Seanad Éireann - Volume 179 - 09 February, 2005
Privacy and Defamation: Statements.
Mr. M. McDowell Mr. M. McDowell
Mr. M. McDowell: I welcome this opportunity to again address Seanad Éireann on this topic. Members may recall that I last spoke here in this regard on 9 December 2003, a few days after a major conference which I organised as part of the public consultation process on the topic of defamation.
Our debate today is on privacy and defamation, which though related are not the same thing. I said during our discussion in December 2003 that I came to the debate with a personal prejudice in favour of free speech and against unnecessary regulation, and as a constitutional republican with liberal values I still hold that point of view. I also wish to ensure that we have a vigorous and inquiring media functioning in our society. What I am attempting to do and will do in the near future is to bring forward a reform which is sufficiently balanced to gain the necessary acceptance both politically and in the community. For that reason I have engaged in a process of public consultation on the subject.
The broadcast media in this State operating under the broadcasting Acts are statute bound to have regard to ensuring that the privacy of an individual is not unfairly encroached upon in the  process of programme making. Remedies are provided for breaches in this regard. I am not aware of any particular difficulties that have arisen for our radio and television stations in that regard but if there are such difficulties I will discuss the matter with the Minister for Communications, Marine and Natural Resources, Deputy Noel Dempsey. I am confining my approach in these matters largely to the print media though the defamation law applies to all media.
In my response to a parliamentary question yesterday I indicated that there is a tort of invasion of privacy and that I would be keeping the law under review in light of developments in the jurisprudence of our courts and in the European Court of Human Rights. Legislation governing privacy issues exists in certain specific areas. We have, for example, stringent data protection legislation covering the handling of the information held in regard to citizens across a wide range of institutions. There are reporting restrictions contained in legislation such as the Children Act, the Child Care Act, the Criminal Assets Bureau Act, in the Criminal Justice Acts, in the Garda Bill which this House debated in recent times and in family law matters.
What is the current position concerning privacy law in Ireland? Our Constitution guarantees the right to freedom of expression on the one hand and, though the right is unenumerated, to the enjoyment of privacy on the other. When we think of the development of the constitutional right to privacy we think of the Supreme Court’s decision in McGee v. Attorney General, which related to marital privacy in the area of contraception, and in other cases which followed, including Kearney v. Ireland, in which a prisoner whose mail was stopped and read by prison staff was awarded damages for breach of his constitutional rights. Of particular interest in this debate are the actions for breaches of the constitutional right to privacy taken in 1987 by Geraldine Kennedy and Bruce Arnold following the wrongful tapping of their telephones and in the Bermingham case in 1997.
Irish newspapers, as distinct from other actors in society, have traditionally steered clear of the kind of intrusive coverage — or as the respected media commentator Roy Greenslade puts it, the “British disease”— of personal lives that has long been the daily fodder of British tabloids. However, as British newspapers, or the Irish version of British newspapers, increasingly gain in circulation in Ireland and with the profit motive seemingly uppermost in some people’s minds, that tradition has somewhat changed. No amount of high-minded and often self-serving justifications from certain commentators can hide that fact. There have been intrusions by the print media, for example, through sensational “colour” press coverage of the criminal trial process. This was visibly demonstrated by the decision of Mr. Justice White yesterday in a trial in the Central Criminal Court to impose a significant fine of €100,000 on the Irish Sun for contempt of court.  I must refrain from further comment as I understand the judge may be contemplating further action against other newspapers.
Moves to develop the tort of privacy require consideration against a very broad canvas given that redress is offered under our Constitution. It is also a right guaranteed by the European Convention on Human Rights. Since 1 January 2004, that convention requires every Irish court to interpret every judge-made and statute law in a manner compatible with the provisions of the convention. It means that long-established rules of common law will fall to be interpreted as necessary to make them fully compliant with the European Convention on Human Rights and the jurisprudence of the Strasbourg court. Article 8 of the convention effectively guarantees and imposes on the state an obligation to uphold the right to privacy, balanced by Article 10 which allows for freedom of expression. It is the tension between those very often competing rights that is at the core of the debate today around press freedom, defamation and the protection of privacy.
Media privacy issues have also come to the fore, in the judicial sense, in recent times in the UK. There can be few in this House who are not aware of the outcome of the Naomi Campbell case against the Daily Mirror. The emphasis of the Law Lords in their decision in that case had regard for the law of confidentiality in deciding to allow Ms Campbell’s appeal. They did not set out a new generic law of privacy and seemed careful not to do so. That is the difference between the law of the United Kingdom and that of this Republic. In Ireland, we have a written Constitution and Article 40 imposes upon the State an obligation to uphold the rights of the individual through its laws, including explicit and implicit rights, referred to by lawyers as the “unenumerated rights” in the Constitution. Privacy is most certainly one of those rights. We have a justiciable right not to have our privacy infringed, whereas the English Judiciary has been slow to take that route without guidance from Parliament.
While the importance of freedom of expression was stressed very often, the importance of privacy was less stressed in the English cases but no less important to liberty in a democratic state. Other noteworthy cases of interest in recent times were the Douglas, Zeta-Jones and Northern and Shell plc v. Hello! Limited and, of much greater significance, the Venables and Thompson v. News Group Newspapers Limited, where the plaintiffs were effectively granted anonymity for life. Both cases were concerned with privacy rights and suggest a willingness on the part of the courts in the United Kingdom to allow for at least some degree of horizontal application of convention rights. Again, in neither case did the court go so far as to create a new cause of action for a breach of privacy rights, though it did not rule out the development of such an action.
 However, that caution on the part of the Law Lords in the UK, and to some extent here, will change following the judgment by the European Court of Human Rights in June 2004 in conclusion of a decade-long action pursued by Princess Caroline, one of the Grimaldi family of Monaco. That case effectively concerned the privacy rights of a public figure. The German media, in this case, had argued that the princess was a “figure of contemporary society par excellence” and was not entitled to privacy while in public places, even while engaged in mundane activities such as doing her shopping.
The European Court of Human Rights unanimously rejected that approach. It decided that the zone of interaction of a person, even in a public place, fell within the sphere of private life. The magazine argued the contrary, namely, that people’s privacy applied in their homes but that, when they went out onto the public street and became a public person, they left their privacy behind them. The European Court of Human Rights effectively said that even public persons had a portable sphere of privacy, meaning that if they go out to do their shopping in the supermarket or go with their daughter to have a meal in a restaurant or a coffee, they cannot simply be the subject of massive and intrusive paparazzi surveillance.
It also decided that a positive obligation was owed by the state — in this case, the German state — towards measures designed to secure respect for private life, even in relations among individuals themselves. Finally, the court held that, in considering the appropriate balance of rights, the publication of the photographs in question did not contribute to the public debate vital to a democratic society. That was bad news for the untrammelled rights of the paparazzi in European society.
It is clear that a new jurisprudence is emerging. The question is whether any developments in that area should be left to the courts in Ireland or whether the State, through its legislative institutions — particularly the Oireachtas — has a duty to act pre-emptively by forging ahead with a privacy tort law reform. I believe that in the area of tort our courts have amply demonstrated their capacity over the years to develop principles of law and redress on a case-by-case basis as necessary. This is one of the areas of our common law that has remained largely untouched by legislation. It seems, with few exceptions, the better for it. I wonder whether there are clever people in this House or the other who could sit down and draw up a new tort of invasion of privacy without, two years later, exclaiming how the judges were interpreting it in a way never intended. At least if one leaves it to an organic, case-by-case build-up of jurisprudence, the Legislature is in a position to correct trends with which it does not agree rather than unleash forces that it never had in mind.
It is interesting that the United Kingdom Government has declined to follow the recom mendations contained in a parliamentary commission report of 2003 which recommended the introduction of a privacy law in the United Kingdom. It would appear that there is a general inclination on the part of the British Government to rely on the normal route of development of the law by the courts rather than introduce a law on privacy. One has the proposal that there should be such a law and Government reluctance to introduce it in the context of a differential in the development of the concept of justiciable breach of privacy rights between British and Irish law.
Will the new concentration on privacy affect the way that those who work in the media carry out their activities? My answer to that question is that it depends what they do. I spoke at the Royal Irish Academy in May 2004 on the occasion of its launch of the excellent pamphlet produced by Baroness Onora O’Neill, one of the most respected commentators in the United Kingdom on media issues. I recommend that pamphlet to all Members, and not simply because I launched it. Of the documents that I have launched I found it one of the most interesting.
I noted her conclusion that much of what purports to be journalism — sometimes worthy journalism — is no such thing. It is invasive, intrusive and does nothing to further the role of a free press in society. It does not lead or shape political discourse on the issues of the day, and some people might say that it is sleazy and intended simply to make profits for the media owner. On occasion one has to look at the reality. Baroness O’Neill said that it was all very well to have a notion going back to the period of the American War of Independence of local news editors producing the Pittsburgh Bugle, articulating political views, developing public awareness and educating public opinion. That is a classic view of the media with which I have great sympathy.
However, there is also the other side of the media, which is that they are organisations selling newspapers as a commodity for profit. The height of the pile in every newsagent outlet is the issue with which they are concerned. They are selling a product and, as some people have argued, setting the agenda and developing the debate in society with a view to profit rather than social improvement. There are therefore two sides to that story. I do not wish to come down categorically on one side or the other, except to say that it is naive to portray the media in an 18th century mode when they have a very different role in modern society. I need hardly mention that when they are owned by multinational conglomerates, it is very far removed from the Pittsburgh Bugle.
Thus, while I am unconvinced of the need for the statutory development of a privacy tort at this stage, the same cannot be said of the reform of our law on defamation. It is on that subject that I can now usefully comment. The focus of my efforts over the past two years has been reform in this area. There is, of course, some overlap  between privacy and defamation. I am currently preparing proposals to bring to Government that will provide for the extensive reform of the law relating to defamation, taking into account the work of the Law Reform Commission, the Commission on the Newspaper Industry, the legal advisory group on defamation and the public consultation process that I initiated on publication of the group’s report. A majority of the responses received during the consultation process addressed the recommendations put forward by the legal advisory group regarding the establishment of a statutory press council.
That recommendation came on foot of one of the specific terms of reference of the legal advisory group, namely, to consider the nature and extent of any statutory intervention that might attach to the establishment of an entity concerned with the regulation of the press. That is a subject where there is a divergence of views and sometimes heated debate regarding the optimum approach. The group recommended the establishment of a statutory, Government-appointed press council with functions that would include the preparation of a press code of conduct and the investigation of complaints concerning alleged breaches. The report set out in some detail the main features of such a council, including matters pertaining to its operational structure. However, I expressed the view on several occasions — the first time was at the launch of that report — that the model examined and proposed by the advisory group was by no means the only or most obvious one for a press council. My own stated preference is for an independent rather than State-appointed body, composed of persons representative of civic society, with minority representation from media interests and journalists only.
Appropriate recognition, which could bring certain privileges such as immunity from action in respect of their judgments, decisions, directions and so on could be conferred by a statute on such a press council. I envisage that such a council would have, as its central focus, a press code of standards supported by and subscribed to by all print media organisations with operations in the State who are members. I also envisage that such a code would provide an added protection to citizens’ privacy from media intrusion and harassment and an ombudsman service to deal with complaints from those affected by breaches of standards as set out in such a privacy code.
I emphasise that I do not intend to propose a Government appointed press council. My preferred model would involve providing statutory recognition by way of a resolution to be moved in both Houses of the Oireachtas for an independent organisation which might formally request me to be so recognised as the press council of Ireland for the purposes of the future defamation Act.
Obviously, to move a resolution granting recognition the Minister for Justice, Equality and Law Reform, the Government and the  Oireachtas would have to be satisfied as to certain considerations or criteria. These would involve the composition, broadly representative character and funding and adherence to a code of standards by such an organisation seeking recognition as a press council. The act of recognition would not affect in any way the independent nature of such a council.
One of the primary benefits of a statutorily recognised press council would be that qualified privilege would attach to its reports and decisions or those of a subsidiary body such as the press ombudsman service it would operate. Subscription to the press council and adherence to its code of standards by a current affairs type publication would strengthen its entitlement to avail equally of the defence of reasonable publication, which is a new defence in the proposed defamation Bill, in any court action. Non-members of the press council, for whatever reason, would be required to have in place an equivalent fairness regime or to operate an equivalent and publicised code of conduct to avail of that defence.
This would be partly in line with the recommendations of the legal advisory group on defamation, which suggested that a court might decide to accord the new defence of reasonable publication to a newspaper because of the extent to which that newspaper towed the line in regard to a press council appointed under the Act. The report linked the notion of reasonable publication to a willingness to accept press council decisions and to act on foot thereof. There is a certain logic to that linkage. It connects to the notion of a fair press being allowed a greater degree of latitude in which to operate.
I say also, and not for the first time in the context of non-defamatory wrongs, that I am conscious of the danger in arguing that all press activity should somehow be capable of regulation in the interests of, for example, good taste, good behaviour or conventional mores, a subject which arose in this House only yesterday. That is not and never will be my approach. It is not the business of a press council to start telling columnists what they should or should not say.
Ms O’Rourke Ms O’Rourke
Ms O’Rourke: They hang themselves anyway.
Mr. M. McDowell Mr. M. McDowell
Mr. M. McDowell: Exactly. The public are the best judges of these matters and they do not need a press council to speak on their behalf. On occasion I, and I have no doubt many others, feel a certain degree of distaste for individual articles or editorial decisions. While politicians have to develop thick skins, vulnerable people in society need not have to do so.
It is in vogue these days to query the principle of self-regulation. I am on record as being unconvinced that independent non-State self-regulation is a bad thing in a democratic society. The media should seek to avoid being hoisted by their own petard because they have been uncritical opponents of all self-regulation without seem ingly hesitating to see what the effect of that logic would be if it was turned on themselves.
On this occasion I call to mind the dialogue between Thomas More and Master Richard Rich in A Man for all Seasons. Richard Rich said he would tear down every hedgerow in England to get at the devil and Thomas More replied, “And what happens when the devil turns on you? Where will you hide?” The same applies to the whole question of self-regulation. The media has been excoriating the notion that non-State regulation is appropriate for any corner of our society except, curiously, themselves. I hope I am a little more consistent. I stand up for non-State independent regulation in some sectors such as the Law Society. At the same time I can see that a non-State independent press council, if it is given some statutory recognition, could be the answer to our difficulties regarding minimum standards in the press.
I go against the current grain in that I believe self-regulation in many areas functions very well and the State, in principle, does not have to control everything in society. I equally believe, however, that self-regulation must carry with it the notion that there are some rules to which injured parties can point in seeking redress from abuse of press power. That is the nub of the issue. If a newspaper proprietor or editor were to thumb his or her nose at generally accepted ethics or an agreed press code of standard and seriously injure an ordinary individual, would that be a case of fair game and “too bad” as far as the individual is concerned? In other words, if we have a toothless press council which can do nothing and effectively be ignored with complete impunity, is it worth having at all? There was an interesting dialogue on this subject in Vincent Browne’s magazine recently. Conor Brady’s article in that magazine should be read because he makes the point that press councils internationally, which are not supported by any regulation, are useless institutions in the great majority of cases.
It is in its own interest for the print media to behave responsibly. While I am fervent in my efforts to protect and enhance the role of a free press, which often means putting up with bad taste or dubious propositions, the press themselves must and can do more. The stock and somewhat injured response, especially to recent criticism, has tended to be variations on a theme that while everything the press does may not be perfect, they must be allowed to do it anyway without let or hindrance because they might discover something of public interest. I agree that we cannot have statutorily imposed perfection but equally we should not be in the position where a newspaper can constantly interfere with someone’s privacy, claim it is the house style and that people do not have to buy it if they do not like it, and expect us to walk away. The victim of the intrusion by the media is left with no redress of any kind.
I have been in continuing consultation with the National Newspapers of Ireland press industry  steering committee. That committee, to which I want to pay tribute, is currently working on the further development of its initiative to establish an independent press council, with a press ombudsman as its key operational factor, using an agreed press code of standards. I recognise that may be a formidable task but the committee may also not enjoy the luxury of unlimited time. A code of standards will be seen not only by the political establishment, which in this matter is very important, but also by the public as the critical factor in an independent self-regulatory process. The bottom line is that it must be good and it must work.
If the approach of the National Newspapers of Ireland can be brought to an acceptable fruition, I hope to confer on such an independent press council, through the Bill I am preparing to reform the law on defamation, by way of resolutions to be moved in both Houses of the Oireachtas, a degree of statutory recognition necessary for it to properly fulfil its objectives in an independent way.
I am conscious that a code of standards to which the print media organisations can subscribe and adhere will be the critical element of independent regulation of the press. It is not for me or the Government to dictate what should be contained in such a code of standards but I envisage providing for the development of such a code among the broad recognition criteria in the defamation Bill. I am sure Senators will agree with me that the public interest must be served and must be uppermost in this process.
In any consideration of the issues at the heart of today’s discussion, there is the question of what is acceptable behaviour by our print media. Is it intrusive telephoto lens photography at private occasions? Is it reporting on the family travails of famous or public figures? Is it salacious stories of little public relevance beyond titillation and profit?
It has been generally recognised by the Irish media — I say this in fairness to it — that even public figures have a right to a private life beyond their public duties. In return, there has always been, by international standards, an above normal access to our public figures, as befits our open and democratic traditions. We have had, therefore, a reasonable and decent press, in general terms, and the degree to which public figures have been accessible has stunned those who have witnessed it.
Responsibility rests with media owners, editors and journalists to establish and maintain standards and to invest in better journalists and journalism. While I have no wish to whitewash the inevitable colour from much of our print media coverage, I am obliged to ask whether it can seriously continue to publish completely made-up stories, fictitious by-lines — I cannot understand how anyone can stand over an article and pretend it was written by someone who does not exist — and a reliance on “denial” type journalism. As  regards the latter, if one were a journalist, one might put to Senator Ryan some accusation in the form of a fax sent on a Friday evening——
Mr. Ryan Mr. Ryan
Mr. Ryan: The Minister could do a good job in that regard.
Mr. M. McDowell Mr. M. McDowell
Mr. M. McDowell: ——and record that he either responded to the facts and told one to get lost or denied them or that he did not respond to the facts. That then becomes the story, which is simply not an acceptable way to try to educate public opinion.
Ms O’Rourke Ms O’Rourke
Ms O’Rourke: And one is usually only sent the facts 30 minutes before the story is going to print.
Mr. M. McDowell Mr. M. McDowell
Mr. M. McDowell: For some public figures, the situation in more recent times has become more complicated by security issues such as kidnapping or surveillance by criminal or terrorist groups. This must be weighted in the balance in the coverage of their activities. Newsworthy or profit worthy and information versus entertainment, essentially these are the choices facing the media in deciding on the extent of their coverage of individuals lives.
I wish to conclude by referring to two quotations. The first is a statement attributed to Abraham Lincoln to the effect that “let the people know the facts and the country will be safe”. I strongly uphold that assertion.
Ms O’Rourke Ms O’Rourke
Ms O’Rourke: That is a very laissez faire attitude.
Mr. M. McDowell Mr. M. McDowell
Mr. M. McDowell: One of the founding fathers of the American Republic also said that if he had to choose between a society with a free government and an unfree press or one with an unfree government and a free press, he would choose the latter. I have always been of the opinion that while the latter statement sounds courageous and attitudinal, it is fundamentally flawed. The truth is that it is not possible to have a society with a free government and an unfree press. The converse also applies, namely, that there cannot be a free press in a society which is unfree. The choice the individual in question posed and made was a false choice.
I thank Members for their attention and I look forward to an interesting debate on this issue.
Ms Terry Ms Terry
Ms Terry: I welcome the Minister and thank him for his contribution. I also welcome the opportunity to debate issues relating to defamation and privacy. However, we cannot adequately discuss privacy in any real way if we are not also to discuss the regulation of the press. We had a debate on this matter previously and it is regrettable that little progress has been made in the interim.
As regards privacy, it is an indisputable fact that many parts of the media are capable of being reckless in respect of the facts and the reputations of individuals. Some in the media display  absolute disregard for the boundaries of basic privacy. The Minister outlined some instances of this and there have been some notable cases in recent times. I refer to the attempt by Ireland on Sunday to fabricate stories about a Government Minister having a relationship with a woman and stories involving Charlie Bird and the Kilkenny hurler D. J. Carey, who was subjected to disgusting and intrusive coverage. These stories proved to be extremely hurtful to the individuals involved and also to their wider families. It is here that press intrusion becomes really unacceptable. Where a public figure puts himself or herself forward in the public domain, they can expect to have accusations, etc, thrown at them from time to time, which, I recognise, can be unacceptable. However, when such coverage affects someone’s wider family it becomes particularly intrusive and unacceptable.
I do not know how one should deal with the article by Kevin Myers in The Irish Times yesterday. While the article did not refer to particular individuals, there is no doubt that many individuals are affected when they are spoken or written about in such a fashion. Such articles affect parents and children and they place a slur on them. As far as I am concerned, this type of journalism is unacceptable. The articles to which I refer are, as the Minister stated, merely cheap stunts designed to boost the circulation of newspapers and they damage people’s reputations and good names. The truth or appropriateness of a story always seems to come second and newspapers always seem to want to publish sensational articles while not caring about the damage they might do.
As already stated, it is difficult to discuss privacy without also referring to regulation of the press. The press continues to operate in what is largely an unregulated environment. While that is healthy, it would also be desirable to retain an environment which values such freedoms. However, when press freedom has been abused in the way experienced here recently, there must be an acceptance of the need for some accountability and regulation of the press. This could come in the form of an independent press council — with some statutory backing — charged with setting and enforcing minimum standards. Fine Gael has very clearly set out its position on press regulation. We are in favour of the establishment of a press council which would be representative of the social partners, the wider public interest, editors, publishers and journalists and which would have an independent chairperson. We made clear our complete opposition to a statutory press council comprising Government appointees. I am glad to the Minister agrees with us in that regard.
An effective and efficient mechanism for regulating the press and for allowing legitimate complaints to be dealt with must be instituted. In putting it in place, however, we must be careful that we do not introduce a system that militates against the vital role the free press plays in a  democratic society. Fine Gael is by no means a stranger to the important issue of press regulation. In October 2001, we published our proposals for the regulation of the press in a document entitled Press for Change. We recognise the fact that in any healthy democratic society, a free and vibrant media is a key weapon in achieving greater accountability across all sectors. We, therefore, support an independent, effective and free press.
In addition to the proposal to regulate the press, consideration must be given to the merits of introducing laws that safeguard the privacy of every person. If we lived in an environment where standards of journalistic decency and good taste prevailed, there would be no need for such a law. However, the abuse of particular freedoms by a small number of journalists means that the situation needs to be managed by legislation.
I previously made the point that defamation law reform and the regulation of the press do not have to be interconnected issues. The case for the reform of our defamation laws has been well made. The Minister felt so strongly about reform of the defamation laws that he published a Private Members’ Bill in 1995. Despite that consensus we are still a long way from seeing any moves to address this issue. I am sorry, but Deputy McDowell was not the Minister at that time.
Mr. M. McDowell Mr. M. McDowell
Mr. M. McDowell: I was voted down by a certain party.
Ms Terry Ms Terry
Ms Terry: It was the Minister for Justice of the day. My apologies. The tort of defamation essentially involves the reconciling of two conflicting constitutional rights. This is why it becomes such a contentious issue. The constitutional rights in question are freedom of speech as against the right to one’s good name. Despite advances in technology and the increasing breadth of the media, with the advent of the Internet, etc, defamation in this country is primarily governed by an Act which is more than 40 years in existence and has not been amended to any great degree. In our document, Press for Change, published in October 2001, we suggested proposals for a major overhaul of Ireland’s outdated libel laws.
We broadly support the proposed reforms as contained in the legal advisory group’s draft Bill. However, we believe the Bill as drafted failed to deal with many important issues. We believe an apology should constitute real grounds for mitigation in court. We also believe that the rules governing court lodgements should be changed in defamation cases, so that acceptance of a lodgement is accompanied by a declaration from the court vindicating the complainant. We have full confidence in juries and believe they should be retained in defamation cases. An important amendment to defamation law in Ireland would be to allow genuinely mistaken inadvertent libel to be alleviated by an immediate apology.
 Another important matter which the advisory group failed to deal with is that of deceased persons. We are firmly of the view that the good name of the deceased should be protected. All too often we see evidence of the attitude that once a person dies he or she is fair game for all kinds of untruth and allegation. That is very wrong and any defamation Bill which fails to address this would be grossly inadequate. I would like to hear the Minister’s views on that point.
Although our pleas have fallen on deaf ears in the past, I want to drive home the need for reform of our defamation laws. We can shout and argue about the regulation of the press and the detail of privacy laws. However, we are all united on the need for defamation law reform. If the Minister brings forward a Bill to reform defamation laws which addresses the concerns I have raised, we will not be found wanting and will not obstruct the legislation. We will support it and so I look forward to such a Bill being brought forward by his Department.
Mr. J. Walsh Mr. J. Walsh
Mr. J. Walsh: I welcome the Minister to the House. It is timely that we have this debate. It is approximately 12 months since we had a similar debate, which followed the public consultative process in which the Minister had engaged. That included the conference in the O’Reilly Hall in Belfield which was attended by many interested parties, predominantly media representatives. It amplified many of the issues that have to be addressed as regards this topic.
The Minister, in his contribution, has dealt quite well with the tort of privacy. In fairness, there have been some notable unwarranted intrusions into the private lives of individuals. However, the Irish media, in general, perform in a responsible fashion. That must be said at the outset. Often, in debates such as this, we tend to concentrate on transgressions and, as a consequence, the good that many journalists do “is oft interred”, as Marc Antony said. The one aspect I am conscious of in this whole debate is the need for balance.
I believe, however, that a couple of trends are influencing the situation. One is increasing competition, particularly from the British tabloid press. That inevitably will drive the Irish tabloid media in the direction the British have gone. That sounds a note of caution and needs to be taken into account by any measures that are put in place, to ensure fair and responsible reporting. As the Minister has said, that is to be balanced on the other side by the decision in the Princess Caroline case by the European Court of Human Rights, which acknowledges that public figures have a right to a private life. It always strikes me as distasteful to see a media scrum outside courts and other public places.
It is difficult to be definite, but in certain scenarios involving court cases, I believe the outcome has been influenced by excessive media intrusion. It must also be recognised that judges, while they  are open and fair-minded people and are trained in that regard, are also human beings. Obviously, they might tend to have regard for, or at least cannot ignore, what has been said. It is therefore important that this whole area is covered in a balanced manner.
The Minister referred to Abraham Lincoln when he said, “Let the people know the facts and the country will be safe”. Undoubtedly, that underpinned the requirement of a free press in a democracy. I also subscribe to his quotation as regards Thomas Jefferson. I believe a free press, free society and free government are not interchangeable. They are all part of the same healthy process needed for a good vibrant democracy. Of course, as Abraham Lincoln was making his statement in the 19th century, he was probably referring to reports in which the facts were presented. When one reads a report today it is often difficult to extrapolate the facts from the writer’s opinion. That tends to have an influence.
I made the point before in the past debate, but there needs to be a distinction between reporting and opinion. The press is entitled to give an opinion, but this should be distinguishable from reporting in a newspaper. I often find the two areas are indistinguishable. Newspapers have an enormous influence on people and the propensity to have sensational headlines, which I suppose help to sell newspapers, often sets the agenda in people’s minds as regards the particular areas of public interest being reported. In a busy society many people are influenced by the headline simply because they do not read beyond the first paragraph of a report. This is another area that needs attention. Freedom brings responsibility and this has to be exercised.
It must be acknowledged, however, that good investigative journalism is essential. We have had some fine examples of that in Ireland, some of which led to the establishment of tribunals of inquiry. Some of these have done good work, albeit at a tremendous cost to the State. That type of reporting needs to be allowed to flourish in a manner that is not too inhibited by regulation and by the law on defamation, etc. This is an area which must be examined in that context. However, the change must be initiated with caution because the public needs to be protected against lazy or biased reporting. As the Minister said, the Constitution takes a balanced approach to this question.
It states that the State, by its laws, must take steps to defend the good name of the citizens. In Article 40, it states that subject to public morality and order, the State protects the freedom of speech to express convictions and opinions. The Constitution is a document that we discussed here when discussing the European Convention on Human Rights. A wisdom was injected into it which took account of many issues in a fair and balanced way. In many ways, it sets out the backdrop on constructing any press council and the regulations that would go with it.
 There has been much discussion in the media over the past ten years on the need for a self-regulating press council. It is interesting that no initiative has ever been taken in that regard by the media themselves. The time has now come for the Government to take the issue on board and to develop it. Members of the media make great play of the fact that many of the issues which have come to light through the tribunals could have been avoided if they had been in a position to articulate their views and suspicions. That may or may not be the case. However, the whole subject of land rezoning was an area they consistently criticised without any regard to the need for rezoning to provide the land and the houses for a growing population. As someone who was involved in local government for a long time, I know that restricting and limiting rezoning enhances land prices and adds to housing inflation for those who are buying houses. That is an argument which has never been balanced in media comment.
We need to look at the power of the media against the vulnerability of the individual when we legislate to set up redress for citizens. The media is generally run by international corporations which have tremendous financial resources at their disposal. Since the cost of litigation in this country has never been seriously tackled, there is a need to ensure that the individual is not prevented by prohibitive costs from accessing the law and re-establishing his or her good name. I am echoing sentiments expressed by Senator Hayes in the last debate on this matter. He told the House that on occasion, he was prevented from pursuing a case on defamation due to the cost involved. There are many people in that position.
During the conference in Belfield organised by the Minister, a former Queen’s counsel and Press Council chairman commented that the standard of journalism in Britain had seriously declined. Some of the speakers from the NUJ acknowledged this fact. The Minister quoted from Baroness O’Neill, who stated that some invasive media reporting has done a disservice to the cause of a free press. An editor of one of our national newspapers claimed that the press is there to challenge those who see themselves as in power. It is as if we did not live in a democracy and that our politicians were self-appointed to ministerial positions. That statement received widespread applause at the conference, which meant that those sentiments were not just that individual’s bias, but were shared by many of those in the media. It alarmed me that such thinking permeates the media. The outcome could be catastrophic for the democratic process.
I noted the Minister’s comment on the setting up of a press council. That needs a bit of focus. Ultimately, the composition of such a council and the individuals involved will determine the success or failure of that particular system. I agree with the broad thrust that there should be interest from civic society, the media and others.  However, I am not convinced that the press should be allowed to make those nominations and to structure it. As a citizen, I vote to elect the Government. Once the Government is elected, I expect it to take responsibility and to make decisions. There is a propensity by governments of all hues to appoint independent bodies to make decisions which they themselves should be making and for which they should be accountable. That has been done against the backdrop of criticism about cronyism and so on. The democratic process and the free press should be strong enough for the Government to make decisions and then be accountable for those decisions. I am all in favour of taking responsibility.
Suggestions were made at the conference that some people could be members of this council ex officio. The Ombudsman was one such person mentioned. Such a position would be part and parcel of a press council. The NUJ and the NNI might have nominees, as well as a retired judge. There was also an acknowledgement that there should be some political input, so retired politicians could and perhaps should be members of the council.
I would like to comment on some of the recommendations of the legal advisory group on defamation. It is important to define clearly the new defence of innocent publication and the defence of reasonable publication. If they are clearly defined, there will be a mechanism to obtain redress for those who are defamed. Mention was also made about juries continuing in the role. While that was designed to reduce costs, there might be scope to look at the PIAB, which was established to remove the legal costs from the overall costs of insurance. There is no reason a press council could not be given such a role. Rather than going to court via a solicitor, people could make a direct complaint to a press council which could adjudicate and award damages to the individual. This could be based on a system such as that which operates in the PIAB.
There will be a need to ensure that those who ignore the code of ethics and the directions of the press council will suffer severe sanction. We developed such sanctions for publicans who breach licensing laws as they can be closed for seven days. If a newspaper seriously infringes individual rights and is then prevented from publishing for seven days, then that will ensure compliance with good standards.
Dr. Henry Dr. Henry
Dr. Henry: I must ask the Senator to conclude.
Mr. Norris Mr. Norris
Mr. Norris: It would ensure the bankruptcy of the newspaper.
Mr. J. Walsh Mr. J. Walsh
Mr. J. Walsh: The penalties should be there to ensure good compliance. I welcome the Minister’s consultative——
Acting Chairman Acting Chairman
Acting Chairman: I will have to impose penalties.
Mr. J. Walsh Mr. J. Walsh
 Mr. J. Walsh: The time for action has come and I would like to see the Minister implementing this process.
Mr. Norris Mr. Norris
Mr. Norris: I welcome the Minister for Justice, Equality and Law Reform who, as usual, has been a refreshing presence in the House. He made a remarkably interesting and professional contribution in which he cited a number of case precedents and legal arguments of a refined and, to some, almost arcane nature. Certainly, he addressed the principal features of the subject under discussion. I will comment first on the Minister’s speech before moving to a few points of my own.
The Minister referred to Mr. Justice White’s decision, which I also noted. While I respect the fact that one must be careful in discussing it as there may be subsequent cases in the offing, there is a certain area in which comment can be made. I disagree with the Minister’s view that the fine imposed on the Irish edition of The Sun of €100,000 was substantial. It was a fleabite. The Sun has a record in this area. It manufactured completely false stories about Elton John and published them with the result that its circulation increased. That probably allowed it to cover the cost of the libel case and the 1 million sterling fine imposed.
I am not xenophobic. While my father was English and I could hardly be described as being anti-British or anti-English, there is no doubt that this country now has what the Minister referred to as the “British disease”. I recently listened to Mr. Seamus Dooley who is an excellent man, former journalist and secretary of the National Union of Journalists, which has good standards. He said the reason the material in the case referred to above appeared in the Irish edition of The Sun was that it was sub-edited in London. That fact is a clear indication of the malign intervention of British newspapers and their lack of standards in this country.
The Minister mentioned professor Roy Greenslade, a very distinguished and eminent commentator. I read the article by the professor which appeared in The Sunday Business Post. We should take heed of his comments. While Senator Walsh was correct to say earlier that we have good journalists with sound standards, we must ask about the nature of Irish newspapers and the manner in which their standards are being affected by the penetration of the market by the British media. According to Professor Greenslade’s opening shot, Dublin newspapers are now employing the sordid tricks of a trade pioneered so cynically by London tabloids. The professor considered in his article the idea of a press council, in which context I disagree with the Minister who made sound arguments against self-regulation before appearing to support the idea.
Self-regulation is no regulation. There are very good reasons all media have attacked every single profession including the Minister’s own in this regard. If it has been deemed inappropriate for  doctors and lawyers to regulate themselves, I wonder why it is appropriate for the media. One requires a clear demonstration of why a principle does not apply in a particular case if it applies everywhere else and the newspapers have failed to make their case satisfactorily. According to Professor Greenslade, although constrained to an extent by an ethical code drawn up by editors in 1991, newspapers have found ways to circumvent and flout it. He said that sadly the Press Complaints Commission, the machinery of voluntary, self-regulation erected to police the code, had tended to allow newspapers far too much licence. That is the English experience of self-regulation. The professor concludes by saying the failure to deal with tabloid scurrility in Britain in the 1970s and 1980s created a culture in which a generation of journalists and editors came to believe they could do as they liked. Their subsequent clean-up act has been a mask for further misconduct. The professor begs Ireland not to allow its newspapers to make the same mistake.
I remember reading and thinking silly some words of Arthur Cleary, a contemporary of James Joyce at UCD. Mr. Cleary, who had a way with a phrase, said a country which took an English newspaper for its Sunday breakfast might one day find a change in its Friday menu. I am old enough, as perhaps is the Minister, to realise that his reference was to Friday being the day on which one ate fish. While I thought the statement to be silly and parochial when I read it, it is unfortunately proving to be true. There is one newspaper of particular note in this context although I should not, perhaps, give it the credit or the blame given the manner in which it feeds on infamy. Every newspaper which has written about this matter has pointed its finger at Ireland on Sunday and there is no doubt that it is the source of this culture.
I had my experience with Ireland on Sunday when an interview I did with it was seriously and deliberately misinterpreted. I was given the entire front page of the newspaper which featured a photograph that made me look like a raging sex maniac. All kinds of distortions appeared. I was not expecting it. I remember the appalling personal pain I felt when I stopped at a petrol station while driving to Limerick and saw serried ranks of this mischievous edition. These people have no conscience and do not realise the pain they cause. Luckily, I got over it having gone on air to defend myself. I thank those other members of the media, including print media, who gave me the opportunity to explain what I had to say. The subject of the interview was human sexuality, the age of consent, paedophilia and pederasty, but subtle distinctions were deliberately obscured.
The result of such activity is that very serious matters of public import are made so dangerous that public figures are afraid to open their mouths about them. They will be trivialised and trashed by rubbishy, third-rate, sensational journalism. This is what my late friend the wonderful television dramatist, Denis Potter, meant when he  accused Rupert Murdoch, of whom, as the genealogists say, more anon, of debasing public discourse in Britain. This is why it is dangerous to allow these people to get away with the behaviour outlined. They will continue to do so if they are not regulated by a system which includes sanctions. It is extremely important therefore to include such sanctions in any mechanism we develop to address this matter.
The Naomi Campbell case involved the question of whether a public interest existed. While this unfortunate woman is a celebrity, a very beautiful fashion model known by everyone, she was struggling with addiction. Is she not entitled in her desperation to seek assistance without her treatment being interrupted and damaged in the interests of profit by unscrupulous newspapers? I do not object to the making of profits by newspapers — that is the world in which we live. To make a profit by exploiting the misery of others while exposing them, as in the case of Naomi Campbell, to the risk of relapse into serious addiction, however, is disgusting and immoral. What makes it worse is the pious, holier-than-thou tripe the people involved go on with. The media argued in the case of Princess Caroline that she was a “figure of contemporary society par excellence” which meant there was a public interest in photographing her buying a half dozen eggs. I disagree that there is any interest in it at all. I am very glad the European Court of Human Rights rejected the media’s argument and found that no public interest had been served.
In a very carefully balanced contribution, the Minister said the courts were the appropriate venue in which to deal with this subject on a case-by-case basis. I take a slightly different view of where the balance is achieved. The Minister’s argument is a demonstration of his intellectualism. While I can see that intellectually such a case can be made, I ask the Minister to consider the pain of those individuals who are forced by the absence of statutory protection to drag themselves through the courts with the attendant risks and expense such a process entails. Very often people will be advised by very good libel lawyers that while there is no doubt they have been libelled, they are not advised to proceed with a case due to the risks involved. If one loses a libel case, one has not only been damaged but financially ruined. It is not fair to expect individual, ordinary members of the public to pay with their blood, sweat and money to provide a track record of case precedents. It is a great pity.
The Minister said the Government of the United Kingdom had declined to follow the recommendations, as he has himself, of a statutory independent review. I wonder why Mr. Blair has taken this line. I will put my suspicions on the record. Before he was elected to the position of Prime Minister, Mr. Anthony Blair flew to Australia and had a meeting with Rupert Murdoch. As a result, the tone of the Murdoch chain of newspapers changed drastically and the newspapers assisted him to get into power. I have no  doubt whatever that there is a Faustian pact between New Labour and Mr. Rupert Murdoch, which has not done British public life any good at all.
The Minister referred to the pamphlet by Baroness O’Neill, about which I did not know, but I certainly will get a copy of it as it sounds interesting. She makes the point that much of this journalism is “invasive, intrusive, does nothing to further the role of a free press in society, does not lead or shape political discourse on the issues of the day, rather it is sleazy and intended to make profit”. The Minister then went on to the question of a statutory or Government-appointed press council. I would have a problem with Government appointments because there is the difficulty of perceived political interest. It is difficult to work out how to arrive at a press council. It should be independent and statutory but I wonder about the method of appointment.
The Minister also referred to the question of the need for the council to be representative in nature and the question of funding. It should be funded by the Exchequer, not the press, because there must be no suggestion of influence. The Minister stated subscription to the press council and adherence to its code of standards by a publication would strengthen its entitlement to avail equally of the defence of reasonable publication in a court action. That is fine but what about publications that do not do so? The Minister has indicated clearly there is a possibility of people opting out. What happens to them? There is no reason people should opt out. What sanctions are there against these people if they do so? This is pretty toothless. The Minister stated the code of standards is not an issue for him or the Government. While it is not a matter for them exclusively, the Minister, the Government and the Oireachtas should have an input into what are the standards on behalf of the people.
It is a pity to concentrate on one newspaper but it has brought this upon itself. Fintan O’Toole wrote an interesting analysis in The Irish Times on 5 February. He examined the contents of the previous week’s Ireland on Sunday. He catalogued and analysed the various stories, including the story about Charlie Bird. Most offensively, there was a frightful and utterly unjustifiable story about Malcolm MacArthur’s son. This is an innocent young man who has tried to make the best of a life that cannot have been easy and who is studying for an advanced degree in Trinity College. All he has done is be the son of somebody who became infamous. He is exposed and photographed and there is innuendo in comments such as the Wildean hairdo and the dandyish look. It is being suggested that this makes him a clone of his father. The newspaper is visiting the sins of the father upon the son.
Where is the public interest? How dare the newspaper behave in this way? If it does so in Britain, it should be clearly told it cannot and must not do it with impunity in this country. Imagine the pain of that man but I hope and  expect he has the courage to continue his studies. He did not deserve this and it is an absolute disgrace on the part of the journalists who wrote the article. I do not read this newspaper but I am not sure whether this was one of the columns, which the Minister rightly referred to with indignation, with a bogus byline. They are ashamed to put their own names to it. That is an outrageous practice.
There was an article on the family of the former Minister, Ray Burke. What did they do? Where is the public interest? According to Fintan O’Toole:
Thus, in the first 22 pages of this one issue of Ireland on Sunday, there were photographs of people going about their private lives. All of them were clearly taken without the consent of the subjects. None of them, or the stories that accompanied them, gave readers any new information at all on any public issue.
In addition, a girlfriend of somebody famous ran away and tried to shield her face but the newspaper made a point of her distress. This is prurience to the point of press pornography.
We have a good press, which has a good union. Seamus Dooley has done us great credit in the way he responded honourably and outlined the standards which, unfortunately, are not adhered to by British newspapers, in particular. British standards are being adopted here and they are simply not acceptable.
I will not go into all the stuff about Kevin Myers but even in The Irish Times, which is an exceptionally fine newspaper, there are practices that lead to the ordinary individual suffering a little. I have been involved in controversy and I have written to the newspaper commenting on columns that appeared. I have been replied to not in the letters page but in these very columns. I have had entire columns devoted to me by Mark Steyn, Kevin Myers and John Waters, which is very flattering but there is an imbalance. It is not too much to ask newspaper columnists to demean themselves to join the hoi polloi in the letters page rather than using the added weight of their columns to extinguish ignorant people.
Charlie Bird rang Ireland on Sunday and complained to the editor. I know a little about this because I spoke to people within the trade when I was blackguarded by that newspaper. The newspaper brought in a new person from England with a brutish reputation as editor and got rid of all the NUJ members and, therefore, the code of practice does not exist. However, when Charlie Bird contacted the newspaper, he was told he was “fair game” and “a legitimate target”. I would like to say to that Englishman editing that newspaper that we do not associate that language with a decent press in Ireland. We associate that language with the Provisional IRA, which undemocratically takes upon itself to describe and label people as “legitimate targets” and “fair game”. It  is not his business to do it and we will not stick with it.
Mr. Dardis Mr. Dardis
Mr. Dardis: I wish to share my time with Senator Maurice Hayes.
I should declare an interest. I was a journalist for 30 years with the Irish Farmers’ Journal. The sex lives of bovine animals and the cross-fertilisation of cereals do not engage the public in the same way as other more salacious activities but, nevertheless, I gained an insight into how the newspaper industry works. The profit motive is dominant and that is understandable. It is legitimate that newspapers should make profits but I very much support the Minister regarding the need for a free press. It is the basis of our democracy. The Fourth Estate has an important role to play in a democracy. It is understandable that Governments try to control the press but it is wrong and the Government must tread cautiously before it intervenes in that area of freedom.
I also very much support the Minister regarding taste. There should not be a statutory determination of what constitutes taste because taste changes over time. While some articles may be distasteful, it should not necessarily be the case that they should be prevented from being published. The editors of newspapers have obligations and responsibilities regarding comment and the veracity of facts but, unless the frontiers of taste are pushed out time from time, it would be a retrograde step. We have enough experience in our history of censorship to know one is going down a slippery road if one intervenes regarding taste. One famous example of this in the House involves The Tailor and Ansty. Reading that debate again demonstrates how a Government can go into an area in which it should be reluctant to intrude.
The questions of balance and degree are essential to the debate. The Minister should be commended for wishing to consult and I am glad the House will have a role. We have had many debates on this issue since I became a Member and the Law Reform Commission report was debated fully. Senator Manning was active in this area when he was here, both as Leader of the House and Leader of the Opposition. I have participated in debates in Cleraun study centre, as has the Minister, and those debates have been useful for forming a view on these matters. There is merit in detachment, as is evident in the Minister’s speech.
One of the difficulties with modern newspapers is that there is an increasing tendency to portray opinions as facts. This is particularly evident in the Sunday Independent. If one tries to find news in it, apart from the lead story which itself is sometimes not news, one finds a preponderance of articles from self-proclaimed experts who tend to be from middle class backgrounds — dare I say Dublin 4 types, which is a state of mind rather than a geographic location. These articles tend to reflect the attitudes of a particular section of society and regard those attitudes as dominant.  There does not appear to be a balance in the attitudes represented by the newspaper. However, the plain people have enough sense to sift out what is good and what is bad. Frequently, the attitudes represented by the newspaper do not reflect the attitudes dominant within the country as a whole, but thankfully, the plain people have enough good sense to resist them.
There is something more sinister about this in the sense that there is an increasing tendency to subvert democracy, which is a danger. To return to the question of a free press and balance, they have a role within the democratic process. Their role is one of scrutiny and to ensure that Government and institutions of the State are accountable. There is, however, an increasing tendency to want to have the State run on the terms they regard from their narrow perspective as desirable.
This brought to mind the famous comment by C.P. Scott, editor of the Manchester Guardian for almost 50 years that “comment is free, but facts are sacred”. The preamble to that comment is interesting and perhaps we are not so different nowadays from what we were then:
A newspaper is of necessity something of a monopoly, and its first duty is to shun the temptations of monopoly. Its primary office is the gathering of news. At the peril of its soul it must see that the supply is not tainted. Neither in what it gives, nor in what it does not give, nor in the mode of presentation must the unclouded face of truth suffer wrong.
This was written in 1921 but still is true today.
On the matter of a press council, I agree with the Minister that it should be an independent body and should embrace all the elements of society mentioned by him. There should also be a press ombudsman. What sort of sanctions will there be for such a body? This critical question is hanging in the air.
We must also examine the question of libel, what it is and whether it should be redefined. There appears to be a different standard for public and private persons. The right to privacy is absolute. However, there are people who use the press. Some people are famous for being famous and while they want to be pictured going into a nightclub in London, they do not want anybody to intrude. It is a double-edged sword and if one lives by the sword, one dies by the sword. As Wellington said: “Publish and be damned.”
Dr. M. Hayes Dr. M. Hayes
Dr. M. Hayes: I am grateful to Senator Dardis for sharing time with me. I have several interests to declare before I start. I am a member of the board of Independent Newspapers and I write newspaper articles. I have also been acting as a facilitator to the press team to which the Minister made reference. From now on I am on my own, in the sense that anything I say does not reflect the policy or the practice of any of those groups.
I hope there is nothing particularly symbolic in the fact that we are having this debate on Ash Wednesday. I welcome the Minister’s invocation  of Sir Thomas More who was the greatest public servant of all time. It is always a pleasure to engage with the Minister, even when one disagrees with him, because he brings a freshness to debate in the House. His introductory statement is extremely helpful and I find myself able to support and applaud almost all of it. I certainly support his fresh approach, his open mind and the direction in which he seems to be heading.
I mentioned my difficulties with the libel laws earlier, which I see from both sides. I generally write very carefully and do not slag people off, but try to engage with their ideas. However, in the case of a book review and of an article in which I did not even mention names, I found myself being taken on and, in one case, sued. In another case, when I was a member of the Patten commission there was an entirely dangerous article in the newspaper which definitely exposed me to libel. I could live with that, but there were people around who might shoot one for doing the sort of thing attributed to me at the time so I had to pack it in. As an ordinary citizen I did not get the hassle. We must somehow bridge the gap.
I agree with the Minister’s approach to the law of privacy. This will be developed, particularly following European Court judgments, through the courts. This is probably the better way of dealing with the issue. It is difficult when these matters are set in concrete and then it is found they do not fit the circumstances. The courts will develop provisions regarding privacy over time, given this process and the constitutional right we have to privacy.
I agree with Senator Norris that the ordinary person should not have to slog through the courts. If we have a press council and the press has a code of conduct, that code should reflect the judgments being made. I join the Minister in commending to Members Baroness O’Neill’s proposal which is an excellent treatment of the situation.
The direction the Minister is taking towards a press council, which is not statutory in the sense of being appointed by Ministers or politicians, is the right way to go. However, it must have sufficient background to give it the teeth people expect for protection. It is important that it is independent and in this regard the first appointees and how they are appointed will be of great importance. There may be technical difficulties in ensuring these people emerge in a way that is credible and transparent without having some form of appointing procedure. It is important to all concerned that the first appointees are outstanding people with unimpeachable integrity so that people will believe the council does mean something. The code of conduct against which the council will operate is also important.
People have talked about the press and a democratic society. It is a question of checks and balances. The great thing about a democratic society is that one set of institutions can live with another set of institutions and keep it in check.  Each institution will not be right all of the time and each will not produce balance across the board all of the time. There will be difficulties. What is important is that the ordinary person should feel there is a means of control.
I expect the media, generally, to be not anti-Government but critical of Government. I had the misfortune to live under a single party state for 50 years where people get very complacent. We have seen it happen across the water, both in the Thatcher Government and in the current Administration, that governments that are in power for a long time suddenly think they make the rules. Governments that are in power for a long time suddenly think they make the rules. This matter is important. We all applaud Woodward and Bernstein as portrayed in “All the President’s Men” and Ben Bradley. Two investigative journalists from the Independent Group have been murdered. One was killed by criminals in Dublin and the other by loyalist paramilitaries in the North. In order to remove doubt I should say the second crowd was also engaged in criminal activity.
People will make mistakes and go over the top and it is important that they can be held to a set of standards. We should not try to be entirely restrictive. The use of false bylines is unpardonable. Much more than defamation, I worry about the danger to the criminal process of some of the things that are happening in court reporting and the presentation of cases. I also worry about the dangers that arise not through the actual journalism itself, but the things that are used to promote newspapers in the sense of lines being slashed up and taken out of context and all the rest of it.
In the closing section of the Minister’s speech I thought I detected a slight false dichotomy in terms of the difference between a story being newsworthy or profit-worthy; information versus entertainment. I heard a quote the other day which was so bizarre that I hesitate to attribute the remark. It was said that newspapers should simply give information. That is Pravda. The trouble with newspapers being newsworthy or profit-worthy is that if they are not attractive enough to be read; people will not buy them. It does not matter how true is the news they contain. Efforts should be made to make clear what is news and what is comment. I sympathise with a great deal of Senator Dardis’s sub-editorial views. We should avoid these false dichotomies.
From my experience, the industry has moved a long way. The Minister has helped that by promoting reasonable debate. He has consulted and thrown the issue open. It is important for him to go with the tide and bring this matter to a conclusion.
Reference was made this morning to Dean Swift. He was held up to us, quite rightly, as the great satirist, a person who probed at authority and the rest of it. What nobody mentioned was that Dean Swift wrote most of that under a false byline. He wrote as Drapier. Second, Swift was  censored. While we applaud the great satirist we must remember that it is a slightly dangerous business. The greater mistake would be to overreact rather than underreact. I commend and welcome the approach the Minister is taking and wish him well.
Mr. Ryan Mr. Ryan
Mr. Ryan: The Minister’s speech was thoughtful, reflective and challenging. I will have to stop saying that as I keep saying it about his speeches. I am beginning to wonder about one of us. Nevertheless, it is a fact.
I write a weekly column for a newspaper in Cork. It is a newspaper that has been sued and therefore our editor is as sensitive as anybody else to some of the things I say here. He might not be too keen if I said them down there. I like the Minister’s rhetorical flourishes on press freedom. For a moment I thought he would quote from Chairman Mao about letting a thousand flowers bloom.
Mr. M. McDowell Mr. M. McDowell
Mr. M. McDowell: That exact phrase is used in An Phoblacht today on the subject of Daily Ireland.
Mr. Ryan Mr. Ryan
Mr. Ryan: No doubt the Minister is well briefed on the contents of An Phoblacht. I do not buy it but the Minister probably gets it for free.
Mr. M. McDowell Mr. M. McDowell
Mr. M. McDowell: Somebody pays for it.
Mr. Ryan Mr. Ryan
Mr. Ryan: My view on the libel laws is that the basic intent is no problem; the problem is the cumbersome nature of the process of redress. Some people sue looking for enormous damages but most people who sue do so to seek redress. The media could work with the State to put together a process of inexpensive redress and therefore at least ensure that people were vindicated without the necessity for extensive legal cases.
The Minister put the case very well on the issue of privacy. I have yet to be persuaded that we need to write down the need to privacy in statutory form for the reasons outlined by him. We need to realise where the press is going if we are to talk about freedom of the press in the 21st century. For example, if the printing press were only now to be invented, would we licence print journalism in the way we licence broadcasting? The argument is made that airwaves are a limited resource but this effectively will be ended by the advent of digital broadcasting, especially for radio for which an endless amount of air space will become available. The process of cumbersome regulation is based on protecting the commercial interests of local radio stations as much as it is on maintaining diversity. This matter must be re-examined. The minimum regulation is all that is required. The freedom of the press relates to the freedom to do what the press wants to do within the law, not some kind of regulated freedom.
I like the reference that television in the United States is essentially about selling audiences to  advertisers. To the degree that this is true — this is where I disagree with Senator Maurice Hayes — it drives agendas, which is why, for example, public service broadcasting in the United States tends to be very different from private broadcasting.
The traditional enemy of freedom of the press was parliament and the executive. With some reservations, that is not the case here anymore as we have moved on to an extent. However there are other enemies to do with ownership and the agendas of ownership. It is those agendas which often determine what is addressed. Many of the issues to do with tax evasion were barely dealt with in the media in the 1980s and early 1990s, other than in a dismissive way as the rhetoric of extreme left-wingers like me even though competent economists suggested that expenditure and income as declared here did not match. One has to wonder about that point.
The dangerous and worrying issue in regard to ownership and agenda is that one of the agendas of powerful media owners is a denigration of politics. A common consensus is apparent that politics is populated by inferior beings and has little to do with the real world. That is a common theme of many Sunday Independent columnists. Whatever their views on issues, the last people to whom they would give credit are the people involved in the political process. The sinister thing is that the owners of these large media conglomerates take an entirely different view and spend enormous sums of money cultivating the very political process that they try to persuade their readers is entirely irrelevant to their lives. It is not that one or two journalists are writing nonsense about the Minister, Deputy McDowell, or Senator Ryan; it is that there is an agenda which effectively denigrates politics while the owners of the media, perhaps more than ever, appreciate the centrality of political decision making to the protection of their interests. That is sinister and the freedom of the press can be inhibited by such agenda-setting.
In regard to the issue of privacy, what was done to a member of the Government in recent weeks was perhaps a new low in Irish journalism, although there have been similar instances before. For example, the private life of another prominent politician was intruded into by an Irish edition of a British Sunday newspaper. However, in this case, an Irish newspaper seems to have resorted to new lows.
We were concerned about the issue but many politicians have been troubled about the fact that the sudden eruption of concern about privacy has followed an intrusion into the private life of a very prominent journalist. It appears that the famous “fair game” quote, which Senator Norris quite rightly denounced, was essentially one that was at least tolerated if not practised by many in the media in respect of politicians and others until the situation was turned back on a particular journalist. Nonetheless, I am glad we have had  such a debate because there are many issues to be discussed.
We should leave the powerful and the famous out of this matter. Intrusions into private grief, family tragedies and details about gruesome suicides are grossly wrong unless there is some profound public reason. The Irish Times, to its credit, has decided it will not publish the names of suicide victims, which is a very fine decision. I do not believe for a second that we should regulate for such cases because it is a dangerous area. However, there is a level of intrusion not into the lives of prominent, famous or powerful people, but rather small people who have neither the personal capacity nor the resources to go to the courts to seek injunctions, damages and so on. This is among the more repulsive forms of journalism.
The intrusion into the family life of the perpetrator of a crime is also wrong. I have no problem with dealing vigorously and firmly with an individual who breaks the law. However, the victims of the crime and the family surrounding the perpetrator should not be involved. The fact that an individual member of a family commits an offence is no reason to intrude into the privacy of the family to find out the juicy bits with which to titillate the population.
Similarly, the fact that some young people such as rock stars seek publicity in a naive way is not in itself justification for an intrusion into their lives when they are suffering from a troublesome marriage. Stories were regularly published about one of our best footballers who has now retired and whose name I do not want to mention, although people will figure out to whom I am referring. This man had a drink problem and is one of the nicest and most decent guys ever to play football. However, the tabloid newspapers used to delight every time he relapsed into his drink problem — it was a wonderful story for them.
When the young boy was tragically killed in Cork, one could feel a section of the media waiting for the moment at which they could launch into salacious material about sexual abuse. One could almost feel the disappointment when it turned out not to have been as salacious as they had anticipated. There is a duty on those who work in the media to take responsibility for such matters. There is an unequivocal duty on them to take responsibility.
It is perfectly correct that journalists criticise politicians because we should be held accountable. The more powerful people are in politics, the more they should be held accountable. Therefore, they should target the Minister rather than me.
Mr. M. McDowell Mr. M. McDowell
Mr. M. McDowell: They already do.
Mr. Ryan Mr. Ryan
Mr. Ryan: I encourage them to do so within the limits within which the Minister and I agree, about which the journalists would not have much to say.
 It is perfectly acceptable for the media to be very critical of politics but it is a bit rich for us to be accused of undermining democracy when we criticise the media because that is not the case — we are actually strengthening it. It is extremely important to challenge the one-sided idea that we must take whatever is thrown at us but if we suggest that a media report is unfair, distorted, unbalanced or selective, we are accused of something else which is untrue. None of the institutions of the State which are sacred or central to democracy work perfectly and nothing will work perfectly if no one criticises it.
The Roman Catholic Church lived with the illusion for many years that it was a perfect institution because it was above criticism, particularly in this State. The best thing that ever happened to the church was the realisation that, like every other institution in the State, it was made up of humans who made mistakes and who, in some cases, did dreadful things. It is far better for having the vigour and challenge which goes with a free society, whatever its illusions, than if it was left to its own devices.
I look forward to the media’s response to the Minister’s challenge. I am glad that he has made it clear he is not interested in a statutory press council. He is correct about a properly functioning press council. However, we return to the issue of what we do with those sections of the media which choose to absent themselves from these structures and ignore codes of practice. My view is that is a function of the responsible media is to deal with them by telling the truth. I share the Minister’s view about letting the people know the facts in order to be safe.
I do not agree with the Minister about self-regulation, although self-regulation with a vigorous input from outside the profession is a very fine thing. I am a member of a self-regulated profession, namely, engineering, although it is not as tightly self-regulated as the legal profession — we never quite managed to get that sort of legislative protection. Nevertheless, I am sceptical about it. It is very difficult to separate self-regulation from self-protection. There is an issue there.
In a debate about freedom, access to the news and ideas, the Government’s job of filleting the Freedom of Information Act calls into question for many of us whether that commitment is more rhetorical than real. There was nothing in the Freedom of Information Act which had previously operated that was undermining anything to do with the security of the State or anything else. Rather, it was an embarrassing inconvenience in many ways and it was adjusted and filleted to make life less difficult and make Government less accountable. To a degree, that very action suggests that we must still be wary about where the real intentions of the Government lie.
Mr. Kett Mr. Kett
Mr. Kett: I welcome the Minister to the House. I do not know whether we should be kind to him  and offer him a bed or be unkind and charge him rent, given that he is spending so much time in the House. I welcome the opportunity to contribute to this debate. It is a topic which is offering different opinions. Before legislation is afoot, much difficulty and emotion will be expressed before it is all done and dusted. This is a serious issue with which we must deal. We must maintain a balance when we are dealing with it. A person is entitled to his or her reputation and good name at all times, which must be balanced with the fact that freedom of expression and a free press are very important features of a democratic society, as Senator Norris pointed out.
From reading the coverage on this issue, one could be forgiven for thinking some journalists and commentators believe they have an absolute right when presenting their views and anything they say takes precedence over any other consideration. Taking this as the thoughts of some in the profession, one can well understand why individuals have been defamed in the media. The Minister referred to the case when the Taoiseach was accused of taking 50,000 from an individual in a car park. While it turned out to be untrue, the Taoiseach paid the price for the allegation. Recently on the Joe Duffy show, the issue was raised of D.J. Carey’s private life on the morning of an All-Ireland Hurling Final. As Kilkenny were playing Cork that morning, did a Cork man write the story? The recent hounding of the Minister for Transport, Deputy Cullen, is another example.
The nature of the newspaper industry is such that there is a great increase in the number of titles in a declining market. As a consequence, the behaviour of newspapers lends itself to what coverage we receive. On the Internet, I read of an incident with P.J. Mara, the then press secretary to Fianna Fáil, during the 1990 presidential election. He was asked by a newspaper for information relating to the health of the late Brian Lenihan. The newspaper argued that the public was entitled to know, to which P.J. Mara replied “the public are entitled to know — all”. Due to the late Brian Lenihan’s candidacy, the fault line lay between matters of public interest and curiosity. A private citizen’s medical records would never be considered in normal circumstances. Several weeks ago, a member of the band, U2, took an injunction against a newspaper for printing details of a family member’s situation. He was forced to go to the courts to prevent this happening.
The NUJ has a code of conduct that requires journalists not to intrude into people’s privacy unless there is an overriding reason as to why they should. That code is gathering dust in some office as it does not feature in much newspaper coverage. The media has no system of regulation. If anyone has a legitimate claim against a newspaper, he or she must go through a right of reply process which is normally found in the newspaper’s back pages. A balance needs to be achieved where individuals can achieve some  form of redress for defamation without the expense of resorting to the courts, irrespective of whether they can afford to do so. The argument in favour of self-regulation suggests that statutory controls would be hostile to press freedom. At the same time, if the press has its freedom, it must deal with it in a proper manner. Press freedom is a necessary requirement in a democratic society. However, it must also be recognised that the free exchange of ideas and opinions builds on the values that inform society. Statutory intervention will not run contrary to this. It is possible to establish a statutory body that will respect the freedom of the press while being transparent and independent, giving the public confidence in the procedure.
The best response to any defamatory statement is a quick and strong rebuttal. If a journalist is shown to have his or her facts wrong, the statement will lose credibility. However, to challenge statements made against oneself, unfortunately one needs to own a similar platform such as a newspaper or broadcasting station. On many occasions, people’s reputations have been destroyed by the media. If a newspaper prints an apology the following morning for a misstatement, one will still not recover one’s good name in the short term. There will always be the assertion that there is never smoke without fire; the fact it was stated means there is some element of truth to it. The argument is often bandied around that a lower level of proof is required if the individual concerned is in public life. This is hogwash. If one does not print the truth, one should pay the price. No one should be allowed to print lies about a person which could affect his or her standing in the community or, in some instances, destroy families.
At the same time, good investigative journalism must be encouraged. Good journalism brought about the chain of events that gave rise to the tribunals of inquiry. This journalism is welcome and helpful to society. I naively believed that the instruction manual for journalists stated they should be objective, fair and balanced and not allow personal dislikes or distastes to enter the arena. Given the influence that such reporting has on the public, great interest must be shown in this area as a journalist can destroy a person’s life. Headlines frequently bear no relationship to the story they underline. Often, they are wholly unfair and damaging. These headlines are used for the sole purpose of selling newspapers. If there is any integrity in newspapers or broadcasting, they should report on an issue without using a headline that captures the imagination but bears no resemblance, good, bad or indifferent, to the story itself. Unfortunately, democratic politics needs journalists as much as journalists need politicians.
Mr. Bannon Mr. Bannon
Mr. Bannon: I welcome the Minister for Justice, Equality and Law Reform to the House and thank him for staying for the duration of this important debate on privacy and defamation.  With increasing incidents of invasions of people’s privacy, the Fine Gael Party is anxious to see the early establishment of a press council. Will the Minister give an update as to the status of his proposals to do so? Members spoke of particular incidents of the invasion of individual’s privacy. I recall a former Minister in County Roscommon who suffered several intrusions into his privacy and various untruths written about him. His only means of redressing the issue was through the courts. Thankfully, he shone in the courts and compensation was received. However, it is not fair on any individual, be it a celebrity, politician or an ordinary member of the public, to have to resort to the courts for redress. A body must be established to do so. A debate on the issues of defamation and privacy must include a discussion on press regulation. Despite an Oireachtas debate in the recent past, not much has been done to advance the establishment of a press council and related matters. The council envisaged would form part of the defamation Bill currently being drawn up by the Department of Justice, Equality and Law Reform. The Minister has been quoted as saying that he favours a voluntary press council backed by statutory powers to sanction publications that breach privacy. He rightly refers to a council without statutory powers as a “toothless dog”. It is up to the Minister to ensure that the dog has a full set of molars and it is his responsibility to put them in place.
Historically, the press has always operated and continues to operate in a largely unregulated environment. One could say that freedom of the press is valued in any democracy, but there are boundaries and it is the crossing of those boundaries that we are here today to discuss and rectify. Many incidents were quoted during the debate.
Fine Gael is in favour of the establishment of a press council. We have clearly set out our guidelines for this council as being representative of the social partners, the wider public interest, editors, publishers and journalists, with an independent chairperson. Mindful of the freedom of the press, it is important that we draw a line between a democratic society and the preservation of the vital role that the free press plays in our democratic society. However, freedoms have been abused by a small number of journalists and the privacy of every person must be safeguarded by the legislation.
The case for the reform of defamation law has been strongly made over the past few years and by many Members present today. The then Minister published a Private Members’ Bill on defamation in 1995. Despite a consensus which I am sure could be said to be cross-party we are still a long way from addressing this matter and the Government has still not published the much promised defamation Bill. Despite technological advances and the increasing breadth of the media, the tort of defamation, which essentially balances freedom of speech against the right of a person to his or her good name, is primarily governed in this country by a 40 year old Act.
 In 2001, Fine Gael published a document, Press for Change, which contained proposals for a major overhaul of our outdated libel laws. While we essentially support the proposed reforms contained in the legal advisory group’s draft Bill, it fails to address many important issues such as the retention of juries in defamation cases, the changing of the rules governing court lodgements in defamation cases and the provision to allow a genuinely mistaken libel to be alleviated by an immediate apology.
There is urgent need for a forum of regulation of the press in which the public can have confidence. Last year the Minister initiated a public consultation process on the new legislation and met the press industry to discuss its proposals for a press ombudsman and press council, but no outcome is apparent. The Minister referred to this earlier.
In Ireland, by and large our media serve us well. They are in general an honourable group and do not engage in the sort of carry-on seen before the death of Diana, Princess of Wales, and the sort of photograph hunts that have blighted the lives of so many celebrities throughout the world. Times are changing and a few rotten apples can do a great deal of damage. It is important that legislation is brought forward so that such people are stopped in their endeavours because their only agenda is to sell their papers. To do so they will write any sort of dirt. I welcome any proposals to stop that sort of carry-on in civil and democratic society.
Mr. M. McDowell Mr. M. McDowell
Mr. M. McDowell: I thank the Members for their very considered contributions to today’s discussions. Senator Hayes told me to take events on their tide and I intend in the next few weeks to bring to Government the finalised version of the proposed defamation Bill which will contain provision for a press council along with many of the elements mentioned today as necessary reforms of our law of defamation.
Time constraints do not allow me to reply in detail to some of the questions raised. Many good points were made in the debate today. In particular I echo the general point courageously made by Senator Ryan that there is a tendency among some elements of the media, though by no means all, to denigrate politics as an activity and to suggest that journalists and columnists are by implication morally superior to elected politicians. I will not draw a relative graph showing where people stand on that scale but politicians are not inferior to those who write about them. We are not below journalists. I will not put the case any further than that.
Members of both Houses have absolute privilege. If I knew the truth, I could speak of the exact state of the marriage of any journalist, or what his or her children did or did not do, or whether he or she were a drug addict or a drunk. I could do any of those things and no one outside  these Houses could call me to book. We have our internal disciplinary systems which, if I took the action spoken of, would leave me subject to censure from within, but there would be no redress for anyone outside the Houses if I levelled that kind of abuse at a person or told an uncomfortable truth about anyone in the media world.
I say that only to emphasise the point that, in the final analysis, everyone, even a politician or a journalist, is human. There are no superhumans, supermen or superwomen in our society. We are all humans. The fact that people aspire to be statesmen — or editors — does not give them any greater or lesser humanity on that account. We must have a system which is fair to those who engage in politics because there is no system which does not involve humans as the actors in the democratic process. Senator Ryan is right. Those who constantly attack and denigrate participants in the political process should at least admit that they would probably make a far worse fist of it themselves if they were doing the work. Some people have driven newspapers and magazines into the ground financially, yet tell us they know how the country should be run. I will not elaborate but everyone knows what I am talking about. Most of the columnists who comment on political matters must admit that they would probably be as good, yet probably no better, than ourselves. There is no point in tearing everything down if one is not prepared to put something up in its place. I invite every journalist in Ireland who thinks he or she would be better than the public representatives in Dáil Éireann and Seanad Éireann at doing their jobs to stand, seek election and show the colour of their money.
Although tough things have been said today, our media in Ireland, both broadcast and print, are very good indeed. They are media of which generally we should be proud. Our newspapers are readable. Generally speaking they do not accord with the standards identified as a danger by some of the contributors to this debate. We are well served by our media. From time to time some of us find certain of their stances irritating, or we simply do not agree with them. However, the same applies to them. They find what politicians do irritating on some occasions or simply do not agree with them. Let us remember that this is not a dog-eat-dog situation. As Senator Kett said, the media generally and the democratic institutions need each other since one would not be there without the other. Let the media remember that they would not exist if we were not a democracy or if people such as the Members and I did not participate. They would not be there if some general or some other ideologue were sitting behind a desk running Ireland as a dictatorship. Likewise, let politicians remember that we would not be here and there would be no democracy if there were not free media. It is a relationship in which there has to be give and take and we must all be honest and truthful about it.
Listening to Senator Ryan, I was struck that we have reached the point where, via the Internet,  every single speech of mine, Senator Kett or Senator Terry is available to anyone who wishes to see it in their home. In a few hours anyone will be able to view the proceedings of this House in their home, consider it, study it and write about it. Any speech that anyone makes at a branch or cumann meeting or at a public event can be posted on an Internet site and anyone can see it. We therefore live in a world in which the facts — if speeches are to be regarded as such — are now available to everyone. The newspapers are thus not a means for people to find out exactly what happened in an institution yesterday; we have gone past that point. If one wants to know what happened yesterday in the Dáil, one should not read one’s newspaper but press one’s buttons to get through to the Internet. There is no such thing as a newspaper without an agenda. To ignore today’s debate in this House and publish in its place a story on medical cards, for example, is a choice. Now that we all live in this Internet world where all speeches and reports are available, deciding what should be in a newspaper is an agenda-driven activity that characterises each publication.
We have gone beyond all the old classic arguments that the media are the only way for people to gain access to the facts. They have a different role. They are individual in the sense that they have styles, attitudes, agendas, messages, values and slants on issues one way or another. Therefore, the notion that they are somehow different or purely the product of totally impartial reporters who give us an account of everything that happens is for the birds. Things have moved on from there and some of the political discussion may not yet have caught up with that fact. Our media, and particularly our print media, are not simply a massive Internet through which one can find out anything one wishes. They are different, being products that must sell themselves and attract advertisers and readers. They are set up for specific purposes, whether to unite Ireland or support liberal values, and all have their slants, left-wing or right-wing.
In that context, whatever legislation we pass must recognise that free and independent media are a cornerstone of Irish democracy. I will not forget that point. I see a few people who imagine that I am somehow itching to control the media, when nothing could be further from my mind.
Sitting suspended at 1.35 p.m. and resumed at 2.30 p.m.
Seanad Éireann 179 Privacy and Defamation: Statements.