Proposals for a State-run judicial system for press complaints are flawed because nominees of the Minister for Justice can never be independent from the political sphere, writes Ronan Brady
Next year, Ireland is very likely to become the only "western-style" democracy with a State-run judicial system for press complaints. Other countries have withheld such power from politicians due to concerns over press freedom. But their experience has been almost entirely ignored in the discussion till now. So has that of the Council of Europe - the body which oversees adherence to the European Convention on Human Rights.
Deprived of a broad perspective, the debate has wandered into a series of cul-de-sacs and false alternatives. Opponents of State regulation are accused of wanting a form of media self-rule without any accountability. Those who advocate a legal basis for press regulation are accused of censorship. "Statutory" suddenly becomes the antonym of "voluntary" and essential values like press freedom or independent arbitration are lost in the melee.
The confusion is hardly surprising. The matter came to a head in July when a Department of Justice advisory group chaired by Mr Hugh Mohan tagged a proposal for State regulation of the press, through a council appointed by the Minister for Justice, onto a minor reform of the Defamation Act. Mr McDowell announced a consultation process, ending on December 31st. But two entirely separate issues were yoked together, ensuring a muddled debate.
Press complaints systems vary enormously throughout the world. Some have a statutory basis, some are tribunals of senior journalists set up by trade unions and some are voluntary associations of journalists and publishers without any special legal status. But until now, no democracy has installed the kind of State-run press council envisaged by Mr Mohan and his Department of Justice colleagues. All the press complaints systems or press councils that I'm aware of try to remain independent of the political sphere in a way that nominees from a Minister for Justice can never be.
There is an additional danger. Complaints systems should also be independent of powerful publishing interests in a way that the British Press Complaints Commission (entirely controlled by the publishers) has failed to be. Publishers have a concern with press standards but their overriding concerns must be commercial. Proper independent arbitration of complaints means their influence needs to be offset - usually by the unions of journalists. These unions can have sectional interests, so respected figures unconnected with politics are often brought in as well to represent the general public.
These systems are often referred to as "self-regulation" but this is actually a misnomer - "independent regulation" would be more appropriate. The crucial question is to avoid undue influence from any quarter, so as to preserve press freedom.
Such influence can be wielded through funding. In 1987, the journalists' union tried to persuade the Australian Press Council to oppose media mergers which threatened press diversity. Council seats were divided equally among the publishers' organisation, the journalists' union and independent representative of the general public, selected by these two bodies. However all the bills were paid by the publishers, which gave them an added influence over the independents. They were able to prevent criticism of the mergers, so the union withdrew from the council.
Threats of litigation pose another danger. It may be a very hard pill for some lawyers to swallow, but democracy means they should stay out of the newsroom. There are some things such as religion, poetry, industrial relations and news-gathering where the law is always an ass. The judicial system's crude alternatives of guilt or innocence are simply inappropriate amid the nuances of daily news production.
For years, corruption has flourished in this country - partly because reporters are unable to expose it, for fear of hugely expensive litigation. In practice, reporters require a forensic level of proof before they can air serious allegations or sometimes even investigate a matter. Teams of lawyers comb each night's newspaper to root out the controversial, like a second layer of sub-editors.
Only the courts have powers to uncover the ultimate truth of any matter. Journalists haven't got the power of arrest. People lie to us with impunity. We find out as much as we can before the next deadline and tomorrow's findings may well disprove today's great discovery. The truth you find on the airwaves or among pages such as these is a tentative thing and comes with the implicit warning: "This is it, so far as we know."
As long as a forensic level of proof is required, the elite enjoys immunity from investigation. But this situation cannot remain forever. The European Convention on Human Rights does not permit signatories like this country to limit the kind of discussion "necessary in a democratic society". Scrutiny of the powerful is necessary in a democracy. As long as our law fails to allow that, it is in breach of the Convention. Recent decisions of the Human Rights Court at Strasbourg suggest that a challenge to our libel laws would be successful.
Mr Mohan's group recognises that we are failing in our treaty obligations and proposes an amendment to allow publication if it is in the public interest. Unfortunately the positive effect of that is negated by his insistence on State regulation. His press council (probably consisting of lawyers) will be able to prosecute newspapers which do not obey its injunctions. Once again the standard of proof required for publication will be "that which can be proven in court".
The strangest aspect of this sorry brew is that Mr Mohan opts for court-imposed compulsion without even trying to achieve his aims by agreement. It's not as if there was opposition in the industry. The newspaper publishers' organisation NNI and the National Union of Journalists have both supported the introduction of a press council with an ombudsman, as in Sweden.
The Council of Europe's media division always suggests to lawmakers that they give agreed proposals like that a fair chance. Of course, more restrictive systems can be considered if agreement within the industry breaks down or proves ineffective. But shouldn't compulsion be the option of last resort?
Ronan Brady is a member of the Irish Executive Council of the NUJ and a consultant to the Council of Europe and the International Federation of Journalists on media regulation.