Wednesday 24 April 2019

Whatever you say, say nothing to give offence

Some within the media are wondering if the new system of self-regulation could go a little too far, writes Colum Kenny

FREEDOM of speech is being limited by the Irish Press Council and its Press Ombudsman. And that is no bad thing in the opinion of critics of the media.

The Press Council says, "The Greeks and Romans first articulated the doctrine that freedom without limit is licence and the enemy of true freedom, which can flourish only when it has regard for the rights of others and for the common good."

But some editors are worried by decisions of the Press Council relating to Africa and to Katy French. They believe these decisions may make it harder for writers to say what they feel, or for the media to report on stories that matter to the public.

Media organisations are also annoyed that the Government has failed to introduce its promised reform of Ireland's onerous libel laws, in return for media organisations setting up the Press Council. The Defamation Bill 2006 is still stalled in the Oireachtas. A very restrictive privacy law is also on the cards, likely to be active within three years.

The fact that causing grave offence requires media regulation was demonstrated clearly in the UK last week by Russell Brand and Jonathan Ross's juvenile and lewd phone calls on a radio show, disclosing private details of a young woman's sex life in an offensive manner.

But the issue is not always so clear-cut. Columnist Kevin Myers has just been rapped across the knuckles by the Press Council for his "offensive" opinions on Africa. It has never been a crime simply to cause "grave offence", nor can you sue if offended by someone's words unless you are actually libelled.

Another journalist found his version of what happened on the doorstep of the late Katy French's family rejected by the Press Council. His reputation has been tarnished -- not by a court, where he could have cross-examined witnesses, but by a body from which there is no right of appeal.

In yet another case, an error in describing a company employee as a "spokesperson" led to a public reprimand for the Sunday Times -- despite the fact that the paper offered that same firm the opportunity to write a letter to the editor, clarifying its position.

Mistakes have been made by the media, and most findings by the Press Ombudsman are hard to gainsay. But some decisions have left media organisations wondering if the new system of self-regulation could go too far.

The Press Council is biting. It has bitten Kevin Myers. He is a controversialist who caused consternation at the Irish Times when he referred in an article there to unmarried mothers and their "bastards". More recently, in last July's Irish Independent, he claimed that "Africa is giving nothing to anyone ... apart from Aids".

The Myers article on Africa was outrageous. One could imagine the level of anger in Ireland if some British newspaper claimed that "Ireland is giving nothing to anyone ... apart from drunkenness". The Press Council received dozens of complaints about that Myers article.

Principle 8 of the Code of Practice of the Press Council, as agreed with media, states: "Newspapers and periodicals shall not publish material intended or likely to cause grave offence or stir up hatred against an individual or group on the basis of race, religion, nationality, colour, ethnic origin, membership of the travelling community, gender, sexual orientation, marital status, disability, illness, or age."

The Press Council found against Myers because he "used the failings of some to stigmatise whole societies, employing a level of generalisation that was distorting and seriously insulting to Africans as a whole". His article was "likely to cause grave offence to people throughout sub-Saharan Africa and to the many Africans in particular who are now resident in Ireland".

Which is no doubt true. But the Press Council specifically rejected complaints that Myers was anything more than offensive. It did not find reason to conclude that the article was likely to stir up hatred or that there was any intention of doing so.

So it is now clear that Principle 8 of the Press Council code is actually two principles. The first is simply that "Newspapers and periodicals shall not publish material intended or likely to cause grave offence", to anyone! The rest of Principle 8, including its long list of possible victims, relates only to cases where someone has stirred up hatred.

Where is the balance between causing offence and suppressing freedom of speech? Many readers welcome some offensive comments about the powerful or rich, or about irritable self-righteous pressure groups. What is freedom of speech if it is not the freedom to say on occasion things that most people in society find offensive?

There are times when journalists have ethical responsibilities and must bear in mind the social significance and consequences of their words. The Danish cartoon controversy was never just about freedom of speech, but was also about respect for Muslims. And Myers deserves no praise for his cartoonish representation of Africa. Yet the distinction between suppressing offence and censorship is a tricky one.

The Press Council acknowledged in its decision on Myers that "the opportunity for robust presentations in the print media of widely different views, however controversial or disturbing some of them may be, is a powerful indicator of a mature and confident democracy". But the fact that it then went on to censure him has left the media wondering where the Press Council draws its line.

And in another case, involving the Irish Daily Star, a man appeared unannounced at the home of the late Katy French's mother and presented himself as a journalist and a friend of her recently deceased daughter. Janet French later stated that he had never identified himself as being in the process of writing a story, and she thought from what he had said that he was not actually doing so. The paper contested her version.

The Press Council saw fit to decide that: "On the evidence provided to it, the Press Council could find no reason to doubt Mrs French's insistence that the conversation was a personal one and that no interview was sought."

Last week, Press Council chairman Prof Thomas Mitchell said that, as a general principle, "in cases where the balance of probability very strongly favours a particular version, and where there is corroboration, then the Council could consider it will make a judgement as to what it considers to be the facts of the situation".

But while the Press Council gave circumstantial reasons for its finding of fact in the French case, it dispenses with the right of an accused to cross-examination. There is also no appeal from its decision. It might be wiser for it to use a formula such as "if the facts are as alleged by the complainant, then... ''

The journalist in the French case is not named in the Press Council decision, although his reputation may still suffer within and outside his organisation if other media covering the case go back and find the byline on the contested story.

The names of those complaining about articles are sometimes concealed from the public if the complainant wishes to remain generally unknown. The Press Council says that this is not its doing, but is a result of advice from the Data Protection Commissioner and is based on respect for privacy.

The right to appeal a decision is limited. Complaints are usually heard first by the Press Ombudsman and these may only be appealed if the Press Council itself first agrees to hear an appeal, perhaps on the basis of what it regards as significant new information or a recognised procedural issue. Very occasionally, complaints which the Ombudsman regards as particularly significant or complex -- or likely in any event to be appealed to the Press Council -- are sent by him straight to the Press Council, and there is then no appeal at all from the findings in such cases.

The Press Council was set up by the media as a voluntary non-statutory body, and the scope for aggrieved parties to ask the High Court to review its decisions is accordingly limited. That may change if and when the Defamation Bill 2006 is ever passed, because the Bill proposes to give some degree of statutory recognition to the Press Council.

So long as the Defamation Bill is not enacted, there is also a chance that a successful complainant may use a decision of the Ombudsman or Press Council to bolster some legal action against a newspaper. If that were to happen then media organisations might pull the plug on the whole Press Council. They feel that they have done what they promised by setting it up, but that the Government has let them down on libel reform.

Professor Colum Kenny teaches journalism at DCU

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