Proposed Press Council and Ombudsman: Discussion with National Newspapers of Ireland.

I welcome everyone to the meeting, the purpose of which is to discuss the proposal for a press council and press ombudsman, on which the joint committee has invited the National Newspapers of Ireland to make a presentation. In attendance are Mr. Frank Cullen, co-ordinating director of the National Newspapers of Ireland; Mr. Andrew O'Rorke, solicitor at Hayes Solicitors; Ms Geraldine Kennedy, editor of The Irish Times and a member of the press industry steering committee; Mr. Gerry O’Regan, editor of the Irish Independent; Mr. Ger Colleran, editor of the Irish Daily Star and a member of the press industry code committee; Mr. Tim Vaughan, editor of the Irish Examiner; and Mr. Brendan Keenan, chairman of the press industry code committee and business editor of the Irish Independent. I welcome our guests and thank them for attending and giving of their time. We look forward to hearing what they have to say. We have already received a copy of Mr. Cullen’s presentation, for which we are grateful.

On behalf of my colleagues, I thank the committee for inviting us to appear before it. We look forward to a robust debate on two issues which in our opinion have long been in need of attention, namely press, or defamation, law and, separately, press standards. Members of the public should have a forum in which they can raise their grievances where they feel the need to make a complaint against newspapers regarding press standards.

We are here today to explain the work of the press council. A twin-track approach is being taken, consisting of an office of press ombudsman and a press council. In 2004, the press industry steering committee, which has developed the proposals under discussion to their current stage, is composed of a number of bodies, including the National Newspapers of Ireland, representing editors and publishers, the Regional Newspapers Association of Ireland, the Periodical Publishers Association of Ireland, which represents the magazine industry, and the National Union of Journalists, as well as the Irish editions of UK newspapers.

Although the Irish editions of UK newspapers were treated separately when this process commenced, a number have since joined the NNI, with the result that a certain degree of overlap exists. The independent chairman of the committee is Professor Tom Mitchell, former provost of Trinity College Dublin. Senator Maurice Hayes has acted as a facilitator in his capacity as former Northern Ireland Ombudsman and was very helpful in terms of getting the process off the ground and keeping us on the straight and narrow.

With regard to the proposals for an office of press ombudsman and an independent press council of Ireland, independence is an important factor. The ombudsman and council should be independent of the Government and media in its operations. The basis of the model we propose is that editors in particular, but also publishers and journalists, will commit to a code of standards and an independent process which will adjudicate any complaints received. They will support the decision making process because they will have ownership of it, rather than having it imposed on them. If the model was imposed by statute, it would be attacked and resented, whereas these proposals represent an initiative by the industry to voluntarily commit to a code of standards and a process.

While the model was developed in consultation with a wide range of people, we were specifically influenced by the Swedish system, which includes an office of press ombudsman. We consider such an office to be appropriate for Ireland because people understand an ombudsman is someone who will give a fair hearing when approached with a complaint. The ombudsman will be supported at the higher level by the press council.

I have copies of the slides so will make them available to members and move on to the next item. Structurally the press council of Ireland is a company limited by guarantee as provided for in the draft Defamation Bill 2006. Mr. Andrew O'Rorke, who will be known to many members, is our solicitor and is in the process of establishing the company. We have arranged a meeting of the press industry steering committee tomorrow to formally approve his proposals for the company and for the memorandum and articles of association, which provide for seven independent members, to include a chairman and six industry people nominated by the industry.

As regards appointments there is a chicken and egg situation. The first chairman is to be appointed by the press industry steering committee. It is also hoped that tomorrow's committee will approve the appointment of the chairman and that the outcome will be publicised after the meeting.

Who are they?

It is proposed that Professor Mitchell chair the first council because he has been involved in the process for a couple of years and understands what is required. In that capacity he already chairs an independent appointments committee, which comprises three other people. Dr. Maurice Manning serves in his capacity as president of the Human Rights Commission. Dr. Miriam Hederman O'Brien is on the committee because of her work as former chairman of the Broadcasting Complaints Commission, although she has many other distinguished roles in her profile. Mr. Kevin Murphy is on the committee as former Ombudsman and Information Commissioner. They will appoint all but the chairman, who has been already appointed. Future chairmen will be appointed by the press council, to include the outgoing chairman. The independent appointments committee will make the six independent appointments and will also formally approve industry nominees, because there may be a need for balance. While the committee does not select the candidates it will have the power of veto. All appointments will be for defined periods of two and three years so that there is continuity and overlap.

The press council of Ireland's objectives include providing the public with an independent forum for resolving complaints quickly and making credible decisions. They also include the maintenance of high standards in Irish journalism and journalistic ethics and to defend the freedom of the press and its right to inform the public.

The office of press ombudsman will interface with and provide day-to-day contact for the public. The ombudsman will be appointed by the press council, following advertising and executive search. That process is also getting under way. The objectives of the press ombudsman include providing a public face as a point of contact and interacting with the public to deal with complaints. Hopefully many complaints will be amenable to mediation and will not require a formal decision. If a formal decision is required it is the ombudsman's prerogative to make it. Both parties to the complaint will have the right, before the decision is made public, to appeal it to the press council. The ombudsman hears the complaint, makes a determination and advises the two parties of the determination. Before it is published, either party can appeal it to the press council. Similarly the ombudsman will have the choice, in particularly difficult cases of national importance, to refer a case immediately to the press council, perhaps with a recommendation, so that a case can be fast-tracked. That is the process.

There are supporting committees including a code committee chaired by Brendan Keenan and comprising senior editors from the industry and representatives from the National Union of Journalists who have drawn up a code of practice included in the documents given to members of this committee. It is envisaged that the code committee remain in place and be chaired in future by a nominee of the press council, when the press council gets up and running. It is also envisaged that the press ombudsman sit on the code committee. The code committee will consider reviews, from time to time, in light of societal changes, changes in law and decisions of the press council.

Another supporting committee is the administration committee dealing with funding and supporting structures which comprises representatives of the various bodies, including the National Newspapers of Ireland that put the funding in place for this. This committee will initially be chaired by me but in future will be chaired by a nominee of the press council. The steering committee that brought about all of this will then dissolve. Tom Mitchell chaired the steering committee and tomorrow will probably be his last meeting as chairman as we hope to formally appoint him chairman of the press council, at which stage he will step down as chairman of the press industry steering committee.

The National Newspapers of Ireland will be the largest funder, followed by the Regional Newspapers Association of Ireland and the Periodical Publishers Association which covers magazines. There are publications outside these three bodies that we hope will voluntarily enter the process, subscribe, take on the full benefits of membership and be fully acknowledged in publicity material, on the website and so on so it is understood who is supporting this process.

There is an issue relating to overseas publications and some 80% of magazines sold in Ireland originate outside the State. Should they be part of this process or can they be forced to become part of the process? If a person has a complaint relating to such a publication should it be referred to the press council of Ireland or, for example, to the Press Complaints Commission in the UK? This is a grey issue that must be resolved but once the press council of Ireland is up and running it is envisaged that it will be in contact immediately with the press council in the UK and that they will come to a satisfactory arrangement. We will strongly encourage people to become part of the process but whether we can force them to participate is another matter.

The press council of Ireland code of practice consists of ten commandments effectively, ten broad principles. Interpretation of those principles and their application to specific complaints is left to the discretion press council. We did not want to be overly prescriptive and sought to give latitude to the press council as, no doubt, the code will develop with the jurisprudence of the press council. We feel this is the strongest way possible and that it is better cases be discussed on an individual basis, rather than have an overly prescriptive telephone directory listing what can and cannot be done. This is the basis of the code of practice and the code committee was chaired by Brendan Keenan with Ger Colleran also on it so if members wish to ask them questions they will be more than happy to answer them.

All of the elements are now in place, the structure of the press council has been agreed, the appointments process is agreed and under way, the code of practice is in place, the complaints procedures are in place, funding agreements are in place and a website will soon go live. This has come about through a twin-track approach taken for several years with the Minister for Justice, Equality and Law Reform. We have kept him informed at all times and this has been fine tuned in response to many of his requests. A great deal of work has been done by many people to bring the process this far.

Even though separate subjects are at issue they are somewhat related. There is the issue of recognition of the press council within the statute to give qualified privilege to the decisions and statements of the ombudsman at the council. This is a positive thing for most people. There is a concern about the statute getting overly complicated; as I have explained, independence is important. It is hoped the Defamation Bill will be enacted within the lifetime of this Government and that the press council would be up and running simultaneously. I am confident that the press council can get up and running very quickly, and certainly within the lifetime of this Government. It would be helpful if the Defamation Bill was enacted so that this might be facilitated.

Thank you, Mr. Cullen. I propose to have Deputies Jim O'Keeffe and Howlin and Senator Jim Walsh ask questions initially, followed by questions from other members.

This is a helpful opportunity to tease out the pros and cons of this issue. I am in favour of the Defamation Bill and will support it. While I was not in favour of a statutory press council, I am in favour of giving what is now being proposed a chance. Incidentally, I am not in favour of the allied Privacy Bill the Government is promoting.

Those of us who adopt this position are taking a leap of faith to some degree. Members of my party have criticised me on the basis that the proposed Bill and council will be a toothless tiger and will not achieve what is expected of it. That concern was also originally expressed about Britain's press council. However, when it developed into the Press Complaints Commission it tightened and toughened its approach. Nevertheless, it is a common criticism and I would like to know what the response is.

My second concern relates to budgets. I was not impressed by the figures quoted in earlier discussions on this proposal and thought it was a tight-fisted approach. I would like to hear more details of what budgets are proposed. I would also like to hear what sanctions will be applied to offending publications.

This will now essentially be a self-regulating body with a statutory underpinning. Are its powers adequate? Is there any suggestion that these powers might be extended? There are huge concerns about those publishers that are not signed up to this proposal and some of them are not contributing to the budget. Is there a danger that these people might, to put it crudely, give two fingers to the process?

What are the witnesses' views on the third leg of the Government package, namely, the Privacy Bill? I do not believe it should be part of the package at all.

The Labour Party supports the Defamation Bill and an independent press council. The structure of the ombudsman is good as regards it being the public face and the person who will interact with and deal with complaints. I would like some detail of how this will work. Although the issues have been comprehensively listed by Deputy Jim O'Keeffe, I wish to ensure they are covered.

The appointment of an ombudsman has been mentioned, and that individual will be very important. What resources and staffing will be available and how will the office be funded? Those providing funding have been listed, but is there a percentage formula detailing how much each would give and is there a ballpark figure for the total envisaged cost? As the industry will be the main funder, how will the independence of the press council and ombudsman be achieved separate from those who pay the wages?

Deputy Jim O'Keeffe has referred to those who do not sign up to the press industry code, but is there any scope for requiring people to sign up? Would that run counter to the principle of voluntarism? What would happen if not only non-national based publications but national publications resign from it and do not participate? Is there a mechanism of peer pressure and how is it envisaged that the issue would be dealt with?

My next point relates to sanctions available for breaches of the code. When and if the ombudsman finds a serious breach, what level and scope of sanctions is it envisaged would be available, and are the witnesses satisfied that a meaningful sanction can be imposed without statutory authority? How will the publication of decisions be transparent, especially with regard to complaints not dismissed as frivolous and vexatious and which have substance? How will the public have access to the volume, nature, and reporting mechanism of complaints, particularly with regard to what may be termed "serial offenders"?

Deputy Jim O'Keeffe has mentioned the Privacy Bill, and the Labour Party view is that this should be given a chance to operate. There have been egregious violations of people's privacy in the past that may well require the Oireachtas to consider the matter again if the proposals before us today do not work. As of now they should be uncoupled. The Labour Party view is that this apparently robust mechanism should be put in place and allowed the scope to work, which it can for the first time.

Deputy Peter Power is anxious to contribute, so I ask Senator Jim Walsh to share his time.

A number of points have already been raised by Deputies Jim O'Keeffe and Howlin. Those of us in the Seanad have nailed our colours to the mast somewhat on Second Stage. I support the idea of an independent press council. Questions have been asked about this independence, which would form part of my concern.

My understanding is that the industry itself would have opposed a Government-appointed press council and I can understand the reasoning behind this. Would the industry have opposed the Government selecting an appointments committee or commission, which would carry out the selection process for the council? Related to this, who has selected the appointments committee detailed in the supplied document? There is a question of the application of this in an effective manner, and if significant portions of the media industry will be outside the press council. How will the council function if such a scenario arises?

The press council itself is too heavily weighted towards the media. I do not understand this. I know having been involved in various committees, not only political, that if one has six out of 13 votes, one will not have any difficulty in swinging another one. Therefore, the interests of the media are protected. This must be balanced. Anything we establish must ensure the protection of the public.

It would last for five years with that proportion.

Yes, it would.

In general, the media act responsibly. However, on certain high profile occasions they have been extremely irresponsible. In some instances, newspapers took no action other than defending journalists or editors, which surprised me. If one wants standards, one must be seen to act.

Some of the delegates have been extremely critical of the idea of a privacy Bill. I heard general objections to it. Will the delegates provide us with specific objections to proceeding with the Privacy Bill? Will they also identify any sections they and the industry find unacceptable and not in the interests of having a free press, which is fundamental?

Somebody mentioned the teeth which the press council would have. This is an important issue. How would the press council impose its decisions for those making genuine complaints where their reputations had been unfairly tarnished? There is prevarication by industry representatives with regard to accepting and publishing the decisions of the press council. Sometimes more is involved than an apology. If a wilfully defamatory article is written, either recklessly or intentionally, it is not sufficient merely to make an apology and move on. Somebody else might be offended in the future.

We must have financial sanctions. Ultimately, the media are driven by pecuniary interests. Competition among the media is rife which can often override the implementation of a code of standards, whatever those involved in the press council might aspire to. One could attach PIAB-type powers to a press council. If a particular newspaper had offended, was before the press council for the tenth or 12th time and the council was certain that the newspaper was acting irresponsibly, it would have to be in a position to apply a hefty financial sanction.

I do not know how many wilfully defamatory articles have been published.

The forum for dealing with a wilfully defamatory article is the court, not a press council. The courts have those powers and can impose sanctions. This will not deal with defamation, the courts will. That is why the Defamation Bill was introduced. This is about journalistic ethics and standards and involves the industry committing to a set of standards agreed by editors which they are prepared to operate. They are prepared to be judged by an independent body of good citizens and abide by and accept their decisions.

This process has moral strength. It is not forced upon editors. It is willingly entered into. The role of an editor is unique. This process leaves them with their independence but they have committed to it. That is its strength.

What about all the other items?

I will deal with some of the other items and perhaps Mr. Keenan will deal with the code and issues relating to that. I do not know if Ms Kennedy wishes to deal with the toothless tiger and some of those issues. I will deal with the budget.

In respect of the budget, this process must come from somewhere. This is a public forum so I am not so sure if I should divulge this, but the majority of the costs here are being picked up by the National Newspapers of Ireland.

I forgot to say earlier that members have parliamentary privilege, but this privilege does not extend to the delegation so it should be careful. Mr. Cullen can go ahead.

The industry wants to and must make this work. As I stated earlier, the funding will be provided by the three bodies. The major funder is the daily and Sunday newspapers. The Irish editions of UK newspapers, which are now part of the National Newspapers of Ireland, are part of this process. The level of funding they are picking up and the share out of this funding are agreed and in place.

What is the proportion?

The newspapers in the National Newspapers of Ireland, which include Irish and UK newspapers, have committed to picking up 80% of the cost. The regional newspapers have agreed to pick up 15% of the cost and the periodical press has agreed to pick up 5% of the cost. It is accepted that there are many publications outside the membership of those bodies and there will be a strong effort to bring them in. First of all, it is open to everyone and there will be no exclusions. Everyone is entitled to enter.

If a publication — I am thinking mainly of a magazine — is not produced primarily for this market and is not writing editorial issues for this market, should it be part of the process? We cannot bind it to it. If there is a complaint against one of them, it does not stop one adjudicating on the complaint, making a decision and coming into contact with the complaints body in the country of origin of that publication. I would see this as being how the process happens, as happens in other countries. One does not need to be a member to have a complaint against one's publication adjudicated upon.

Will there be a separate office? Will it be leased?

There will be an office——

What is the provisional estimate for the first year's budget? What will the staffing situation be?

It is envisaged that there will be an office in this general area — Fitzwilliam Square, Merrion Square or another location in Dublin 2 close to Leinster House.

That is 80% of the budget.

There will be an office of press ombudsman which will be a senior appointment chosen by the members of the press council. It is up to the ombudsman to come into position and run his or her office. We do not want to be overly prescriptive. There would be one deputy and an administrative person. The ombudsman's sole purpose will be to deal with the complaints system. He or she will not have to do anything with the fund. He or she will be provided with funding and facilities.

Is Mr. Cullen talking about three people?

Initially. It is up to the ombudsman to discuss matters and put up his or her case as to the level of complaints. It is difficult to know what the volume of complaints will be. However, the ombudsman's initial role will involve promoting the entire process in public and speaking within newspapers and magazines and at universities and public fora in an attempt to encourage the process.

Is there a notable ceiling on what the council will fund?

Could Deputy Howlin explain the importance of the funding?

We have dealt with an ombudsman for the Garda and everybody else. There is no point in having an office that takes two years to deal with a complaint.

It is envisaged that——

Mr. Cullen must be able to say he is flexible and will fund a press council to ensure all complaints are dealt with in a timely fashion.

There are three principles in dealing with complaints. The first is speed. In this case it can mean within one month or sooner, where possible. If possible, a complaint should be dealt with instantly, as speed is critical. Second, there should be no cost to the complainant. The third principle relates to credibility.

We will move on as time is short.

On the question of sanctions being a toothless tiger, I will hand over to Ms Kennedy.

Ms Geraldine Kennedy

It is a valid question to ask whether sanctions are a toothless tiger. That is a matter the press industry steering committee has considered in the three years since the Hugh Mohan advisory committee reported. At the time we were so shocked by the prospect of a Government regulated statutory press council and the interference it would constitute to the independence of the media that the entire media industry was shaken into a response. We are anxious that the press council be credible, not to politicians but to citizens who make complaints.

It is acknowledged by many of us that there has been a decline in media standards and that there have been cases which we could not condone in which there was undue invasion of privacy. Many readers have been offended but it is very costly to go the defamation route. Many valid complaints fall below the bar of defamation but matters are offensive to people. It would be in our interests as a profession and in terms of our standing as journalists to have a way of addressing complaints.

We are serious about the establishment of a press council and do not envisage that it would be a toothless tiger. If that were the case, it would not do us any good. We have considered the matter of a press council over a long period and various media organs have debated what form it should take. Arising from this we all came to agree that in the interests of the public a press council would have to be and be seen to be independent of the media. That is why it is necessary that there be an independent majority among its members. A press council must also have freedom to act in a way where it could not be constrained by the media.

Deputy O'Keeffe asked if a press council's powers would be adequate. That will only be seen with time. It would have the power to receive complaints, investigate them speedily and for free, to provide answers for complainants and compel media organisations to have apologies, corrections or clarifications made. That would be the sanction. There is no intention to address the complaints financially because newspapers are pursued financially every day under the defamation laws which still remain in place. We are talking about the other side of the package. We believe the powers would be adequate. The main sanction for each media organisation is the same as that politicians face before tribunals, that is, the sanction of exposure.

Mr. Brendan Keenan

Mr. Cullen made the important distinction between press law and press standards. Press law is a matter for legislators and any serious financial penalties could only be applied through legislation. No matter what form the legislation may take, unless we are to do away entirely with a free press, there will be a large area that the law will not cover. That is the bulk of what people complain about in terms of newspapers. There is no legal redress, nor could there be in a free society. Ireland is almost unique in not having such a structure.

We received academic assistance from Ms Marie McGonagle of NUIG. We looked at approximately 100 press councils. Every working democracy has some such system but we do not for historical reasons to which Mr. Cullen has adverted. Also, since it is very hard to reinvent the wheel, they all tend to follow a roughly similar pattern and we tried to pick the best of them in the code. There are parts of the Australian code, parts of the Swedish code and our own and so on.

Libel lawyers will tell one not to go to libel courts, even if one has a case. One wants something outside the legal framework to deal with the vast bulk of things. To go down the road of giving teeth to the council is to miss the point. The issue is how to give people rapid redress, how to hear their complaint and, as Senator Jim Walsh said, in a highly competitive market how to set standards to ensure everybody is not driven to the bottom. All the things we looked at had the same solution: that the newspapers publish the results. If the ombudsman rules against a newspaper, even if that newspaper does not publish the result — if it is a member of the council it would be breach of the rules were it to do so — everybody else will. The harder the hit on the rival, the more publicity they will give it. That not only gives redress but it gradually lets editors know what will get past the ombudsman and what will not. Editors here can only gauge what their rivals might do in the morning and they will not know until the morning whether they have got it right.

The ombudsman, through the jurisprudence will begin to set standards. It is important to realise this is driven by us. It is not driven by the Government or the Oireachtas; they have their own job. As part of the general pattern, including the Defamation Bill, we are trying to set up a process which will create a good, rapid complaints system and begin to make this code work in practice. We want a process whereby there is a set of principles which Irish publications would abide by and whereby we will also see clearly when they fail, who failed, why and how often, which is an important point, as raised by Deputy Jim O'Keeffe.

There was a question on the prospect of a privacy Bill which was raised by each of the members.

I will ask Ms Kennedy to respond to that question. I will make just two comments. The strong view of people in the industry is that privacy is best dealt with by the press council but at the same time we all recognise that increasingly the courts are ruling on privacy. There is the European Convention on Human Rights and so forth and the increasing tendency of the courts to come into this area, but the press council which can judge case by case is the best place to deal with most privacy issues. The Bill that was proposed would really be a charter to protect people who should not be protected. It is one for the rich, powerful and famous and people who would use the law to keep things behind closed doors that should be exposed in public. That would be a retrograde step in terms of public accountability and transparency.

Ms Kennedy

I have been asked to say a few words on this issue because I am one of a handful of people who took a case on privacy before the courts and helped to establish the right to privacy so I cannot say I am not in favour of it. I am very sympathetic to invasions of privacy. That being said, the Bill proposed by the Government had conclusions that were never intended. I can well understand how the Government may think action should be taken to prevent some of the invasions of privacy which undoubtedly have happened in the Irish media in recent years, but the effect of the privacy Bill it published was to damage good and investigative journalism. The reason it would have done so was that it removed the gagging writ from the Defamation Bill and placed a far greater gagging writ in the privacy Bill where an individual could take an injunction in closed court —in camera — before publication to prevent something being published.

The effect of that on good journalism would be that if one was in The Irish Times and investigating a matter, one would contact both sides of the story and the politician, businessman or whomsoever would know what one was investigating and they would be in a position to conduct a pre-emptive strike by taking out an injunction before publication. The journalist would be called into court, behind closed doors, to justify his or her position, even before he or she knew they were going to proceed to publication with the story. It would have a chilling effect on journalism. I have no doubt that members of the Government never intended to move against the media in that draconian way.

I will be brief because many of the issues have now been dealt with. To echo Deputy Howlin, we would welcome the concept of a press council, if only because of international precedent. The concept has worked relatively well throughout the world so why not have one here? However, the key question is sanction.

I will put a scenario to the witnesses. There was an example prior to Christmas but I cannot recall which newspaper was involved. A headline in the newspaper depicted the Minister for Health and Children, Deputy Harney, with fangs in her mouth and blood dripping on her face. It was utterly tasteless. Let us say the Minister complained to an ombudsman or press council that this lacked taste, and sought redress. If the newspaper refused to retract it, saying it was a reasonable presentation of how the story should have been portrayed on the day, what would happen then?

The forms of regulation are self-regulation or statutory regulation. Everybody knows how one makes a complaint. That is good in that it is free, fast, effective and efficient. Everybody also knows what happens subsequently if the wrongdoer or offender breaches a particular code or standard. There is a consequence. However, the precise consequence in this case is not readily identifiable. We cannot say what will happen. I am willing to hear what the response would be but it should be crystal clear.

Is the Deputy asking whether broadsheet or red-top standards apply?

No, standards are a separate matter. My second question relates to standards. There is reference to accuracy, fairness and privacy. However, there is also the issue of taste. Ms Kennedy mentioned that it has been falling. How is it to be defined? How is the public to know there will be taste in our journalism? Ms Kennedy said it is necessary that citizens have confidence in the system.

Almost all other forms of regulation have some element of public consultation. We must remember that the public is involved in this because the public must read this journalism every day, regardless of whether it likes it. Usually one would involve the public and seek its views on what the levels of taste or standards of behaviour should be. Has there been any public involvement? Is it envisaged that there will be ongoing public involvement with regard to taste and behavioural standards?

I welcome the members of the media to the meeting. A free press is an essential part of democracy. I support the press council and I have an open mind with regard to the other major issues. I strongly believe that any legislation that prevents or gags investigative journalism is a threat to democracy. It is important that people who work in the media receive the message that the Independent Deputies have strong views on the issue of investigative journalism. I strongly commend the work that has been done by investigative journalists over the past ten or 15 years. It has had a major impact on Irish society in exposing things that should not have happened. That is good for politics and for democracy.

The first objective of the press ombudsman and the press council is to maintain high standards in Irish journalism and journalistic ethics. The second is to defend the freedom of the press and the entitlement of the public to be informed. I note Ms Geraldine Kennedy of The Irish Times said there has been a decline in standards. It is not something we talk about regularly in the Oireachtas but we hear about it from the electorate, and I am always pleasantly surprised to hear voters talking about elements of the media that went over the top and out of control. We, as Members of the Oireachtas, need to do something about the decline in standards in politics, but what can those who are editors say to convince me that they are doing something about this decline in standards in journalism and how do they intend dealing with it?

I did not hear Ms Geraldine Kennedy say there was a decline in standards in journalism.

If I took it up wrongly, I will return to it in a moment. I think she did say that. I wrote a note about it. I address my next question to both newspaper owners and editors. It relates to the dumbing down of Irish politics. It really gets up the noses of public representatives that television programmes such as "Big Brother" are given such wide coverage compared with that given to the death of 35,000 people in Iraq. There is a complete lack of balance. Is the role of owners and editors to sell newspapers or is it to inform the public about the issues of public life?

I strongly support the concept that journalists and newspapers should be independent of the Government. However, it has been my experience over the past five years, and many other Members would agree, that newspaper owners and editors have a serious political agenda and do not act in a fair and balanced way, especially when it comes to Independent Members of the Oireachtas. The media constantly lecture us about ethics and standards in politics and they are right to do so. However, as Members of the Oireachtas, we feel strongly that standards in journalism have declined.

As a member of the Labour Party I know the media have no agenda. After last week in particular, I am convinced of it.

Ms Kennedy

Has the Deputy an agenda?

My agenda is very clear. It comes in the form of a policy document. We are all aware that there are decent newspapers and that there will always be one or two rogue newspapers. That is a situation that is difficult to control. We need to start living in the real world where this is part of the diversity in the media, not only in Ireland but internationally. I have read the principles involved and I am very impressed by them. I recognise that a considerable amount of work went into them. We would not be here today with the opinion makers in Ireland if there were not a degree of urgency about what needs to happen. People recognise that if this is not done, someone else will do it for them. This may not be attractive to any of us. I support those who are quite prepared to give this an even break to see if it will work. The consequences of it not working will probably ensure that it will.

I have read the principles and one or two points are of concern. We are all conscious of the issue of inaccurate and unfair reporting and where facts which have not been checked in advance of reporting are found to be untrue and even when they are known to be untrue are still printed to create a reaction. Opinion pieces are often the most offensive. How can this be dealt with by the newspaper editors? This is not factual reporting but is based on the opinion of the writer and this can often be offensive and even personally offensive. I do not mean opinions stating that Fine Gael is whatever, that Fianna Fáil is even worse and the Labour Party is very good. I am referring to opinions of a personally offensive nature. We have all read such opinions and regarded them as nasty and as causing a sharp intake of breath.

I am also interested in the matter of due prominence which is referred to in the principles. As a politician I know how the English language can be used. I am not sure if the phrase, "due prominence" means the same to me as it does to the delegation. Does "due prominence" mean that an expanded apology is given and is placed in the same place in the newspaper as the story was placed, with the same size headline or does it mean a quarter inch single column on the front page? These matters need to be teased out.

I invite the delegation to respond to those questions from the members.

I wish to make a short reply before asking the three editors who have not spoken to respond if they wish.

On the issue of independence——

Does Mr. Cullen mean the independence of the newspapers or the Independents?

The appointments committee is a critical issue. The people were chosen for the positions I referred to. They are known in society and have an open brief. It is the case that someone must do it. The process is under way and it has been carefully argued and debated over a long period. Some 21 years ago, our industry formed a committee under Douglas Gageby. It was accepted at that time that the law of defamation, which dated from 1961, was out of tune with modern society, with the manner in which the media had changed since the 1960s and with the advent of the information society. The industry commissioned two independent academic lawyers, Boyle and McGonigal. Their recommendations were that the law was outdated and needed reform and that the industry needed to be more democratic in its dealings with its readers. They recommended the establishment of some form of independent mechanism for dealing with complaints. There has still not been any progress made on those issues.

Thanks to the current process, much significant work has been carried out, such as the bringing forward of the Defamation Bill and this proposal. I plead with the members of the committee to give this proposal a chance to work. It may not be perfect in every way but it is a damn sight better than what is in place. I have a strong opinion that the way the law operates throughout the world shows that it is really for people in the know and those who can afford it. We are offering a means for the ordinary citizen to seek a remedy in which he or she can go with confidence to people of credibility and be given a decision. This is a monumental step forward and I ask the committee members to give it a chance to be put in place before this Government falls. It will be demanding on the industry.

We will not let the Government fall. We will push it.

When it comes to the issue of credibility and sanction, the public has the ultimate sanction by choosing not to buy a publication. The industry is putting significant funding behind this initiative and wants it to work. In my view, it will become part of all editors' contracts that they must in future have regard to and pay respect to this process.

Repeated, serial transgressors, or whatever term one may wish to use to describe them, will be accountable. This process is necessary and I am confident it will be completed over time. Members need to give it time.

The same should be true of journalists and the editor. All decisions will be published on the website and will be the subject of a press release. It is the nature of our business that a "name and shame" approach will work much better in the press than in other areas. The press council will also be required to publish an annual report. A number of processes are in place to ensure transparency.

Mr. Keenan

I wish to make a brief point before the editors make their general points. Deputies Peter Power and Lynch gave a specific example. Legislation could not be drafted to cover the Mary Harney cartoon. That is in the code if members would like to read it. The example cited by the Deputies is much better than any I could think of. Only a process such as that proposed will give remedy for the type of problem to which the Deputies referred.

That was my very point. What sanction would be available if a newspaper refused to remedy a matter in spite of the press council or ombudsman insisting that it do so?

Ms Kennedy

A finding against a newspaper would be made public and circulated to all other newspapers. If I am the offender and I do not publish the finding in The Irish Times, one can be sure the Irish Independent and all the other newspapers will publish it.

Mr. Gerry O’Regan

We would feel we would have to do so in the public interest.

That is the sanction.

Ms Kennedy

Yes, exposure is the sanction.

On the number of persons on the committee, the reason it was decided to have six members was that all those concerned wanted their view to be represented. We increased this figure to seven to enable a majority to emerge.

Does the chairman, one of the seven members, have a normal or casting vote?

A quorum will be seven, of which there must always be a majority of independent persons.

That includes the chairman.

Yes, but it could be more. There could be fewer industry representatives than independent members. Independents must be in a majority of at least one but it could be two or three. I have studied more than 25 press councils and in all cases I am told that the toughest people in the decision-making process are the industry representatives because they understand the industry and standards and recognise sloppy work when they see it. When they join a process such as this it generally brings out the best in them.

Mr. O’Regan

I wish to make a couple of general points. The basic underlying principle of this entire process is that, for good or ill, we need what is generally described as a free press. In many instances, it is difficult to define the word "free" in this regard but we all agree on this necessity. As soon as one establishes excessive strictures to try to control this generic term, one gets into trouble. As someone who has been in the newspaper business for some years, my belief is that in the past 20 years or more there has been something of a stand-off between the media in general and the entire legal-libel system, in many ways a draconian and, at times, seriously outdated system. Over this period, the media have continued to evolve and change whereas the legal system has not protected those it should protect. In certain instances, it has been used to stop what one might describe as legitimate journalism.

As other speakers have noted, we now have essentially a twin-track approach. The basic law of the land remains and it is open to people to seek redress in the courts if they want to protect their good name in the event that it has been damaged by the media or any other entity. What the ombudsman-press council concept will do and, by its very inception, is doing is to bring about a change in culture. It will, in its own way, have moral authority. In what is an intensely competitive business — apart from any other reason — if somebody is found to be transgressing that broad guideline or culture, others will highlight it. In its own way, that is perhaps one of the ultimate safety valves in the proposal.

It needs to evolve and, as Mr. Cullen said, needs to be given a chance. There needs to be increased public awareness of it. We will see how it works. In a year or two, we will know if it is essentially a whitewash. I think it will bring about a fairly dramatic cultural change as regards newspapers here. It is well worth giving it a chance. It has been tried and has worked, to a greater or lesser extent, in a variety of other countries.

The NNI has tried to take the best bits from what is in operation in other countries. In overall terms, the law of the land remains and people can avail of it. There is a variety of areas, however. If we were here talking for the next 15 years, never mind 15 minutes, we would all disagree and have our own points of view, for example, about what is excessively negative opinion by some commentators who operate in the Irish media firmament. Some people think they are very readable, while others think they are insulting. One could go on with a variety of adjectives ad nauseam. The fundamental orientation of the press council concept is to provide a broad, generalised, moral sanctioning process in what is a broad ambit — to bring people to book and use the moral force both within the industry and, dare I say it, through public opinion. If a newspaper has been found “guilty” by the press council for the 15th time this week, it is not a great selling point if one is trying to sell that newspaper.

Mr. Ger Colleran

I agree with Deputy Lynch that opinion can be hurtful. The last time I was here I was described by a Deputy as being intellectually dyslexic. My mother was equally devastated after 45 years of voting for Fianna Fáil.

We gave Mr. Colleran the right of reply.

I note that Mr. Colleran is taking his parliamentary privilege, that he does not have, seriously.

Mr. Colleran

As Mr. O'Regan said, we have suggested a twin-track approach — a more enlightened, reformed defamation system. I have personally been advocating this system of press council adjudication for a long number of years. Many complaints to our offices come under the radar of defamation. If there is a financial sanction, management of all companies — and it does not have to be newspapers — will reach immediately for their legal advisers. If one reaches for one's legal advisers one is into court anyway and we are back to a defamation regime immediately. This is a free, accessible and fast method to adjudicate on real issues. I am sure that every one of us, in the stillness of the night, will admit that we have published many things that have come in under the radar and have not been defamatory. Nevertheless, we would like to have dealt with them in a way that was decent, honest and up-front.

As a member of the code, I am committed to it and have bought into it, as have all of my colleagues in various newspapers throughout the industry. There will be disputes, of course, even within the press council. The cartoon referred to was a matter of taste. I might have thought it was a great joke, while others may have thought it was absolutely scurrilous, but that is the nature of democratic debate. The essential thing is that we are buying into this. We are presenting it as an option to allow people to have access to an easy, quick and free method of dispute resolution.

On the issue of selling papers, while I am speaking for myself, I am guilty as charged on that one. I try to sell newspapers by producing the sort of products that will resonate with the people of this country. If we do not sell newspapers, we will go out of business — the strongest media company in this country in 1979 was the Irish Press Group whereas seven or eight years later it was essentially dead because it lost touch with the people it served, although it dragged itself on for another while. In order to sell newspapers we have to produce the sort of journalism that resonates with the people and holds up a mirror that reflects their lives. If we do not do that, we will fail. If the people accept us in circulation terms, it means we are doing something they have adjudicated upon. Which one of us would second-guess the judgment of the people to decide what they wish to purchase off the shelves each morning? With regard to trying to sell newspapers, I am guilty as charged.

The press council will adjudicate on the issue of taste. It will also adjudicate on behaviour in respect of the use of cameras and the type of coverage that involves children, for example, which may not involve issues of defamation. These are issues that will, as colleagues have stated, provide jurisprudence over time. I did not know until today that my contract would be amended to ensure that I sign up to this but I have already signed up to it in principle at any rate.

Mr. Tim Vaughan

At the risk of repeating what my colleagues have said, I would not be present today unless I had fully bought into the idea of a press council. It has been a long time coming. As Mr. Cullen and Mr. Keenan stated, it is important to remember the defamation laws will still be in place, but at least we will be able to apologise. There have been times when we have all got it wrong, although we try our best to get it right and not be hurtful or to cause damage. There were times when early in the morning I realised a mistake had been made and to pick up the telephone and apologise to the injured party would have been the decent thing to do and what I would have wanted to do. However, I could not do it because it would have been an admission of libel, even though the mistake, while deserving an apology, might not have been libellous. With this twin-track approach, we will at least be able to rectify such anomalies.

Will you be able to do that when the Defamation Bill comes into force?

Mr. Vaughan

We will. We might all have been in a situation — I certainly was — where we were not allowed to apologise because it would have been taken as a proof or admission of libel. When a case eventually went to court, which could have been prevented, a senior counsel would stand before the jury and say this man or organisation did not even have the decency to apologise. The jury would not know the complexity of the situation, which is wrong on all counts. The proposal is an improvement.

Reference was made to taste. I am not sure we can legislate for taste, which changes as time moves on — for example, "The Life of Brian" was banned in this country at one stage. However, the ethics guidelines are there in black and white and are easily interpreted. We have signed up to them. Deputy Jim O'Keeffe said at the outset that a leap of faith is required in this regard, which is the case to a certain extent. We want it to work and it will become quickly apparent if it does not. If it does not, we will be back to a different scenario.

The question that must be answered is whether the press can regulate itself. As Mr. O'Regan stated, at the least it deserves to be given a chance.

Why does the press council need statutory underpinning? Why can it not simply be introduced? There is nothing in the sanctions that needs statutory underpinning. It appears the media hope they will regulate themselves using their own moral compass.

Ms Kennedy

There is value in the legal recognition because we are a litigious society and have a written Constitution which enshrines rights people can exercise. This is not the case in Britain where we looked at the British complaints commission. It would be very difficult to get an ombudsman to act as a public figure without insuring him up to the hilt or giving him some sort of guarantee that he would be able to make findings against journalists, editors and newspapers without being sued.

That is more than the Oireachtas can do.

Ms Kennedy

Members have privilege.

Yes, but according to the Supreme Court we cannot make findings against people. However, we did on a committee chaired by the Chairman.

That was another day's work.

Ms Kennedy

The legal aspect of the situation was investigated and some suggestions were put to us, including forming a limited company. The most effective suggestion, which would allow the ombudsman to act independently in the public interest, was to give legal recognition to the press council. Also, from the point of view of the Minister for Justice, Equality and Law Reform, it would have the effect of tying in the establishment of a press council with the changes in the Defamation Bill, and so the existence of a press council is included in the Schedule at the end of the Defamation Bill.

There is one additional point. Back in 1996 when the commission on the newspaper industry, which was chaired by former Chief Justice, Tom Finlay, reported it recommended the establishment of a press council. However, Mr. Justice Finlay said then that for it to operate, it would require qualified privilege. That comment is included in the report.

I thank the delegation for its presentation. One of the delegation mentioned the use of photographs. There is great leniency allowed with photographs published in the national media. Will the establishment of a press council restrict this area? If people become perturbed about photographs, will the industry tie itself up in knots regarding the legalities of printing photographs?

How will the industry address the matter of those who do not subscribe to the press council? The question was asked about publications that may not engage or subscribe but we got no answer. Will the delegation comment on that matter?

I meant to answer that question earlier. There are several issues involved. Anybody who subscribes will be acknowledged and the list of subscribers will be published on the website and in various other places. Also, the Defamation Bill proposes there will be a new defence of reasonable publication. To qualify for that defence, one must show oneself to be reasonable in what one does. Therefore, someone who subscribes to the press council may be defended by counsel who will say it is a reasonable publication and that whatever about the rights and wrongs of the case, the defendant subscribes to the press council which applies the standards and so forth. If someone does not contribute to the press council, the reverse argument can be made. This carrot and stick approach, which will encourage people to participate, is within the legislation.

Does that relate to photographs?

Mr. Keenan

As Mr. Colleran said, the code covers the use of photographs, the question of invading privacy to take photographs and the use of long lenses. The way we envisage this working is that if there is a complaint about a photograph, the ombudsman will deal with the complaint. If he finds in favour of the complainant, that finding will be published and all the newspapers will publish the ruling that the photograph breached the code. Mr. O'Regan alluded to a culture change which is what we mean by jurisprudence. Over time newspapers learn what will pass the ombudsman and what will not and this is what Mr. O'Regan meant by saying there would be a culture change. Editors will then have a framework, which is something they do not have in the current competitive market where if something is not illegal, they publish. The same is true for cartoons.

Legislation cannot cover such matters. Even if a Government wished to restrict the press through legislation, substantial areas would remain uncovered, since legislation must be precise. One therefore has the first mechanism dealing with the complaint — the specific photograph — but the ombudsman and the press council will set out the principles determining why a photograph was taken in the wrong way or portrayed the wrong subject, for example, a child pictured without the permission of its parent. That is how we envisage this evolving; it represents both a complaints mechanism and the evolution of a new culture.

I sincerely thank the witnesses for attending to explain their proposals regarding a press council and commenting on our contributions to the Defamation Bill 2006 when it reaches Second Stage in the Dáil.

The joint committee adjourned at 4.25 p.m. sine die.