Press Regulation in Ireland

John Horgan^*

The Press Council of Ireland and the Office of the Press Ombudsman represent a culturally and politically unique structure devised to solve (or at least ameliorate) a series of problems and challenges that have been at the forefront of public discourse about the print media in Ireland for several decades. While their establishment represents a considered – and long-gestated – response by both the print media and government to these problems and challenges, the definition of the problems is to some degree contested territory, and the origins of the institutions concerned are more complex than is generally understood. At the same time, while it is too early to judge the efficacy of the new institutions, some sort of a balance sheet can be attempted in the light of the various factors that shaped their origin and of the context within which they currently operate.

The role and image of the media as the fourth estate, holding political and other forms of power to account, has had a much longer lineage than the idea that this powerful institution should itself be accountable. For several centuries, in effect, the argument about media accountability has been obscured by the arguments about censorship, as governments of every hue have tried to curtail the freedom of the press, generally in their own interest.

More recently, however, a number of factors have combined to bring the issue of media accountability to the fore. These include: the growing power of media corporations in the sphere of politics (although this is frequently exaggerated both by politicians and by media); concentration of media ownership, insofar as this is seen as reducing media diversity and the availability to the public of a wide range of information and opinion; a growing emphasis, as expressed in the European Convention on Human Rights and elsewhere, on privacy as a human value to be protected, especially where the media are concerned; and a developing feeling, most trenchantly expressed by Onora O’Neill in a recent lecture to the Royal Irish Academy, that perhaps we have now come to the stage where we should consider the need to protect people against the power of the press at least as much as the freedom of the press has to be defended against those who would seek to limit it (O’Neill, 2004).

Although many countries have had media regulatory systems for many years (Hulin and Smith, 2008; Koene, 2009), Ireland has been a comparative late-comer to the field. This may have been partly because of the poor experience of the neighbouring jurisdiction, where a Press Council was established but lost credibility incrementally before being replaced by the UK Press Complaints Commission some 14 years ago. Trade unions advocated the establishment of a similar institution in Ireland in the 1980s, in the probably unrealistic belief that this would generate more favourable coverage of their positions and views at a time of considerable industrial unrest. The brake on any such developments remained, at that time and for a considerable period thereafter, the unwillingness of newspapers to take any initiative on self-regulation, combined with the unwillingness of successive governments – despite their generally antipathetic attitude towards media - to legislate for statutory controls which they were well aware would only exacerbate pre-existing tensions.

The germ of an impetus for change can be found in the Report of the Law Reform Commission on the law of defamation (Law Reform Commission, 1991) which, although it did not address the question of media regulation per se, strongly advocated a number of changes to bring Irish defamation law, which dated from 1961, more into line with current thinking. Many of the proposed changes were in line with what media in general had been looking for in vain for a number of years, and, if implemented, would enhance media freedom in a number of significant ways. The question of regulation was addressed officially for the first time in the Report of the Commission on the Newspaper Industry (Department of Trade, Industry and Employment, 1996), which recommended the establishment of a Press Ombudsman in Ireland, suggesting that a fully-fledged Press Council would be unnecessary in a country of Ireland’s size.

In the early years of the current decade, and probably in response to governmental lack of enthusiasm for reform of the defamation laws, newspaper interests began to explore the possibility that an approach which combined their objective of defamation law reform with a commitment to self-regulation might evoke a positive reaction from government. It did, and the Minister for Justice in the 2002-207 government, Michael McDowell, engaged in informal discussions with a Newspaper Steering Committee established by the industry to explore regulatory options. This led to the creation of the Press Council of Ireland and the Office of the Press Ombudsman in 2007, and to the passage of a new Defamation Act in 2009.

Although this process took approximately five years, it was accelerated by a number of other factors. One was the evidence of a noticeable public disenchantment with the media, leading to a loss of credibility. As one writer put it:

Journalists like to think of themselves as the people’s surrogate, covering society’s waterfront in the public interest. Increasingly, however, the public doesn’t believe them. People see sensationalism and exploitation, and a sense that journalists are in it for a buck, or personal fame, or perhaps worse, a kind of perverse joy in unhappiness (Kovach and Rosenstiel, 2007: 75).

Another was the financial crisis which, starting in 2008, put huge strains on media resources, leading to a new emphasis on media credibility as a reason why the traditional media should continue to receive public support both from purchasers and advertisers.

In Ireland, all these factors were operational to one degree or another. And the Irish model of self-regulation – which borrows something from the UK and Swedish models, but has several unique characteristics – has now completed two years in operation.

That there was a need for it has been plainly demonstrated by what has happened since then. Complaints to the Press Ombudsman in Ireland have been running at a rate of approximately one a day on average in the two years since his Office, and that of the Press Council, commenced operations in January 2008. It is notoriously difficult to make meaningful international comparisons in this area, but whereas this represents a rate of approximately 9.3 complaints per 100,000 population, the equivalent figure for the UK Press Complaints Commission is 6.7: 100,000. There are other interesting differences in that while a high proportion of complaints to the UK body allege breaches of the PCC Code of Practice in relation to privacy, Irish complainants tend to focus more on the section of the Press Council Code of practice that deals with accuracy. This indicates, at the very least, that there is a differentiation between the media landscapes in the two jurisdictions, and raises a question about the belief sometimes expressed that Irish newspapers are unduly influenced by UK journalistic practices and standards (or lack of them).

A characteristic the Irish institutions share with most similar institutions in Europe and elsewhere is that they do not have a monitoring role, but can respond to and investigate only those complaints about the press that come from individuals or organisations directly affected by what has been published. Another common characteristic is that they do not have the power to impose monetary sanctions: this would require legislation, and would give the new institutions a statutory role which would be anathema to media interests. These are sometimes seen as weaknesses, although critics who take such a view do not always appreciate the complexities of a more highly structured system.

On the positive side is the fact that even though the Code of Practice has been devised by editors, it is interpreted and administered by the Press Ombudsman or, on appeal, by the Press Council, whose standing orders ensure that there is always a majority of public interest members present and voting when such decisions are taken. A particularly significant aspect of this is that, although the Code of Practice does allow for exceptions to a number of its principles if the exception is thought to be in the public interest, the final decision on whether the publication of any particular matter was in the public interest has been removed from the editorial ambit and placed firmly at the centre of the decision-making and judgmental functions of the Press Ombudsman and the Press Council.

Early experience suggests that the requirement for publications to publish decisions upholding complaints against them unedited, and with due prominence, generally gives satisfaction to successful complainants – and 2009 figures to date indicate that about half of all unconciliated complaints are upheld. Editors and journalists, also, are becoming increasingly conscious that if they are to avoid the considerable public embarrassment of having to print, in their own pages, sometimes strong criticisms of their editorial standards and decisions, the answers lie largely in their own hands.

The next few years will be a real test of the new institutions, founded as they are on the principle of voluntary cooperation rather than on statutory or other compulsory instruments. And a valid benchmark may well be that outlined by Onora O’Neill when she suggested:

At present many of the standards of conduct mentioned in press codes are not merely weakly secured but considerably less exacting than those commonly required of other individuals, institutions or professions with influence or power in political, professional and commercial life. The media and those who work for them can, I think, properly be required to meet standards commonly required of others who contribute to or influence public life. The fourth estate has no good claim to be exempt from generally required standards of conduct – whose imposition on others they commonly support with some warmth. Indeed, they may have special responsibilities that other individuals and institutions with less power to influence the beliefs of their fellow citizens do not have (O’Neill, 2004: 14).

The Press Council and the Press Ombudsman are now part of an accountability system that should operate to ensure that journalists should live up to these ‘special responsibilities’, but they should not be the only parts of such a system. Indeed, there is a very good case to be made for the argument that one of the areas in which media have been most deficient in the past – in their role as upholders of public standards – is in relation to the conduct of their peers. If it is part of the duty of the media (including radio and television) to exercise vigilance where low standards in high places are concerned, they should be no less ready to examine any shortcomings in other members of their own profession and even, on occasion, to admit their own.

References
1. Department of Enterprise, Trade and Employment (2006) Report of the Commission on the Newspaper Industry. Dublin: DETE.
2. Hulin, A. and Smith, J. (eds) (2008) The Media Self-Regulation Handbook. Vienna: OSCE.
3. Koene, D. C. (2009) Press Councils in Western Europe. The Hague: Netherlands Press Council Foundation.
4. Kovach, B. and Rosenstiel, T. (2007) The Elements of Journalism: what newspeople should know and the public should expect. New York: Three Rivers.
5. O’Neill, O. (2004) Rethinking Freedom of the Press. Dublin: Royal Irish Academy.
6. The Law Reform Commission (1991) Report on the law of defamation. Dublin: TLRC.