Category: Press Council

Emails, photos, and the public’s interests

The last word, with Matt Cooper, via Todayfm websiteEarlier this week, I appeared on the Todayfm radio programme The Last Word, with guest presenter Anton Savage and fellow contributor Patrick Kinsella of the School of Communications at DCU (you can listen back to the show here until next Thursday). Newspapers earlier in the week had reported that male employees at the Dublin office of an international accountancy firm had circulated an email rating newly arrived female trainees for a Top 10 list. The following day, several newspapers went further and published the photos and names of the women involved. On the radio programme, we discussed whether this later coverage crossed a line and invaded the women’s privacy.

Both Patrick and I argued that the later coverage did indeed cross that line. In my view, there was an invasion of the women’s privacy, and not once but twice. There was a wrongful intrusion into the women’s private activities, by the disclosure of information in which they had a reasonable expectation of privacy, first by other individuals within the company, and then by the media.

Within the company, the women had their photographs taken for human resources or personnel purposes, but these images were misused for prurience and titillation, first by people within the firm and then by the newspapers which published them. To provide an image or information for one purpose is not to provide it for all purposes. The employees who put the email together from human resources information misused that personnel information, and are therefore likely to be in very serious trouble within the firm. That misuse may even infringe data protection principles. Moreover, the email itself is likely to contribute to a hostile environment within the firm, which is capable of amounting to sexual harassment of the women named and pictured in the email. And the publication of that information in the email amounted to an invasion of the women’s privacy.

Beyond the firm, publication in the media made matters much worse. Patrick said that going from publication about the email to publication of its contents including the names and photographs of the women was “mistake of judgment” and “ugly”. I completely agree that this intrusion by the media into their private lives, by disclosing information in which they had a reasonable expectation of privacy, constituted a reprehensible error of judgment; worse, it was an invasion of the women’s privacy. In passing, it is also likely an infringement of the firm’s rights in it is internal data.

It is clear that even celebrities are entitled to a degree of privacy; and, if celebrities are, it goes more so for the rest of us. Indeed, since the action taken by Princess Caroline of Monaco, the case law of the European Court of Human Rights starts from the proposition that everyone has a strong zone of personal privacy. Moreover, since the action taken by Michael Douglas and Catherine Zeta Jones, English courts agree. The most interesting of the celebrity cases is the action taken by Naomi Campbell. Baroness Hale observed that “even the judges know who Naomi Campbell is” (even if they don’t know who the Beatles were). Here, the House of Lords held that it was not an invasion of Campbell’s privacy to publish an article that she was attending Narcotics Anonymous, but it was an invasion of her privacy to publish a photograph of her leaving a meeting. The information about her substance abuse was in the public interest, and justified any invasion of her privacy; but publication of the photographs added nothing of substance and crossed the line from what was in the public interest into the realm of what merely interested the public. Buttressed by the Constitution, Irish courts take a similar approach.

So, the question is whether there is a public interest in the publication of the women’s names and photographs. In my view, there is not. As Patrick said, it is important to disclose the fact of the email, given the importance of the firm; but he said that it was unnecessary – even hypocritical – to identify the women concerned. I entirely agree. Furthermore, he said that press are playing a dangerous game with these kinds of disclosures, which will lead inevitably either to losing a privacy action or to the introduction of restrictive legislation, or perhaps both. I agree: the media are playing a dangerous game with publications like this.

It is a harder question whether the media identification of the male employees who assembled and circulated the email amounts to an infringement of their privacy. On balance, I think it is probably not, though it is a close run thing. Whether it is the identities of the women or the men, the public is interested, and this sells newspapers. But at least so far as the women are concerned, there is little or no public interest here. Nevertheless, there are so many possible causes of action in this story that I suspect that we haven’t heard the last of this issue yet, not by a long shot.

The Defamation Act, 2009 in the courts

Greyscale of logo of radio station, 4FM, via their websiteI was on the radio station 4FM this evening, talking about the defamation action currently being taken by politician Michael Lowry against journalist Sam Smyth over comments Smyth made in an article in the Irish Independent newspaper last May and on TV3 last June. The comments concerned the travails of Lowry and businessman Denis O’Brien with the Moriarty Tribunal (which is enquiring into payments to politicians). At the time, O’Brien threatened to sue Smyth (but not TV3 or the Irish Independent), and now Lowry done precisely that (Irish Independent | Irish Times | RTÉ).

On 4FM this evening, Tom McGurk was particularly concerned with the tactic of suing the journalist but not the news organization, and the question of whether the journalist in such a case would have an indemnity. That indemnity would be a matter for the contract between the journalist and employer, and if there is no contract or it does not provide for an indemnity, then it will be up to the employer to decide whether to indemnify or not.

Suing Smyth but not TV3 or the Irish Independent does not seem quite so extraordinary in this case, since Lowry does not want damages, but only a declaratory order pursuant to section 28(1) of the Defamation Act, 2009 (also here) that the comments are false and defamatory. The court can make the order if the comments are defamatory and the respondent has no defence, provided that the applicant requested an apology and the respondent failed or refused to accede to that request. Here, Lowry said he took the case after Smyth had failed to publish a correction and an apology for “highly offensive and defamatory statements”.

In this week’s proceedings, Lowry has sought summary judgment for that declaratory order pursuant to section 34(1), which the court can grant if it finds that the comments were indeed defamatory and that the defendant has no defence that is reasonably likely to succeed. Counsel for for Smyth said the application was unwarranted, that Smyth wanted to meet the application head on and wanted to file a detailed affidavit.

Presumably, therefore, Smyth intends to plead either the defence of fair and reasonable publication (pursuant to section 26) or possibly the defence of honest opinion (what used to be called fair comment) (pursuant to section 20). The defence of fair and reasonable publication is the Irish statutory equivalent of a defence developed by the courts in other jurisdictions to increase the ambit of permissible criticism about politicians and political matters; and there has also been a trend to apply the defence of honest opinion quite generously. Yesterday’s application was adjourned by consent until November 22, but these defences are sufficiently credible in my view that when the matter returns to court, Deery P is very likely to strike out Lowry’s application for summary judgment.

This is very interesting, as it seems to be the second concerning the operation of the Defamation Act (the first was heard before Judge Matthews earlier this week) and it raises some of the very important reforms implemented by the Act (the summary procedure; the declaratory order; the defence of fair and reasonable publication). It therefore bears close watching as it develops. But it does raise the question why Lowry didn’t bring his complaint to the Press Council. The late Tony Gregory seems to be the only politician who has availed of this avenue of redress (Press Council Annual Report 2008 (pdf) p25), and it would have afforded Lowry the same damages-free vindication of his reputation, and it wouldn’t have raised the same concerns about suing Smyth but not the tv station or newspapers involved.

Two new appointments to the Press Council

Press Council and Ombudsman logoAccording to a press release on the Press Council website:

Press Council announces appointment of two new independent Council members

The Chairman of the Press Council, Dáithí O’Ceallaigh … announced the appointment of two new members of the Press Council of Ireland, who will serve for a three-year term. The new members are Professor Áine Hyland, Emeritus Professor of Education at University College, Cork, and Mr Éamonn Mac Aodha, Chief Executive of the Irish Human Rights Commission.

They replace two retiring members of the Council, former District Justice Mary Kotsonouris, and Mr Peter O’Mahony, former CEO of the Irish Refugee Council. The appointments were made, on the basis of applications from members of the public, by an independent Appointments Committee, which was chaired by the outgoing Chairman, Professor Thomas Mitchell.

Announcing the new appointments, Mr.O’Ceallaigh said “I am delighted to welcome Professor Hyland and Mr Mac Aodha to the Press Council. They bring a wealth of experience in the public service to the Council.

Prof Hyland, via NAIRTLProfessor Áine Hyland, pictured left, is a world-renowned educationalist. She was Professor of Education and Vice-President of UCC, is a member of the European Universities Association Institutional Evaluation Team, and is Chair of the International Advisory Board of the (National Academy for the Integration of Research and Teaching and Learning (NAIRTL). Mr Éamonn Mac Aodha, Chief Executive of the IHRC, has over twenty years public service in various roles; he was Director of the Human Rights Unit of the Department of Foreign Affairs from 2004 – 2007. They have a tough job ahead of them, and I wish them all the best of luck.

The Press Council of Ireland: appointments and review

Press Council and Ombudsman logoRecent press releases from the Press Council of Ireland have announced two key appointments. Retired diplomat Daithi O’Ceallaigh has been appointed as Chairman of the Press Council from 1 August, succeeding Prof Tom Mitchell (Irish Independent | Irish Times); and retired academic Prof John Horgan has been appointed to a second term as Press Ombudsman from 1 September (Irish Times). Both appointments are for three years. Following the recent recognition of the Press Council for the purposes of Schedule 2 to the Defamation Act, 2009, these appointments are set fair solidify the position of the Ombudsman and the Council in their work to safeguard and promote professional and ethical standards in Irish newspapers and periodicals. The time my therefore be ripe for some hard questions.

The UK’s sister organisation to the Press Council, the Press Complaints Commission, has recently completed a thorough and independent review of its governance. The report published earlier this month (pdf) recommended that there should be:

• A clearer role for the Commission;
• Tougher scrutiny rules;
• More industry engagement with the Commission;
• A stronger Board;
• A stronger lay voice on the content of the Editors’ Code of Practice;
• Greater transparency about appointments;
• Greater openness about the system; and
• More rigorous examination of performance.

These are all very welcome suggestions – even if they could have been supplemented – and they could equally be made with respect to the Press Council of Ireland. It should not rest on its laurels; rather, the incoming Chairman and Ombudsman should commission a similar review, at least in part to work out if it is possible to divert some high-profile libel cases from the courts. For example, it was recently reported that businessman Denis O’Brien has threatened to sue journalist Sam Smyth over comments Smyth made in his newspaper column and on television concering O’Brien’s travails with the Moriarty Tribunal. It is interesting that O’Brien is threatening to sue only Smyth, and not the newspaper or television station in question. That being so, making a complaint about the newspaper comments would be a perfect case for the Press Council, and if the case proceeds in the courts instead, it raises questions about whether anything needs to be done to encourage such cases away from the courts. That alone is a sufficient reason for a review of the work of the Ombudsman and Press Council as the incoming Ombudsman and Chairman begin their terms of office.

The formal recognition of the Press Council

Press Council and Ombudsman logoThe second Annual Report of the Press Council and the Office of the Press Ombudsman (pdf) was launched yesterday. Speaking at the launch, Dermot Ahern, the Minister for Justice, Equality and Law Reform, announced that he had, on 21 April, signed the Order granting the Press Council of Ireland recognition as the Press Council for the purposes of the Defamation Act, 2009. The full text of the Defamation Act 2009 (Press Council) Order 2009 (SI No 163 of 2010) (pdfs here and here) is as follows [with added links]:

Defamation Act 2009 (Press Council) Order 2009 (SI No 163 of 2010)

I, Dermot Ahern, Minister for Justice, Equality and Law Reform, being satisfied that The Press Council of Ireland complies with the minimum requirements specified in Schedule 2 to the Defamation Act, 2009 (No 31 of 2009), hereby, in exercise of the powers conferred on me by section 44 of that Act, make the following order with respect to which, pursuant to subsection (7) of that section, a draft has been laid before each House of the Oireachtas and a resolution approving of the draft has been passed by each such House:

1. This Order may be cited as the Defamation Act 2009 (Press Council) Order 2010.

2. It is declared that The Press Council of Ireland shall be recognised for the purposes of the Defamation Act 2009 (No 31 of 2009) as the Press Council.

Given under my Official Seal,
21 April 2010.

Minister for Justice, Equality and Law Reform.

This is a very important development. It completes the process of recognition for the Press Council under the 2009 Act; it allows the press to participate fully in the Press Council system; and it affords complainants a quick and easy form of redress.

Media reports of the launch focussed on other issues: Ahern criticises media’s Oireachtas coverage (Irish Times); Ahern concerned over press intrusion (Irish Times); Most of 351 complaints against press about truth and accuracy (Irish Times); Press report (Editorial, Irish Times); Ahern lays down the law on Twitter and Facebook lies (Irish Independent); Social media users ‘not exempt from defamation laws’ (Irish Examiner); 5% increase in complaints to Press Council (Irish Examiner).

Bonus link: Simon Singh, who will be speaking at the Science Gallery in TCD on Thursday evening, writes in today’s Telegraph that reform of libel law is long overdue, and in particular, that bolder defences are necessary for those writing about matters in the public interest.

Are we there yet? Formal recognition of a Press Council is one step closer

Press Council and Ombudsman logoSection 44 (also here) of the Defamation Act, 2009 (also here) provides that the Minister for Justice may by recognise a body as the “Press Council” , and Schedule 2 (also here) to the Act sets out the minimum requirements such a body must meet to be so recognised. The Irish media established a Press Council of Ireland and the Office of the Press Ombudsman with effect from 1 January 2009. Last month, the Minister announced that this would be recognised as the Press Council for the purposes of the Act. To achieve that end, on Tuesday of this week, both the Dáil and the Seanad approved the draft Defamation Act 2009 (Press Council) Order 2010. The full recognition of the Press Council is now simply the stroke of a Ministerial pen away from being achieved.

According to the Irish Times, the Chairman of the Press Council, Prof Tom Mitchell, said the move would greatly benefit the operations of the Press Council, the Office of the Press Ombudsman and the press generally:

This development will strengthen the council’s capacity to work effectively and will allow the press industry to participate fully without fear of legal risk. Formal recognition of the council should serve to encourage more newspapers and publications to become member publications of the council, leading to wider adherence to its code of practice.

Recognising the Press Council

Press Council and Ombudsman logoSection 44 (also here) of the Defamation Act, 2009 (also here) provides that the Minister for Justice may by recognise a body as the “Press Council” , and Schedule 2 (also here) to the Act sets out the minimum requirements such a body must meet to be so recognised. The Irish media established a Press Council of Ireland and the Office of the Press Ombudsman with effect from 1 January 2009, and the Minister announced yesterday that this would be recognised as the Press Council for the purposes of the Act (here’s the press release, with added links):

Ahern to seek Oireachtas approval for formal recognition of the Press Council

The Minister for Justice, Equality and Law Reform, Mr. Dermot Ahern, T.D., announced today that he is asking the Dáil and Séanad to approve an Order by him declaring the formal recognition of the Press Council of Ireland as the “Press Council”.

Minister Ahern said that the application from the Press Council of Ireland under section 44 of the Defamation Act 2009 has been examined with reference to the requirements in Schedule 2 of the Act and that he was satisfied that the application met those requirements.

These requirements involve the objectives of the Press Council, its composition, its independence, the appointment of independent directors, financial arrangements, the role and operation of the Office of Press Ombudsman and a code of standards.

Formal recognition will confer certain benefits on the Press Council. A significant benefit is that qualified privilege will attach to its reports and decisions as well as those of the Press Ombudsman. Subscription to the Press Council and adherence to the Code of Practice for Newspapers and Periodicals will strengthen the entitlement to avail of the new defence of reasonable publication in any court action [see section 26(2)(f) of the Act (also here)]. Non-members of the Press Council will be required to have in place an equivalent fairness regime or to operate an equivalent and publicised code of standards to avail of that defence.

There is more coverage here and here from the Irish Times. At a time when other countries are looking with favour on the Irish model, it heartening to see the final pieces of the Defamation Act jigsaw slotting into place.

Cork privacy seminar discussed TV3’s Lenihan revelations

Press Council and Ombudsman logoToday’s Irish Times carries two interesting interlinked reports. The first is about yesterday’s Press Council seminar in Cork, the second is about TV3’s exposure of Brian Lenihan’s illness, which – unsurprisingly – was one of the issues discussed at the seminar.

First, yesterday’s seminar in Cork:

Media’s role vital to liberty, says Dunne

Freedom would mean less without a free media, entrepreneur Ben Dunne told a seminar organised in Cork yesterday by the Press Council of Ireland. … He condemned the broadcast of the Brian Lenihan story on TV3 on December 26th, saying that it “crossed a line it did not need to cross”. However, he added that TV3 was not the only offender in relation to breaches of privacy.

Another speaker, Data Protection Commissioner Billy Hawkes, told the seminar that the phenomenal development of the internet posed challenges to traditional ideas of privacy and data protection. …

Tightening privacy laws is a recipe for “non-accountability, secrecy and duplicity”, the seminar was told by Paul Drury, managing editor of the Irish Daily Mail, who added that he was wary of any proposal to legislate for heightened privacy.

Paul Drury will be very well aware that TV3’s revelations of Brian Lenihan’s illness could make privacy legislation more likely, even though the Minister himself seems remarkably phlegmatic about it:

Lenihan says he was rushed into telling children about cancer

Minister for Finance Brian Lenihan has told a local newspaper [the Community Voice newspaper in Blanchardstown] he was rushed into telling his children about his cancer diagnosis on St Stephen’s Day because TV3 had decided to run the story. …

Mr Lenihan said while he did not see what public interest was served between St Stephen’s Day and the new year by TV3 broadcasting the story, he did not intend to lose sleep over it.

Update: Three quick comments. First, thanks, Damien, in the comments below, for pointing me towards the Examiner report on the seminar Dunne slates TV3 for lack of fairness. Second, I couldn’t agree more with Noreen’s comment below that ” the notion that there is supposed to be some kind of journalistic obligation to keep politicians’ secrets is deeply unsettling. It’s in the nature of the media to report the news about public officials. If you’re a journalist, it’s called doing your job”. And, third, there is more about Brian Lenihan’s interview with the Community Voice in a story in today’s Irish Independent.