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Defamation and Privacy Reform: A Democratic Model of Media Freedom

This paper considers the extent to which the defamation and privacy reforms announced by the Irish government reflect emerging trends in the treatment of the concept of media freedom of expression.The paper argues that there are two primary models of media freedom.The first school of thought sees media freedom as a specific example of the more general constitutional entitlement to freedom of speech. Advocates of this view tend to value expression for its own sake. Ensuring the ability of individual citizens or the press to put forward their opinions and ideas is regarded as a way of guaranteeing the entitlement of all to contribute to, and to participate in, the process of public debate. From the democratic point of view, this is justified by reference to the notion of the ‘free market of ideas’. This theory argues that a democracy is strengthened when robust and uninhibited public debate is encouraged. This school is most associated with American First Amendment jurisprudence.The rival interpretation of media freedom is one in which the media is conceived in primarily didactic terms. Journalists are expected to inform the public about the actions, praiseworthy or otherwise, of their elected officials. On this view, democracy is strengthened when the public makes an informed electoral choice. The logical corollary of this position is that there is no constitutional protection for inaccurate or false reporting. In fact, supporters of this idea of the media-as-educators have argued that a Sullivan-style immunity for untrue claims is actually damaging for democracy.The paper considers these models in light of jurisprudence in Canada, Australia and the UK and concludes that the Irish legislative proposals conform to an emerging trend towards the democratic model of media freedom.