil and political rights iccpr are answerable for this trend. The defamation and privacy bills 2006 could be seen as symptomatic of ireland honouring its commitment to the european and international covenants to which it has subscribed. This essay will endeavour to decipher the model of media freedom that is evident in the recent case law of the irish courts under the influence of the strasbourg jurisprudence.

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Secondly, it will consider the provisions of the new legislation and identify whether or not the new legislation equally reflects such developments. Independent newspapers may be leaning towards extending a more generous hand to media organs in their defence of free expression than is currently enshrined in the new legislation. Before applying the theories of freedom of expression of media organs to the irish context it is appropriate to ldquo set the scene rdquo of media freedom in general ireland: article 40.6.1 of bunreacht na heireann guarantees freedom to express opinions and convictions. The state guarantees liberty for the exercise of the following rights, subject to public order and morality: i. The education of public opinion being, however, a matter of such grave import to the common good, the state shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of government policy, shall not be used to undermine public order or morality or the authority of the state.

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law. Traditionally, the irish courts rsquo response to pleas for vindication of freedom of expression has been one of characteristic common law scepticism. Indeed, it is clear from the language of the article that the emphasis in irish law is on the limitations to the right of freedom of expression rather than on the right itself. Citizens are supposed to have the right to express ldquo freely rdquo their convictions and opinions, yet how can they ldquo freely rdquo exercise this right if it is subject to public order and morality, as stated at the very beginning of the article. Furthermore, ldquo public order and morality rdquo are not the only considerations which work to qualify this right in practice, for example, injury to a person rsquo s good name or their privacy will also place limitation on the exercise of article 40.6.1 it ldquo includes enough qualifications to leave in some doubt the commitment of the constitution to full, democratic, freedom of thought and freedom of speech rdquo. The ldquo rightful liberty rdquo of the press, which includes criticism of government policy, has to be preserved but ldquo the education of public opinion rdquo is so important that the onus is on the state to ensure that the organs of public opinion are not used to undermine the important values of public order, morality etc. As mcgonagle underlines ldquo the formulation is unfortunate and does little to secure media freedoms.

The result has been that, until recently, the courts did not pay much attention to the guarantee of freedom of expression particularly in the media context. Long standing common law rules, such as defamation and contempt of court were allowed to operate unperturbed rdquo. There are relatively few irish judicial decisions where article 40.6.1 i is invoked in support of media freedom, examples of the court considering that ldquo.the matter of the freedom of the press and of communication hellip.cannot be lightly curtailed rdquo include x v. Mcgonagle points that in ireland, the constitutional statement on freedom of the press has been considered too weak to have any real impact on the common law approach to defamation. She contrasts this with the approach of the united states ldquo.with its strong first amendment commitment to freedom of the press.

Rdquo which has ldquo.dominated and reshaped the tort of defamation in that country. Rdquo in ireland, as a consequence of following the lead of britain, which does not have a constitutional guarantee of freedom of expression, the tort of defamation in ireland operated in a manner as in britain that virtually ignored the existence of our constitutional values protecting freedom of expression. Mcgonagle points that ldquo there was an underlying assumption that the common law of defamation partly codified in the defamation act, had got the balance right rdquo. Irish law is aimed at achieving equilibrium between three constitutionally protected interests: right of freedom of expression article 40.6. 1 , right to communicate article 40.3.1 and the right to a good name article 40.3. The defamation act 1961 mimics the equivalent british legislation and this has meant that irish libel law has failed to take account of our own constitutional values, outlined above.

The act makes no attempt to balance the three constitutional provisions and has operated as a law that assumes that freedom of expression is a bad thing. In 1996 the constitution review group asked ldquo the essential question whether the defamation laws effect a fair balance between the right of free speech on the one hand and the need to protect individual reputations on the other? rdquo. The answer to their question had been provided a few years earlier by the law reform commission in their consultation on the civil law of defamation 1991: ldquo we believe that current irish defamation law fails to serve each of these interests satisfactorily in many areas rdquo.

Since the 1991 report, the jurisprudence of the irish courts has moved on to take account of the influence of ecthr jurisprudence since it formed part of irish law at sub constitutional level in 2003 and developments in the common law. Hamilton no.2 the courts intimated that, with respect to constitutional rights, good name is not a ldquo trump rdquo card that takes precedence over all other rights. This could be seen as the first step towards a new ldquo constitutionalising rdquo of the tort of defamation. This sets the backdrop to the introduction of the defamation and privacy bill 2006. The irish laws on defamation and privacy are long overdue an overhaul, media law commentators such as o rsquo dell have highlighted the ldquo acute need for the modernisation of irish defamation law rdquo and have criticised the delay of government in instituting this modernisation.

Mcgonagle points that ldquo delay has meant that those affected by defamation, whether as plaintiffs or defendants as well as the public at large have had to soldier on under very outdated laws, drafted at a time when television was only beginning in ireland and the internet was not even heard of rdquo. It is envisaged that the new bills spell the end of, as in the case of the defamation act 1961, an over reliance in decision making by the house of lords and the introduction of law that better reflects irish constitutional mores and developments of the ecthr. Both the defamation and privacy bills 2006 have ldquo conceptual implications rdquo for the status of media freedom in ireland and together, the bills acknowledge a model of freedom of the press which has heretofore not been specifically recognised in irish jurisprudence rdquo. Before discussing the model of media freedom that appears to exist in ireland, it is first appropriate to discuss the different theories of freedom of expression and of the press advanced by various legal scholars. The proper functioning of modern, participatory democracy requires that the media be free, active, professional and enquiring. Barendt discusses four main rationales for the importance of freedom of speech ndash the argument from truth, the argument from self fulfilment and self development, the argument from democracy and the argument from freedom from state coercion. Scott has highlighted the importance of not over emphasising the discreteness of these explanations and moreover, he opines that it is important not to expect that any particular corpus of rights will reflect specific philosophies.