Self-regulation is not the answer, as the media itself so often preaches

Regulating the mediaThe media can no longer dodge the case for a form of public accountabilitybeyond self-regulation, Fintan O'Toole argues in the third of his series

In a recent interview with The Irish Times, the Taoiseach, Mr Ahern, addressed the subject of whether any press council to be established as part of a package of reform should be voluntary or statutory. "I think," he replied, "the days of self-regulation in society, with all of the competition and regulatory issues, is not a good way . . . Imagine what the public would think of us if I referred Michael Collins [the Fianna Fáil TD found to have had a bogus non-resident bank account] the other day to a cumann in west Limerick to investigate him.

"It would be the same to refer a newspaper breach to four or five journalists. I do think a statutory press council, legislatively based, should be looked at in this country. Any other one is of no meaning."

The point was well made. Journalists in general have been consistently sceptical of the idea of self-regulation for politicians, clergy, accountants, bankers, lawyers and other professionals. In controversies over, for example, the collusion of the banks with the DIRT scandal or the long silence of the medical profession about the likes of the rogue surgeon Michael Neary, media comment about the effectiveness of voluntary codes has been scathing. Yet somehow, when it comes to their own profession, the natural scepticism of journalists tends to desert them.

It is also fair to say that while journalists leap gleefully on opinion polls that show a collapse of trust in politicians or churchmen, they tend to avert their eyes from the findings in the same polls that they themselves occupy a place in the public's hierarchy of confidence somewhere between pond scum and mange mites.

The recent Prime Time poll which showed a dramatic decline in the standing of the Catholic Church, for example, also showed that journalists rank far behind priests, as well as gardaí, doctors, teachers, and even solicitors in terms of their perceived importance to the community. Though happy to discuss at length what a lack of public confidence means for others, journalists seldom reflect on the lessons such polls might have for themselves.

At the same time, most journalists are well aware of the limits of self-regulation. The National Union of Journalists, to which the vast majority of Irish media professionals belongs, has a splendid code of conduct for its members. It requires them, for example, to "do nothing which entails intrusion into anybody's private life, grief or distress, subject to justification by overriding considerations of the public interest". Breaches of this requirement happen on a regular basis, however, and the code of conduct is rarely enforced in any meaningful way. There are, admittedly, specific reasons for this double-think. The libel laws have made it virtually impossible for journalists to admit honest mistakes without exposing themselves to exaggerated claims for damages.

And, since libel is the context in which journalists are forced to think about accountability, the general attitude has been that if it's not libellous it must be alright. Genuine debates about the ethics of journalism - not least between media workers and their employers - have been smothered by the crude blanket of the current defamation laws.

It is now accepted that, one way or another, those laws will have to be changed. If the Government does not deliver on the promises of reform that have been made for over a decade, the courts will bring about change in any case. The Legal Advisory Group, established by the Department of Justice, made the point well in its report last March: "It is clear that the law is out of step with developments in other jurisdictions which share our legal tradition. It is arguable, indeed, that it is out of step both with the values which are enshrined in the Constitution and with the values enshrined in the European Convention of Human Rights. In the view of the group, if there is no statutory intervention on this point in the near future, it is only a matter of time before the deficiencies which now exist are addressed by way of judicial intervention, be it within our own courts or within the international arena."

In a sense, however, that process of inevitable change will force the press out of a comfort zone. For years, media people have been able to speak in vaguely uplifting terms about how responsible, how creative, and how deeply dedicated to the public interest they would be if only the terrible burden of unjust laws were lifted from their shoulders. In the meantime, the minefield of libel has become a familiar terrain that can feel almost like home ground. If and when the ground shifts and a new landscape has to be negotiated, some awkward questions will have to be answered.

The most obvious one is why, uniquely among all forms of public power in a democratic society, media power should be exercised without accountability. Journalists, publishers and broadcasters collectively exercise a huge influence over almost every aspect of society. They justify that influence by pointing to the long historical evidence that absolute power corrupts absolutely. They claim, rightly, that the public interest requires a free press.

But unless they are to elevate hypocrisy to a point of principle they must also accept that those standards apply to themselves. The power of the media cannot be absolute without becoming corrupt. If the media is essential to democracy, then a democratic society has an entirely legitimate interest in the conduct of the media. These demands are not simple.

The public interest requires accountable media, but it also demands free media, and in trying to create the first it is crucial not to interfere with the second. The answer is not to turn a watchdog that sometimes pees on the doorstep and bites the postman into a lapdog that licks its masters' hands. But neither is it to run away from the reality that too much media power is concentrated in too few hands, that some journalism is cheap, nasty and does unjustifiable harm, and that commercial cynicism can have at least as much to do with the operation of the media as a zeal for the public interest.

In the face of those realities, the inadequacy of notions of self-regulation - whose limits in other areas journalists have done so much to expose - should be obvious.

Tomorrow: Regulating for free media