the Irish for rights

What if Wired were Published in Ireland?

Wired Magazine masthead If Wired magazine were published in Ireland, would it be a periodical? Would its website be? Would the website be, even if there weren’t a magazine? And why do these musings matter? Well, they matter because only ‘periodicals’ will be subject to the Press Council proposed in the Defamation Bill, 2006; and whilst the defintion of periodical clearly covers print newspapers and magazines (such as Wired‘s offline edition), and probably covers content on websites associated with such offline editions, it probably doesn’t cover content published exclusively online by publications that look like newspapers or magazines but lack an offline edition. I think that it should.

This week, the Press Complaints Commission in the UK extended its remit to the online realm. Following comments to the same effect last month, the PCC on Thursday formally confirmed that it is to regulate audio-visual content on newspaper and magazine websites (PCC press release | Guardian story). Given the large amount of original content in the online editions of the UK newspapers – this week, for example, saw both the Times and the Mirror launch their redesigned online editions – this is an entirely logical move. Moreover, Mediawise suggests that the press agreed to this to pre-empt any recommendations that might emerge from the recently announced inquiry by the Culture, Media and Sport Select Committee into press self-regulation. Whatever the impetus, it is the right thing to do.

Our Press Council should assume a similar jurisdiction right from the start of its deliberations. There should be no legal impediment to its doing so. The Press Council proposed in the Defamation Bill will have jurisdiction over “any periodical in circulation in the State” (section 4 of Schedule 2 to the Bill), and “periodical” includes “any version” of a periodical “published on the internet or by other electronic means” (section 2). On the one hand, it might be argued that original content on a newspaper’s website (such as the breaking news section of the Irish Times on Ireland.com) is not a “version” of a printed periodical; on the other hand, the aim of the section is plainly to cover it. I doubt that a newspaper which had subscribed to the Press Council would seriously seek to argue that its website is not subject to the Council’s authority; and even if one were to do so, I doubt whether the Council would deny itself that jurisdiction.

However, even an expansive view of the section would not seem to bring an exclusively online publication within the defintion of a “periodical”.* Wired magazine predicted that, in 2007, a major newspaper would give up printing on paper to publish exclusively online. It was an easy prediction. Since 1 January 2007, after 362 years of offline publication, the Swedish paper Post-och Inrikes Tidningar is now exclusively an online publication (hat tip to Fergus). The point of the Wired prediction was not that within two days something that had been long expected would actually happen, but that, where it has led, others – with less predictablility – will doubtless follow (maybe Wired** is laying the groundwork for such a move itself?!). One of these may be Irish, and if not this year, then at some stage in the (near) future. And this is to say nothing of the many fine exclusively online publications in Ireland and elsewhere – not merely blogs and websites, but sites that look like newspapers (such as BreakingNews.ie) and magazines (such as Silicon Republic), but without the offline cat-litter or chip-wrapper. On any reading, these are excluded from the definition of “periodical” in the Bill, and are thus unable to subscribe to the Press Council.

Some might want to. As well as the obvious burdens, there are in fact significant benefits to doing so (especially in the context of defences to defamation actions: see section 24(2)(f) of the Bill). If they want to, they should be allowed to do so. Once you are a periodical, subscription is voluntary. It might be better, therefore, to amend the definition of “periodical” in section 2, to clarify that it includes to the original online content of newspaper websites, and to extend it to cover exclusively online publications as well. This could be done simply by providing that “periodical” includes “any periodical published on the internet or by other electronic means”. It would then be for an online publication to decide, just like its offline counterparts, whether it wants to subscribe to the Press Council or not.

* Update 1 (17 February 2007): Daithí over on Lex Ferenda has already – and in a much more perceptive and provocative way – made a similar point about the identical definition of ‘periodical’ in the Privacy Bill, 2006.

** Update 2 (17 February 2007): Daithí­ has reminded me that it’s not that long since the print and online editions of Wired were reunited under the same owner after eight years of separation. Nevertheless, going exclusively online would still be the next logical step, at some stage.

12 Responses to “What if Wired were Published in Ireland?”

  1. TJ says:

    Fergus Cassidy has an interesting take on some of these points here.

  2. Eoin says:

    Thanks TJ. I should also note that you have addressed these issues in a post on the Digitial Rights Ireland (DRI) website. By and large, I think that you and Fergus and Daithí and I are all of one mind, that the Bill does not really acknowledge let alone properly accommodate internet publication, whether by bloggers or by bigger commercial operations: we/they should have the option to subscirbe to the Press Council, though as you say in a comment on Fergus’s blog, it is only the bigger boys rather than the humble bloggers who are likely to do so.

  3. Fergus says:

    I’m concerned that new ‘defences’ contained in the Defamation Bill might not apply to something published “exclusively” online.

    The bill states that the court shall take into consideration a number of factors in whether something is a fair and reasonable publication. A hugely important defence for a publisher.

    Yet part (f) says: “In the case of a statement published in a periodical, the extent to which the publisher of the periodical (ii) abided by decisions of the Press Ombudsman and determinations of the Press Council�.

    How does an online-only publisher (could be an occasional blogger) abide by decisions of the Press Ombudsman and determinations of the Press Council?

  4. TJ says:

    Fergus – I suspect that this concern doesn’t arise given the current text of the bill. If an online publication is not a periodical, then the provision you refer to doesn’t apply (as it is limited to “a statement published in a periodical”) and there is therefore no need to consider whether the publisher abided by these decisions and determinations.

  5. Eoin says:

    I think you’re both right. TJ is right that, on the current draft of the Bill, there is no need to determine whether an online publisher has abided by the decisions of the Press Ombudsman and Press Council; Fergus, I think, is making the point that online publishers should be able, if they wish, to subscribe to the Press Council, and to have the opportunity to take advantage of that when pleading the defence of fair and reasonable publication. Admittedly, subscribing to the Council and abiding the decisions of the Press Ombudsman and Press Council are merely some of the things that go to establishing the defence of fair and reasonable publication, so online publishers who don’t/can’t engage with the Press Council process can still rely on the other indicative factors and establish the defence; but I think I’m with Fergus that online publishers who want to take upon themselves the burdens of subscription should be able to do so and have the benefits that go with it as well.

  6. Fergus says:

    I realise we’re whistling past the graveyard here, but I appreciate TJ’s clarifications and your analysis Eoin. Apols in advance for going off-legal, so to speak.

    It’s a mess to create a Press Council, give it statutory footing and then have a wishy-washy definition of who is entitled to membership. “The owner of any periodical in the State” could have been written 50 years ago.

    It avoids having to deal with a changed communications landscape.

    When the Bill is law, imagine that a draft inquiry report was leaked exclusively to me. I decide to face the legal consequences (gulp!) and publish it on my site.

    How would the industry react? And the Press Council as the industry sheriff?

    Sadly, what I see is a rope tightening around my neck.

  7. […] For all that it is better than the current position, the drafting in many of the sections is often more ungenerous than it might have been: – the removal of the distinction between libel and slander is hamfisted (rather than clearly abolishing the distinction, it merely says that libel and slander shall “be collectively described, and are referred to in this Act, as the ‘tort of defamation’â€?); – the splitting of the definition of defamation between two sections is more awkward than it needs to be; – the fast-track declaratory order is available only in the High Court (a plaintiff “may apply to the High Court for an order …â€?) and not in the Circuit Court, which rather defeats the purpose; – the list of factors which may be taken into account by the High Court in the determination of damages does not include the extent to which reasonable care was exercised by the defendant in attempting to ascertain the truth of any allegation of fact prior to the publication in question, which seems to me a startling and paltry omission; – the defences are terribly narrowly cast (especially qualified privilege, and innocent publication); – in particular, the defence of fair and reasonable publication simply states too many hurdles. It requires publication (i) in good faith, (ii) in the course of, or for the purposes of, the discussion of a subject of public importance, (iii) the discussion of which was for the public benefit, where, in all the circumstances of the case, it was (iv) fair and (v) reasonable to publish the statement. On the one hand, the various hurdles all seem the same, with various synonyms expressing the same basic point, that the publication must have been fair and reasonable. With that there can be no cavil. But every word in a section means something, and if it is said five times, it’s not the same thing being said five times for emphasis, but five different things. The publication will therefore have to be all five, and that seems to me to set far too high a standard; – and the Bill is fixed on a print-based mindset, ignoring internet issues, such as those relating to the defence of innocent publication or the definition of periodical. […]

  8. […] the inter-relation between the two is now rather left hanging. As with the incomplete definition of periodical in the Bill, this is yet another example of how it fails to address, let alone accommodate, […]

  9. Eoin says:

    On self-regulation of online media (not just periodicals), the Programme in Comparative Media Law and Policy at the University of Oxford‘s Centre for Socio-Legal Studies carried out a three-year research project funded under the EU Internet Action Plan to investigate self-regulatory codes of conduct across National, EU and International boundaries covering a wide range of media from Internet, film, video (games), (digital) television to mobile communications. It resulted in the 2004 Report on Self-Regulation of Digital Media Converging on the Internet: Industry Codes of Conduct in Sectoral Analysis (also here (pdf)).

  10. Eoin says:

    Peter Preston has a piece (Paperless newspapers are virtually a reality) in the Observer of 29 July 2007 on the point; he begins:

    Here’s a question that can at last be asked openly. Which major newspaper will be the first to throw away its newsprint and scrap its presses – and peddle its wares by internet alone?

    Business Week in America doesn’t just ask the question, it provides a plausible answer: the Hearst Corporation’s San Francisco Chronicle, a seemingly perfect candidate in a web-centric town. …

  11. […] It could all have been so very different. In the late 1990s, there was a burst of public policy enthusiasm for ensuring that the regulation of the online environment was congenial. So, the information society strategy in 1998 (pdf) and the Electronic Commerce Act, 2000 (also here) were quite ahead of their time. However, public policy then lost its way. For example, the Data Protection (Amendment) Act, 2003 (also here) wasn’t leading but following EU policy. Hence, the Irish government were no longer agenda setters, but simply policy takers – and not very good ones at that: as the internet has been moving to web2.0, Irish law has still remained web1.0. He gave three examples. First, there is still no Bill to implement the CyberCrime Convention 2002. Second, our transposition of the ECommerce Directive (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market) is minimalist, leaving intermediaries in a relatively weak position: it contains (i) only conduit cache and hosting defences, (2) on which there is no clarity, and (3) there are no additional protections, for search, aggregators, hyperlinking, and so on. And third, the Defamation Act, 2009 (also here) is primarily directed to traditional media, especially the print media, and constitutes a missed opportunity to deal with online concerns; for example, the defence innocent publication did not integrate the ECommerce Directive rules relating to intermediaries, and membership of the Press Council requires a print-connected periodical – so, a website for newspaper is within the Press Council’s jurisdiction, but exclusively online publications like thejournal.ie and siliconrepublic are not. […]

  12. […] publication. I am delighted that the Ombudsman and Council are now heading in this direction. I was unconvinced (and disappointed) that the Act would allow for this, though, as TJ has pointed out the last […]

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Me in a hatHi there! Thanks for dropping by. I’m Eoin O’Dell, and this is my blog: Cearta.ie – the Irish for rights.

“Cearta” really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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