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爱尔兰自由媒体

时间:2016-02-19 09:33来源:www.ukthesis.org 作者:英国论文网 点击联系客服: 客服:Damien

爱尔兰自由媒体
 

新闻自由和诽谤以及隐私改革:对爱尔兰媒体自由的典范和第40.6条有一些影响力吗?
 

介绍
 

爱尔兰历史上的言论自由法学体系,从来没有任何明确的司法认可媒体自由的一个模型通知司法决策或立法起草。承认失败是有争议的一个公式,媒体自由媒体的言论自由,已经造成了伤害器官尤其是面对侵权的诽谤言论自由通常不得不弓支持一个好名字的权
利。
 

在爱尔兰,“法律从蔑视的制造商声明的前提是有责任的和[它]因此开始轻松地建立和潜在的巨大的责任范围”因此,言论自由的“占有劣势的爱尔兰价值观的词汇”,其中一个价值是获得一个好名字的权利。
 

通过引入新的诽谤和隐私立法在爱尔兰的发展设想,爱尔兰和欧洲法院将反映在现代化法案。伴随这一发展,希望新的立法反映了一个强健的承诺对媒体自由的典范。与特定的诽谤,在过去的二十年里,一种有关法律领域的自由化趋势,在国际范围内已成为可辨别的。无疑,像《欧洲人权公约》(ECHR)这样的国际条约,《世界人权宣言》(UDHR)和《公民权利和政治权利国际公约》(ICCPR)负责这一趋势。诽谤和隐私法案在2006年可能被视为爱尔兰症状去兑现其在欧洲及国际契约上的承诺。
 

Irish Freedom Media
 

新闻自由和诽谤以及隐私改革:对爱尔兰媒体自由的典范和第40.6条有一些影响力吗?——Freedom of the Press and Defamation and Privacy Reform : A model of media freedom for Ireland and Article 40.6 gets some clout?
 
介绍——Introduction

 
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 – freedom of expression often having to bow in favour of the right to a good name.
 

In Ireland, “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” hence, freedom of expression “occupies an inferior position in the lexicon of Irish values”, 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). Secondly, it will consider the provisions of the new legislation and identify whether or not the new legislation equally reflects such developments. Finally, it will consider whether recent decisions such as Leech v. 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 “set-the-scene” of Media Freedom in general Ireland:
 
Article 40.6.1°of Bunreacht na hEireann guarantees freedom to express opinions and convictions , subject to considerations of public order and morality :

The State guarantees liberty for the exercise of the following rights, subject to public order and morality:
 
The right of the citizens to express freely their convictions and opinions.
 
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’ 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 “freely” their convictions and opinions, yet how can they “freely” exercise this right if it is subject to public order and morality, as stated at the very beginning of the Article?.

Furthermore, “public order and morality” are not the only considerations which work to qualify this right in practice, for example, injury to a person’s good name or their privacy will also place limitation on the exercise of Article 40.6.1° It “includes enough qualifications to leave in some doubt the commitment of the Constitution to full, democratic, freedom of thought and freedom of speech”. The Press is specifically mentioned in Article 40.6. 1° (i), but in a type of parenthesis. The “rightful liberty” of the press, which includes criticism of government policy, has to be preserved but “the education of public opinion” 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; “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.

Other rights were allowed to take precedence over it. Long-standing common law rules, such as defamation and contempt of court were allowed to operate unperturbed”. 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 “..the matter of the freedom of the press and of communication ….cannot be lightly curtailed” include X v. RTE , AG for England and Wales v. Brandon Book Publishers and Cullen v. Toibin .
 
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 “..with its strong First Amendment commitment to freedom of the press..” which has “..dominated and reshaped the tort of defamation in that country.” 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 “there was an underlying assumption that the common law of defamation partly codified in the Defamation Act, had got the balance right”.

This opinion was ill-informed. 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. 2°). 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 “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?”.

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: “We believe that current Irish Defamation Law fails to serve each of these interests satisfactorily in many areas”. 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. In Goodwin v. Hamilton No.2 the Courts intimated that, with respect to Constitutional Rights, good name is not a “trump” card that takes precedence over all other rights. This could be seen as the first step towards a new “constitutionalising” 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’Dell have highlighted the “acute need for the modernisation of Irish Defamation Law” and have criticised the delay of government in instituting this modernisation. McGonagle points that “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”. 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 “conceptual implications” 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”.
 
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 – 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. Jacob Rowbottom contends that “the relationship between the right of expression and media freedom is complex”. He advances “three well-known justifications” for freedom of expression: The first, as discussed by Barendt, justifies freedom of expression as essential to a person’s autonomy and self-fulfillment.

The second justification is the “market place of ideas” rationale : “..that minimal government regulation will allow robust debate between citizens that is most likely to lead to the truth”. This echoes Milton’s idea in Areopagitica in the 17th century when he declared “Let Truth and Flasehood grapple; whoever knew Truth put to the worse, in a free and open encounter?”. The third justification highlights that freedom of expression is a necessary component of a democratic government. These theories of freedom of expression all overlap and have each been criticised in turn. Rowbottom also points to instrumental justifications such as the media’s public function in the dissemination of information as supporting media freedom – “It is very largely through the media … that they (the public) will be so alerted and informed. The proper functioning of modern participatory democracy requires that the media be free, active, professional and inquiring”.

However, any argument in favour of an uninhibited press must be accompanied with the reminder that the media exercises their freedom in a manner that is different from that of individual speakers and sometimes mass media will use its controlling force to undermine individual’s rights to free expression. On this point, Rowbottom quotes from Democracy in the Mass Media where Judith Litchenberg opines that “Unlike freedom of speech, to which certain aspects of which our commitment must be virtually unconditional, freedom of the press should be contingent on the degree to which it promotes certain values at the core of our interest in freedom of expression generally”. This is redolent of the approach to Article 10 ECHR taken by the Strasbourg Court in Jersild v. Denmark where the special role of the media as a “public watchdog” was afforded protection.
 
It is now proposed to decipher the model of media freedom which appears to have been embraced by recent jurisprudence of the Irish Courts and the new legislation.
 
媒体自由的民主模式?—— Democratic Model of Media Freedom?
 
Despite the lack of any explicit judicial recognition, it is arguable that in recent years the Irish Courts have moved towards recognising the Democratic Model of media freedom as being the leitmotif of Defamation and Privacy Law. This idea is embodied in the new reforms in the law. The precepts of the democratic model are best illuminated when placed in contrast with the free market model of media freedom:
 
The free market model embraces the Milton Ideal of the Free Market of Ideas where theories succeed or fail on their own merits. It was advocated by Justices Holmes and Brandeis in Abrams v. US where is was declared that“..[t]he best test of truth is the power of the thought to get itself accepted in the competition of the market.” The seminal decision of New York Times v. Sullivan provided that the defamation suit taken by a public figure was only sustainable when actual malice on the part of the Defendant was found. The highlight’s the free-market model’s focus on the honesty of the person making the statement rather than the truth of the statement.
 
In contrast, the Democratic Model envisages a pedagogical role for the Media. It views the Sullivan-Style immunity for untrue statements as damaging to democracy, the once “free” market becomes polluted with false information and this “licence” for false information is viewed as inimical to robust, informed debate by citizens on matters of public interest. This model for press freedom has been embraced in Canada, Australia, New Zealand and in the House of Lords.
 
Irish jurisprudence never truly favoured any one model. The only important role of the media that has been recognised is that of “public watchdog”(Irish Times v. Ireland [1998]). However, Article 40.6. 1° describes the media as “organs of public opinion” and recent decisions on defamation and privacy appear to subscribe to the notion of the media as a vital facilitator of citizen’s debate also. Hence, it is reasonable to conclude that the Democratic Model has most influence on Irish Law:(责任编辑:anne)



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