Wednesday, 5 November 1997
Seanad Éireann Debate
That Seanad Éireann calls on the Government to indicate the progress, if any, that has been made towards implementing the recommendations of the Commission on the Newspaper Industry and, in particular, the recommendation in Chapter 7 that extensive changes in the law of libel be introduced as a matter of urgency.
I welcome the Minister. This is his first time in the House since his appointment as Minister of State at the Department of Enterprise, Trade and Employment. I assure him his visit will not involve him in any controversy. In what is a quiet week in politics I decided to table a prosaic and downbeat motion, largely with the intention of getting information. The purpose of the debate is to get an update on the Government's intentions vis-á-vis the Finlay report into the newspaper industry. This is a matter of public interest and concern. It is a subject on which the Government had a small number of things to say in its election manifesto.
To a certain extent the climate has changed since that commission was established. In the past few years there has been an air of crisis and impending gloom over the newspaper industry. We should remember that the setting for this report was the closure of the Irish Press which brought the crisis to a head. The reasons the IrishPress failed are not our direct concern, though most people have very strong views on why it failed and focus on the manner in which the newspaper was managed. We regret the passing of the Irish Press and we spoke about it at the time in this House. In an earlier time some of us earned an odd shilling writing for that newspaper.
The failure of the Irish Press was not the only focus of concern when this commission was established. Other newspapers seemed at that time to be wobbly. There was a serious question mark over the future of the Sunday Tribune and we were being warned about the danger of being swamped by English newspapers being dumped on the Irish market at below cost prices. We were told our libel laws and tax regime were strangling our newspapers and we were being warned about the dominance of one newspaper group. The picture is dramatically different today. Virtually all newspapers are now making substantial profits. The Independent Group is set to make record profits this year while The Irish Times is also making substantial profits. The success of The Sunday Business Post, which was on a wobbly foundation at the time the commission was established, has resulted in Ireland's first newspaper millionaires since Dr. O'Reilly. The paper is now well established. A new arrival to the Sunday market is Ireland on Sunday and we all wish it well, especially as it appears to have absorbed so much of the ethos and staff of The Sunday Press. The Irish edition of The Sunday Times continues to make substantial inroads on the market since its printing moved to Cork and The Examiner has become a genuinely national newspaper though it keeps its distinctive southern identity. I could go on but the basic point is that the situation in which we are examining these questions today is very different from the atmosphere that prevailed when this commission was established by the former Minister, Deputy Richard Bruton.
The report indicated some structural weaknesses in the newspaper industry and made specific recommendations some of which make sense and seem to be worthy of implementation. I would like the Minister to convey the up to date thinking of the Government on these issues. My first reference is to recommendation No. 4 in the report, a very practical recommendation which calls for the establishment by the Government of a special unit within the advisory service of the Labour Relations Commission to deal with the newspaper industry and in particular to assist and work with unions and management in those companies in which its assistance is required jointly to identify changes necessary to achieve competitive efficiency in the industry. This unit should be available exclusively for a fixed period to the industry. The thinking behind this recommendation is worthwhile. The industry, probably more than most because of the revolution in information technology, is going through huge changes in work practices and these changes will continue at a very rapid pace. The increasing overseas competition is also putting huge strains on newspapers  to be more competitive. The result is that few industries have had the shake-up in industrial relations and work practices that has happened, and continues to happen, in the newspaper and other media. The clear intention of the report was that we are faced with neither brutal tactics nor industrial relations which would not happen anyway that would compel solutions on the industry.
There is a further complication in that not all the Irish newspapers have reacted to change with the same level of preparedness or, indeed, have been prepared to invest in change and retraining on an equal basis. The report comes down very strongly against a central printing unit somewhere close to the main centre of population, open to all papers and financed by the State. It states there is not an industry wide solution to these massive problems of retraining and that is why the report recommended a special unit be established within the advisory service of the Labour Relations Commission to deal with the newspaper industry. The purpose of the advisory service would be “to assist and work with the unions and management to find solutions regarding technology, staffing levels, demarcation and labour costs on an industry by industry basis”. Has this proposal been supported by the newspaper industry and what is the Government's thinking on this issue? Some newspapers do not have a history of good management and there have been intractable union problems within the industry.
The second area concerns changes in the libel laws. The newspapers and politicians or people in public life feel hard done by. As politicians we are congenitally suspicious of journalists. We frequently see conspiracies and partisanship where there is none and question the motives of journalists with whom we disagree. It is a fact of life that all politicians have tried to use journalists to get across a particular message. In turn, I do not think journalists see us as we see ourselves. Journalists frequently see conspiracies where there are none. Two politicians talking in the corridor can be interpreted by a suspicious journalist as a heave against the party leader, a move in a particular direction or a cabal forming whereas all they may be talking about is a forthcoming hurling match. There is a conspiracy among many journalists to see us all as involved in a conspiracy to keep them in the dark despite the fact that the last Government passed the most wide ranging Freedom of Information Bill in our history. Nonetheless there is a sense that politicians collectively conspire to keep journalists in the dark. They tend to lump us all into one amorphous mass seeing us all as politicians. But it is right to see this tension between journalists and politicians. The only basis upon which a friendship can flourish between a journalist and a politician is on a clear acceptance that each party has a very different job to do. While each party can see the view of the other, each person inevitably comes to the same problem from a different perspective and will frequently reach very different conclusions  from the same set of facts. That is the way the political and journalist systems work.
Politicians make many complaints about journalists. The biggest complaint is the breathless tendency for the media to hunt in packs and hype up issues which on closer examination have little real substance. After the media pack moves on real damage may have been done to people or causes.
The media, no more than politicians, are not homogenous. Many of our journalists are among the best in the world and the standard of journalism is constantly rising. Our newspapers have points of view but are fair and open. Some journalists or newspapers may have elements of a hidden agenda but they are in the minority.
We are not here this evening to debate the merits of the media. I wish to acknowledge the central point made in the Finlay report which is that the media play a fundamental role in the democratic process through informing, analysing, examining, probing and at times even by being downright abusive to politicians. This is a central element in sustaining a healthy democratic process. The Finlay report makes that clear and we all know it. Our purpose is to see if there is anything in this report which can help the media to do their job even more effectively. Will the Minister report to us the views of the Government on the suggestions in the Finlay report or any of its own ideas on changing the libel laws to help the media do their job more effectively?
I note that the report is strongly in favour of a system of self-regulation through an ombudsman appointed on the initiative of the newspapers themselves and financed by them. I ask the newspaper industry how much progress, if any, has been made towards such a body. I suspect that very little has been done. This is not the responsibility of the Minister. Does the newspaper industry believe in the concept? Would an ombudsman be capable of policing some of the cowboy operators, especially the English based newspapers? Is the highly competitive newspaper industry capable of working in a uniform way on an issue like this? Is there any substance in believing that an ombudsman type concept or a press council could work with the support of the newspaper industry in bringing about the reforms mentioned in the Finlay report?
It is a fact that fierce competition does not make for co-operation. It cannot. Newspapers are in desperate competition with each other. Is self-regulation viable as far as the newspaper industry is concerned? It is fair to ask the industry this question before asking the Minister his intentions because I have a feeling that the hugely increased profits of recent years have dulled the desire for libel reform in sections of the media. In some cases newspapers are prepared to live within a tolerable level of libel costs if circulation figures are boosted. If the media and the newspaper industry are constantly calling on politicians to provide reforms there is an equal right to question their honesty. By their honesty I mean the  clarity of their intentions and their capacity to deliver on the question of self-regulation. It is doubtful the industry as it is structured at present — and perhaps under any type of structure — is capable of delivering upon the concept of self-regulation. In this respect, the industry's failure greatly weakens the attempt to place the onus back on politicians and Governments.
I would like to put two practical considerations to the Minister. The first is the assessment of damages, a very topical issue of late. As I understand it, the report does not come down in favour of removing juries from this equation but leaves the matter to the judges. The experience in the insurance industry is that damages cost little even if they are jury assessed.
Inadvertent libel is a major genuine headache for newspapers. Where a mistake is made — an incorrect name, report, address, a juxtaposition — in innocence, it is not possible for newspapers in most cases to print an honest and open apology the next day because that apology will be used in evidence against them. This is a source of poison within the system because it encourages people who feel they have a chance to hit the jackpot by going after the newspapers on the basis of what may have been an honest mistake, often by an inexperienced journalist, where the newspapers are willing to apologise up front. If that aspect of the libel laws could be changed it would be an earnest of the good intentions of politicians to the newspaper industry, it would remove a major headache from people working under pressure on a day-to-day basis and would also sharpen the genuine questions we have to ask.
Mr. Mooney: I welcome this opportunity to highlight an area of Irish life which is of increasing importance and I commend Senator Manning on tabling this motion. The impact of the media, print and electronic, on Irish society over the past 30 years has contributed largely to the type of society that Ireland has become. We are more tolerant, pluralist and better informed on events at home and abroad, as a result of an active, inquiring media. The changes that technology has imposed on the manner in which the media operates has largely been beneficial. The ending of restrictive practices in the print media has led to the more efficient use of ever-changing technology and has put the Irish media at the cutting edge of news gathering and the dissemination of information to an increasingly sophisticated market.
The arrival of the global village has provided new challenges and difficulties for an Irish media industry operating on the periphery of Europe and adjacent to a larger and more powerful neighbour in the United Kingdom. The continuing  existence of a monopoly in the electronic media specifically in television and, despite the best efforts of Radio Ireland, in national radio has resulted in a strained relationship between the two giants of the media. The newspaper industry has been particularly critical of successive Governments' lack of legislative initiatives to regulate the Irish media industry although the Broadcasting Acts of 1988 and 1990 went some distance in restricting RTÉ's dominant position in the Irish market. However, those who hoped that the creation of 20 new local radio stations and a new national station, Century Radio, would create a significant alternative advertising outlet were to be disappointed. The demise of Century Radio and the closure of the Irish Press Newspaper Group was a severe blow to supporters of a more diversified media market. The growing invasion of UK newspaper titles also eroded the circulation figures of Irish titles in the early nineties resulting in severe financial pressure being placed on the indigenous newspaper industry.
It was in that climate of uncertainty that the national newspapers of Ireland issued a media policy document in September 1992 in which they called on the Government to address five issues demanding urgent attention. These issues are as relevant today as they were five years ago and in view of the difficulties facing Radio Ireland in establishing a listener threshold since its arrival in the spring of this year, the issues of 1992 are perhaps even more relevant today although the economic environment is different, as Senator Manning pointed out.
It was mainly among the Irish indigenous newspapers that this occurred because it coincided, interestingly enough, with the change in the accounting method for the British titles which resulted in a more realistic figure being attributed to the sales of UK titles in this country. What effectively happened was the print run had traditionally been taken as a sales figure but when they extrapolated the sales for it there was a massive difference and it showed that the majority of people voted in favour of indigenous Irish newspapers, which is to be welcomed.
In view of the emphasis placed on Chapter 7 of the Commission on the Newspaper Industry by Senator Manning in framing this motion, it is interesting to note that in the newspaper submission of 1992 it was listed only as number four on their list of priorities. Their main priority then and now is the removal of VAT on newspaper prices, the tax on Irish newspapers which is the  heaviest in Europe and the previously referred to restrictions on advertising came after press freedom and libel and the question of unfair competition. I hope the Minister will address the issues of VAT and the tax regime in general on newspapers.
As the motion specifically refers to libel it is perhaps relevant to quote the newspaper industries position as outlined in their 1992 document: “the laws governing defamation are now so disastrously out of date as to constitute a very major obstacle for any media company endeavouring to honestly pursue its duty”. I submit that those who have had to seek redress from the courts as a result of a newspaper comment would find it difficult to agree with the stance of the newspaper industry on this matter. I would also suggest that the experience of some candidates in the recent presidential election at the hands of some sections of the media and the public reaction to this treatment indicates that the public are in an ugly mood and did not like the tenor and, in some instances, the outright prejudice of some media commentators. The media did not win any new friends in recent weeks.
It is interesting when one looks at the results of the presidential election to note — whether it was a coincidence or not — that the voting patterns among constituencies exclusively south of the Liffey were out of kilter with the remainder of the country. Is it purely a coincidence that the vast majority of people working in the Dublin media live and work in those constituencies south of the Liffey where they talk to each other and obviously express and exchange opinions and then use those opinions in their columns in some instances, with honourable exceptions, to lecture the rest of the country on how we should vote? That the rest of the country on this occasion obviously did not listen to this type of lecture is worthy of comment.
In relation to the points I made, what has been happening in recent months is unhealthy in a democratic society. I passionately believe in the freedom of the press and as a member of the National Union of Journalists for more than 20 years I am perhaps better placed than most in this House to appreciate the pressures and difficulties faced by a free press in attempting to convey the message objectively and without fear and favour. I also believe that some in public life particularly have hidden behind the restrictive libel laws which is not in the public interest. I agree with the national newspaper industry that national newspapers do not seek any favoured position in law but merely the recognition by the community at large that in addition to a need to preserve balance between the individual's right to his or her good name and the media's right to freedom of expression, there exists an additional overriding public concern, the right to freedom of information.
I accept many of the recommendations contained in Chapter 7 especially in relation to the lodgment of money in court by a defendant in  court to meet a claim for compensation for defamation with a denial of liability. I also support the Commission's view that there would appear to be inconsistencies and anomalies in the present legal situation, specifically that the definition of public meetings contained in the second schedule of the Defamations Act, 1961, is insufficiently wide to cover all the appropriate public and community activities which require reporting under modern conditions such as, for example, press conferences. In that instance, the law on defamation going back to 1961 to a different world and a different communications age, is drastically in need of being updated.
I concur with the view of the commission that changes in the libel laws which would include the recommendations contained in Chapter 7 are a matter of considerable urgency. I do not believe it is healthy to continue to have an increasing stream of people queueing up at the doors of our courts attempting to overturn, change or have retracted comments or opinions expressed in national newspapers. It is obvious that there is right on both sides. However, there must be something wrong with the law if people feel the need for legal redress — there are no other avenues open to them — and newspapers believe they are operating in an extremely restrictive environment which is not healthy in a democratic society. For these reasons, I support the commission's recommendations.
Certain members of the public may believe we have a flawed, intrusive and sometimes inaccurate and insulting media. However, a vibrant democracy thrives on a free press. In criticising it we should also cherish it. I welcome the motion.
Minister of State at the Department of Enterprise, Trade and Employment (Mr. Treacy): Is mór an onóir dom a bheith ar ais arís sa Teach Parlaiminte uasal seo mar Aire Stáit agus ball den Rialtas. Ba mhaith liom comhghirdeas a ghabháil don Chathaoirleach agus na Seanadóirí uile a toghadh, cuid mhór daoibh atá athfadh. Tá mé ag súil go mbeimíd uile ag obair ar feadh timpeall cúig bliain gan trioblóid ar bith. Beidh mise lán sásta i gcónaí teacht anseo chun freastal ar each-traí agus obair Seanad Éireann.
We are grateful to Senator Manning and Members for providing the opportunity for this debate. In September 1995, against the background of the demise of the Irish Press, the former Minister, Deputy Richard Bruton, established the Commission on the Newspaper Industry, under the chairmanship of Mr. Justice Thomas A. Finlay, former Chief Justice. The commission reported in June 1996 and its findings were published on 30 July of that year. The report made 16 wide-ranging recommendations spanning the areas of responsibility of several Government Departments, including Enterprise, Trade and Employment, Finance, Justice, Equality and Law Reform, the Environment and Local Government, Public Enterprise, and Arts, Heritage, Gaeltacht and the Islands.
 In the light of the wide spectrum of issues covered by the commission's recommendations the previous Government decided that the then Minister for Enterprise and Employment would co-ordinate the work of the various Departments in respect of the recommendations. The previous Minister reported to Government at the end of November 1996 in regard to his co-ordinating role and the Government approved his intention to revert to them concerning legislation in relation to his area of responsibility. The previous Government also agreed, subject to certain reservations, that other Ministers, upon whose areas of responsibility the recommendations impacted, should also pursue the implementation of recommendations, within their respective Departments.
I will now briefly outline the 16 recommendations made by the commission and the various proposals so far concerning their implementation. Recommendation 1 dealt with changes of ownership in the newspaper sector. The commission recommended that, in the exercise of the available regulatory powers, the Minister for Enterprise and Employment should assess the implications of any proposed change of ownership in the newspaper industry on the strength and competitiveness of the indigenous industry, in relation to UK titles, the plurality of ownership, the plurality of titles, the diversity of views in Irish society and the maintenance of cultural diversity. With the exception of the strength and competitiveness of the indigenous industry in relation to UK titles, which the former Minister felt might contravene European Union law, we have now referred these to the competition and mergers review group to advise the Tánaiste on how best they might be implemented. The review group is equipped with wide ranging legal and economic expertise.
Recommendation 2 was a majority recommendation of the commission. It proposed that consideration should be given to amending existing mergers controls in the newspaper industry to widen the powers to regulate not only the acquisition of shares but also the acquisition of control over newspapers by other means. In conjunction with recommendation 1 regarding regulation of ownership, merger control and concentration of media ownership, the Tánaiste also asked the review group to consider how best this recommendation might be implemented in order to be effective.
Recommendation 3 called for the reduction of VAT on the sale of newspapers to a zero rate. We accept that newspapers sold in Ireland continue to attract a higher level of VAT than in other countries and that the national newspapers of Ireland continue to press for a reduction in this rate, particularly in the light of the zero per cent VAT rate applicable in the UK. While this matter is primarily one for consideration by the Minister for Finance, we appreciate the substantial difficulties facing our colleague on this particularly sensitive issue.
 Recommendation 4, to which Senator Manning referred, called for the establishment of a special unit within the advisory service of the Labour Relations Commission to deal with the newspaper industry and, in particular, to assist and work with unions and management in those companies, in which its assistance is jointly requested, to identify changes necessary to achieve competitive efficiency in the industry. The prime responsibility for achieving competitive efficiency rests with the employers, trade unions and workers within the industry. However, the former Minister requested that the Labour Relations Commission be available to all parties concerned in providing the necessary assistance in identifying the required changes to achieve the objective of this recommendation. We reaffirm that this assistance is available to all parties.
Recommendation 5 concerned the question of establishing a central shared printing facility for the industry but opposed State funding if the industry is to proceed with such a project. Our predecessor agreed with the commission's finding on this matter and we do not consider that further action is warranted at this point.
In recommendation 6, the commission called for the creation of a working group to report on the problems of training for all concerned in the newspaper industry. The previous Minister requested that FÁS co-operate with all the parties, in addition to the various representative bodies of the newspapers, in furthering this objective, including the establishment of any appropriate structures. We reaffirm that this co-operation is available to the relevant parties.
Recommendation 7 proposed that the existing Gaming and Lotteries Acts should be amended to make them an effective deterrent against breaches by newspapers. This recommendation was in response to sales and marketing tactics by a number of UK newspaper publishers who, from time to time, have included a “scratch card” form of lottery, based in and organised from outside the State. While apparently legal under UK legislation, this form of marketing appears to contravene the Gaming and Lotteries Act, 1956, applicable in Ireland. I understand that the Department of Justice, Equality and Law Reform favours a review of the legislation before any specific legislative changes are adopted in response to this proposal.
Recommendation 8 called for the introduction of legislation to outlaw below average marginal cost selling of newspapers in a form similar to that proposed by the national newspapers of Ireland. The commission was satisfied that there were considerable grounds for supporting the NNI's contention that some UK newspaper publishers are selling newspapers at prices which are less than their average marginal cost. However, the commission also recognised that the detection and proof of such selling is complicated particularly by the difficulty of ascertaining the true extent, to which advertising revenue earned in total by such publications can, with accuracy, be  described as being derived from or targeted at the Irish market.
Any legislation in this area would have to be robust and safe from legal challenge. While proving effective and workable it would also have to comply with European Union law. For example, it could not and should not discriminate against any newspaper based upon specific “nationality” criteria. Advice received to date, legal and economic, indicates that major difficulties lie in the way of framing legislation which would meet these criteria. Accordingly, while I am still in discussion with the Attorney General on this matter, it does not appear that it will be possible to overcome these difficulties.
Recommendation 9 referred to the form of competition for advertising in the Irish newspaper market which emanates from the advertising policies and practices of RTÉ. The commission was satisfied that television and radio, in respect of the advertising of a great number of commodities and services, represent a major competitor to the newspaper industry. While the newspaper industry accepts this situation, it complained to the commission that RTÉ improperly avoids the cap that was imposed upon the extent of its advertising time by the system of free gifts and free services arising in TV and radio programmes where there is audience involvement. This recommendation sought the discontinuance of the avoidance of advertising time limits which, as a matter of policy, have been imposed on RTÉ by the provision of such free gifts and services.
The previous Government was reluctant to pursue the implementation of this recommendation in view of the importance of securing and maintaining the ongoing viability and existence of an Irish based television channel. Accordingly, we agree that no further action is necessary at this stage in regard to this recommendation.
Recommendation 10 referred to the concentration of ownership in the media generally and recommended that this should be considered on a media-wide as well as on a single media basis. The commission found that such a concentration of ownership in the media has a similar potential for limiting or impeding diversity of views and opinions in a manner harmful to the democratic process as concentration of ownership in newspapers alone.
Recommendation 11 calls for the appointment and funding by the newspaper industry, both indigenous and imported, in Ireland of a wholly independent ombudsman to investigate complaints of breaches of press standards not involving any possible question of defamation, provided that such a complaint has been made to the newspaper and has not been dealt with to the complainant's satisfaction.
there is unanimous support for the principle that the primary mechanism for complaint must remain as one to the newspaper itself, and must involve rapid communication with the editor or readers' representative, or newspaper ombudsman by the reader who has a complaint. Any function of an outside ombudsman or press council should therefore necessarily be confined as a further step only to be availed of if a complaint having been made to the newspaper itself has not been dealt with to the satisfaction of the complainant.
In this regard, the commission then recommended the appointment and funding by the newspapers of a wholly independent ombudsman and it went on to outline a general scheme for newspapers to follow, for both the appointment and funding of such an ombudsman.
When the former Minister met the industry earlier this year I understand he outlined to them his endorsement of the commission's recommendation for the appointment and funding of a wholly independent ombudsman by the industry itself.
Recommendation 12 dealt with the question of legislative immunity from claims for defamation for such an ombudsman, if appointed, in respect of matters bona fide arising from the exercise of the function of such an ombudsman's office, while recommendation 13 called for the introduction of extensive changes in the law of libel.
We would see these two recommendations being further evaluated in parallel by the Minister for Justice, Equality and Law Reform, in consultation with other relevant Ministers. The Minister for Justice, Equality and Law Reform has informed us, however, that changes in the law on defamation were also called for in the report of the Law Reform Commission on the civil law of defamation, published in December 1991, which pointed to the need for the law in this area to be recast in a more satisfactory legislative framework.
Members of this House will be aware that this area of the law is very complex. The existing law draws on influences from the common law, from statute, including the Defamation Act, 1961, and from the fundamental rights enshrined in our Constitution. The purpose of any defamation law must be to protect and vindicate, as far as possible, the right of the individual to his or her good name with due regard to the right of freedom of expression of others. Any new law cannot ignore the need to balance these rights, both of which are expressly guaranteed by our Constitution.
I also understand from our colleague, the Minister for Justice, Equality and Law Reform, that  he met both the National Newspapers of Ireland and the Provincial Newspapers Association of Ireland, at their request, in September, to discuss defamation law reform.
Following a detailed exchange of views the Minister indicated he was not opposed to the possibility that some legislative change in this area might be brought forward which would concentrate on particular matters of concern to the newspaper industry. Such matters might include the introduction of a declaratory action whereby a plaintiff, instead of seeking a damages award, might apply to the court for an order that a particular statement was false and defamatory. Second, clarification of the law governing the making of apologies and, third, the lodgement of money in court without the admission of liability.
I would point out to the House that a defamation Bill is included in the list of proposed legislation. That list also includes 27 other Bills which are within the responsibility of the Minister for Justice, Equality and Law Reform. This is indicative of the strength of his commitment to balanced and wide-ranging reform in criminal, civil and equality law. These Bills, having regard to such matters as size, complexity and the need to consult with Departments and interest groups, are at various stages of preparation. There is no need for me to tell this House that it is inevitable in such circumstances that some Bills can be delivered and processed much quicker than others.
Recommendation 14 sought procedures for making available to bona fide journalists the right to inspect court records and documents which have become part of a public hearing in court. While our predecessor accepted this recommendation in principle and brought it to the attention of the then Minister for Justice, I appreciate the detailed technical issues which are involved. The present Minister for Justice, Equality and Law Reform may wish to review and consider the overall position before advancing on the implementation of this particular recommendation.
Recommendation 15 called for the defining by statute of the circumstances and standard procedures under which a local authority or other statutory committee, which has an obligation to hold its meetings in public, can, by going into committee or otherwise, exclude the public and the press. Again our predecessor accepted the principle that an appropriate legislative instrument should be drawn up to minimise the circumstances in which local authorities or other statutory committees can exclude both the public and the press. In this regard, the Minister for the Environment and Local Government needs to consider whatever legislation would be appropriate to this particular situation.
Recommendation 16 deals with editorial independence and proposes that where sufficient structures are not in existence to guarantee such independence, guarantees of it should be introduced. We believe that this recommendation  could impact on the employment contractual conditions of editors.
This having been said, however, we think it would be very desirable that all newspapers should voluntarily guarantee this independence to their editors in their various contracts to which I have already referred.
I have now outlined to the House the 16 recommendations of the commission. Six of these recommendations fall within the Tánaiste's area of responsibility and four of them would have required introductory legislation. However, as I have already stated, we may not be proceeding with the recommendation calling for a prohibition on below cost selling. The Tánaiste has asked the Competition and Mergers Review Group to advise her on how best to implement the recommendations concerning regulation of ownership, merger control and concentration of media ownership.
As I have already outlined to the House, our predecessor requested the Labour Relations Commission and FÁS to provide all the necessary assistance to help the industry in achieving the objectives envisaged by these recommendations. This still remains the position.
I take this opportunity to point out to the House that legislation or other action by Government alone will not secure the competitive future of a vibrant indigenous newspaper industry. Charting a thriving industry for the future is, of course, primarily in the hands of the industry itself. It has the significant task of adapting newspapers to the change in requirements of the consumer, the needs of the modern marketplace for news and views and also to the changing lifestyles and habits of our society.
The Commission on the Newspaper Industry identified the significant task of improving competitiveness as a key one to be addressed by the newspaper industry itself. The competitiveness agenda is not just confined to labour costs and numbers, important as these are, but must embrace other issues, such as work practices, printing, technology, distribution and training. The Irish newspaper industry must be prepared to confront these problems and the agencies of the State are available to assist in whatever way they can to ensure a consistently competitive and vibrant newspaper industry at all levels of Irish life.
I look forward to hearing Senators' views. I thank Senator Manning for putting down this  important and topical motion. It is of interest not only to politicians but also to consumers and society in addition to the newspaper industry. I also look forward to the eventual conclusion of the final evaluation of the report of the Commission on the Newspaper Industry.
Mr. Norris: I travel a good deal and see the newspapers of many countries, principally English speaking countries. In addition, although I do not speak Spanish or Portuguese well, a classical education has meant I can read those languages reasonably well. There is a qualitative difference between those newspapers and ours. We are extremely lucky in the quality of our newspaper industry and, in terms of the media in general, we are privileged to have such professional people working in them. On the whole there is balance.
Newspapers are powerful instruments in a democracy and they can affect political life. Irish newspapers have been reasonably responsible, although one must raise a query about the pay back editorial on the front page of one of our principal newspapers and the apparently vindictive way in which one newspaper chose to view political life. However, we are well served by the newspaper industry.
Newspapers are powerful and are a powerful lobby. They have obviously been lobbying powerfully on certain aspects of the commission's recommendations. The Fine Gael Party highlighted the issue of libel. I would be hesitant to tinker with the libel laws at the behest of newspapers. Individuals have a right to be protected against the worst excesses of newspapers.
It is a market driven industry and the Minister of State made it clear that one of the things affecting the Irish newspaper industry at present is penetration from the United Kingdom. I hope our industry never descends to the level of Britain's gutter press. It pains me to say as much because Britain at one time had fine newspapers. Now, however, even The Times is owned by one of the most reprehensible figures in global newspaper and media technology, Rupert Murdoch. That worries me. Will our industry be driven down to those standards by their penetration of our market?
Why are the newspapers so worried about libel? There is a defence to libel — justification. If the newspapers print something however unpleasant about an individual, whether they are public or private, and if they can justify it, they do not suffer the penalties of libel. Why should newspapers be permitted to publish lies about people? Why should they be permitted to trot around people's private lives and publish what they like with impunity? One of the recommendations appears to suggest as much. I absolutely oppose it. I oppose the concept of a declaratory statement whereby after the publication of a fulminating piece of filth about a private individual they can get away with it by saying “I am  sorry, I now realise it was wrong; I did not mean it” and avoid the financial penalty.
The Minister must retain the financial penalty. It is the one thing that will put manners on the newspapers. We need it, even if it is not always effective. Look at how The Sun in Britain printed deliberate libels of Elton John which the publishers knew at the time of publication to be lies. They made a conscious decision to publish the libels because they knew that even if they were fined £1 million, as they were, the effect would be to increase circulation to such an extent they would recoup the damage to their investment. Do we want that attitude in this country? I think not.
The bleating about public interest is pious, hypocritical cant. I will not pretend I invented these bon mots or thought of this phrase, although its intent is one I have held dear for a long time. Somebody said on the radio recently that one should be careful to distinguish between the public interest on the one hand and what the public is interested in on the other. The public might be interested in snuffling around the bed linen of public personalities but is it in the public interest? I do not care who pop stars sleep with or what else they do as long as it does not contravene the law. However, the newspapers are aware that by publishing such salacious information they will increase their sales. If they publish something defamatory or wrong or libellous, let them pay the penalty. I do not wish to see those penalties weakened and the Minister will make a great mistake if he does so.
It is already possible to libel people, particularly Members of the Oireachtas. Many people appear to think there should be open season on professional politicians and people in public life. It is recognised in case law that people in public life are required by the courts to have a higher level of tolerance of abuse by newspapers and the media than ordinary members of the public. The justification is that if one puts oneself forward or puts one's head above the parapet and mud is flung at it, it is one's own responsibility.
I have been libelled on a number of occasions. I have never taken an action, partly because my solicitor advised against it and was reluctant to get involved. I can offer the House a couple of examples. In one case I laid political charges in this House against the then Cathaoirleach, Mr. Seán Doherty, which I believed I could justify. I will not discuss the merits of it now. The Sunday Business Post chose to print an alleged interview with me — it was not — by printing documents which were purloined from my office by some means, alongside a photograph taken in the street and accompanied by an editorial which said the only reason I raised the matter was that I wanted to be included in a trip to Nicaragua. There was never a possibility that I could have been included in that trip. I was fighting for a matter of principle. For technical reasons I could not have participated in that trip.
The second case occurred three and a half years ago. I was taken ill while I was working for  the Department of Foreign Affairs, unpaid as usual, as a roving cultural ambassador in eastern Europe. I came down with a severe illness and was hospitalised on my return. It was a form of hepatitis acquired from water. Two newspapers printed articles with headlines such as “Norris denies AIDS rumours”. The story was to the effect that well known gay rights activist, David Norris, yesterday laughed off widespread suggestions that he was seriously ill with acquired immunity deficiency syndrome. Of course they were licking their lips in the hope there might be some truth in the rumours. I am sorry to disappoint them. I have even put on weight. I did my best to lose weight and confirm the rumour so they could libel me again more disastrously and, by God, I would have taken them to the cleaners. Again, I was dissuaded from taking any action.
This example undermines the concept of declaratory statements. The newspapers thought they were being clever by saying “Norris denies AIDS rumours”. They thought it would get them off the libel hook. I was cute enough to know it did not. John Major had been awarded £75,000 for a headline in one of the British tabloids which said, in effect, Major denies screwing the cook. I believe the cook had greater reason to take action on that occasion but the British courts held that publication of the denial of a rumour constituted publication of the libel. I could have had the newspapers on that judgment but I did not.
The effect of the story was interesting. When I carried out some charity work which involved a trip to South America the people on the airplane contacted the organisers to find out if it was safe to travel with me. One can expect this type of reaction when one reads articles by squalid little turds such as Des Rushe who referred in a recent article to the revolting suggestion that I might be nominated for the Presidency. He described as disgusting the rumour that Dublin's most prominent queer should be thought of in this light. I would not dignify him with an action but it is interesting how these things work out. After all the bellyaching surrounding Princess Diana and the invasion of her privacy, I cannot believe we want to encourage a similar situation here.
I am sorry that, because of legal technicalities involving European competition law, it is difficult to copperfasten the strength and competitiveness of the indigenous industry as against UK titles. This is most important. If there is any way we can protect our indigenous press, for God's sake let us do it. It may require some ingenuity to circumvent the competition laws, but one only has to look at the French lorry drivers strike to find a way. There is supposed to be free movement of goods and services in the EU but they are not acknowledging that at the moment. The French Government blithely says it will compensate us, but it said that the last time and it did not do so. It is a pity the former Minister felt it might contravene European Union law. Can we look at  that again and use a little lateral thinking because we ought to protect our indigenous papers.
I am also concerned about monopoly control and I have given the example of Rupert Murdoch. Similar figures in Latin America also unfortunately exercise considerable political control. Look at what happened in the last UK general election. I like Mr. Blair but there are two big question marks hanging over him. One is his Lord Chancellor who seems to be running the show behind the scenes. The other is what was the agreement between Blair and Murdoch? Why did the Murdoch group so dramatically switch sides which helped to lead to the avalanche of votes for the British Labour Party? Look what happened when Neil Kinnock almost made it into office. Murdoch turned the heat on and affected the result of that election. Is it democratic to allow a single person to have that degree of control? We must guard against that here.
Newspapers here should have a zero rate of VAT because it would put them on a level playing field with United Kingdom titles. If we do not do that, we are asking our titles to operate with one hand tied behind their backs. Tied into that is the issue of a common printing press, either with or without State funding. It would be an excellent idea because there must be rationalisation. One of the problems is that United Kingdom titles have higher circulation figures, can print more cheaply and can engage in mass circulation tactics. We should be aiming for a central printing facility shared by all newspapers.
We must outlaw below cost or marginal cost selling because it constitutes unfair trading practice. It is largely British newspapers which indulge in this by unloading excess capacity here at below cost rates. That is unfair dealing. How can a local newspaper compete with papers being offered to the public at less than their production cost? This must be dealt with.
Recommendation 11 deals with the appointment and funding by the newspaper industry, both indigenous and imported, of a wholly independent ombudsman to investigate breaches of press standards. That is unlikely to be of much use unless it has teeth in terms of financial penalties and there is nothing to suggest it will have them. It needs them because, if the English experience is examined, it will be seen that there is a press council which makes reports, sometimes written in very strong terms, reprimanding the papers and demanding they change their language, but they do not do so. Within a week they reprint the exact same material with defamatory, racist and prejudiced labelling. The Minister will be wasting his time and public money on a press council unless he gives it teeth. Moral exhortation does not work because it is the marketplace which is being dealt with and, in terms of the British press, the lowest possible standard. The Commission on the Newspaper Industry reported that any function of an outside ombudsman or press council should be used as a further step only to be availed of if a complaint, having been made to  the newspaper itself, was not dealt with to the satisfaction of the complainant. This is a watering down; it is merely window dressing produced by the newspaper industry to give it a fig leaf of respectability.
Recommendation 13 might be unlucky for some but, if it is passed, it will not be unlucky for the newspaper industry. If anything, it will be spectacularly lucky because it will weaken the libel laws. Apart from the examples I have given — I am more or less prepared to take any punches on the chin — I have had a good ride from the newspapers. Most journalists are my friends and I have great respect for their professionalism. Despite this, weakening the defamation and libel laws will be a retrograde step. The Minister said:
I also understand from our colleague, the Minister for Justice, Equality and Law Reform, that he met both the National Newspapers of Ireland and the Provincial Newspapers Association of Ireland at their request in September to discuss defamation law reform.
Were members of the public involved at any stage? Has a contribution been made by the victims of libel and defamation? I strongly recommend that, rather than just listening to newspaper proprietors, editors, journalists and others who have been lobbying extensively on this matter, the Minister should place an advertisement in the newspapers or use some other mechanism to contact people who have been victims of libel and defamation and acquire evidence from them as to the impact of it on their lives. He should then set that against the purely commercial considerations of the newspaper industry. I see little in its submissions about ethics, standards, decency, respect for the good name of the citizen or for the integrity of the people it impugns.
Recommendation 15 deals with the issue of a local authority going into private session. We must be very careful because people on local authorities are elected public representatives who represent us. We must circumscribe with great care those occasions when they decide that material exists which we are not mature enough to be made aware of. As citizens of a free, independent and democratic republic, we are entitled to the fullest possible accountability. I would need to be very reassured that there were serious reasons for any such body to go into private, secret session and reserve its deliberations from the public gaze.
Recommendation 16 deals with editorial independence and proposes to guarantee such independence where sufficient structures are nonexistent. This can be forgotten about because it cannot be done. It means relying on people's good sense, breeding and professional standards.
I have unburdened myself of a few notions regarding the newspapers. As an Independent Member I can say what I like and, if the newspapers do not like it, they can say what they like about me. If they go overboard in that, I will be  licking my lips. I encourage them to do so and, if they want to libel me, I ask that they do not do it in the half-hearted way they have up to now. They should go for broke. I want a good, red blooded, macho libel case because libel damages are not subject to tax. It would greatly please me to take one of them so comprehensively to the cleaners that I would have a pension for life. Even if they went against me and forced a gullible public to vote against me, which is quite impossible, at least I would be able to retire in some comfort thanks to their injudicious words.
Mr. S. Ryan: I am pleased to have the opportunity to contribute to this lively debate. I applaud the Fine Gael Party for tabling this motion. Press freedom has been a topical issue since the death of Princess Diana in Paris and it is only appropriate that this is the case.
Thankfully, the Irish press has behaved in a more responsible fashion than their British counterparts. There has been some deterioration in the privacy afforded to public individuals in recent years but we have not reached the position which pertains in Britain. However, I have been concerned that political coverage in the press has been excessively personality based rather than issue based. This needs to be addressed by the media. When one is talking about the defects in the economy it is prudent to look at the various sections of the economy which are outside pressure groups and have not benefited from the Celtic tiger. We need to get the message across that there are major problems in both rural and urban areas and the media must highlight them. This is why the personalisation of issues needs to be addressed.
For some sections of the media political coverage begins and ends with the day the day dogfight. To receive coverage in either House a Member has to make an outlandish remark which will attract the media's attention. However, the large amount of work done at various Stages of Bills can go without receiving a line of media coverage. The Irish newspaper industry has endeavoured to highlight the work of politicians to the public. However, this needs to be looked at rather than just looking for rows and ruaille buaille which people and television cameras wish to see.
Irish political coverage is notable for its lack of analysis of political ideas. I am not accusing all journalists and newspapers of this but these are the ideas which most politicians believe to be the meat and drink of their trade. It is healthy to have a certain amount of tension between politicians and journalists. However, some sections of the media believe that politicians are hostile to measures such as relaxing the laws on defamation and libel. The Labour Party is not hostile to such measures. Revisiting the libel laws was a central plank of our manifesto. I applaud journalists who uncover misdeeds in politics and business and I have no regrets about the story which brought about the end of Deputy Lowry's ministerial  career. Investigative journalists are important for political life. Long may they continue and they should be given the opportunity to develop this area.
The key question in any debate concerning the rights of individuals and the rights of the press to report is whether the issue is central to the public interest. Does the public's right to know override the individual's right to privacy? If it is an issue which affects the public figure's capacity to perform their public functions then the public has a right to know. Otherwise the public does not have that right. Neither does it always follow that because the public wants to know it has the right to know.
Perhaps in the distant past the press was excessively reluctant to publish stories concerning individuals and institutions. To some extent that reluctance reflected the press culture and the overriding political and social norms of that age. No one could argue that it was healthy for a culture to fail to reveal the level of child abuse which was a feature of this country prior to the 1980s. However, neither am I sure that the recent trend of stories concerning TDs' brothers is healthy.
The most interesting aspect of the report is its suggestion that we try to find a middle ground. It rejects the notion, current in the US, that just because someone is in the public eye they are fair game for any story. The report supports the right of public figures to have lives outside the public domain and that is as it should be.
I have applauded the Irish print media's record over the years compared with their British counterparts. However, I am a little concerned by some developments in recent years. Not a Sunday passes without a retraction or apology in one or more of the newspapers. One Sunday newspaper recently printed three retractions in the one edition. Is retraction good enough? An individual has the right to take a case against a newspaper but, in many cases, the damage has already been done. An apology does not repair the damage which can be done to an individual or politician. There is an expectation that politicians should be able to take more of this type of reporting but I do not agree.
The report acknowledges that the existing libel laws are too restrictive and prevent the publication of stories which any reasonable person would believe to be in the public interest. It appears to be generally accepted that the burden of proof on journalists is excessive. At the same time there are concerns about the privacy of public individuals. We must move on both fronts to redefine simultaneously the public and private status of public figures in a fashion that would satisfy the legitimate concerns of both public figures and the journalists who report on them. The more I read the Government's Action Plan for the Millenium the more I am disappointed. Today's issue is yet one more that does not merit a reference in the programme. Much of the material is so vague as to be worthless and a  further considerable portion of it has been repudiated. The Labour Party committed itself in its manifesto at the general election to reform the laws of libel. If the Government refuses to act on this issue we will table a Private Members' Bill to address it. Over the years politicians and various Ministers for Finance have received submissions on the rate of VAT on newspapers. Zero rating is required. That would be in the interest of our newspapers who have to compete with newspapers from other countries where there is zero rating.
Mr. Walsh: I welcome this discussion and I recognise that an independent press is a very important and fundamental part of our democratic process. It is the conduit through which politicians and people in public office are held accountable by the people. It is proper that we accept the healthy tension that sometimes exists in that regard. The newspaper industry has served us well. We have seen examples in our neighbouring island of standards not as high as one would wish. Checks and balances are needed in newspapers and the other media just as they are needed in the political sphere. While, in general, there has been balance and moderation this has not always been the case. In recent times very sensitive leaks from the Department of Foreign Affairs were published. The national interest must predominate and people who are involved in that sort of activity must be held accountable. The media must also be held accountable for aiding and abetting what surely amounts to a criminal offence. This brings us to the area of regulation. There has been much talk of a self-regulatory system, a press council. This could be advanced to the advantage of the industry as well as to public life.
The media took a particular interest in the recent referendum. Their opinion, influenced a significant number of people who opposed the amendment. It struck me as incongruous that the political parties, who were almost ad idem on the question, did not succeed in conveying the message despite the fact that the matter was debated in this Chamber and elsewhere. The media were quite right to pursue their agenda with regard to that topic as they are with regard to any other topic. There is a need to differentiate between report and comment with regard to a particular issue. The media have a great deal of power and that must always be administered in a prudent and fair-minded way. While the laws on defamation may be reviewed I would hate to see the balance tilted toward reporting in the media rather than toward the protection of the individual's right to his character and integrity. Papers are free to publish anything they wish to publish so long as it is justifiable comment and reporting and so long as they can stand over it. The People have a right to their own character in a properly regulated democracy. The review of the law on defamation must be progressed but with a great deal of caution.
 A cornerstone of all our commercial activities is fair competition. I have some sympathy for the newspaper industry here which labours under the disadvantage of having VAT charged when its competitors have an advantage over it. It would be important, however, that any changes made in the area of VAT would be of benefit to the consumer and not be added to the profits of the newspaper industry. Sometimes changes in the taxation system result in this outcome so a review of the taxation of newspapers would need to be carefully watched.
An element of mutual suspicion exists between politicians and the newspapers. The transparency with which we must operate is absolutely correct. The media must have the right to comment but the comment must be fair and where the media go beyond the bounds of what is fair or proper then any individual, and this includes politicians, must have the right of redress. This will maintain a proper balance. The public interest must be weighed against the individual's interest. and that often produces a subjective rather than an objective view. It is for legislators to ensure that the balance is proper and fair to both parties.
Mr. Manning: I thank all who participated in the debate. We have had a useful discussion on a matter which might not otherwise have been discussed. I thank the Minister of State for his very comprehensive statement. I tabled this motion to find out what was Government thinking on these issues. The Minister answered questions in a straightforward manner when it was possible to do so and when the issues were complex, that complexity was highlighted and the current state of thinking given in a full and fair way. The Minister's speech was useful and will contribute to the ongoing debate on this issue.
The issue of apologies was central in my contribution and my views may have been misinterpreted by some Senators. I am making a very clear distinction between apologies for inadvertent and deliberate damage. It may happen that, in the course of a busy evening in the newsroom, somebody gets a name or address wrong. As a result, something may be printed or published about a person and that person may feel aggrieved and defamed where clearly that was not the intention. A journalist may be inexperienced or may be working under pressure. Many newspapers are reluctant to provide what an aggrieved person may want, namely, a speedy, clear and prominent apology in order that any damage which may have been done can be quickly undone and the record set straight. As politicians, that is all we want at times rather than becoming involved in a long and cumbersome process. Politics is a roughhouse in many ways and things are often said in the heat of debate. We should be able to deal with that.
It is important that ordinary people should be fairly treated. Because of the way the law is currently structured, newspapers may feel they cannot offer an apology without admitting liability  and making themselves vulnerable to huge costs. I would like to test the good faith of the newspapers in this area.
Senators Walsh, Norris and others spoke about self-regulation within the media. I have come to the conclusion that self-regulation or policing would be almost impossible to achieve because the media are not uniform. We have serious and honourable journalists and newspapers but we also have the grosser elements of the industry which were outlined by Senator Norris. I am familiar with the examples he gave and they are truly horrific. We have all seen the British tabloids and we are justified in trying to prevent the same thing happening here. Reforms may help serious newspapers but those reforms are likely to make life even easier for the sort of media described by Senators Norris, Walsh and others. The fact is that, on the issue of self-regulation, the media want to face in both directions at once.
Many serious journalists believe there is a conspiracy on the part of politicians to prevent them having access to information. Last year we enacted an elaborate Freedom of Information Act and all current legislation attempts to make matters as open as possible. Politicians are not intent on protecting themselves as most of us have very few secrets anyway, but we see the excesses of the British media and some media in this country and it frightens us. The newspaper industry must get its act together and there is no sign of that happening. Newspapers are often prepared to take the risk of libel to get a juicy story or headline which may be grossly untrue. They are often willing to take their chances in court and, even if it costs them £100,000, £200,000 or £300,000, it will be deemed to be worthwhile in terms of boosting circulation.
The media pressurise us to be open but they should examine their own conscience on these matters. I suspect from the Minister's reply that we will not be seeing a great deal of progress in these areas until the media manages to make a better case. I thank all those who participated in the debate.
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