JOINT COMMITTEE ON THE CONSTITUTION debate -
Wednesday, 30 Apr 2008

Freedom of Expression: Discussion with NNI and TV3.

Chairman

As there is a problem with mobile phones and the broadcasting transmission, I would appreciate it if mobile phones were switched off rather than left in silent mode.

I draw attention to the fact that while committee members have absolute privilege in anything they say, the same privilege does not apply to witnesses appearing before the committee. I welcome the representatives of National Newspapers of Ireland, including Mr. Frank Cullen, co-ordinating director. I ask him to introduce his colleagues.

Mr. Frank Cullen

With me are Mr. Andrew O'Rorke, solicitor to NNI from Hayes Solicitors; Mr. Brendan Keenan, group business editor at Independent Newspapers Limited, who is here in his capacity as chairman of the press industry code committee, on which he has acted since its beginning--

Chairman

The press industry code committee.

Mr. Frank Cullen

The press industry code committee of the Press Council of Ireland. I am also accompanied by Mr. Colm McGinty, editor of the Sunday World, and Mr. Cliff Taylor, editor of The Sunday Business Post. Ms Geraldine Kennedy was to be with us. I spoke to her last night and she was all prepared to be here but has had to withdraw at the last minute for personal reasons.

Chairman

I ask Mr. Cullen to make his presentation.

Mr. Frank Cullen

I thank the Chairman for giving us the opportunity to appear before the committee, which will have received a submission that we forwarded on 4 March with an accompanying letter. We have had the benefit of further reflection in the interim - the submission was prepared at relatively short notice - and I would like to outline a revised version. It includes additional thoughts not referred to in the original. In that regard, I consider what I say today as replacing the original submission. My colleagues and I will be happy to answer questions when I conclude.

The personal rights of all citizens are enshrined in Article 40 of the Constitution. Article 16 ensures the right to vote and to elect Members to Dáil Éireann, while Articles 34 to 37, inclusive, guarantee a free and independent Judiciary. Article 40 seeks to protect a citizen's personal rights. Many of the great constitutional cases have revolved around this article and our rights to equality, to liberty, to an inviolable dwelling, to hold and express convictions and opinions openly, to assemble and to associate. The people gave themselves these rights in a constitutional format in 1937. They are to be nurtured and respected, notwithstanding that some are circumscribed by the restrictive wording of subordinate provisions.

Freedom of expression is an essential right of each and every citizen and goes to the heart of democracy. Newspapers often provide the vehicle for that free expression. It is one of the essential foundations of democratic society and central to the working of the political process. Neither the fact that newspapers undoubtedly have a financial interest in advocating freedom of expression, nor even the fact that the freedom is doubtless abused from time to time deprives the principle of importance. National Newspapers of Ireland recognises that the exercise of the freedom carries with it duties and responsibilities and is necessarily subject to conditions and restrictions. An indication of that recognition is the initiation in the recent past of the Press Council of Ireland by NNI and its industry partners. NNI acknowledges that any constitutional recognition of freedom of expression is also legitimately subject to restrictions. It is suggested the present text of the Constitution dealing with these issues does not recognise the importance of freedom of expression and, in particular, does not go as far as is required by the European Convention on Human Rights in vindicating freedom of expression which we, as a nation, committed to as far back as 1953.

The right to communicate is one of the unenumerated rights protected by Article 40.3 of the Constitution. Freedom of expression is guaranteed by Article 40.6.1o, which provides:

The State guarantees liberty for the exercise of the following rights, subject to public order and morality:

i. the right of the citizens to express freely their convictions and opinions.

The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.

It is worth noting the antiquity of the language of 1937.

The courts have held that the freedom of expression guaranteed by Article 40.6.1o provides for the freedom of the press both to communicate facts and to express convictions and opinions. As Judge Ronan Keane noted, "In modern conditions, the media are the eyes and ears of the public and the ordinary citizen is almost entirely dependent on them for knowledge."

Freedom of expression and press freedom are under attack on a number of fronts. The following are the most outstanding examples of what has occurred in the past few years. First, we have the large libel awards made by juries. An award of £300,000 in 1999 was described as being "top of the bracket". Notwithstanding this, there have been recent jury awards of €750,000 and €900,000. Awards such as these are bound to have a considerable, chilling impact on freedom of expression. In addition, in recent times a number of injunctions have been sought to restrain freedom of expression, for example, in the Leas Cross case.

On the confidentiality of sources, it is worth noting that the Government, politicians and others frequently avail of the media to inform or reveal information anonymously in the public domain in the belief this serves the public interest. Although Article 10 of the European Convention on Human Rights recognises that an essential part of freedom of expression is the media's right to retain the confidentiality of sources, this has come under scrutiny in Ireland in recent times. Article 10.1 of the convention recognises the importance of freedom of expression as follows:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

At the same time, Article 10.2 of the convention recognises that the expression of freedom "may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society". The interpretation of these words has led to a structured system for assessing what restrictions on freedom of expression are not justified. First, any restriction must be prescribed by law. Second, the restriction must be necessary in a democratic society. This has been interpreted by the European Court of Human Rights as requiring that the interference complained of must correspond to a pressing social need and must be proportionate to the legitimate aim pursued.

It should be noted that a corollary to the right to freedom of expression is the right to remain silent. The Supreme Court has recognised this right and it is one that is under active consideration by the superior courts.

These principles have been accepted in Irish law. Since the passage of the European Convention on Human Rights Act 2003, it has been the obligation of any court when interpreting legal norms to do so in a manner compatible with the State's obligations under the European Convention on Human Rights. We believe the freedom of expression protected by the Constitution and the European Convention on Human Rights encompasses: the right to state and impart facts and information; the right to express freely ideas, convictions and opinions; the right to receive facts, information, ideas, convictions and opinions; the right to scrutinise and criticise public policy; and the right to educate public opinion, a matter of grave import to the common good and the system of democratic government prescribed by the Constitution.

The passage of the European Convention on Human Rights Act 2003 has not prevented the developments described in my earlier statements. I suggest, therefore, that if it is deemed desirable to reform this part of the Constitution, it should be reformed in a way that makes it clear that if the rights set out in the Constitution on freedom of expression are to be restricted, this should only be done in accordance with the principles of the European Convention of Human Rights. That would have two desirable effects. First, it would emphasise the need to justify restrictions on freedom of expression, without making it impossible or more difficult to impose such restrictions. Second, it would ensure the Constitution was brought into line with the European Convention of Human Rights, which would make it increasingly unlikely that successful claims could be brought against Ireland in the European Court of Human Rights.

The issue of blasphemy was specifically mentioned in the letter the joint committee sent to National Newspapers of Ireland. Article 40.6.1°(i) of the Constitution provides that the publication of blasphemous matter is an offence "which shall be punishable in accordance with law". Spoken blasphemy remains an offence at common law. Blasphemous libel - blasphemy in written form - is the subject of statutory regulation under section 13(1) of the Defamation Act 1961. However, that offence is virtually obsolete. When the Law Reform Commission considered the matter in 1991, it concluded that it was likely that the present law protected religious beliefs in the Judeo-Christian tradition only. The commission concluded that there was no place for the offence of blasphemous libel in a society that respected free speech. It recommended that the reference to blasphemy in Article 40.6.1°(i) should be deleted as part of any extensive revision of anachronistic or anomalous constitutional provisions. Although this is not an important aspect of daily life for newspapers, National Newspapers of Ireland recommends this view to the committee. The 1999 decision of the Supreme Court in Corway v. Independent Newspapers lends further support to this argument. The court found it difficult to see how the crime of blasphemy could survive within the existing constitutional framework. It referred, in particular, to Article 44 which guarantees “freedom of conscience and the free profession and practice of religion” to all citizens, regardless of whether they are Roman Catholics, Protestants, Jews, Muslims, agnostics or atheists. The State’s function in this regard is not as an arbiter of religions but as a protector of public order and morality. It is difficult to see how the mere act of publication of blasphemous matter without an intention to blaspheme can be reconciled with Article 44 of the Constitution.

I would like to refer briefly to the report of the Constitution Review Group published in May 1996. The group which had a most distinguished membership was chaired by Dr. T. K. Whitaker. National Newspapers of Ireland is generally in agreement with the views and conclusions outlined in the group's lengthy reflection on the issue of freedom of expression. It is worth noting that the group suggested, in the interests of promoting responsible freedom of expression, that any amendment to Article 40.6.1°(i) should be modelled on Article 10 of the European Convention on Human Rights. It advised that the retention of the present constitutional offence of blasphemy was not appropriate. It recommended the deletion of references to seditious matters in the Constitution, on the basis that if an amended Article 40.6.1°(i) were to be based on Article 10 of the European Convention on Human Rights, the capacity to criminalise publications which posed a genuine and real threat to public order would be retained. It proposed the deletion from the Constitution of references to indecent matter and their replacement by a statutory offence. It recommended that the right to freedom of expression should not be subject to the test of public order and morality and the authority of the State, as such a test was too all-embracing. It proposed that the protection which might be sought could be achieved by amending the Constitution in line with Article 10.1 of the European Convention on Human Rights.

I will conclude by summarising National Newspapers of Ireland's overall recommendation in respect of this aspect of the Constitution. The group respectfully submits that Article 40.6.1°(i) could be reworded to provide:

The State guarantees liberty for the exercise of the right of citizens to express freely their convictions and opinions and state the material upon which the same are based. The State also guarantees liberty for the exercise of the freedom of the press. Any restriction on these rights must be prescribed by law, must correspond to a pressing social need, and must be proportionate to the legitimate aim pursued.

I thank the members of the joint committee for their time and attention. My colleagues and I are available to answer questions.

Chairman

I thank Mr. Cullen. Before I invite individual members of the joint committee to engage in dialogue with the representatives of the newspapers, I ask Dr. Gerard Hogan, SC, who is assisting the committee in these matters to respond briefly to the submission made by National Newspapers of Ireland.

Dr. Gerard Hogan, SC

I am sure the Chairman will allow me the liberty of thanking, on behalf of the joint committee, Mr. Cullen and the National Newspapers of Ireland group for an interesting presentation. I will make some brief observations by way of response.

I respectfully agree with Mr. Cullen's comment that much of the language of Article 40.6 of the Constitution is awkwardly expressed. It may be recalled that late minute amendments were taken by means of recommittal during the debate on section 40.6 in the Oireachtas in June 1937. During that debate Eamon de Valera acknowledged that the members of the drafting committee had, more or less, said to him that this was not their best effort, as they were pressed for time. I believe that of all the provisions dealing with fundamental rights, this is the most awkwardly expressed. It seems that the joint committee and the previous all-party Oireachtas committee agree that if they were starting with a blank sheet of paper, they would engage in considerable revision of the language of Article 40.6. I understand the revised text would not be too dissimilar from the useful draft wording just proposed by National Newspapers of Ireland. The old aphorism that sleeping dogs should be let lie may apply in this instance. If the current wording will suffice, do we really need a constitutional amendment to obtain perfection? Certain Supreme Court and High Court decisions in the past ten years - since the Constitution Review Group reported in 1996 - have given Article 40.6 more teeth. The lack of judicial will to make Article 40.6 work was the real problem before the last decade. I agree with National Newspapers of Ireland that if we were drafting the Constitution afresh, something along the lines of what has been suggested would be useful.

Mr. Cullen mentioned the number of cases taken against Ireland under the European Convention on Human Rights. There may be a misconception about the number of cases taken against Ireland in Strasbourg. Ireland and Sweden were the first two countries to accept the jurisdiction of the court in the 1950s. Historically, the number of cases taken against Ireland has been tiny. As far as I am aware, the number of major cases pending against Ireland in the European courts is very small. I am aware of only two mainstream Article 10 cases that went from Ireland to the European Court of Human Rights in Strasbourg. One was the Murphy v. Ireland case which concerned the ban on religious advertising in the electronic media. That was upheld by the Supreme Court and that view was, in turn, endorsed by the Strasbourg court. The other decision concerned De Rossa v. Independent Newspapers and the libel verdict. Again, the Supreme Court decision in that case was upheld by the Strasbourg court.

Many of the matters mentioned by Mr. Cullen, such as large libel awards by juries and the jurisdiction of the Supreme Court to deal with those awards, will be addressed legislatively in the upcoming Defamation Bill, which is making its way through the Oireachtas. Many of the concerns of National Newspapers of Ireland, NNI, such as journalistic privilege will be dealt with either in light of the Strasbourg case law or legislatively. They would not necessarily need a constitutional amendment.

To add a point on the debit side, there was a frank acknowledgment by Mr. Cullen that the freedom of the press is, doubtless, abused from time to time. Even those such as I who are strong advocates of freedom of expression have reason to be concerned about some of the really extravagant abuses that have been seen from time to time. It would be interesting to know what action is taken by the newspapers with regard to members of the journalistic fraternity who perpetrate such abuses, some of which have been serious. It would be reassuring for the public if NNI could give some indication as to how it deals in practice with some of these serious abuses. A serious abuse of freedom of the press can cause immense damage to the individual and the family concerned, damage which is sometimes not sufficiently appreciated.

I say this as someone who is an earnest supporter of freedom of speech and who, all other things being equal which they may not be, would like an even stronger enunciation of freedom of speech in the Constitution. Even a strong enthusiast is, from time to time, seriously disquieted by some of the abuses that take place.

Chairman

I thank Dr. Hogan. I know he wishes to respond to the last matter raised but I am sure it will arise again in the next group of questions. If not, we will return to it.

Senator Eugene Regan

I have one or two questions and observations. We can always refine the language in the Constitution, but as Dr. Hogan said, the question is whether the current language will suffice. There is a convergence of interpretation of Article 40.6.1° and Article 10 of the European Convention on Human Rights, so I would question whether an express change in the Constitution, with all the problems to which gives rise, is necessary.

The first paper submitted by NNI suggested that an indication of the recognition of the responsibility of the media is the initiation in the recent past of the Press Council, which was designed to provide a means whereby those hurt by what is published about them in the press can have a speedy, free and effective means of redress. I have not found that in the new script, but I am sure that is not intentional. Presumably, there is a wider mandate and it is not just a means of redress but an effort is made to ensure that standards are applied and adhered to so that the hurt, which is beyond redress in many cases, is prevented and discouraged.

In paragraph 8 of today's submission, NNI outlined --

Chairman

We will deal with that first point and then come back to the Senator.

Mr. Frank Cullen

We have long felt the need to address standards. Publishers are not in the business of intentionally damaging people's lives and reputations. The debate on defamation law has been going on for approximately 22 years and because of the lack of progress, perhaps, the sides have been driven further apart with regard to the tension that exists on a day-to-day basis. However, we have always acknowledged the need to address standards.

The Press Council is seen as a mechanism to do that, but we are in the very early days of the council. We still await the publication of the first decisions. I gather they are imminent, but I am not in a position to speak on them because I am not part of the Press Council, although I was involved in its establishment. Once the decisions begin to flow from the Press Council, they will deal with many of the issues being referred to here.

Mr. Brendan Keenan

I wish to do some advertising. The committee members may all be aware of our website and I recommend they take a look at it, where within the general document they will find the code of practice which the committee of editors, which I chaired, drew up. That sets out the principles the media have agreed they are obliged to follow. This is something new. As Mr. Cullen said, the working in practice is also new. We also have an ombudsman, Professor John Horgan, which is an important development. There is, therefore, an individual to deal with the issue at the front line.

We must combine the attempt to establish standards and maintain them, with freedom of the press. The idea is that the code of practice will develop and become the benchmark against which editors will operate. It would be worth the committee's time to look at the code and form an opinion as to whether it is relevant to its work. Unlike legislation, the code can be changed at any time by the committee. We will always be open to representations from anybody, politicians or the public, as to improvements they think could be made to the code.

Mr. Frank Cullen

Just one clarification, the paragraph mentioned by Senator Regan is included in our submission today. It is on page 2.

Senator Eugene Regan

It is not quite the same language.

Chairman

With regard to abuse of freedom of the press as mentioned by Dr. Hogan, what action is taken on abuse that has occurred? With respect, most of the delegation have been part of the press for many years. They will have been working in the area for longer before the arrival of the Press Council than after it. Can they say anything about abuse of freedom of the press? I am thinking in particular of the Liam Lawlor case.

Mr. Frank Cullen

Without getting into specific cases, the spirit behind the establishment of the council is to allow editors to draw up and commit to a code of standards that meets best international practice. At the same time, editors and publishers commit to a process that is at arm's length from the industry and independent of it, which commits further to abide by the rulings of that --

Chairman

Is this for the future?

Mr. Frank Cullen

This is what we have committed to, that they abide by --

Chairman

What about in the past?

Mr. Frank Cullen

That did not exist. They abide by the rules and respect the views of the independent Press Council. My personal view, which I have been advocating within the industry, is that we need to go further. The contracts of all editors and journalists should include a provision making it clear that repeated transgressions of the code warrant dismissal. That is my personal view. We have not yet reached that point, but logic dictates that we will reach it.

Mr. Brendan Keenan

I wish to give a practical answer to the Chairman's question. If a newspaper that is the subject of a complaint loses the case, it is obliged to publish the ombudsman's ruling with due prominence in one of its editions. The ruling is also published on the Internet and other newspapers may publish it if they wish. It is obvious that there are practical problems in respect of sanctions, as the press industry code committee is not a legal body. We believe that the publicity associated with the open expression of these rulings, which is the primary mechanism, will have a considerable effect. No editor wants to have to print clarifications of this nature, especially not repeatedly. The system is speedy and free to the complainant. Mr. Cullen mentioned some of the reasons none of that existed before. The committee discovered that Ireland seemed to be the only democracy that had no system of this nature. We even learnt that several tyrannies have such systems. Ireland had been exceptional in not having such a structure, albeit for historical reasons, but there is now a system in place. We believe it will work.

Mr. Frank Cullen

The staff of the Office of the Press Ombudsman and the Press Council of Ireland are acting rather nervously at present, because they do not enjoy qualified privilege.

Senator Eugene Regan

I agree with the point that has been made. I understand that the Defamation Bill 2006 provides that libel or defamation in a front-page article should be the subject of a front-page apology. That provision will have a deterrent effect on editors and journalists. I take it that Mr. Cullen shares my understanding of how the proposed legislation will apply.

Mr. Frank Cullen

Yes.

Chairman

I call Deputy Andrews. If Senator Regan wishes to come back in on another topic at any time, he is more than welcome to do so.

Deputy Barry Andrews

I agree that those in the journalistic profession will work studiously to avoid, if possible, being the subject of an observation or criticism published by the Office of the Press Ombudsman. The publication of such statements will act as a form of sanction in practice, even if it does not constitute a suspension, fine or anything more serious. I accept that a substantial commercial imperative underpins everything the newspaper industry does. It is a question of selling newspapers. There is significant competition among those in the radio, print and television sectors when it comes to gathering news.

I have reservations about the manner in which journalism covers crime, not only in Ireland but also in the UK. The media have helped to create a fear of crime, which has become an issue. Last summer, all journalists were delighted to fill their newspapers for at least six weeks with reports of the trial of Joseph O'Reilly, at a time of year when there tends to be little other news. It was fantastic stuff as far as they were concerned - they were throwing their hats in the air. Certain newspapers love to fill their front pages with salacious details of the activities of major criminals. The coverage given to such matters is not in proportion to the incidence of crime in Ireland, which is one of the safest countries in western Europe. I do not consider that a great deal of responsibility is being shown in this regard. The Office of the Press Ombudsman will not rap newspapers on the knuckles for their actions in this area, as it is beyond its remit. It is not entirely within the remit of the joint committee, to be frank. If this country's newspapers continue to give prominence to certain crime stories in a manner that is out of proportion to the overall incidence of crime in the community, they will feed into a spiral of fear. Has any journalist ever been sanctioned, suspended or fined by a newspaper for breaches of its internal code of ethics?

Articles 8 and 10 of the European Convention on Human Rights have been mentioned in many submissions, including the extremely helpful submission made by the National Newspapers of Ireland today. I recently read that the European courts are examining Article 8 of the convention, which asserts the right to privacy of public and private individuals in their public and private spheres. The case taken by Nicolas Sarkozy and Carla Bruni in France, which has a broad notion of privacy, did not go to the European courts. It could be suggested that the first amendment to the US constitution represents the opposite perspective on the issue of privacy. Recent cases suggest that the European courts, in their consideration of Articles 8 and 10 of the convention, are aiming to restrict press freedom. The joint committee needs to examine the impact of Article 8 of the European Convention on Human Rights, as interpreted in recent cases. The committee should also reflect on how Article 8 interacts with Article 10. It is just an observation. The right to privacy is next to freedom of expression - one is not more important than the other. While the delegation has made some interesting observations about freedom of expression, it has not commented on what the European courts are saying about the right to privacy. It is just a caveat.

Chairman

Who would like to respond on behalf of the National Newspapers of Ireland?

Mr. Frank Cullen

Perhaps one of the editors present will respond to the first point made by Deputy Andrews. I will comment on the Deputy's second point, which related to privacy. We acknowledge that the right to privacy is covered by the Constitution and the European Convention on Human Rights. We believe that the Press Council of Ireland will deal with issues relating to privacy. We acknowledge that the European courts are increasingly ruling on privacy across Europe. That is how it should proceed - it should be left to the courts. We have enough law. We are happy to leave it to the European courts and the Press Council of Ireland and to keep the matter under review.

Deputy Barry Andrews

If the National Newspapers of Ireland are suggesting that restrictions on freedom of expression should be prescribed by law, they do not believe there is enough law. The representatives of the NNI are saying we need more law in that instance. Is that right?

Mr. Frank Cullen

I ask Mr. O'Rorke to help me out.

Mr. Andrew O’Rorke

We are required to abide by the principles established under Article 10 of the European Convention on Human Rights, Article 40.6.1° of the Constitution and Article 8 of the European Convention on Human Rights. The submission we made today was quite short. We understood that the issue of privacy was not being directly considered by the joint committee today. The privacy Bill being prepared has been put back. Various arguments have been made about privacy. The Constitution has developed strongly in that regard, from the McGee and Kennedy cases to more recent cases. We are not shirking from the privacy issue per se.

Deputy Barry Andrews

Fair enough.

Mr. Andrew O’Rorke

We understood that today's meeting would relate to Article 40.6.1° in its own context.

Chairman

Similarly, the issue of crime that was raised by Deputy Andrews is not on today's agenda.

Deputy Barry Andrews

No.

Chairman

Mr. McGinty may wish to comment on that matter because the newspaper he represents has an excellent reputation for reporting on crime.

Deputy Barry Andrews

My comments did not relate to that newspaper in particular.

Chairman

I understand that.

Deputy Barry Andrews

I want to make that clear.

Chairman

Mr. McGinty may wish to make some remarks.

Mr. Colm McGinty

I cannot speak for all newspapers or daily newspapers. I do not think newspapers spread fear of crime throughout the population. The Sunday World publishes stories about individual drug gangs which flood the country with drugs. It reports on feuds, etc. I do not think we spread fear.

Deputy Barry Andrews

For the record, I am not critical of Mr. McGinty's newspaper. I think politicians are as guilty as journalists and others of using language that increases the fear of crime. Journalists have a responsibility to tackle that issue.

Deputy Michael Kennedy

I would like the members of the delegation to comment on some observations I wish to make about newspaper headlines. I appreciate that those involved in the newspaper industry are interested in selling newspapers, which may involve getting the story before another newspaper or using a better headline than one's rivals. I am concerned about the manner in which tragic cases are reported. Take, for example, the death of the Waterford GAA man a week or so ago. The immediate headline declared it a suicide. That was obviously the truth and I have no difficulty with that. However, I have difficulty with the fact that banner headlines are used in the immediate aftermath of a death, instead of having consideration for the families. Banner headlines such as "GAA Man's Suicide" should not have been used because it was difficult for that family to accept there had been a tragedy. Do the people from the newspapers not see a need to tone down the immediate headlines in such situations? Perhaps after burial, they could print any newsworthy details that people like to read. In the interest of families, toning down headlines might be a more appropriate approach.

We have come across other instances of the use of banner headlines. The Liam Lawlor case was mentioned, where through some dúirt bean liom go ndúirt bean léi process a headline went out suggesting a certain individual was in his company. People's privacy and their concern on a sudden death should be respected until a burial has taken place.

Chairman

Perhaps Mr. Keenan, who is chairman of the code committee, might want to comment on that.

Mr. Brendan Keenan

As the Deputy has illustrated, these are difficult issues in which the law is not much help. This is what we are trying to deal with. Section 5.4 of the code states:

Sympathy and discretion must be shown at all times in seeking information in situations of personal grief or shock. In publishing such information, the feelings of grieving families should be taken into account.

In the matter of the media we can never be prescriptive because we have a million possible cases. We are trying to cover the concept so that someone who feels we have got it wrong can go to the ombudsman. If the ombudsman agrees that we have got it wrong, we must publish the fact that he says we have got it wrong. We hope that gradually editors will be able to see what will get past him and what will not.

The argument we are making in this context is that one must separate what the law can and should do and what, in something as multifarious as the modern media, the law simply cannot deal with, but must be dealt with. We are very conscious of the issues. We like to think that with many of the issues - privacy too has a separate section in the code - we can go that way. What I would ask, but I have not put this past Mr. Cullen, is that legislators should do what they can to support this process and help it to work, because it requires a legal framework. This is currently in train. We can never say in advance that this is right or this wrong, or that this is allowed but that is not. We must deal with the situations as they arrive.

Deputy Michael Kennedy

I am not necessarily talking about the rights and wrongs in law. My concern is that as people we have a moral responsibility, for example for a period of two days until a person is buried, to tone down headlines in the interest of the grieving family. That is what I am saying.

Mr. Brendan Keenan

We have accepted that moral responsibility by adopting the code. It is the ombudsman, Professor Horgan, who will decide what that means in a particular case. How can we know in advance?

Chairman

The point has been well made.

Senator Eugene Regan

The delegation states in its submission that freedom of expression and press freedom are under attack on a number of fronts. I hope after today the delegation will not add this Oireachtas Joint Committee on the Constitution as one of the attacking parties, because it is not intended in that way.

I do not think one can over report on crime, given the current situation with gangland and drug crime. The delegation says freedom of expression and press freedom are under attack and itemises in paragraph 8 what freedom of expression means, namely, the right to state and impart facts, the right to express freely ideas, convictions, opinions etc., and to scrutinise and criticise public policy etc. What is the problem? If facts are facts and are printed, there is no problem. In terms of printing opinions, are there many claims for defamation with regard to the opinion pages of the newspapers?

The following paragraph of the document mentions that the restrictions should be prescribed by law. The restrictions are the countervailing constitutional right to one's good name and to privacy. The tenor of the statement on press freedom is that press freedom is under attack, but I do not see that from observation of court cases or the basic principles laid down in the Constitution on freedom of expression and the countervailing restrictions that apply, which are also countervailing constitutional restraints.

Mr. Frank Cullen

The basis of what we are saying relates to the lack of clarity in the Constitution and the failure to address defamation law reform adequately. I know it is being addressed now, but it is a long time since the Law Reform Commission recommended 58 changes to the 1961 Act. Take, for example, the awards offered. A jury awards sums like €900,000 and the judges are unable to give guidance to juries on awards. In an ideal world - this may not sound democratic - we would prefer defamation actions to be heard by a judge only, not before a jury. One of the problems with juries is that they are not always representative of the population. Middle class, middle-aged people do not want to serve on juries and as a result we get skewed juries. With respect, I think there was something amiss with the jury that awarded €900,000. That sort of award is an issue, as is the inability under the law to give guidance on awards.

Confidentiality of sources is another issue. This is in the Convention on Human Rights, but why do we not make it clear? Let us not dance on the head of a pin every time something happens. This is the sort of area where we need change to happen. I am not in a position to answer personally on the issue of opinion pieces. Perhaps Mr. Hanlon or some editor might reply on that.

Mr. Cliff Taylor

The Senator is correct that the main defamation actions relate to fact rather than opinion. Sometimes those facts appear in opinion pieces, but that is a distinction. To enlarge on what Mr. Cullen was saying, the existing defamation regime makes the situation very difficult in some instances. As an editor, one is aware when writing about a particular story or development that the burden of proof rests on oneself under the current libel regime, particularly in the area in which we operate, where many wealthy individuals are very quick to use or threaten legal proceedings to try to shut down reporting in particular cases. This is the reason I think the passage of the Defamation Bill will help to make the balance fairer and make the system operate more efficiently on both sides.

Mr. Andrew O’Rorke

There are hundreds of claims each year, but people are not aware of them because they are settled or dealt with privately. Half those cases would relate to opinion pieces rather than factual cases across the papers generally. People do not fully understand the amount of prepublication work done by newspapers to avoid defamation and breach of privacy. The newspapers are very conscious of it.

Mr. Frank Cullen

We do not underestimate the difficulty for the Press Council and the Press Ombudsman in not having qualified privilege, particularly when they start publishing cases. If they are tough in their statements, particularly about journalists involved in the cases, they risk defamation actions owing to the current lack of protection.

Deputy Michael Woods

I too want my right to freedom of expression. This is a very complex and difficult area. We stand totally behind the members of the press in terms of the need for freedom of expression and freedom of the press. We preach that. I am Chairman of the Oireachtas Joint Committee on Foreign Affairs which brings me all around these areas of argument and debate. We are trying to achieve freedom of the press and media in quite a number of places.

From the point of view of practice, the right to state and impart facts and information is fine, but we get into trouble when it comes to the right freely to express ideas, convictions and opinions, not just in the opinion section of a newspaper but in various articles. I have always taken the view that one should take this as it comes and keep going. Newspapers used to be used for wrapping chips and for other purposes, but that was after they had been read. There is an onus on the Press Council and on the Press Ombudsman to deliver balance. I do not envy anyone trying to find that balance because freedom of expression is so important. It is also important to get the balance right in terms of the defamation legislation.

We are at a juncture where we could see much improvement but I am concerned about Mr. Frank Cullen's remarks regarding qualified privilege for statements from the Press Council. The council must be strong. It must be good, and it must be seen to take action. We talk about facts and information. Often a reporter brings a story forward to an editor who must assess it and find a good headline which sometimes bears no relation to the facts. Problems arise in practice because things happen so fast. There are time limits and everything is rushed.

The code of practice is hugely important. Every necessary support to make it function should be given. When some experience of operating the code of practice has been gained, it should be examined to see how it might be improved. If a reasonable balance can be achieved, most of the other issues can be dealt with.

It worries me to hear talk of privacy and leaving matters to the courts and the different levels of income within society. Ordinary decent citizens keep far away from the courts because their houses, their families and everything else are at stake, so we need a strong press council and ombudsman.

The final question is how papers from outside the jurisdiction will be dealt with.

Mr. Frank Cullen

What Deputy Woods had to say was very helpful. Privacy should be left to the courts but also to the Press Council. I agree that we need a strong Press Council and that is why we need qualified privilege. The Press Council will deal with matters of privacy and it is hoped that over time a jurisprudence of the Press Council will build up. The final question related to newspapers from outside the jurisdiction.

The issue of which cases the Press Council should deal with arose and whether it should deal with cases that affect members only. Membership is voluntary. Publications may subscribe to the Press Council. We want every publication in the land to participate in, support and fund the Press Council. The problem is that nobody can be forced in. Anyone may choose to stay out. It has been decided by the Press Council that it cannot hear cases of non-members because privilege extends only to members of the council.

There are two types of foreign publication in Ireland. Newspapers and magazines circulating here which totally originate outside the State and whose editorial is not specifically tailored to this market are covered by their country of origin, mainly the UK and the Press Complaints Commission in the UK. Many UK newspapers have created a specific Irish edition and they are within the process and already funding the process. The majority of publications are covered. The important issue is to encourage all publications into the process. Currently it has been set up by three organisations, National Newspapers of Ireland, all of whose members are in, the Regional Newspaper Association of Ireland, all of whose members are in, and the Periodical Publishers Association of Ireland whose members are magazine publishers, all of whose members are in. However, not everybody in regional publishing and not everybody in magazine publishing is part of those organisations and they need to be encouraged in.

There are two questions I would like to ask on a matter we have debated it many times. What motivates this review? It is not clear to us.

Chairman

It is a review of the Constitution that has been going on for the past 12 years. Initially it examined the institutions. Property rights and the family were examined during the last Dáil. The logical progression within the Constitution is to move to the rights on freedom of expression, association and assembly. It is the hard, drudging type of work the Parliament does which is not seen or recognised. At the end of the discussions we will make recommendations. There is not currently any great imperative to change the Constitution. Should that happen in the future, the proceedings of these meetings will be used to help in making a decision.

I thank you very much, Mr. Cullen, and your colleagues for attending and assisting us in this process. It has taken up a good deal of your time as well. It is all part of the public service and of developing society into the future. We appreciate that and thank you for your contribution.

I invite Mr. McRedmond and his TV3 colleagues to come forward.

Sitting suspended at 10.39 a.m. and resumed at 10.40 a.m.

Chairman

I thank the delegates from TV3 for their attendance and their submission. I thank them for being prepared to answer questions on the matter under discussion. I draw their attention to the fact that members of the committee have absolute privilege, but that same privilege does not apply to witnesses. Members are reminded of the parliamentary practice that members should not comment on, criticise or make charges against any person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.

I welcome Mr. David McRedmond and ask him to introduce his colleagues.

Mr. David McRedmond

I thank the Chairman for the opportunity to attend. I am accompanied by Mr. Andrew Hanlon who is director of news and information programming at TV3. He deals with the practical issues relating to freedom of speech. Mr. David McMunn is our director of legal affairs.

Chairman

I invite Mr. McRedmond to make his presentation.

Mr. David McRedmond

We have distributed a written submission and I will go through some of the points for a few minutes. As a national commercial television station we believe the committee should take into account a number of broad principles when considering changes to the provisions relating to freedom of expression. Speaking as an executive of TV3 rather than a legal expert, I believe Article 40.6.1°, as it stands, may not provide sufficient protection against restrictions which have been placed on broadcast media and which curtail freedom of expression.

The first set of restrictions relate to how we cover the news, particularly during elections and referenda. I will specifically mention three issues: the moratorium on broadcasting 24 hours before an election, which has been extended to 36 hours in respect of the Lisbon treaty; a requirement for balanced, objective and impartial coverage; and the ban on television advertising by political parties. These regulations are specified by the Broadcasting Commission of Ireland and derived from the Radio and Television Act 1988 and the Referendum Act 2001. They could be defended within the Constitution as it stands but are problematic from the viewpoint of a broadcaster.

I will address the regulations one by one. The moratorium is an anachronism and is based on a belief that media could be controlled as envisaged in the Constitution. Today, given the existence of global media, on-line transmission and the overspill of UK channels and satellite broadcasting, all the provision achieves is to reduce informed debate within the territory. The idea behind it is to allow a period of reflection for voters, which does not really exist nowadays. If, on the day preceding an election, a newspaper printed something controversial or headline-grabbing then politicians and other interested parties would have no comeback, which is often provided by the broadcast media as they operate in the here and now.

The requirement for balanced coverage does not apply to print media. The requirement is, in itself, a restriction on freedom of expression and arguably is impossible to meet. What does it mean in the context of the forthcoming Lisbon treaty referendum? Is it a requirement to present both sides of the case equally, even though 90% of public representatives are on one side of the debate? Is it to give political parties an equal share? Some of the provisions might be unenforceable but, even so, we do not feel we get the protection we require under the Constitution.

The third restriction to which I referred is that on political advertising. For a commercial broadcaster this might be the most insidious restriction on freedom of expression. There is no logical reason to treat broadcast media differently from print media. If the restriction were extended to print media or outdoor advertising the measure would probably be viewed as almost Stalinist. While it might address controls over funding of parties, its impact is a restriction on freedom of expression. It is particularly of concern where 75% of Irish television viewing comprises State-owned channels, which do not suffer from the restriction, though they do not get the political advertising. However, they benefit from increases in licence fees while commercial broadcasters suffer restrictions on their funding and, therefore, on the amount they can spend on news programmes. I do not imply RTE or TG4 have anything other than the highest editorial standards or high levels of objectivity in their reporting.

Beyond the restrictions on election coverage we would like to raise three other issues. The first relates to sponsorship of news programming, which is on the same lines as the restrictions on political advertising. All commercial broadcasters depend on advertising, as do newspapers, as a way of raising funds for programming. If, however, we are restricted in that regard we cannot afford to fund news coverage to the same level as a State broadcaster can. That creates a serious issue for freedom of expression, particularly where there are different views and people need different channels as outlets in which to express themselves.

TV3 recently launched a new programme "Nightly News with Vincent Browne". It is a very expensive production for TV3 and, arguably, it is pushing the boundaries to transmit it at 11 p.m. We would prefer to transmit it earlier but to do so is simply unaffordable because we are not allowed to sponsor the programme, whereas we can sponsor a programme at 10 p.m. which will have a bigger audience. Public service broadcasting is not just about content but is about delivering it to an audience during prime time.

We raise a couple of specific issues in our submission. In line with most others who have appeared before this committee, we believe the rule on blasphemy is outdated and would be better left to general provisions on public order. The provision is probably ignored, which is probably not a good thing. At the same time, as a responsible broadcaster, we like to think we exercise due care and attention in the scheduling of our programming in terms of taste and decency, for which guidelines exist through the Broadcasting Commission of Ireland and the Broadcasting Complaints Commission. In common with other journalists, as evidenced by the submission of National Newspapers of Ireland, I and my news colleagues believe that libel reform is necessary to allow for the defence of public interest or honest mistake.

As part of our submission, my colleague proposed that the current Article 40.6.1° be replaced by an article based on Article 10 of the European Convention on Human Rights, which contains a more defined list of restrictions and represents a broader statement of freedom of expression. We believe such a provision would provide better protection against the types of restrictions we outlined in our submission and today. I thank the Chairman. I also thank him for reallocating time to us, for which we are grateful to him.

Senator Eugene Regan

In his paper, Developments in the Common Law System, Mr. McMunn says the current libel law restrictions in Ireland can, justifiably, be said to be some of the most restrictive in Europe and are not in accordance with general accepted best practice in Europe. Will he elaborate on what is sometimes taken as a self-evident proposition? I would like to hear his views on how the proposition can be substantiated.

Mr. David McMunn

In continental Europe the Napoleonic code of civil law provides for two main ways of dealing with libel. In some countries such as the Netherlands, even before a case can be taken, prima facie proof must be presented to a court. In other countries, including Germany and the Nordic countries, the balance of proof of libel tends to fall on the person making the complaint. Our system is based on the common law system which originated from the United Kingdom. That country altered its libel legislation in the 1990 Defamation Act. Other common law jurisdictions such as Canada and Australia allow, at the very least, for apologies without admission of liability and the defence of public interest which is also known as the honest mistake defence. None of these applies to Ireland at present.

We are aware that our laws are being reformed. As National Newspapers of Ireland has stated, it has taken a long time and we are not there yet. There is, undoubtedly, a chilling effect in the current legal system. That is the best way to describe the difference between the countries which operate a civil law system and the older common law jurisdictions where the system is being changed.

Senator Eugene Regan

The public interest defence emerged only recently in the United Kingdom. I accept that it has applied in the United States. It is under consideration in the courts, as well as in the draft Bill. Taking this into account, Irish libel laws are in line with those in other common law jurisdictions. We are not there yet, either in our legislation or the courts which have not pronounced on the issue.

Mr. David McMunn

That is a fair summary. However, we are not there yet. Change has been so long coming that we will need to see what is there when it arrives. That is why we make the point in the paper that a sense of urgency is required in making changes and reflecting them.

Deputy Michael D’Arcy

I would like to tease out the question of the public interest defence. I recently read a book about Barack Obama. On two occasions during his United States Senate campaign opponents had sealed court documents opened because media outlets had brought forward cases on the basis of the public interest. I hope media outlets in this country would not move in that direction. I was surprised to read that on both occasions the opponents of Barack Obama were successful, although on both occasions the candidates had to withdraw from the elections as a result of the opening of the documents. Perhaps the public interest was served in those cases but that is somewhere we do not need to go. The delegates may like to comment on that point.

Much of what the delegates have said may be relevant to the Broadcasting Bill which will soon be debated in the Oireachtas. I am also a member of the Joint Committee on Communications, Energy and Natural Resources. A presentation by the delegates to that committee might be helpful. I agree with much of what has been said about the right to reply. If people are very clever in the way they pitch an issue, whether on local radio or in a newspaper, a day or two before an election, there is no right of reply. I suggest the delegates offer to speak to the Joint Committee on Communications, Energy and Natural Resources. I had not considered some of the limitations on, for example, sponsorship of programmes. These are matters in which that committee might be very interested.

Deputy Michael Kennedy

I welcome our friends from TV3. They made reference to TV3's position as against RTE and TG4. How does Ireland compare with its European neighbours in the context of state versus private broadcasting?

Mr. David McRedmond

The State broadcasting sector is considerably larger and more dominant than that in other European countries. For various reasons, commercial broadcasting developed here later but is beginning to catch up. Some of the issues in the communications area such as the Broadcasting Bill and the emergence of digital terrestrial television, with which Deputy D'Arcy would be dealing, will rebalance this to some degree, but there is no doubt that we are somewhat behind other countries.

With regard to freedom of expression, I do not accuse RTE or TG4. They are honorable institutions and many journalists flow between them and us. At the same time, any news organisation needs competition to maintain excellence and be absolutely sure of genuine freedom of expression and plurality of views. The principle of plurality of ownership is important to underpin a democratic discourse which requires different opinions. That is not a criticism of RTE but it seems to be sensible. If, for example, there was the same level of concentration in a single newspaper which relied on State funding, one would look askance at the issue and ask if it needed to be addressed.

Senator Eugene Regan

These issues which have been worked into the script on freedom of expression are important and merit further discussion at this committee or another.

The question of balanced coverage can be interpreted in different ways. It can distort the democratic process. In the debate on the Lisbon treaty, for example, there is an over-representation of particular individuals who, in many cases, have an incentive to take a negative view of such a campaign in order to garner publicity. That should be discussed. In relation to the sponsorship issue, I am not sure that we could take Vincent Browne earlier in the evening.

Chairman

What about Ireland AM?

Mr. David McRedmond

I ask my colleague, Mr. Hanlon, to comment on the issue of balance.

Mr. Andrew Hanlon

The referendum on the Lisbon treaty, which is to take place soon, is a prime example of a case in which balance is absolutely necessary. However, given that the vast majority of serving politicians are in favour of a "Yes" vote and very few groups are fighting from the opposing corner, how can we introduce balance to the debate? We take this matter seriously during debates on local elections, general elections and referendums. TV3 is governed and rigorously monitored by the Broadcasting Commission of Ireland, which adds up the number of minutes of coverage devoted to various parties. Members of the Oireachtas are aware that the amount of broadcast time available to those who are involved in a particular campaign is closely monitored in the interests of balance. We take this issue seriously. One of the stark things about the Irish broadcasting industry is that it is much more heavily regulated than the newspaper industry. While regulation can be a good thing in many ways, over-regulation is always a bad thing. We understand that we have to live with regulation, as overseen by the regulator, because balance, fairness and impartiality are important aspects of what we do.

Deputy Barry Andrews

I would like to ask about some aspects of the transmission of television services by broadcasters. It seems that NTL has a widespread monopoly on cable. Is that an issue in terms of the dissemination of news? I accept that we are moving towards digital terrestrial television. I understand that the use of satellite dishes is not that common, although it is more common in rural areas. Perhaps the representatives of TV3 can explore that issue.

I mentioned the question of the protection of journalistic sources at a previous meeting of this committee. The Irish Times destroyed its source material in anticipation of being able to frustrate a Supreme Court decision, or potentially a decision under the European Convention on Human Rights, compelling it to reveal its sources. I accept that all freedom is limited to some extent, such as for public interest reasons. Were the representatives of TV3 surprised that The Irish Times acted in such a manner? Do they think the newspaper should have set the information about its sources to one side, perhaps protecting it under lock and key? It is an important and topical issue. I am interested to hear what other journalists have to say about it. We all believe in freedom of expression. None of the freedoms set out in the Constitution is unlimited or unrestricted, whether by law or by some condition within the Constitution. Therefore, I presume the right of a journalist to protect his or her sources under the heading of “freedom of expression” is limited in certain circumstances. The action taken in this case in anticipation of a negative decision, which has frustrated the possibility that such a decision could be made and have an effect, was wrong. I would be interested to hear whether the delegation agrees with me.

Chairman

I do not know whether we can argue or discuss a specific case. I am thinking about the Abbeylara case when I say I do not believe we can say certain things. I am not prepared to allow the members of the committee to say anything that could affect the reputation of a newspaper or an individual.

Senator Eugene Regan

That case is also under appeal.

Chairman

It may be.

Senator Eugene Regan

It is rather inappropriate to raise it at this forum.

Chairman

I do not want to--

Deputy Barry Andrews

In fairness, this case has been referred to and relied on in many of the submissions we have received from various sources. I would be surprised if we could not discuss it.

Chairman

If our visitors, who know they do not enjoy parliamentary privilege, wish to comment on the case, they are quite entitled to do so.

Deputy Barry Andrews

I will accept it if they do not wish to do so.

Mr. David McRedmond

I will answer the Deputy's first question, which was about NTL. TV3 programmes are available on a number of platforms - NTL offers a cable service, Sky offers a satellite service and RTE Networks offers an analogue service, although it will soon replace that with a digital terrestrial television service. TV3 does not have any problems with the ownership of the various platforms, primarily because TV3 is defined as a "must-carry"- under the terms of its licence, the platforms must carry all TV3 services. While it is not an issue for TV3, it could be an issue for other broadcasters but that would be for them to say. I do not think it would be reasonable for us to comment on the second matter raised by Deputy Andrews.

Deputy Michael D’Arcy

Mr. McRedmond did not comment on the public interest defence.

Mr. David McRedmond

I will make one point before I ask my colleagues to comment on the matter. While I am neither a lawyer nor a journalist, I see the libel claims. Additional jeopardy is associated with television in the sense that one can be libelled by the use of pictures. Most of the complaints received by TV3 relate to footage, often library footage. For example, a business might be visible when footage that was shot when some incident such as a crime took place is broadcast again. I understand that RTE was brought to court by a firm that argued that its headed notepaper could be recognised from a single page that was visible among a sheaf of notepaper. We have to be careful with images of various things such as car number plates. I am talking about the defence of honest mistake, rather than the public interest defence. It is almost impossible to broadcast film at times. Court reports are accompanied by shots of the top of the Four Courts as that is often the only safe thing to show under the slightly different restrictions which apply to court reporting. If we were to take the most cautious approach, there would be almost no pictures on television. I do not think that would serve anybody well. I ask my colleague, Mr. McMunn, to speak about the public interest defence.

Mr. David McMunn

I will comment on the legal aspect of the public interest defence, which has developed incrementally in the UK and Ireland. Judges have been careful in developing it. Since the Sullivan case in the 1950s, the public interest aspect of the libel laws in the United States, which was mentioned earlier, has developed in a manner that is radically different from that of other common law jurisdictions. I do not think there will be any appalling vista - we will not have a US-style or UK-style approach in Ireland any time soon.

Senator Eugene Regan

The second element of this discussion is blasphemy. Does it ever rear its head in TV3's work?

Mr. David McRedmond

I do not think we have ever had a complaint about blasphemy. That is not to say we do not exercise our own judgment. There have been cases in which we have been unsure about certain matters. There are certain regulations relating to the watershed - we will not show certain things before 9 p.m. We are also governed by taste and decency requirements which are reasonably applied. It could be argued that the various rules are restrictive and curtail freedom of expression to some degree. I said in my opening presentation that the blasphemy provisions are probably ignored, at best. I am not sure whether that is a good or bad thing. It is probably a bad thing, in principle, that a law is being ignored. We do not have a particularly strong view on the blasphemy law, other than to suggest it is not relevant.

Chairman

I thank Mr. McRedmond, Mr. Hanlon and Mr. McMunn for attending this meeting and being so helpful.

The joint committee went into private session at 11.10 a.m. and adjourned at 11.15 a.m. sine die.