Lex Ferenda

The School of Law, Trinity College Dublin presented a seminar on ‘Media Law and Regulation’ this evening; directed at legal practitioners, I was lucky to be in attendance at what was a very interesting event. The focus of the seminar was certain new developments in Irish media law, in particular the reform of defamation law and the launch of the Press Council. Here is a report on part one - part two coming up later. This version doesn’t have links but the updated version will.

Dr. Neville Cox of TCD introduced the first Press Ombudsman of Ireland, Prof. John Horgan (DCU). Prof. Horgan is a remarkable figure in Irish media and academia, not to mention politics (he’s a former member of the Irish and European parliaments). Clarifying that he was not a lawyer, but bringing practical experience as a journalist and legislator, he gave a brief speech on his role and the role of the Press Council (which provides “quick, fair and free redress”), though noting that certain topics were being omitted for reasons of time and the avoidance of duplication. A “major factor undermining the credibility of the print media” was the absence of an intermediate option between libel and nothing. The new Code relates to defamation *and* grievances as well as public accountability more generally.

He highlighted the sections in the code of practice *not* related to defamation - i.e. those sections on privacy and harassment. The public interest has always been a necessary qualification of privacy rights. The definitions, though, have been that of journalists (and sometimes, courts, but rarely tested). This no longer rests solely with editor and journalists; this judgement now falls to be made by the Ombudsman or the full Press Council. The Code of Practice has a formal definition of what is “in the public interest”; the new institutions will flesh this out.

He outlined how the new system will work. A case officer handles conciliation process; Ombudsman decides on the merits of the case or refers to full Council for determination (understanding that these will be complex/important but no requirement/expectation as Ombudsman is completely independent). The newspaper can be required to publish a decision. The complainant retains the right to institute legal proceedings. Both sides can appeal a decision to the Council (generally stating reasonable grounds such as procedure or new information).

Horgan was at pains to clarify the relationship between the system and the courts; if legal proceedings have been instituted, issue will not be examined until these proceedings are completed or withdrawn (’common-sense approach’); but noting that the impact of Ombudsman/Council decisions on proceedings remains a grey area, especially in advance of the passage of the Defamation Bill. He concluded by encouraging the legal profession to ‘await and evaluate’ the work of the new system before reaching conclusions.

Dr. Eoin Carolan (TCD) discussed his paper, “Defamation and Privacy Laws After Press Regulation”; chair Neville Cox noted his forthcoming book on privacy law that he will co-author with TCD colleague Prof. Hilary Delany. He looked at recent European Court of Human Rights decisions on Article 8 (privacy) and the challenge this presents to press regulation in Ireland ; and speculated about the nature of the relationship between the Ombudsman and the courts. With regard to the former, Carolan suggested that the ‘parking’ of the Privacy Bill would provide a chance for the new system to develop, but cautioned that Ireland’s legal (positive) obligations under Article 8 of the Convention, particularly important given the past ‘liberalising’ influence of the Court on media law (and the weak constitutional protection of press freedom) in Ireland, were important and need to be understood. Introducing his summary of the relevant cases with a recap of Von Hannover (and clarifying that the decision only related to the more anoydne, non-official photographs in the controversial case), Carolan discussed Pfeifer v Austria. Pfeifer is important because it is the first time that reputation (”an aspect relating to personal identity”) is explicitly protected within Article 8 (as opposed to a factor against freedom of expression in Article 10); in the case, trenchant criticism of a Jewish magazine editor by a far-right Austrian magazine led to proceedings, the magazine won but the editor argued (successfully) that his right to his reputation had not been vindicated.

Carolan argued that the Court had moved away from a political-speech approach. He also described a particularly controversial passage (where the interpretation of a phrase was contested) and how this shows that the margin of appreciation and the latitude given to the press is becoming quite narrow. This contention was supported by the Stoll case - a conviction for publishing “official secret deliberations” (similar to disclosure of state secrets in our law) was challenged at the Court, and was unsuccessful; it was held that Article 10 did not protect this particular conduct, the sensationalist approach having taken them outside of its protection.

The concluding question was - what are the implications for Irish law of these cases and what account will the courts take of it and of the Press Council system? The answer?

1. In Stoll, the Swiss Press Council had found that the reporting had breached standards in the relevant code; this was an important factor.

2. Recognition of expertise/deference to editorial and media decisions may be diminished. The traditional approach of simply looking at the public interest and no more is on the wane; “fair and responsible journalism” becoming a factor in defamation proceedings (in line with Lord Nicholl’s ten tests from the Albert Reynolds case of the 1990s). Courts may be encouraged to engage in a more intensive review again, as there is now a set of guidelines both from Reynolds and the Code. He thinks that the Code will supplement the Nichols test, advising practitioners that they should detail in pleadings how the code of practice (and subsequent jurisprudence) has been dealt with by journalists and editors.

Dr. Neville Cox (who taught me defamation law seven years ago!) gave the final paper in the first session. His topic was the Defamation Bill, which he welcomed (in particular the certainty it could bring to the common law), but noted that it was not radical, and indeed that he could not be sure whether it would make Irish law compliant with the Convention. Noting certain changes (abolition of the libel/slander distinction, the end of the crime of libel (replaced), actions surviving the death of one part, increased protection of intermediaries (adding, in a sidenote very relevant to readers of this blog, that this will work alongside evolving European and Irish law on ISP liability)), he turned to a more detailed consideration of defences in the Bill. (Late in his talk, Dr. Cox also gave a quick summary of changes in the reliefs available, including damages (where he believes the Bill won’t make much difference in practice), injunctions (which are clarified), and new options (such as correction orders and declaratory relief).

Offer and Amends

On the books since 1961 but turned out to be particularly useless, only related to innocent publication); based on UK Defamation Act 1996 and gives new options to the parties. The carrot for making an apology is that the nature of the apology (i.e. what the defendant has done, how quick, how appropriate) will be taken into account (ie. proportionate reduction in potential damages). It also means that the judge (rather than a jury) sets the amount (quantum) of damages.

Fair and reasonable publication on a matter of public importance*

This part of the bill (section 24) has received the most attention (especially from the media!); it’s an attempt to capture the Reynolds defence (welcomed at the time as pro-free-speech and in the context of the (UK) Human Rights Act), which deals with a matter that is one of public importance and the publisher has acted in the public interest by fulfilling certain standards, i.e the ‘ten tests’ mentioned by Carolan, above. In the more recent Jameel case, two important points that were aimed at reactivating Reynolds were made - a publisher, while acting in accordance with ethics, journalists should be free to determine appropriate behaviour in certain circumstances, and the ‘ten test’ are not absolutely binding requiring individual fulfillment, but created a general spirit that a journalist was required to act in accordance with before using the defence. Cox argued trenchantly that despite recent jurisprudence, the Reynolds defence (whether part of Irish law or not, which it may after case Leech it is undoubtedly required by Convention jurisprudence.

Such a defence is not and should not be available to the media where they tell lies and have to hold their hands up; the media had found (in Ireland) that the defence of justification/truth was providing useless because the burden rested with the defendant, impossible to do when you have confidential sources. The media should be allowed to publish material even where by reason of existing defamation law they could not prove it to be true. Cox referred to the tribunals and past corruption in Irish society, and how the media could not publish material they were “well aware of” because of strict Irish defamation law. Thus the media could not fulfill the ‘bloodhound and watchdog’ role that the European Court of Human Rights argues it has. However, section 24 appears much less favourable than Reynolds as it has strict controls on its use. Journalists must abide by very strict criteria (definition of malice very different to common law, strong urgency, very strong efforts to get the other side). On the other hand, as this doesn’t replace existing common law, so if Reynolds has been brought into Irish law, it will operate in tandem with section 24 (Later, an interesting question was asked and discussed on whether the use of the Reynolds defence could be ousted by the Seanad in its consideration of the Bill - we wonder….) .

* ‘importance’ may become ‘interest’ after amendment

(Updated) A welcome development this week is the launch of Law Matters, a relaunch of the ‘law page’ in Monday’s Irish Times. Pre-relaunch, this was a (slightly edited) full judgement from a recent case - traditionally of some value as it may not have been otherwise reported, but of less value in the present day what with online judgements etc (more of that in a moment). While it’s of course much smaller in scope and size than something like the law pages (and matching website) in the Times (”The” Times, or the London Times as I sometimes hear in Dublin!), it may well grow into something resembling it. There isn’t a dedicated section on ireland.com (the website of the Irish Times) yet, but those who have subscriber-access can see the first bunch of case summaries here. The introductory article says:

(Law Matters) will contain synopses of the most important recent judgments from the Supreme Court, High Court and Court of Criminal Appeal. These will not be law reports in the traditional sense of the term, but summaries containing the key legal points in the judgments … In addition to summaries of judgments, we will, from time to time, publish commentary on and analysis of important legal developments. Law Matters will also contain news and information from the legal world.

It’s quite difficult to track down legal news in this jurisdiction. The monthly magazine-style publications of the professional bodies (the Bar Review and the Law Society Gazette) are useful; the Gazette is available in some newsagents in print form and is now available online as a PDF (thanks to Fiona de Londras for spotting this) and the Bar Review is available online for barristers only and can be found in some libraries. A number of the other, regular publications (such as the Irish Law Times) and academic journals (such as the Dublin University Law Journal) can be found in the Westlaw.ie database (expensive if you don’t have access through a library or law school) - and few are found in the international databases (Lexis and Westlaw). Legalperiodicals.org (a UCC project) does provide tables of contents for the legal periodicals (news and academic) and we’d be lost without it. Very few journals publish full-text online (the State-funded Judicial Studies Institute Journal and some of the student journals are honourable exceptions. Of course, the Irish Law Site (developed by Darius Whelan) contains news and events as well as links to useful information. Paid site firstlaw.ie also does current awareness and unreported judgements although I’m not too familiar with it.

Bailii (and the Irish outpost Irlii, again with UCC support) are open-access-to-law sites; this means that we can see court judgements soon after they are handed down - and the Courts Service itself now does the same at courts.ie (although it can be a bit hit-and-miss; one decision I’m waiting on was announced in March, published and read in court in November and still hasn’t appeared…)

Suzanne Goldenberg, who covers US affairs for The Guardian, is a very determined journalist, and her coverage of the primaries is worth reading.

In this video clip (posted today), we see some (unintentionally) hilarious attempts by some people working on the Obama campaign to stop her wandering around and asking questions. (It’s clear elsewhere, incidentally, that the rally is in a public place (at least in US terms), and for fairness I should add that Goldenberg explains at the end that similar things happened in the past with her coverage of the Clinton campaign).

Here’s my own transcription of a particularly fun exchange:

The scene - what looks like a basketball arena / school gym / something, where an Obama rally is happening soon. Goldenberg is interviewing an attendee, and a campaign staffer approaches them.

Staffer: Um, I’m really sorry, but they just told us, we have to keep all the press back from this area, you can interview people over at the railings if you like?

Goldenberg: Can you check, because I’ve never been to a political rally where they do that, and you’d actually be infringing on my constitutional rights…

S: um, I …

G: And so if Barack Obama as a policy wants to infringe on my constitutional rights of fair speech, that’s fine, but I just want someone to tell me that that’s campaign policy

S: I’m not the one that decided..that’s what we were told..

G: I’ve never been…

S: If you wouldn’t mind waiting here..

G: I’m going to go around and do my job, I don’t think you can stop me from talking to people before the rally starts.

G walks off with notebook.

You can’t keep a good reporter down…

Peter Black (vote for his excellent law blog, Freedom to Differ, here) links to Jeffrey Feldman’s article at the Huffington Post on ‘The Real Meaning of “Free Press”‘ … it is very critical and angry in parts, relying on Lippmann’s view of the free press as an aspect of democracy (as distinct from an individual right), and concluding with a series of links to alternative media sources (with a suggestion that changing personal media habits can defend the role of the media as watchdog.

Reading it, I was reminded of something I read a few weeks ago and was quite impressed by - André Schiffrin’s short essay (published in Le Monde Diplomatique) on how to pay for a free press. Schiffrin’s concern is with independent publishers, mentioning trust models for newspapers and the experiences of various independent and not-so-independent publishers, with liberal dashings of Habermas, and concluding by wondering whether legislation (to support not-for-profit enterprises) would be helpful. It’s a pity that the analysis doesn’t deal with words other than in the form of dead trees, but nonetheless is an excellent (if somewhat ‘traditional’) read.

This post is about some ideas brought together by two podcasts and a newspaper article, from a few days ago…

First of all, there’s this repeat of a classic This American Life show. I try not to blog about TAL constantly (this here was one of my lapses) - I resist the urge after each episode, otherwise this would be Lex Devoted Radio Fan and it might be a bit boring to read. However, this show - rightly beloved by listeners - is worth mentioning, not least for its synchrony with the other material mentioned below.

“Mapping” (go listen to it!) deals with the age-old question of maps and representation of the world, and in the traditional TAL fashion, is divided into five Acts. The innovation, as I saw it (or heard it, or perhaps even sensed it) was to have an act for each of the five senses. So, for example, ‘taste’ was a piece on how a writer, Jonathan Gold, compiled a ‘food map’ of Pico Boulevard in Los Angeles.

The act on ’sound’ was the one that caught my particular attention, and not just as a result of the (perfect) use (at 13.30 and 15.15) of Telephone and Rubber Band (by the Penguin Café Orchestra) as the musical bed for part of the piece. This piece featured a short but compelling discussion (with a guy called Toby Lester) on how each household object has a pitch, and how they interact (e.g. producing minor chords or even the Devil’s Chord (devil’s interval / tritone / augmented fourth) of lore.

These ideas were picked up (in my head, at least) in the first episode of the BBC’s The Sounds of Science show (Radio 4). This was a lot of fun - coming back to the Devil’s Chord but also discussing key/scale/tone, Western v non-Western tradition, dissonance (with lots of spice/food metaphors) and more.

The Observer, too, got in on the game (last Sunday), reporting on a study in the Ecologist of the aspects of the modern environment that people find irritating. Some of these, too, are related to sounds and music. A little curmudgeonly, but prompting interesting reflections and connections with the two radio pieces.

This seems like an interesting event - a conference (obviously with a particular starting point for debate) on commercialisation in Irish education, organised by the Campaign for Commercial-Free Education (hence the starting point) with the support of various unions (teacher and student) and school principals, and taking place in TCD Saturday week. I won’t be at it as I have a schedule clash, but the programme (and guest speaker, author Alex Molnar) may interest some of you….

Torontoist has a fun post about the two sides of the Toronto Star competing for the affections of the reader - an industry-sponsored ad supplement on how counterfeiting is evil, and a fashion page article on how to buy ‘good fakes’. Heh heh.

Nothing like the confusion suffered by someone in the poor Sunday Tribune here in Dublin, though; the following notice appeared (in an out-of-the-way side location) in Sunday’s print edition:

Correction: London Review of Books, Anne Enright

WE published “Diary” by Anne Enright in the Sunday Tribune ed. of 21 October 2007 without permission of the London Review of Books, Anne Enright or her agent. We accept that the author did not wish the piece to be republished. We apologise to Anne Enright, her agent and the LRB for this error and breach of copyright.

Ouch. They did, in fact, publish the entire essay. I’m sure there’s some context to this but to publish a lengthy self-contained full article without permission from author, publisher or agent seems a little detached from reality…

It has been another strange week for freedom of expression. (The last roundup of this sort of perfect storm was back here in September).

In Ireland, the decision of a Divisional High Court on proceedings brought by the Mahon Tribunal against the editor of and a journalist with the Irish Times. The paper, unsurprisingly, is not cooperating with an investigation into documents leaked to it.

The decision of the High Court (PDF here) is causing quite some concern to the Irish media and to commentators. See, e.g. Roy Greenslade, Blurred Keys. In short, the High Court ruled that the journalists were required to disclose information to the Tribunal, finding that the expression/media rights were outweighed by the need to preserve confidence in the tribunal. So far, so Irish.

I do think, though, that the language causes some concern - after reciting the familiar ECHR cases, we end up with things like:

As the history of these cases show journalists should have little to fear and certainly no grounds for thinking that their right not to reveal sources does not or would not be given just consideration and vindicated where appropriate.

(”Nothing to fear” is not something that Irish journalists have ever said. Need I remind you that Ireland’s constitutional free speech/press/expression/communication guarantee is (textually) very limited and wasn’t successfully used to strike down a statute until this year…)

Against this background the deliberate decision taken by the defendants to destroy the documents at issue in this case after they had received a summons to produce these to the Tribunal and after having taken legal advice, is an astounding and flagrant disregard of the rule of law

(Ouch)

It need hardly be said, that such a manner of proceeding is anathema to the rule of law and an affront to democratic order. If tolerated it is the surest way to anarchy.

Journalists must realise that paying lip service to democratic values is not enough.

(Using this sort of language disturbs me, especially given the wide scope given to the State to protect ‘public order’ - if journalistic practices are defined as tending towards anarchy, it can only make further restrictions easier to defend?)

The case is disposed of through applying the Convention ‘necessary in a democratic society’ test, although it seems to be more of a discussion than a test, and (astonishingly) the word ‘proportionality’ does not appear in the judgement. I had to check three times to see if I was missing something - but apparently, yes, this is 2007 and we can discuss restricting Article 10 rights without mentioning proportionality. Silly little me.

Another thing that puzzles me, and I can’t figure it out, is how the discussion on freedom of expression is entirely related to the Convention, and although it’s clear from the recital of the pleadings that Article 40.6.1 was presented to the judges, it is not mentioned or even alluded to in the discussion. Are we to assume that the Court didn’t even see the point in trying to address the constitutional claim, given the ease with which they found the actions of the tribunal in accordance with the (commonly understood to be further-reaching) Convention right?

In Strasbourg, the European Court of Human Rights itself was announcing its decision in a long-running case that started off as being a dispute between French fascists on one hand and an author and the leftish newspaper Liberation on the other. The case is Lindon, Otchakovsky-Laurens and July v. France. It’s a little hard to understand how this was so easy to treat as a crime - the novel in question is a satire (albeit one attacking the Front National quite vehemently). After the courts came down hard on the author/publisher of the book, 97 authors signed an article in Liberation criticising the decisions and agreeing with some of the anti-Le Pen comments. Yes, you’ve got it, the newspaper ended up in court too. I’m sorry to say that the Court did not find in favour of the authors, publishers and newspaper, as it was necessary in a democratic society ‘in order to protect the reputation and rights of Mr Le Pen and the Front National’.

We do have the consolation of the concurring opinion by Judge Loucaides, though, who says (thanks to contentandcarrier for spotting this!) that “the suppression of untrue defamatory statements, apart from protecting the dignity of individuals, discourages false speech and improves the overall quality of public debate through a chilling effect on irresponsible journalism”. Apparently a chilling effect is a good thing now! William Brennan rolls in his grave. Eep.

And finally, in the UK we have this fabulous speech by Gordon Brown, a wide-ranging talk (including announcements, history, philosophy, law and more) that included a commitment to softening the law on protests near Parliament and more. This speech is a must-read; you must read it. (Let’s see what action comes out of it, though!)

You Own Your Own Words is one of those phrases that means a lot to those who (being a little older than I) are veterans of Ye Olde Internet. Associated in particular with The Well, YOYOW meant two different but interlocked things - you take responsibility for your own opinions, and you continue to *own* them (in the sense that The Well didn’t claim copyright, and you could go off and raise hell if said words were used elsewhere without your permission). (More on the history here).

That was then, of course. Lighting up the blogopuddle today, though, is an illustration of how easy it is for someone else to OYOW. John McCain has been using a clip from a debate in a political advertisement (the clip being his own words and nothing else), but apparently Fox is not happy, and has written threatening letters to put a stop to it (we presume they mean TV and Internet use - it’s available on both). They claim that fair use cannot apply because it is for ‘commercial’ use (come again?), and even persist in the complaint despite the (significant) free advertising through the on-screen logo/credit (a prudent inclusion by the McCain folks, one would have thought?)

More from the New York Times ‘Caucus’ blog here; watch the ad (for the time being) here. Note, of course, that I don’t actually agree with the point McCain is making in the ad, although that is irrelevant.

British newspapers are (unsurprisingly) full of discussion of the European treaty (not a constitution, don’t forget)*, but today’s law section in the Times contains an article on an ongoing interesting issue of European law and British opinions, and one that I have a lot of interest in, being the Audiovisual Media Services (AVMS) directive.

Graham Smith (a London lawyer) is a very prominent figure in British IT law (the fourth edition of his opus on Internet Law and Regulation is just out); his piece in the Times summarises the debate over the AVMS directive, highlighting how ‘TV-like’ content is dealt with. Read the article here

The key paragraph is this:

Broadcast content regulation is an anomalous relic of the old days of spectrum scarcity. If convergence is thought to demand platform neutrality in content regulation, it does not automatically follow that it should be achieved by extending the remit of Ofcom. On the contrary, it can be achieved by rolling back broadcast regulation and subjecting the freed-up content only to the general law. If that is not palatable, the answer is not to extend broadcast regulation into areas in which it has no business. It is to refrain from seeking full platform neutrality in content regulation.

Which, while being a relatively orthodox statement of the anti-regulation argument, is interesting for how he deals with the neutrality question. (I should also note that Smith is careful to point out that those services not regulated by ‘broadcast content regulation’ remain subject to what he calls ‘the general law’ (on things like hate speech, etc), rather than getting trapped in the ‘regulation vs no regulation’ fallacy. However, he does try and position opposition to broadcast regulation in general as in the tradition of Milton, which I don’t buy, and neither should you - there’s more to it than that).

For an interesting counterpoint, see the argument (linked from this article!) by Smith’s colleague at Bird and Bird, Richard Eccles, that new European laws on Internet telephony/VoIP are necessary.

* always reminds me of the classic Zig and Zag video, “Nothing To Do With Toast”.