Media Law and Regulation, TCD School of Law Seminar (part one)

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

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