… and what the ‘Irish model’ actually means
Saturday’s Times newspaper claimed it knew the answer to the million dollar question – what is Lord Justice Leveson going to recommend? The judge, the paper said, would reject pure self-regulation and go instead for a ‘system similar to the model operating in the Irish Republic’. Rather than clarifying exactly what this meant, the article then concentrated on why Lord Black and other members of the press might object to such a system.
Putting to one side whether or not The Times is right about the contents of Leveson’s report, what is ‘the Irish model’ and why do I think the judge is unlikely to recommend it in its current form?
The ‘Irish model’ is a system of press regulation recognized in Irish law. The 2009 Irish defamation act (Section 44) recognizes the existence of a Press Council and a Press Ombudsman, sets out minimum requirements for the Press Council, outlines the composition of the Council and its funding, and sets out the broad parameters of the complaints process (see Irish Defamation Act 2009)
‘Recognition’ within the Act means that those publications who become members are able to use a defense of ‘fair and reasonable publication’ when legal action is taken against them.
Sounds perfectly sensible and, to date, the system appears to be working pretty well and has all the big newspapers in Ireland signed up. So why don’t I think Leveson will recommend it for the UK?
1. The additional defences have not, as yet, been tested, and may not mean very much in practice. The courts are meant to take membership into account in defamation cases but are not obliged to. To date, no newspaper has sought to use the defence. In addition to which, as the Irish Ombudsman, John Horgan, said in his oral evidence to Leveson, it is not clear that the extra protection is even constitutional:
“Under our constitution, the parliament cannot confer a privilege on any one individual or group that is not available to the population as a whole. So the defence that is available to member publications of the Press Council is also in theory available to other publications, if they can satisfy a court that they operate to standards and procedures in no way inferior to those that have been accepted publicly by member publications. This, again, has not been tested in court.” (Leveson Inquiry, oral evidence, July 13th 2012).
Lord Justice Leveson has shown little interest in systems that appear symbolic rather than practical. Much more likely that, if interested in incentivizing membership through legal privilege, he will recommend something with identifiable, concrete benefits.
2. A similar but more practical system that is more likely to interest Leveson has been proposed at the Inquiry. The Tomlinson plan (submitted to Leveson by the Media Regulation Roundtable) recommends a voluntary system strengthened by contract within which, as a member, you get tangible protection from defamation or privacy actions.
If a member of the public wanted to take legal action against a member of this system, the person would first be compelled to go through an independent adjudication under the umbrella of the regulatory system. This would be the same for an ordinary person as for an oligarch. The adjudicator would be empowered to make findings on the issues and, if minded, award compensation. The person would not then be prevented from pursuing the case in court, but most cases would be dealt with through the regulatory system.
For news organisations anxious about huge legal bills this has clear, attractive benefits. Indeed an ‘arbitral arm’, as he calls it, is included Lord Black’s plan for PCC2. And the editor of the Daily Mail, Paul Dacre, said that ‘if membership of a self-regulatory body gave access to swift and cheap resolution of defamation and privacy cases, this would be a major boon for both the industry and the public’ (submission to Leveson Inquiry).
3. The Irish system puts oversight of the regulator in the hands of the relevant Minister. This is currently the Justice Minister Alan Shatter. Such a direct connection is bound to be seen by Leveson as too close a relationship with government. Especially after the events of the last couple of months, when Shatter called the regulator’s effectiveness into question following the publication of Princess Kate’s pictures in the Irish Daily Star, and the Justice Secretary went on to propose the introduction of a domestic Irish privacy law.
Any UK system will have to demonstrate greater independence from the State. The Media Standards Trust plan, for example (of which I am one of the authors), suggests an independent backstop auditor, which would ensure distance and independence of the press from any government or Parliamentary intervention.
The Irish model is useful to Leveson, for example to demonstrate that there is not a dichotomy between complete self-regulation and statutory control, but it would be strange if the judge recommended a voluntary system in which the tangible benefits are more symbolic than real.