Concerns about the autonomy of a statutory press council can be met, writes Hugh Mohan
During the recent coverage given to the topic of a press council, one could be forgiven for thinking that some media commentators were insisting on absolute rights with negligible responsibility, arguing that freedom of expression should take precedence over every other consideration.
However, the idea that our society is entitled to a press that should have some standards and act in a reasonably ethical manner is not a ground-breaking one. Even the most ardent advocates for press freedom, when pressed, will acknowledge the desirability of a press that operates in such a framework.
The NUJ itself has an admirable code of conduct which requires journalists among other things to "do nothing which entails intrusion into anybody's private life, grief or distress subject to justification by overriding considerations of the public interest". The difficulty of the present position is that the NUJ code of conduct gathers dust, the media have no system of self-regulation in place and anybody with a legitimate complaint against the press must either accept a "right of reply" buried on the back pages of a newspaper or embark upon lengthy and costly litigation.
The real issue here is how to achieve a situation where a person who has a legitimate complaint against a publication and does not wish to embark upon litigation, can achieve a fair hearing with an adequate redress system in place. When the Legal Advisory Group on Defamation* looked at this issue, we examined the extent to which regulation attached to other communications and media, notably radio and television. While its functions were revamped somewhat in 2002, the Broadcasting Complaints Commission has been in place for over 20 years. It has a broad adjudicative function in respect of complaints against the broadcasting media. Its decisions are published on a regular basis and it operates within a comparatively light statutory framework.
The key argument in favour of self-regulation was the argument which suggested that statutory controls were inimical to press freedom and that self-governance was the only method whereby that freedom could be secured.
There is no doubt that press freedom is fundamental in a democratic society and that the free exchange of ideas and opinions must be recognised as an indispensable element in building the values which inform such a society. However, it does not follow that any statutory intervention automatically runs counter to such a view. It should therefore be possible to construct a statutory model which would respect fully the autonomy of the press, while at the same time providing an important element of independence and transparency which would secure public confidence in any process which might be established.
There would also seem to be no good arguments as to why the press and other communications media should not be treated the same. In fact, in our report we suggested that, ultimately, it might be an opportunity for further development of an all-embracing media council which would encompass booth the press and other broadcast media.
However, the point of departure for a statutory press council is that it should have maximum independence in the performance of its functions and ability to regulate its own practice and procedure. Those principles would include the right to freedom of expression and the freedom of the press, but also the need to protect the public's right to full, fair, accurate, and balanced reporting, and the need to maintain the highest ethical and professional journalistic standards.
The council would have as its function the preparation of a code of conduct and the investigation of complaints.
There has been debate and some disquiet about the proposal that the members of the press council should be appointed by the Government. The reason why this was included is two-fold. Firstly, that is what was already set out in the Broadcasting Complaints Commission, and in that regard I don't think it could be argued the appointees to the commission have sought to exercise any form of political control or cause undue interference with the operation of the broadcast media.
There is a more fundamental argument in favour of this proposition and that is the issue of accountability. Whether we like it or not, we elect our Government, which is in turn both responsible and accountable for the appointments it makes. There is also in the framework of what is proposed a responsibility on the Government to make appointments representing both the media and the public.
Nonetheless, it has been suggested that a situation would exist whereby a government could appoint its own supporters to a press council, who would sit in judgment on the press. Given what has happened at the Broadcasting Complaints Commission, the fear of abuse or interference is overstated.
It is more important that a statutory press council operates properly, transparently and without such an issue clipping at its heels. Therefore, an alternative system can be devised whereby the appointment of the members of the press council could be taken out of the hands of the Government and given to some other responsible authority. At the end of the day, the issue is not who makes the appointments to the press council, but an efficient council working in the interests of both complainants and press freedom.
The rationale behind the proposal of a press council is to provide a forum whereby complaints can be dealt with in a speedy and cost-efficient manner. The only recourse now open to an aggrieved person is to institute legal proceedings seeking redress. There are many examples where there has been no obvious recourse open to a legitimate and aggrieved complainant. There have also been occasions where the press has invaded the privacy of individuals with no obvious public interest angle and has published material about minors and/or deceased people where there has been no obvious legal remedy open to the people concerned.
Certain sectors of the media publish material based solely on the basis that it makes salacious reading and will particularly do so if no redress sanction is available. Whilst our Constitution does provide an avenue for a person seeking to maintain privacy rights, the same problem arises in that it involves high court proceedings which become lengthy and costly.
The indications are that a privacy jurisprudence will develop here in the next number of years, possibly following what has happened in England. In this context, the establishment of a press council might provide another forum more acceptable to the complainant and press alike.
The idea of a press council is to put in place standards of journalistic ethics and practice. It would deal, for example, with the accuracy of facts touching on the honour or reputation of any person or group of persons, living or dead, unreasonable encroachment upon the privacy of the person or group of persons, living or dead and general matters concerning taste, decency and overall sensitivity in dealing with children and other vulnerable persons.
It is intended that there would be an adjudication following a complaint taking into account a code of conduct which would be put in place. If the complaint was upheld, the press council could direct the publication concerned to publish a form of wording it felt suitable in the circumstances. It would have power to direct the location of where this was to be published and the exact wording.
The press council would not, however, have any power to award damages or costs. One would also hope that it could operate in a non-legal capacity. The idea is to try and provide a speedy remedy where a complaint is upheld without making it too onerous or costly either on the person making the complaint or the newspaper. In other words, to provide a simple grievance procedure that actually works.
It would also be the position that if the complainant submits a matter for adjudication, they should not thereafter be able to institute civil proceedings before the courts in respect of the subject-matter complained of.
The difficulty with self-regulation is that it would completely lack transparency. The media would be seen to be sitting in judgement on themselves and applying a standard to themselves that they have not been prepared to accept in countless editorials when dealing with other sections of our society. If it is self-regulating, how can it enforce its decisions? The self-regulation model across the water has failed to deal with reasonable public concerns that arise. One also wonders if self-regulation is the answer, why the industry has not put such a model in place to date?
In our report, the issue of a press council is dealt with in Part 7. The other six parts set out the suggested reforms for libel law. It is ironic in the current debate about a press council that the suggested reforms which should, we believe, provide a level playing pitch for all concerned have been overshadowed.
The suggested reforms are fairly much in line with the proposals put forward by the Law Reform Commission. We have put forward a suggested new defence, that of "reasonable publication" and it will ultimately be for the courts to decide how such a defence works in practice. Also included in the reforms were new forms of relief, which could be sought by prospective plaintiffs. At the present time, the only remedy open to an aggrieved person in a libel action is an award of damages.
The proposals put forward include speedier applications to the court and an attempt to give the plaintiff at least the option to seek direction from the court, again in a speedier and less costly manner.
The reforms do not, despite what is being put forward by some commentators, take away the right of every citizen to protect his or her good name. The basic framework for a person to go before the courts to vindicate his or her good name is still intact, the presumption of falsity - where the onus is on the publication to prove the truth of what is published about a person would still remain part of our law.
The real issue at the core of this debate is to provide a new framework where both parties can have matters litigated in a speedier and less costly manner. The alternative route to the press council is an attempt to echo this desire whereby an alternative forum is made available which will deal with the issues themselves rather than the escalating costs and the prospect of financial devastation for either side.
The proposals that were put forward by our working group took their lead from what is happening in other related jurisdictions. Modern society has to acknowledge the right of the individual to have a grievance addressed in a framework where freedom of expression is a core value. But our cumbersome legal structure too often gets in the way and clouds the real issue between the parties.
* Hugh Mohan SC chaired the Legal Advisory Group on Defamation which reported to the Minister for Justice on the need for reform earlier this year.