Press council must be independent of State and papers

Regulating the media: The challenge is to find a way of involving civic society - and not just party hacks - in overseeing the press, argues Fintan O'Toole in the final part of his series.

Last March, when Michael McDowell published the report of the Legal Advisory Group established by his Department to firm up proposals for reform of the libel laws, everything seemed to be falling into place.

The group came up with a thoughtful, well-balanced approach to libel, including a new defence of "reasonable publication" and much clearer recognition of the right to express a genuinely held opinion.

On the other hand, however reluctantly, the newspaper industry had come to embrace at least the principle of a press council, even though it was still reluctant to abandon the discredited notion of self-regulation. The broad shape of a new regime which would underpin freedom of expression, responsible journalism and the public's right to know, seemed to be emerging.

Disaster struck, however, in the form of the advisory group's concrete proposals for a statutory Press Council. The problem was summed up in one line of legalese: "The Council shall consist of nine members appointed by the Government". However well-intentioned, the suggestion conjures up a bizarre prospect.

The government of the day, whose discomfiting is a major part of the media's job, will decide who gets to act as watchdogs over the press. These government nominees would both prepare and enforce a code of conduct for newspapers. Failure to comply with its rulings would result in a reference to the courts who could, in turn, make legally enforceable orders.

The potential for conflicts of interest in such a scenario are obvious. Given the record of governments appointing party hacks to statutory bodies, there is no reason to assume that a majority of the nine members might not be party activists.

Imagine, for example, that such a press council was in operation in 1997, when newspaper allegations about Ray Burke had not yet been vindicated by the Flood tribunal and the Taoiseach was still characterising them as the harassment of a decent servant of the people. Is it not at least conceivable that a press council packed with Fianna Fáil activists might have decided that allegations of corruption against Burke constituted what the Legal Advisory Group's draft bill calls "harassment of, or the unreasonable encroachment upon the dignity or privacy of, any person"?

In his remarks cited yesterday, the Taoiseach rightly compared the notion of referring complaints against journalists to a committee of other journalists to him referring the situation of the tax-defaulting TD Michael Collins to a Fianna Fáil cumann in West Limerick.

But does it make any more sense to refer complaints against the press to the equivalent of the same cumann? How is the public interest in freedom of expression and access to information served by giving such powers to the government of the day?

Not the least of the problems caused by this ill-considered proposal, however, is that it allows those in the media who are unenthusiastic about genuine accountability to paint themselves as persecuted defenders of freedom. The initial response of the National Newspapers of Ireland (NNI), the umbrella group for newspaper publishers, was to press ahead with the establishment of its own form of voluntary self-regulation, a press council and ombudsman to be appointed by the industry itself.

Earlier this month, this proposal was changed to one in which the industry would establish an independent ombudsman and council.

The recognition that pure self-regulation is untenable is a significant step forward. But the proposals are in fact vulnerable to precisely the same criticism that the NNI itself makes of the notion of a Government-appointed press council. That criticism is based on the well-grounded belief that a body can never be truly independent of those who establish and fund it. Even if the NNI genuinely wants the press council it proposes to establish to function independently, it is hard to imagine that the public would accept it as such.

There is also some confusion about the basic principle of a statutory press council in the NNI's stance.

On the one hand, it declares unequivocally that it "will not accept any form of press regulation that is statutory". On the other, it also cites with approval the opinion of Mr Justice Tom Finlay, who chaired the Commission on the Newspaper Industry in 1996, that a press ombudsman of the kind it wishes to establish would have to be granted "immunity from action by way of statutory privilege".

But the granting of statutory immunity to an ombudsman would itself make that office a statutory one.

There are, in fact, very significant advantages to having a press council that is established by law and thus recognised by the courts.

It would be able to force all newspapers distributed here to sign up to a code of conduct, thus creating a level playing field for Irish-owned papers and the Irish editions of British papers.

It would be able to back up its rulings with the ultimate sanction of reference to the Circuit Court, thus giving it both teeth and credibility.

It would also strengthen freedom of expression by making it possible to cite compliance with the Press Council's standards as proof of "reasonable publication" in libel actions.

People who used the council's machinery would, as the Legal Advisory Group recommends, be legally debarred from pursuing a libel action in the courts, thus protecting journalists from the prospect of double jeopardy that is held open by a non-statutory press council.

Given all of this, the real question is whether it is possible to construct a press council that is both statutory and independent, a tool neither of the industry nor the Government but of the public's right to and need for a free and responsible press.

Instead of a false and sometimes sterile debate in which "independent" and "statutory" are posed as opposites, it is not hard to envisage a system which is both. There are in fact many bodies already in operation - universities, for example - that are both statutorily based and independent.

It is not hard to imagine a system in which a statutory press council could be appointed by someone other than the Government (by, for example, the Ombudsman, the chancellor of the National University of Ireland, the clerk of the Dáil and the chairperson of the National Economic and Social Forum) according to criteria that make it broadly representative of civic society, the media and the political system.

If debate were to focus on the practicalities of creating such a structure, we might finally strike a balance between freedom and responsibility that is appropriate to a democratic republic.

Series concluded.