Category: Media and Communications

What are the constitutional issues facing the regulation of media ownership in Ireland?

Element of Media Report CoverA just-published Report on the Concentration of Media Ownership in Ireland (download pdfs here and here) directly addresses the question in the title to this post: what are the constitutional issues facing the regulation of media ownership in Ireland. The Report concludes that such issue do not prevent government action here, and calls on the Irish government to tackle Denis O’Brien’s media control. It seems that some media are ignoring it. That is a pity. It is a very important Report. It was commissioned by Lynn Boylan MEP on behalf of the European United Left/Nordic Green Left (GUE/NGL) group of the European Parliament, and was prepared by Caoilfhionn Gallagher and Jonathan Price, barristers in Doughty Street Chambers, London, and Gavin Booth and Darragh Mackin, of the Belfast solicitors’ firm KRW Law. It was launched in Leipzig (panel | photo) on 6 October last, and in Dublin last night (press notice | photos).

Here’s a flavour of the Report, from the executive summary [with added links to relevant posts on this site]:

1.8 In our view, taken together, the combination of the highly concentrated Irish media market, Mr. O’Brien’s threats and initiation of a large number of legal proceedings against media and other critics, and serious shortcomings in the defamation framework create a perfect storm which threatens news plurality and undermines the media’s ability to perform its watchdog function. … We strongly recommend that these concerns be addressed as a matter of urgency, and be seen to be addressed.

1.13 The Report’s authors are aware of suggestions that there are legal bars to any such action being taken, but we reject any suggestion that it is not legally permissible to address the status quo and that tackling the current concentration of media ownership is impossible given the importance of property rights in the Irish Constitution and/ or the European Convention on Human Rights (“ECHR”). On the contrary, our conclusion is that there is, in principle, no such legal bar. A retrospective mechanism could indeed be permissible under the Irish Constitution, EU law, and the ECHR. …

1.14 However, whilst this matter of principle is clear, there remain complex and nuanced issues to consider. The devil is very much in the detail, and these are difficult issues. What is now needed is a careful review of the detail, and, accordingly, the Report recommends that the Government establish a cross-disciplinary Commission of Inquiry. This Commission should examine the issues closely and make concrete recommendations, within a tight timeframe. [emphasis added; see also para 6.6]

This is an important call, which I hope the government will heed, but I won’t hold my breath. (more…)

Monitoring media pluralism in Ireland

Updated: 1 November 2017

MPM logo via CMPF at EUIArticle 11(2) of the Charter of Fundamental Rights of the European Union (pdf) provides that

The freedom and pluralism of the media shall be respected.

As a consequence, as part of its implementation of the Digital Single Market, the European Commission defends Media Freedom and Pluralism in a variety of ways. For example, the Media Pluralism Monitor is designed to identify potential risks to media pluralism in Member States. It is based in the Centre for Media Pluralism and Media Freedom in the Robert Schumann Centre for Advanced Studies at the European University Institute, Florence. The pilot programme was established in 2009. The monitor has been implemented twice, first in 2014 on 9 EU countries, and second in 2015 on the remaining 19 EU countries. [Update: In 2016, the CMPF implemented the monitor in all 28 EU Member States and in two candidates countries (Montenegro and Turkey).] Ireland was included in the 2015 monitor, in a chapter written by Dr Roderick Flynn of DCU.

The monitor assesses four key areas of media pluralism. The first relates to Basic Protection, which concerns

regulatory safeguards for freedom of expression and the right to information; the status of journalists, and the independence and effectiveness of the national regulatory bodies. The risks detected in this area are limited. But given that this area represents the regulatory backbone of the media sector in every contemporary democracy, even an average risk of 23% represents a threat to media pluralism.

In the 2105 Report, Flynn assessed Ireland as at 29% risk under this head. (more…)

Open justice and closed tribunals: refugee hearings and the Rule of Law

Refugee Appeals Tribunal logo, via their websiteIn a previous post, I considered the common law and constitutional aspects of the principle of open justice. In Wednesday’s Irish Times, Carol Coulter reported on a case in which a child asylum seeker is alleging perceptible bias on the part of a member of the Refugee Appeals Tribunal. At present, the applicant is seeking leave to bring judicial review proceedings against the rejection of her asylum application, and the leave hearing is expected in the coming months. In an accompanying story, Coulter discussed previous cases which have challenged the secrecy and perceived unfairness of the Tribunal. That reference to “secrecy” set me thinking about the principle of open justice in the context of closed tribunals, and this post is a first attempt at applying the principle in that context. In that respect, I very much welcome discussion of my analysis in the comments.

The starting point is section 19(4A) of the Refugee Act, 1996 (also here) as inserted by section 7 of the Immigration Act, 2003 (also here), which provides:

(a) The chairperson of the Tribunal may, at his or her discretion, decide not to publish (other than to the persons referred to in section 16(17) [of the 1996 Act, also here]) a decision of the Tribunal which in his or her opinion is not of legal importance.

(b) Any decision published shall exclude any matters which would tend to identify a person as an applicant under the Act or otherwise breach the requirement that the identity of applicants be kept confidential.

A challenge to the unamended section 19 of the 1996 Act was dismissed as moot in Jonathan v Ireland [2002] IEHC 59 (31 May 2002). In Atanasov, Fontu and Opesyitan v Refugee Appeals Tribunal [2007] 4 IR 94, [2007] 1 ILRM 288, [2006] IESC 53 (26 July 2006), MacMenamin J in the High Court held that the section after amendment must be interpreted consistently with the constitutional entitlement to natural justice and fair procedures, and that the failure of the Chairperson of the Tribunal to make available to the applicants relevant tribunal decisions sought by them was breach of this constitutional entitlement. In the Supreme Court, Geoghegan J (Murray CJ, and Denham, McGuinness and Hardiman JJ concurring) dismissed the appeal:

As to what kind of fair procedures the Constitution may require in any given instance will always depend on the particular circumstances and in the case of tribunals as to what constitutes fair practice may greatly differ. … fair procedures require some reasonable mechanisms for achieving consistency in both the interpretation and the application of the law in cases like this of a similar category. Yet, if relevant previous decisions are not available to an appellant, he or she has no way of knowing whether there is such consistency. … Previous decisions of the Tribunal may be ones which if applied in the appellant’s case would benefit the appellant but if there is no access he has no knowledge of them and indeed he has no guarantee that the member of the Tribunal has any personal knowledge of the previous decisions made by different colleagues. It does not require an elaborate review of relevant case law and fair procedures to come to the conclusion that such a secret system is manifestly unfair. The unfairness is compounded if, as in this jurisdiction, the presenting officers as advocates against the appellants have full access to the previous decisions. That raises immediately an “equality of arms” issue.
(more…)

The role of new media in humanities scholarship

Conversation, via First MondayOne of my favourite reads online is the journal First Monday, one of the first openly accessible, peer–reviewed journals on the Internet, solely devoted to the Internet. The name of the journal was chosen, First Monday, based on its frequency, as issues appear on the first Monday of every month. In this month’s issue (Volume 15, Number 10 – 4 October 2010), there is an excellent article on the new media in the humanities by Oya Y Rieger:

Framing digital humanities: The role of new media in humanities scholarship

The phrase “digital humanities” refers to a range of new media applications that converge at the intersection of technology and humanities scholarship. It is an evolving notion and conveys the role of information technologies in humanities scholarship. Based on a qualitative case study approach, this paper interprets the concept by eliciting the diverse perspectives — which nevertheless express several discernible themes — of a group of humanities scholars. It synthesizes the wide range of opinions and assumptions about information and communication technologies (ICTs) held by these humanists by using Bijker’s (1995) notion of a technological frame. The digital humanities domain is interpreted through three lenses: digital media as facilitator of scholarly communication; digital media as a platform for creative expression and artistic endeavors; and, digital media as context for critical studies of digital culture. The article concludes that, while technologies are being positioned as driving forces behind academic innovation, it is more important than ever to understand the cultural, social, and political implications of new media and how they are perceived and used by humanities scholars.

Mechancial turks, safe harbours, and immunities – liability for defamatory comments on websites

Contemproary mage of the Mechanical Turk via wikipediaEric Goldman has recently blogged about a US case in which a local tv broadcaster was not held liable in defamation for a comment posted on its website by a viewer. More recently, Rebecca Tushnet discussed a case in which the review website Yelp was held not liable in defamation for hosting a review to which its subject objected (see also CYB3RCRIM3 | Eric Goldman | First Amendment Coalition | Internet Defamation Law Blog | Techdirt ). (Indeed, review authors will usually be able to rely on the defence of fair comment – or honest opinion – anyway). More recently still, Lilian Edwards has blogged about her presentation on internet intermediaries and legal protection. These posts got me thinking about how such disputes might play out as a matter of Irish law.

[After the jump, I discuss the basic position at common law and under the Defamation Act, 2009 (also here), and then I compare and contrast US ‘safe harbor’ defences with EU immunities.] (more…)

Conference: Recent developments in Irish Defamation Law

TCD front square, via TCD websiteNext week, the School of Law, Trinity College Dublin, will host a conference on

Recent Developments in Irish Defamation Law – Including the Defamation Act, 2009

It will be on from 9:30am to 1:15pm on Saturday, 28 November 2009, in the Davis Theatre, Arts Building, Trinity College Dublin.

As regular readers of this blog will know, Irish Defamation law has undergone a number of radical changes in the last twelve months including, most notably, the changes which are to be wrought by the newly enacted Defamation Act, 2009 (pdf). These changes will significantly influence the way in which defamation cases are to be managed and may, potentially, represent a shift in the traditional balance between plaintiffs and defendants in defamation cases. The conference will consider the nature of such changes. Here’s the provisional programme:

  09:00   Registration

  09:30   Paul O’Higgins, SC  The Defamation Act from the Plaintiff’s Perspective
  09:55   Eoin McCullough, SC  The Defamation Act from the Defendant’s
Perspective      
  10:20   Paula Mullooly  The Defamation Act from the Solicitor’s Perspective
  10:45   Questions and Discussion

  11:00   Tea/Coffee Break

  11:15   Brendan Kirwan BL  Injunctive Relief and Remedies
  11:40   Ray Ryan BL  Key Points of Practice and Procedure in Defamation
  12:05   Dr Eoin Carolan BL  Alternative Causes of Action
  12:30   Dr Eoin O’Dell The Defamation Act: The Constitutional Dimension
  12:55   Questions and Discussion

  13:15   Conference Ends

  14:30   Ireland v South Africa    (Croke Park)

For more information or to make a reservation, please phone ((01) 896 2367), fax ((01) 677 0449), email, or visit the website.

Other forthcoming events in the Law School are listed here; other forthcoming Law events in Ireland are listed here by Darius.

Updates: Joyce, hecklers and broadcasting

Updates logo, via Apple websiteI suppose if I spent ages thinking about it, I could find a spurious thread linking three stories that caught my eye over the last few days, but in truth there is none, except that they update matters which I have already discussed on this blog. (Oh, all right then, they’re all about different aspects of freedom of expression: the first shows that copyright should not prevent academic discussion; the second shows that hecklers should not have a veto; and the third is about broadcasting regulation).

First, I had noted the proclivity of the estate of James Joyce to be vigorous in defence of its copyrights; but it lost a recent case and now has agreed to pay quite substantial costs as a consequence:

Joyce estate settles copyright dispute with US academic

The James Joyce Estate has agreed to pay $240,000 (€164,000) in legal costs incurred by an American academic following a long-running copyright dispute between the two sides. The settlement brings to an end a legal saga that pre-dates the publication in 2003 of a controversial biography of Joyce’s daughter, Lucia, written by Stanford University academic Carol Shloss. …

More: ABA Journal | Chronicle | Law.com | San Francisco Chronicle | Slashdot | Stanford CIS (who represented Shloss) esp here | Stanford University News (a long and informative article).

Second, I have long been of the view that hecklers should not be allowed to veto unpopular views, and none come more unpopular that holocaust-denier David Irving. Now comes news that NUI Galway’s Lit & Deb society have withdrawn their controversial invitation to Irving for security reasons:

David Irving address in NUIG cancelled due to ‘security concerns’

The proposed visit of the controversial historian David Irving to the NUI, Galway Literary & Debating Society has been cancelled. In a statement the Lit & Deb said the cancellation was “due to security concerns and restrictions imposed by the university authorities”. …

(more…)

Broadcasting Authority imminent

Satellite uplinkThe Broadcasting Act, 2009 (pdf) sets the regulatory framework for broadcasting services in Ireland. It consolidates all Irish broadcasting legislation into a single Act, and establishes a new Broadcasting Authority of Ireland (BAI, incorporating the functions of the current Broadcasting Commission and RTÉ Authority). According to Paul Cullen in today’s Irish Times, the BAI is to be established this week:

A new authority with powers to regulate all broadcasting, both commercial and RTÉ, is due to come into existence this week.

The Broadcasting Authority of Ireland (BAI) is expected to begin operations next Tuesday once the Cabinet approves five nominations to its board by Minister for Communications Eamon Ryan. The remaining four board members will be appointed by the Government on the nomination of the Joint Oireachtas Committee on Communications.

A little while ago, the Sunday Business Post reported that the Committee has decided to advertise those posts, so that it will be some time before they are appointed and that the Board will be only partially in place this week. Whether fully or partially established, there will be much for it to. For example, Cullen reports that

… One of the first tasks of the new authority will be to draw up new rules governing the advertising of junk foods on television, something which is specifically provided for in the new legislation. A new code to govern religious advertising is also in planning. …

Inevitably, however, not all of its proposed work has met with approval. For example, writing in yesterday’s Sunday Independent, Colum Kenny also noted that the BAI is expected to be established this week, but raises some alarm bells:

Offence clause may chill broadcasters

Curb on offensive material is only one of the tricky issues facing new watchdog, says Colum Kenny

THE new Broadcasting Authority of Ireland (BAI) has powers to fine broadcasters that “cause offence”. … The Broadcasting Act 2009 has introduced a duty on broadcasters to ensure that “anything which may reasonably be regarded as causing harm or offence” is not broadcast. …

The Department of Communications said last week that the new provision simply replaces former requirements relating to “taste and decency” and is in line with international practice. … Causing offence can be a constitutional right. It is also a good thing if it shakes people out of complacency about institutional hypocrisy or challenges personal misbehaviour. … Just how the BAI will interpret its duty to stop all broadcasters from causing harm or offence will emerge when complaints are made to it or to its new Broadcasting Compliance Committee. The existing BCI has been slow to intervene in the provision of content, allowing considerable freedom to broadcasters to do as they wish. …

Section 39(1) of the Act provides in part (with emphasis added):

Every broadcaster shall ensure that—

(d) anything which may reasonably be regarded as causing harm or offence, or as being likely to promote, or incite to, crime or as tending to undermine the authority of the State, is not broadcast by the broadcaster, and
(e) in programmes broadcast by the broadcaster, and in the means employed to make such programmes, the privacy of any individual is not unreasonably encroached upon.

Like Colum, I am also uncomfortable with elements that provision, but a similar offence clause in the UK survived challenge in R v BBC ex parte Pro Life Alliance [2004] 1 AC 185, [2003] UKHL 23 (10 April 2003), and I doubt that an Irish court would come to a different conclusion.