Elephants in the Room

Assessing the Press Ombudsman

An edited version of this article appeared in Village magazine, June-July 2014 edition

A month after announcing his intention to step down as press ombudsman, Prof John Horgan took the opportunity to reflect on his role, and on the evolution of media generally, at an NUJ-sponsored event to mark World Press Freedom Day on 1 May.

Noting that the Press Council of Ireland (PCI) was not a regulator, but an independent body, he described its mission – and that of his office – as “at its heart a cultural and scientific societal project, not a legal or political one.”

That’s not quite true. The council and ombudsman were born out of the very real fears that the Irish government were prepared to legislate for statutory regulation and he introduction of privacy laws. The latter were “parked” following the setting-up of the council. In return, while the council remains independent of government, it is recognised by the 2009 statute and adherence to the code of conduct can be a mitigating factor in defamation actions.

The ombudsman and council therefore sit in a twilight zone. It is not a regulator in any strict sense (and indeed opposed proposals from the European Parliament to extend EU competence in press regulation). Neither is it strictly independent: it is after all an industry-funded body.

However, Horgan has shown himself to be quite willing to find against newspapers in his decisions. The just-published 2013 report shows nine complaints upheld and 12 not upheld, of those he made a decision on. (It should be noted that the majority of complaints did not require a decision by the ombudsman, being resolved through a conciliation process).

Meanwhile, the media landscape in which the ombudsman operates is changing, as he acknowledged in his Press Freedom Day speech. While the articles setting up the council anticipated membership by online news organisations, it is only this year that TheJournal.ie became the first online publication admitted. Answering questions from the audience, Horgan anticipated the emergence of an industry body for online news through which future applications could be funneled.

“Our judicial committee… had to devise criteria which would be reasonable, would be transparent and would be available so that any electronic or digital media could apply under these criteria,” he told the gathering.

“I think these digital criteria will probably be modified over time in the light of experience, but I see no real reason why at the end of the day there won’t be a digital media organisation – other than broadcasters – which will fulfil the same function in relation to digital media as for example the regional newspaper publishers do for the regional newspapers, NNI do for the national newspapers, Magazine Ireland do for the magazines.”

“So there will be a discrete organisation which will cater for them, and membership of which will be for many of them a first step into participation in the independent self-regulatory mechanism that we have. I would hope that’s the way it would go.”

The omission of broadcasters raises its own issues, highlight in the latest PCI report. Most media organisations now operate on multiple platforms. Radio stations, RTE and newspapers all operate websites. TheJournal.ie is in fact the exception to this trend, as it is – for now at least – an online platform only. Television and radio are regulated by the Broadcasting Authority of Ireland (BAI), a statutory regulator, yet the BAI does not regulate the websites of its members. Neither does the PCI, since they are broadcasters, not print publications. But with TheJournal.ie now on board, it raises the fascinating prospect of broadcasters being subject to both statutory and voluntary regulation in the future, depending on which platform in used for a particular story.

Lines will continue to blur as media outlets fragment and encourage their staff to take to online forums to promote their stories. Is a journalist’s twitter account or facebook page their private property or part of a newspaper’s brand? Does it make a difference if the newspaper title is prominently displayed in a username? And what about freelancers, or part time journalists, or bloggers who occasionally report for newspapers? How many of these, if any, are entitled to the “cover” the PCI and ombudsman provide, in offering conciliation services or clarification to stave off potential defamation actions?

“Where the role of individual bloggers and individual tweeters go is a more difficult question,” was Horgan’s response to a question on the issue.

Horgan, as Ireland’s first press ombudsman, was faced with a blank canvas when he took on the job. The publishers funding the PCI needed an independent overseer, to stave off the much worse threat of a statutory regulator, so in a sense he is not so much their policeman as their insurance policy. But mostly, it’s unknown territory, and Horgan has had to spend his time teasing out what the at times vague guidelines in the code of conduct actually mean when applied to messy practice.

In doing so, and in line with the principle that the role of the ombudsman’s office is “at its heart a cultural and societal project, not a legal or political one,” Horgan has outlined some practical guidelines, though the legal minds in the Four Courts would likely find the process terribly untidy.

Some editors – in particular in the regional press – have been pleasantly surprised at how many complaints can be cleared up in full by the simple offer of clarification and/or apology, something that previously was avoided like the plague as it could later be used in court as evidence of liability in defamation cases. Under the new regime, the offer of clarification, or apology, or right of reply, is instead a mitigating factor.

There is no doubt that the press ombudsman has had a good press to date. Publishers who fall foul of its findings may moan at times, and individual reporters and columnists may grumble about its judgments, but the arrangement is presented positively for the most part. Indeed, the National Union of Journalists was happy to point to the Irish system as an example of effective self-regulation when giving evidence before the Leveson inquiry, set up in the UK in the wake of phone tapping and other scandals.

Of course, there is an element of self-interest in the press putting forward a positive view of the ombudsman/PCI, but so far there has been no sign of the kind of discontent that followed Leveson’s recommendations for a council backed by royal charter in the UK. It is hard to imagine protests against the Irish ombudsman ever rising above the occasional opinion column ranting about “political correctness”.

At the World Press Freedom event, Horgan closed by taking the opportunity to reflect on media ownership in his address, in particular the “elephant in the room” of market power in restricting press freedom, a power “if anything, greater than the power of the state, in that it is a power which needs to be seriously considered in any discussion of the freedom and the responsibility of the press.”

Put bluntly, he explained, the market was also a censor of the press, a permanent, sharp but invisible limitation on the power of the press which is insufficiently scrutinised, by the press itself or by anyone else.”

Additionally, many of the problems which the ombudsman and the press council were called on to adjudicate could in turn be traced back to market power, as under-resourced journalists and editors struggled to keep up with commercial demands.

Horgan acknowledged that these issues were not ones which could be tackled by his office, and ended his address with a call for the state to consider seriously the same issues. As the government continues to mull over competition and media ownership regulations, one wonders if anyone was listening.