The transcripts of the official inquiry into the culture, practices and ethics of the press. More…

  • PROFESSOR JOHN HORGAN (sworn).

  • Thank you. Professor. May we have your full name, please.

  • Thank you. You kindly provided us with a short witness statement, which of course we will amplify orally, or rather you will amplify it orally.

    Insofar as there are factual matters in that statement, do you attest to their truth?

  • Thank you very much.

    As for who you are, you have had a long career in print and broadcast journalism in Ireland and then a career in politics in the Irish Senate, the Dail and the European Parliament?

  • But in September of 2007 you were appointed Ireland's first Press Ombudsman; is that correct?

  • You are also Emeritus Professor of Journalism in Dublin City University.

  • Professor Horgan, thank you very much indeed for being prepared to travel to help me. You're entitled to say, "Well, we have sorted this out" -- and we will discuss that -- "and it's your problem". So I'm very grateful to you. Thank you.

  • Nothing is ever completely sorted in my experience.

  • Thank you. We know from your evidence that the Press Council in Ireland was set up in the summer of 2007, and then you were appointed by the Press Council in Ireland.

    Can we understand, please, the circumstances in which the Press Council was set up? You refer to extensive discussions involving industry representatives and representatives of the public interest.

    Who were those latter representatives?

  • I think it's important to go into the prehistory, a little bit to understand what lit the fire under the Press Council in 2007 effectively.

    Newspaper and public sector bodies had been discussing the possibility of a Press Council of some sort in Ireland for way back to the early 1980s, when it was a period of considerable industrial unrest in Ireland, and trade unions started campaigning for a Press Council which they felt would give them a fair crack of the whip.

    Nothing really eventuated. Then in the middle 90s, after the collapse of a big newspaper group, the government set up a commission on the newspaper industry, of which I was a member, and which all major newspaper interests were also represented.

    The report of that body recommended the establishment of a Press Ombudsman in 1996. But nothing really happened after that. Nobody took ownership of it, and it wasn't developed in any sense.

    Then after the 2002 general election, the then minister for justice, Michael McDowell, set up an expert group to make recommendations to him. And that expert group reported in 2003, recommending a statutory system of regulation for the press.

    I think it's fair to say that that lit the fire under the topic in a way that it hadn't been lit before, and the press industry realised that if this eventuality was to be avoided, they would have to come up with something that was credible, authoritative, independent and on all these fronts sufficiently acceptable to government, so the government would not proceed with its plans.

    They then set up the Press Industry Steering Committee, which negotiated and deliberated for some four years. That included all the representatives of all the major newspaper interests in Ireland, including representatives of News International and of the Mirror Group.

    And it had a very significant, in my view, public interest input in that the chairman of that group was Professor Thomas Mitchell, a retired provost of Trinity College Dublin, and the facilitator of the group was Maurice Hayes, then a senator.

    Senator Hayes, although he had some newspaper links, had an excellent track record as Northern Ireland's first ombudsman, secretary to the Patten Commission, and I think it's fair to say that both of those individuals would have underlined the importance of independence of any regulatory mechanism as a pre-condition for its acceptance by government, or indeed by them.

  • So was the Press Council set up really on a quid pro quo that certain advantages would flow in legislation, and then we know in a couple of years there was the Defamation Bill in Ireland which afforded those advantages?

  • Well, my understanding from Professor Mitchell is that the quid pro quo effectively was the withdrawal of the government scheme for statutory regulation of the press.

    In that process, there was a Pauline conversion of a kind on the part of the minister for justice, who had been primarily very positive towards the scheme of statutory regulation, but who became converted to the idea that it was important to have an independent non-statutory system, and who managed in the face of what I understand were at times considerable difficulties to persuade his government colleagues of the wisdom of this approach.

    The discussion on defamation took place also, but it was in a separate box, if I may put it like that. The defamation legislation was not a quid pro quo for the establishment of the Press Council as such, but it was taking part in a different part of the same forest, if I make put it like that.

  • I understand.

    Taking it slightly out of sequence in terms of your evidence, the Defamation Act of 2009 did a number of things. One of the relevant matters in terms of an incentive really was to provide a defence of fair and reasonable publication in a defamation action, and you explain that. But that defence is available only for those who have signed up to the system; is that right?

  • Yes and no. Under our constitution, the parliament cannot confer a privilege on any one individual or group that is not available to the population as a whole.

    So the defence that is available to member publications of the Press Council is also in theory available to other publications, if they can satisfy a court that they operate to standards and procedures in no way inferior to those that have been accepted publicly by member publications. This, again, has not been tested in court.

    My honest view is that it would be quite difficult for publications that are not members of the Council to satisfy a court that they operate to such standards.

  • I understand.

    In terms of the Council itself, the Defamation Act makes provision, on my understanding, for the minister by order, by secondary legislation, to recognise a body as the Press Council for the purposes of the Act, but in order to be so recognised, the schedule to the Defamation Act has certain requirements or boxes which need to be ticked in order for that to occur, and one relevant box is: the relevant Council must ensure the protection of freedom of expression of the press, and then also their public interest protections, ensuring ethical, accurate and truthful reporting by the press?

  • This is a form of statutory backstop.

  • Is there also provision in the Act --

  • Sorry, you wanted to add something?

  • Yes. One of the things I'd like to say, again to clarify this, that without the benefit of knowledge of what went on behind closed doors in the four years leading up to the creation of the Press Council, it might be thought that this legislation represents a framework imposed by the state on the private sector. Whereas in fact -- and Professor Thomas Mitchell has briefed me extensively on this -- by and large the provisions relating to the Press Council that found their place in the Defamation Act were those proposed by the Press Council itself to the government.

    It's been fairly well known that during the course of these discussions contact was maintained between the Press Industry Steering Group and the minister for justice, but the minister for justice's role in all these matters was entirely reactive. He heard what the steering committee had to say. He said what he liked. He said what he didn't like. But at the end of the day, what went into the Act was by and large what was proposed by the steering committee.

  • But behind it all, do I gather from what you were saying somewhat earlier, was the threat of statutory regulation?

  • So in other words, it behoved the press interests to come up with a solution that was less than the club that was being held over them?

  • That is absolutely the case. And in fact my membership, or our membership of the Alliance of Independent Press Councils of Europe indicates that in quite a few countries this threat has been the engine which has generated or promoted the successful establishment of press councils of the same kind in many European countries.

    So even though before this threat was made, there had been moves towards the establishment of something like this, the 1996 report of the commission, which wasn't under such a threat, recommended the establishment of an ombudsman. As I said, it was the real and present danger of that that created the situation in which we found ourselves.

  • It might be thought that there's a clear and present danger in the UK at the moment for the press. At least that's certainly how they perceive it. The issue is where the line should be drawn.

  • Absolutely. Yes.

    The experience of the steering committee, and certainly of the early years of the Council, as I've been informed, is that the one critical aspect of what the industry proposed to establish, without which no possible measure of government acceptance or approval would have been available, was independence.

    The independence was the key to the authority of whatever structure was set up. Independence from the industry as well of course as independence from government.

  • And this is safeguarded in the Act itself, which we have examined, but under the schedule to the Act, there are specific provisions which cover the structure of the council, the number of members it should have, who needs to be independent members, who can be press members.

  • And there are other matters such as --

  • Just remind me, could you, are there serving editors?

  • Technically the way that the Council is constituted is that its public interest members are self-nominated for acceptance on the basis of public advertisement and interview, and are chosen by a four-person appointments committee, chaired by the chairman of the Press Council, who is an independent member of the Council. The other three members of which have no connection with the media industry whatsoever.

    The industry members of the Council and the NUJ member of the Council -- I think it's important to recognise that the NUJ member of the Council does not regard himself as an industry representative, because the interests of journalists are not always coterminous with those of editors or indeed proprietors.

    But the industry members of the Council are nominated by the various organisations that took part in the steering committee: the national newspapers, the regional newspapers, the periodicals and the union.

    But under the articles of association, the function of the appointments committee is to ratify those nominations. In other words, it is not an automatic right of nomination.

    I cannot readily foresee a situation in which any nomination made by any of those industry bodies would not be accepted, but under the articles of association, it has to be ratified by an independent appointments committee.

  • Those persons at the moment are in fact serving editors?

  • I beg your pardon. I should have come back to that point.

    Only one of them is a serving editor. That is an editor of a regional publication who fills the slot reserved effectively for regional newspaper editors.

    It has been the practice of the major newspaper interests, almost without exception since the beginning, to nominate to the Press Council, and indeed to the Code Committee on which they also have similar nomination rights, senior editorial executives, not necessarily editors.

    That has been wholly satisfactory from the Press Council's point of view, not least because editors don't change very often. Whereas the rotational factor which has operated in the Press Council, including among the industry members, has meant that the knowledge of our practices and procedures and the way we come to decisions and so on -- the way I come to decisions -- has become much more rapidly spread throughout the press industry as a whole, than if editors were sitting there in perpetuity.

  • How long do they serve for?

  • They can serve for a maximum of two terms, which is six years. But already, even though we are only four and a half years into the Council's existence, there has been a very substantial rotation. I think only one of the original industry representatives is currently a member of the Council.

  • Thank you.

    The Act also makes provision for funding. There's an express requirement that there's no funding from sources other than subscribing journals. There's also a requirement that the Press Council should appoint an ombudsman to deal with complaints.

  • So this is all recognised in the relevant statute, although --

  • -- the structure was in place voluntarily before the statute arrived; is that right?

  • We have the text of the Defamation Act 2009, which is online and can be considered.

    Can I ask you, please, as well, the code of practice is there as well as statutory obligation in the Press Council to establish that --

  • -- in certain principles?

  • The code was actually drawn up as part of the work of the original steering committee. It has then been entrusted to the Code Committee, which is a committee of the Council, and which, if it's to make any alterations or changes to the code, does so in consultation with the council, which also of course has the right to suggest changes to the Code Committee.

    Any changes that have been made in the last four years have really been minimal, and there hasn't been any great perception of any need for change. The only possibility in the near future is that we might, as indeed the PCC did some time ago, put in a more specific reference to the problems of reporting suicide than is contained in the existing code.

  • In terms of what the ombudsman does -- that's you. You're recognised of course in the statute -- your role is to receive and adjudicate on complaints.

    Can I raise with you two points. Is it obligatory under the system that if a relevant press entity has signed up to it, that the complainant must bring his or her complaint in the first instance to you?

  • No, it's the other way round. It's obligatory on any complainant -- if somebody comes to us with a complaint about newspaper X or magazine X, they are told gently but firmly that they have to go to the newspaper itself, to give the newspaper, the publication, the opportunity to sort it out informally.

    Very early in the job, I was approached by one complainant who was very emotionally involved in the complaint, and didn't want to confront the paper directly, was fearful of what the paper might do if they did, and so I took this up independently and directly with the newspaper.

    I subsequently got a very severe telling off, which I think in the circumstances was quite justified, from the editor of the newspaper concerned, who told me that he would have welcomed the opportunity to have sorted this complainant's problems out informally and directly. And the situation might never have come to my attention, or I might never have needed to investigate it.

    Over the years, our insistence on this procedure has had, I think, a couple of beneficial results. It has demystified the power of the press for complainants to some degree, and it has meant that all our publications have considerably enhanced over the years their independent complaint handling mechanisms, which, in the time that I was a journalist, were primitive in the extreme, and often fairly unhelpful to people who wanted to raise issues.

  • So the first port of call in relation to the subscribing journals, as it were, must be to the journal itself?

  • Is there a time limit, as it were, within which the complaint must be resolved internally before you can go to the ombudsman?

  • Yes. There is a succession of time limits. Because we try to ensure that from the time a complaint has been formally registered with us, if a decision of myself is required, that that decision is reached within a maximum period of three months. And, for example, if somebody writes to a newspaper or a magazine to complain, the procedures of which all our publications are aware is that if after two weeks that complaint has not been replied to, or has been replied to in a way that's unsatisfactory to the complainant, then they come to us and we take it up.

    We provide, if you like, more fire power for the complainant. It also gives the publication concerned a second chance, when we get involved in our investigation, to think that maybe they had been a bit too dismissive and maybe they could be a bit more conciliatory in the latter stages of the investigation.

  • I see. Then from your decision, there's a right of appeal to the Press Council itself; is that right?

  • At the moment we're just talking about subscribing journals?

  • Having exhausted remedies internally, and then to the ombudsman and then to the Press Council, does the complainant still have the ability to go to court?

  • The complaint -- absolutely. Various other press councils that I'm aware of have voluntary or other procedures in place by which they ask complainants to sign undertakings that they won't go to court. But under the Irish constitution, nobody can be denied access to the courts, and that's a very important right.

    The only thing that we do is that we do insist that if at any time the subject matter of a complaint to us also becomes the subject matter of legal proceedings, we will defer any further investigation or consideration of the matter until after those court proceedings have been concluded or withdrawn.

    I don't have any factual evidence, but I am aware of only one case in four and a half years in which, subsequent to a decision being taken by myself or by the Council, the complainant has taken legal proceedings against the publication concerned.

    And those proceedings, I think, were probably settled outside court, rather than became the subject of a court hearing.

  • If during the course of handling a complaint it would become obvious to you that there's a strong prima facie case that the complaint raises a systemic issue or a very serious, which the regulator, I suppose the Press Council, should be considering as part of its wider remit, what if anything can you do about that?

  • I can't do anything personally. It would be a matter for the Press Council to decide whether there were any systemic issues that needed its attention on the basis of any decision that I might make.

  • So the Press Council would be reviewing your decisions as a matter of course, and if it felt that your decision raised a generic or systemic issue, then it would be up to it to take the matter further? Have I correctly understood it?

  • As I understand it, it would be capable of taking the matter further. However, the Council doesn't have formally under its own statute, if you like, the articles of association, it doesn't have the power to conduct own initiative investigations.

    It has, where it has perceived that there are systemic issues, approached it in a slightly more oblique fashion. For example, over the last number of years, the Council has sponsored a number of fairly useful seminars on matters to do with the reporting of crime, the reporting of children, privacy issues, in which both industry and NGOs and other interest groups and bodies, as well as members of the public, have participated.

  • I understand. If we were to --

  • That is oblique, because that may be illuminating the problem or the concern, without really tasking the target of that concern.

  • Yes. That can be seen as a limitation.

  • Of course, if one is dealing with a journal which isn't a member of this voluntary system, then the aggrieved party must go to court.

  • To court or to the journal itself.

  • Or to the journal itself.

  • What degree of recruitment to the system is there in Ireland? Can you help us?

  • There's not the need for any great degree of recruitment to the system. All the national newspapers, including all the UK papers that are published in Ireland, are members of the Press Council and have been ever since its inception.

    In relation to regional newspapers, upwards of 90 per cent of the regional papers are also members of the Council. In relation to periodicals, I would say about 60 per cent of the relevant category of publications are members, but that 60 per cent would include a much larger percentage of total paid sales, because a lot of the magazines that wouldn't be members would be very small, with very small circulations and perhaps very infrequent publication.

    So even though everybody would like to see everybody in, and steps are taken to that effect from time to time, the general catchment is good.

    There has been a development recently in that the Council has had an application for membership from a news website. That has created a new situation for the Council, which is in the process of establishing the appropriate criteria for accepting any applications of this kind. And I think that's part of the way in which things are likely to go in the future.

  • In terms of public confidence in the system, you are saying, "We have coverage", is there satisfaction generally within Ireland that the reach, the coverage, is sufficient?

  • I'm not sure that there is as yet, because in our experience both in the general public and among journalists, detailed knowledge of what we do and how we do it is confined, to a greater or lesser extent, to people who have come into contact with us, either as journalists or as complainants.

    To that effect, we've begun quite recently a public awareness campaign, with the co-operation of our own member publications, to ensure that the services we offer, which are effectively a public interest service provided by the private sector, become more widely known. And that's what we're doing at the moment.

  • Has anybody threatened or intimated a concern that they might leave?

  • To what extent have major newspapers been the subject of critical adverse findings? I'm not asking for names.

  • I think every major newspaper has been the subject of critical adverse findings in one form or another.

    I can't think of any offhand that hasn't been.

    In my experience, also, the sanction that we operate, which is the requirement to publish in certain modalities any decision upholding a complaint against them, is taken extremely seriously by the editors of all our publications. The public may not see it as seriously as they do, but in my experience, editors take it extremely seriously and would take considerable steps to avoid finding themselves in that situation.

  • I have received differing views about that from different quarters, but there it is.

  • Can I ask you, please, Professor Horgan, about the UK titles also published in Ireland? We know that the Northern & Shell titles or some of them do. Can you recall which UK titles publish in Ireland?

  • I can. The principal ones -- I have a list here which I had better read through to refer to, so I don't leave anybody out.

    The main ones would be, of course, the Mirror Group Newspapers, the News International Group newspapers. There are some papers which are effectively not published in Ireland, like the Guardian, the Express, the Financial Times, the Observer. Because they are subject to the PCC regime rather than to ours.

    But you may take it that all the substantial British publications in -- the Daily Express is a 50 per cent shareholder in the Irish Daily Star, and that is a member of the Press Council, and has never threatened to withdraw, although I believe its parent company did in relation to the PCC in England.

  • So the gateway to entry to the Press Council in Ireland is publication in Ireland?

  • So the Guardian, which only publishes here, is in the slightly anomalous position.

  • It is. It has a small calculation in Ireland, 5,000 or thereabouts. The same would be true of the Times, the Financial Times. They would all be less than 10,000, I'm fairly sure. But circulation is not the gauge; it's whether they're actually published in Ireland.

  • Have any concerns been voiced about UK titles who have subscribed to the system on the basis that there's a statutory underpinning to it, and therefore that's in some way anathema?

  • Again, I understand from people who are involved with the steering committee that the statutory recognition of the Press Council and the various elements associated with that were at first seen by some of the UK titles as being the thin end of a very big wedge in relation to statutory regulation.

    But all those concerned persisted really on the basis, not least of the fact that they felt that it wasn't the thin edge of the wedge and could argue that case as they saw it fairly convincingly, but also to have a Press Council in Ireland, without the participation of those UK based, but Irish published newspapers, would be pointless to a large degree.

  • So that's where the original threat came in: "Well, of course you don't need to come on board, but be careful what you wish for".

  • Yes. And that threat was still there. If the UK papers had not come on board, the government might have been less inclined to withdraw its proposals for statutory regulation, although I can't read the government's mind on that. I couldn't read it then. I can't read it now.

  • This may be a difficult question to test empirically, but are you aware of any difference between the number and nature of complaints that you receive against UK-based titles and those based in the Republic of Ireland?

  • Well, in the brief period available to me to respond to the outline that I was sent by yourselves, I was able to establish only that the UK titles, which represent about 30 per cent of the total national titles, are responsible for about 22 per cent of the complaints.

    On the other hand, without going into that in considerably more detail, you do run the risk of comparing apples with oranges, because circulations would have to be assessed. The fact that larger papers will inevitably tend to attract larger numbers of complaints, and larger numbers of multiple complaints. So it's very difficult.

    But I can say, I think -- and I did ask my case officer to have a good look at our cases over the last number of years, to see if there was there any discernible difference between complaints against indigenous titles and complaints against UK-based titles in relation to, for example, did people complain more about UK titles under principle 5 or under principle 4, whereas complaints about indigenous papers might have been under principle 1. There's absolutely no discernible differentiation between the basis of the complaints against indigenous publications and those against UK-based publications.

  • There's another reason why we have to view those figures with caution, isn't there? Because you're only recording the complaints that get to you. If the complaint went to the paper and was resolved --

  • -- you would never hear about it.

  • That would require you to have some understanding about the comparative merits of the indigenous complaint handling mechanisms as opposed to the UK-based handling mechanisms. I'm not asking you to comment on it, I'm merely identifying that, whereas you provide us with a snapshot, we have to be careful what we read into the picture.

  • Absolutely. Considerably more information -- some of it may not be readily available -- would be needed to come down hard and fast on that issue.

  • But it may not matter either which way. If the system is working, then the system is working for the UK-based as well as for the Irish-based.

  • That's my very distinct impression.

  • When you say "the system is working", implicit in that is that generally speaking, you receive co-operation from the titles under scrutiny in relation to any complaint; is that right.

  • Yes, indeed. In the very early stages, it could be argued that the UK titles had a little bit of a head start in the sense that many of their executives would have had experience of dealing with the PCC, but that evened out fairly rapidly. And we have no complaints at all in relation to the amount and degree of co-operation that we have from any of our publications.

  • Is it your view, Professor Horgan, that the system which exists in Ireland, with a degree of statutory recognition, constitutes a limitation on freedom of expression?

  • No. For a couple of reasons.

    First of all, because the limitations that could be construed as being part of the articles of association, and indeed the defamation legislation, are by and large limitations that were proposed by the industry itself, and endorsed by the industry itself, as a necessary balancing of the right to publish against the rights of individuals and others who might have been affected by the abuse of editorial or journalistic power, or by other breaches of the code of practice.

    The code itself has a very substantial preamble, setting out the fact that it is based on a belief in importance of the freedom of the press. And the obvious implication of that is that people who drew up the code do not see any of the subsequent principles in the code as infringing in any overly substantial way on this.

    The seismic shift really that has taken place, because of the establishment of the Council and of my own office, is that although the industry has created, with the involvement of public interest individuals, a code of practice, that code is administered by myself and by the Council.

    So on matters such as the definition of the public interest, that is not a matter for the newspapers. They may advance it in defence of something that they've done, but the final decision on that is taken by myself or on appeal by the Council.

  • In terms of the structure, you have told us about that. But can I ask you some evaluative questions.

    How important is it that the public interest members of the Press Council have a majority?

  • I think it's essential. I don't think that the independence of the body as a whole, including myself, would be accepted by the public to any degree if another model was proposed.

    Again, looking at the European experience, I've been quite surprised to see how many of our European colleagues operate in press councils in which there would be a one-third/one-third/one-third representation, in which public interest representatives would only have a third of the representation, newspaper owners and managers would have a third, and journalists would have a third.

    There would be a smaller number of press councils like ours, the Swedish one, the PCC and others, which the principle that the majority are public interest representatives has been established as a necessary basis for its independence.

    That said, I can tell you that although I don't take part in any discussion or decision in relation to appeals, I'm reliably informed that in such occasions there has never in four and a half years been a split as between the industry representatives and the public interest representatives on any issue. On every single issue members of both groups on the Council have found themselves on either side of the argument.

  • A similar question. You have touched on this, but may I ask you to develop it. How important is the presence of journalist representation on the Council?

  • I think it's extremely important. The fact that they have representation independently of the newspaper owners and newspaper editors has been extremely important, and in fact I would -- again, just from hearsay, from talking to members of the Council, they regard the NUJ membership as being essential.

    They also regard the membership of the newspaper industry representatives, albeit in a minority position, as being extremely useful in the sense that they simply know more about the business directly than anybody who is appointed as an independent member.

  • The chair of the Council, who I'm sure is a very important figure, is appointed from the public interest members; is that right?

  • How does that work in practice?

  • In practice the appointments committee publishes an advertisement inviting applications for the post. Existing members of the -- existing public interest members of the Council are free to apply and members outside the Council are free to apply.

    If an outside applicant is appointed chairman, as happened when Professor Mitchell was succeeded by Dáithí O'Ceallaigh -- and I must apologise on his behalf for his inability to be here today -- if an outside member is appointed as chairman, there is a procedure which ensures that he or she becomes at the same time also a member of the Council, an independent member of the Council.

    It's -- it is -- the significant thing about it really is that the industry has no effective hand or part in the appointment of the chairman, and this is an important part of the guarantee of independence that Professor Mitchell and others wanted to ensure.

  • The appointments committee obviously appoints the public interest members of the Council. It comprises people who have no relationship with the industry.

  • How important is that in terms of public perception and public satisfaction with the system?

  • I suspect it's not widely understood or recognised by the public at the moment, which is part of our public awareness campaign, because the appointments committee meets extremely infrequently. Its members serve for a maximum of two terms of five years, and should a member -- and it renews its own membership on the same basis as it was originally appointed.

    But if there were any doubts about the independence of the Council or of the chairman, the details of this scheme would, I am sure, help to remedy that.

  • In terms of the ombudsman, we received some evidence yesterday from the BIOA, from Mr Thomas, that they're of the opinion that the ombudsman is not an ombudsman properly so-called within the Irish system as there isn't sufficient independence from the Press Council. Moreover, the scheme looks more like a conciliation scheme than the ombudsman scheme.

    That may or may not cause you any concern, but do you have any comment on that?

  • Yes. I think that is based on an inadequate understanding of exactly what I do. And I'm a member of the BIOA or an associate member of the BIOA myself. It hasn't been a matter of considerable urgency to me to take these criticisms on board, but I'm happy to respond to them.

    I'm independent of the Council in the sense that my contract guarantees my independence. The Council has nothing to do, good, bad or indifferent, with any decision that I might take. I don't discuss my decisions with members of the Council, and they don't seek to enquire how I am working in relation to any particular complaint.

    In fact, in recent years also the Council has agreed to amend its articles of association to give me greater independence. For example, one of the things that has to be operational before a complaint can be investigated is whether the complainant is personally affected. Under the original articles of association, if I made a decision that somebody wasn't personally affected, that decision was appealable to the Council. It is now regarded as an administrative decision which I may take and which is not appealable.

    There are one or two other areas in which I have been given discretion, for example to rule out vexatious or frivolous complaints without the possibility of this being made subject to a decision by the Council. And I think in practice my independence of the Council is now pretty well-recognised.

  • Is there an issue, though, arising from the fact that you're appointed by the Press Council?

  • Somebody has to appoint the ombudsman, and I think the majority -- the Press Council with a majority of independent members is probably better than either the industry as a whole or the -- or the independent members as a whole. I don't think that has been an issue.

    I think certainly there would have been some concern initially that, as somebody who had worked as a journalist for quite a number of years, that I might have been biased in one direction rather than another. But there are poachers and gamekeepers, and sometimes people move from one to the other.

  • I think in terms of reporting, though, you report to the Press Council. How does that operate in practice?

  • I make a monthly report to them of mostly administrative matters, because the Press Council -- the members of the Press Council are the board of directors of the company, and they have the legal and fiduciary responsibility, whereas I'm in effect the manager, effectively, the budget, both for the Press Council and for my own office.

    So I keep them appraised of matters in relation -- administrative matters. But in relation to decisions, the only way that a decision of mine goes to the Press Council is by way of appeal either from a newspaper or from a complainant.

    So in the matter of my decisions, as I say, on complaints, there's complete independence and complete separation.

  • Can you give us a general idea of what percentage of your decisions are appealed and approximately how many appeals are upheld? Just give us a flavour of it.

  • Initially quite a substantial number of my decisions would have been appealed, either by newspapers or by complainants, on the grounds that, well, it was free and, you know, why not have a second bite at the cherry?

    But over the years the number of my decisions -- the number of appeals against my decisions that have been allowed by the Press Council has been very low. I think last year there was only one of a fairly large number of decisions, and I think, perhaps related to that, the volume of appeals has diminished slightly. But it does remain an open door for anybody who feels that they are entitled to it.

    Indeed, some of my decisions, it's fair to say, when you're applying a very broad principle to a very specific set of circumstances, some of the decisions are close to -- as close to 50/50 as you can find, and it would be quite legitimate for the Council to make -- to -- I can give you an example, if you would be interested.

    A number of years ago the family of a young man who was shot in Bolivia, in the course of a police raid on a hotel where they suspected that an assassination squad was lurking, a photograph of this young man's body riddled with bullet holes was published in one of our newspapers. The family complained under principle 5, which said -- effectively they argued that it caused them undue pain and distress, and it was not necessary and so on.

    I upheld the complaint, but the appeal by the newspaper concerned was allowed by the Press Council on the grounds that the political context and overall significance of these events made the photograph relevant, and that justified publication.

  • I can see there are arguments both ways.

  • There are, and there often are, yes.

  • Because each decision is fact-sensitive anyway.

  • And therefore there's an element of subjectivity in your application of the principles to the facts.

  • Absolutely. If you're asked to interpret and apply a principle which says that newspapers and other publications should show sympathy and discretion to people in situations of stress, distress, whether they've shown enough or not enough is essentially, at the end of the day, a value judgment.

  • Could I just ask you this, for interest as much as anything else.

    When you're reaching these decisions, are you considering whether you believe it comes within the rule or not, or are you considering whether the newspaper was entitled to come to the view that it took of the decision to publish or not? Do you see the slightly different test?

  • There is -- there is a freedom of the press issue underlying all these decisions. The preamble to the code of practice states very explicitly that newspapers are entitled to publish what they consider to be news and to comment on it.

    At the same time principle 5 of the code of practice effectively replicates the relevant principle of the European Convention on Human Rights in relation to privacy, and many of my decisions would be -- and of the Council's on appeal, would be an exercise of the balancing function between the right to freedom of expression and the right to privacy.

    So the right of the newspaper to publish what it considers to be news is always a factor in my decisions.

  • To what extent do you take into account the newspaper's view of the interest, or rather the balancing exercise? The newspaper's view as to whether it's an intrusion into privacy may differ from your view.

  • Yes, absolutely. But the code of practice says very clearly that the definition of the public interest is in the last analysis a matter for the Council and the ombudsman, rather than for the newspaper. And I could give you one or two examples of those again, if you're interested.

    There was an occasion early on in our existence when a reporter obtained some information by subterfuge about a minor celebrity who had tragically died, and it was argued by the newspaper that the degree of subterfuge involved, which involved a hidden tape-recorder, it involved perhaps a misunderstanding of the function of the journalist as a journalist or as a friend of the deceased -- that it was held that this did not sufficiently -- was not sufficiently in the public interest for this subterfuge to be adopted.

    There's an educative process going on on all sides in which the differentiation between what is in the public interest and what the public is interested in has to be maintained.

  • Is that a problem about encouraging mediation and resolution because there is less scope for you to develop a corpus, if you like, of jurisprudence which facilitates the better understanding of the code as you see it?

  • I don't think so. Our conciliation processes are of two kinds really. We do straightforward mediation -- conciliation, which is done by correspondence, and occasionally with the occasional telephone call. But more recently we have started to move into face-to-face mediation in a very small number of cases, as an experiment, but the -- our experience of those cases has led us to believe that we should go further into this area, and that many -- that many -- that some -- perhaps an increasing number of complaints can be resolved on the basis of face-to-face mediation, other than in situations in which people are exchanging correspondence and simply digging themselves into bunkers from which they don't want to emerge.

    I'm not sure if that answers your question.

  • Well, no, I was just concerned whether a mediation that didn't lead to an adjudication meant that there was less available material out there for the press to understand how you were perceiving the balance.

  • Well, that's not quite the case because mediation is confidential. But conciliation which leads to an agreed outcome of the case as between the complainant and the publication has to be -- that agreed outcome has to be referenced by me as the paper having taken sufficient remedial action.

    So there is a decision by me as ombudsman, and perhaps -- and if it's acceptable to both sides, a decision by me is a decision, and that decision is specified in our records.

  • So there is a corpus there, both in relation to decisions, both in relation to determinations, if you like, and both in relation to cases in which sufficient remedial action has been taken.

  • Have you ever declined to consider that the sufficient remedial action has been taken?

  • Oh yes. Yes, quite frequently. If -- very often I will uphold a complaint in spite of the fact that the newspaper has made what it thinks is a pretty substantial offer. But if the newspaper -- if the newspaper offer has been accepted by the complainant, I don't really have a function beyond ratifying that. It would not be in my interests to say that I refuse to accept this solution in spite of the fact that it has been agreed by the parties. I think that would be a bit over the top.

  • But does that raise a problem with equality of arms? The person who is complaining is not quite as knowledgeable or as aware, perhaps, as the newspaper or press body with which he or she is dealing?

  • It could do. It hasn't been that in my experience, but it could do, and I should continue to be aware of that, and -- but in many of my -- in many of my decisions I will come to the conclusion that an offer made by the newspaper was simply inadequate, and the complaint has to be upheld for that reason.

    The equality of arms issue, I don't know that there's any easy resolution to it. The -- except insofar as I do follow general ombudsman principles in that I'm not a consumer advocate in the first instance, although I may become so in certain circumstances, but more of an arbitrator.

    We do advise -- we do advise complainants as to the principles of the code which might be more appropriate than others in relation to making a complaint. We won't leave them wandering in the forest without any guidance, and to that extent we do participate in the equality of arms scenario.

  • Can we briefly look at some statistics?

  • It's at page 01548, tab 90. The print is quite small, but we will manage.

    If we just take 2011 as the most recent year, 343 complaints in all, but only 42 decisions --

  • -- by "PO". That's you?

  • Of those you upheld 17, you rejected 15. So we're up to 32. SRA --

  • -- is ten. That's sufficient remedial action. So that is the 42.

    Can I understand with the conciliated, the 19, where do they come from?

  • The conciliated -- six of them came from formally conciliated. In others words these were cases in which the complainant was not satisfied with the response of the publication and came to us. We investigated it, and we pushed the boat out further, and there were further discussions as a result of which a solution agreeable to both parties was arrived at.

    The 13 informally conciliated were the ones which were conciliated by the newspaper' or magazine's internal complaint handling mechanism after an initial approach to us had directed the complainant in that direction.

  • But the majority of the complaints don't reach any of the other boxes?

  • What's just happened to them?

  • Well, of the over 250 complaints that were not formally processed, the huge majority, 144, were complaints which weren't pursued beyond preliminary enquiry by the complainant.

    Now, that doesn't mean to say the code wasn't breached. It means that for one reason or another the complainant decided not to take it any further.

  • There were only four complaints ruled out as presenting no prima facie evidence. So we do take them all fairly seriously.

  • Were there another group of complaints, therefore, which were conciliated before we get to the decision-making stage?

  • No, only the ones that are informally or formally conciliated. And my case officer is the person who is primarily involved in all the conciliation work. When it reaches me, it's basically because a decision has to be made.

    I may on occasion seek further information from either the publication or the complainant before making a decision. But I would usually make sure that if I have to look for additional information, that information will be made available to the other party in fairness, so that they can comment on it before I come to my final decision.

  • Can I ask, please, your range of remedies: the schedule to the Act says that there may be other remedies available to you, beyond publishing a decision?

  • What in practice are they?

  • In practice the sanction that we have is the requirement for the newspaper or magazine to publish a decision upholding a complaint.

    The conditions for recognition laid down in the Act make it quite clear under the schedule to the Act that one of the -- that:

    "The procedure for investigating, hearing and determining a complaint to the Press Ombudsman shall..."

    And there's a number of subsections there. And it adds:

    "... provide for the taking of remedial action by the member of the Press Council in respect of whom the complaint was made consisting of any or all of the following."

    So as long as the Press Council satisfies at least one of these procedures, it can be recognised. And broadly speaking, we satisfied Parliament and the minister in relation to number 1 of that, the publication of the decision, and to a degree number 2, the publication of a correction of inaccurate facts, because although we don't determine the form of any correction as such, the decision of the Press Ombudsman very frequently includes a correction of inaccurate facts.

  • Do you have power to insist exactly where your decision should be published in the journal?

  • I have proposed, and the Press Council has adopted, a set of publication guidelines which I have -- I'm not sure whether I made them available to you earlier on or not, but I can leave a copy with you. And that specifies in considerable detail where decisions of the Press -- of myself and/or the Press Council on appeal have to be published.

    These have been refined over the years to remove any ambiguities, and newspapers, and indeed complainants themselves, are aware of the requirements to publish in some detail.

  • Who is responsible for drawing up the code, can you remind us?

  • The original code was -- the code was originally drawn up by the steering committee. It has been since modified in some small particulars by the Code Committee and the Council working in concert, but broadly speaking we operate on the basis that if it isn't broken, there's no need to fix it.

  • And the Code Committee comprises members of the Council or a different section of people?

  • No, there are -- there are no members of the Council on the Code Committee. They're again bodies nominated by -- they're nominated bodies that have to put the Press Council together. The only non- -- the only other person -- member of the Code Committee is myself. I'm -- I'm ex officio a member of the Code Committee. And it is chaired by a journalist who is an independent -- a very independent and wise person whose running of that Code Committee is very widely accepted within the industry, and certainly by me.

  • Are there serving editors on the committee?

  • The serving editors have the right to be on the committee, but in most cases they send deputies or senior executive people rather than --

  • So the chairman is not --

  • So the chairman is not a serving editor, no. He's actually a retired journalist.

  • And do you involve academics?

  • No. There are no public interest members on the Code Committee as such.

  • Is your jurisdiction and the Press Council's jurisdiction based only on breaches of the code, or are there any wider issues that you are enabled to consider?

  • It is based only on the provisions of the code. But the code -- it's very important, I think, for the public to recognise this. The code is a selection of very general principles which have to be applied in very particular circumstances. I think that whereas I am guided by the code, and if there are instances in which the provisions of the code conflict with my personal opinion, I don't have the luxury to indulge my personal opinion in relation to the application of the code. But I would hope that in the application of the code to these particular circumstances, either by myself or on appeal by the Council, that this application will be informed by a large measure of common sense and of equity.

  • So it won't always be a strict legal reading of the code; you'll inform it with wider principles?

  • I'm looking at the code now because we have obtained a copy. There isn't, I think, a definition of the public interest, but there's reference to it, particularly in principle 5, privacy. Have I correctly read it?

  • There isn't a definition, but it says it is for the ombudsman and the Press Council to define the public interest in each case. But the general principle is that the public interest is invoked in relation to a matter capable of affecting the people at large so that they may legitimately be interested in receiving and the press legitimately interested in providing information about it.

    I didn't draft that definition, but it has stood the test of the last four and a half years fairly well.

  • So have you built up a body of case law, as it were, which gives further content to that quite general definition?

  • Yes, we have. Everything is published on the website, and where specific issues of the public interest are raised, either by publications or by complainants, these have to be addressed in the decisions.

  • One provision of the PCC code which gives rise almost to endless controversy is the public interest provision which speaks to correcting a misleading impression or statement.

  • There's one school of thought which says, well, if a footballer is happily married and might have made one or two --

  • It's hypocrisy, isn't it?

  • It's the hypocrisy provision, yes.

    Do you have any approach to that sort of problem which might be of interest to this Inquiry?

  • Or maybe your footballers don't create this sort of issue for you.

  • I'm the last person to comment on the morality of our footballers, one way or the other.

    No, the principal issues that -- there are two separate sets of issues, if you like. Some of them arise under principle 5, which is the privacy principle, and I think it fair to say that newspapers generally, and myself and the Press Council in operating the code of practice, would be guided to some extent by the cultural realities of -- and context of the country in which we live and move and have our being. And these may vary from country to country.

    But all I can say is that I believe that the interpretation of the privacy aspect of our code is fairly close to -- reflects fairly closely the cultural context of our country.

    In relation to misrepresentation, that's basically principle 1, where it is a breach of the code, not only to publish something that's inaccurate, but something that is a distorted report or misrepresents a situation.

    We haven't had any complaint about the private lives of individuals being misrepresented by a newspaper or by another publication under principle 1. It simply hasn't arisen.

  • Your previous answer raises itself a rather interesting issue. You say that the interpretation of the privacy aspect of the code fairly reflects -- and closely reflects -- the cultural context of the country.

  • That might mean that the cultural context veers more towards privacy in Ireland than it does here. Or it might mean that it's further away from it.

    I would just be interested, because it's in that area that all sorts of issues arise.

  • It is. My view on that has to be wholly impressionistic.

  • But it is that there would be, culturally speaking, a greater respect for privacy in Ireland than perhaps there is in the United Kingdom.

  • Therefore the problems don't arise.

  • Don't arise to the same extent or with the same intensity.

  • Two general points to conclude with, professor.

    Are there any lessons you feel that we should learn from your experience in Ireland?

  • I'm not in the business of prescribing, I suppose, but I would emphasise probably, more than anything else, a number of factors of our experience which I think would be useful to anybody who is involved in this kind of exercise, things that we have found valuable.

    First of all, the importance of independence. Secondly, the importance --

  • That's the importance of independence from everybody.

  • Obviously from the Government and executive powers.

  • But also from the press industry. The importance of incentivisation. The importance of an appeals system, I think, which we have built into our system, and which relatively few systems have, as undermining and enhancing public confidence in the system.

    There may be another advantage, although it's very difficult to quantify, and that is that anecdotally newspaper lawyers have told me that they believe that some of our decisions have saved them substantial amounts of money, but they've not told me what decisions they were or whether they were decisions to uphold complaints or not to uphold complaints.

  • It's very wise indeed, because I wouldn't want to be influenced by that kind of consideration.

    So those are the main aspects of our operation and our structures, I think, that would be valuable in any system in which people are attempting to counterbalance the necessary freedom of the press and the freedom of expression with a system that gives people who are the object of press attention some reasonable redress and also affords a measure of accountability, creates a greater degree of accountability and openness in relation to the operations of the press than was the situation hitherto.

  • Are there any warnings that you might give us about possible teething problems or even further defects in the system which we should consider?

  • The bottom line really is that the success or failure of any system of this kind depends on two things in my view. It depends on the robustness of the measures that are put in place to ensure redress, and it depends on the whole-heartedness of the endorsement and uptake of these by the newspaper industry themselves.

    These two things are absolutely essential.

  • Could everything have been achieved in Ireland without a statute at all?

  • Without the threat of a statute, do you mean? Without a statute?

  • I think they probably could have, but I think it would have taken a lot longer and might not have been quite as satisfactory.

    I think the incentivisation aspect of the statute has been extremely important in securing that whole-hearted support of the industry for what we do.

  • Thank you very much, professor.

  • Professor, thank you very much indeed for coming. It's very kind of you.

  • May we sit again at 1.40?

  • Yes. That's probably a sensible way to divide ourselves.

    Thank you very much.

  • (The short adjournment)

  • Yes, Mr Jay.

  • The first witness this afternoon is Mr Hugh Tomlinson, please.