The Law Reform Commission of Ireland (LRC) recently issued a call for consultation regarding proposals to change who can rely on privileges under Defamation Act 2009. Among the issues was a question about reforming press regulation in Ireland. I wrote an article for Dublin Inquirer asking how the courts might effect open journalism. And in the meantime I made a submission to the LRC about how proposals might impact on open journalism in Ireland which is copied below.
RE: Submission regarding LRC Issue Paper reviewing of absolute privilege under the Defamation Act 2009.
It is important to acknowedge this submission considers how the proposal may impact citizen-led journalism initiatives., as opposed to journalism or citizens. It recognises the difficulty in defining citizen/open/alternative/ non-traditional journalism as the sector is so broad and diverse, but this is of great value to Irish democracy, and the approach should consider how to facilitate this appropriately.
Q 2.01 Do you consider that the “fair and accurate” absolute privilege under section 17 of the 2009 Act should remain applicable not only to professional journalists but also to “citizen journalists” such as social media users or bloggers?
Because the report must be ‘fair and accurate’ to rely on the defence (or on adoption of Issue 3, a qualified privilege that allows for minor errors) the disenfranchisement of non-traditional media workers as well as citizens covering, reporting on or simply discussing trails seems an unnecessary and inequitable measure. It would create a situation whereby two almost identical ‘fair and accurate’ reports would be treated differently by the justice system based on the profession of the author as opposed to the merits of the content. The concept of ‘freedom of the press’ no longer applies to only to traditional journalism, but both the traditional and non-traditional news media industries and both should be facilitated.
Regarding its industry and social impact, the division of privileges based on profession potentially reintroduces a range of problems that were remedied by the development of non-traditional journalism such as gatekeeping, bias, minority representation, trust in media as an institution and inequality in the evolving digital news media sector.
Citizen-led initiatives, charitable organisations, NGOs, advocacy and activist groups, encourage public participation in democratic societies from which all of society benefits. (Bartlett, 2017) The suggestion to limit only professional journalists potentially creates a situation where only commercially driven media are free to rely on the defence and could exclude the valuable not-for-profit media sector which tends not to be part of regulatory systems.
In this regard, neither developing a definition using criteria as outlined in paragraph 2.28 by the courts or the delimitation by profession to ‘bona fide’ members of the press is wholly satisfactory. I would suggest consideration of a more creative solution that does not disenfranchise so many and centralises privilege with so few.
Q 2.02 Do you consider that the “fair and accurate” absolute privilege be applied to a limited group of prescribed persons, along the lines of the categories allowed to report family law and child care proceedings, that is, bona fide members of the media, persons engaged by the Courts Service to prepare reports of court proceedings, and other persons engaged in legal research nominated by specified bodies such as a university or other statutory bodies?
The approach to the family courts is understandably sensitive to the needs of the parties involved. However, the definition applied to this is too narrow to be appropriate to apply to the broader, less sensitive public interest cases that arise in courts.
The previous question is related to this. While the working definition used for family courts which deal with sensitive, private matters may work for this area, it is too narrow a definition to acceptably apply to all court cases. For example, it is crucial that minority media are facilitated to safely and freely cover cases and trails that relate to their communities, to evaluate how the justice system treats them and affects them. The working definition as outlined is too narrow and will exclude too many stakeholders. I think it is imperative that the LRC reach out to minority media publications to understand how these changes might affect the minority media sector and the communities that they represent before making recommendations.
As noted above, the limitation of the defence(s) to only card-carrying journalists is highly problematic and creates an exclusive club with high barriers to entry. While there may be an argument to limit the group the defence applies to, it can not be so limited as to only apply to those associated with established institutions. This would also exclude a range of emerging media workers, professionals, experts and organisations that might want to, and should be entitled to, publicly engage with something going through the courts that is of direct interest to them.
Q 2.03 Do you consider that the working definition of bona fide member of the media issued by the Courts Service to implement the 2018 rules made under section 159 of the Data Protection Act 2018 would provide a suitable model for this project?
The protection of personal data is an important consideration. While it is not desirable that anyone should be permitted to access names, addresses and other personal information retained by the courts, some of this information is provided to ensure accuracy in reporting. This information allows for precision in reporting which benefits both the author and anyone who might potentially be misrepresented as being part to a court case but was not. Again, there may be an opportunity to find creative solutions to facilitate citizen media to access this information to ensure accuracy in coverage. This is potentially a barrier to the very information that citizen reporters need to ensure the quality of their work.
Q 2.04 Do you consider that the “fair and accurate” absolute privilege under section 17 of the 2009 Act be applied to all persons who subscribe to a specific set of standards that would be prescribed by a body, whether the Press Council or the Broadcasting Authority of Ireland or some other body, which would have responsibility for bona fide members of the media as well as “citizen journalists” such as social media users or bloggers?
This question is quite broad in its scope but significant. It is acknowledged that the press regulator must reflect the realities of news production and consumption in the digital age and must reform to meet the needs and fulfil its social and industry function. There is a wide range of proposals from politics, media, research around reformation of the press regulator this issue should be dealt with separately, in a separate issue paper that can explore the various proposals and considerations.
A new press regulation system, whatever it may be, is potentially a solution to the problems outlined in the issue paper, among others, but it must be developed through the concentrated and thorough investigation of the needs and risks to all stakeholders.
If the Irish press regulation is to continue to be a self-regulation system, then it is necessary that in the development of new principles is undertaken in cooperation with people working in the non-traditional journalism sector. They must be consulted on the development of the principles that would apply to them and should have a fair and equitable presence on the governing board.
It is more desirable and authentic to develop principles for non-mainstream traditional media that is based on the internal logic, ethics and practices of the sector. There must be extensive consultation regarding how to develop principles that would apply to a segment of the news media that often aims to do, say and operate differently to mainstream news media. It is highly diverse, and much research would be required to codify principles for such a wide range of practices and values. It is may not be sufficient to develop principles vis-and-vis mainstream news media – this results in trying to make the alternative sector ‘more like’ the mainstream, thus diluting its value regarding diversity. Extensive work should be undertaken to identify the internal logic, ethics and practices of this sector which should be considered in relation to the social and democratic value.
A new press regulator should also consider extending reach to third-party providers that can shape the news agenda, whether they offer insights into social trends or provide content such as securing licences/permission for social media content. A new press regulator must consider all of how news is produced and incorporate all of the actors.
Citizens engaging in open journalism, through reporting and commenting on the administration of justice, enables ordinary people to become more than just passive consumers of news about the justice system. This is a beneficial situation for both national media, judiciary and the public.
However, it must be acknowledged that the volume of complaints to the Press Council of Ireland regarding non-regulated publication is increasing. And it is necessary that any news media regulation system works meaningfully for the people it is supposed to protect from harmful media practices. It is not possible to achieve this when so many titles and no doubt many more to emerge are not subject accountability or responsible for remedying their errors. A potential solution is to extend the remit of the current press regulator to incorporate more digital news media, to strengthen the powers to investigate, research and inform the public. In addition, there should be efforts to incentivise news media to engage with regulation through lowering fees for entry, particularly for startups, and to provide support and educational facilities.
However, as noted – any proposal to reform the press regulator should be dealt with separately, and intensively as it would need to incorporate the various issues, concerns, problems that have arisen in relation of digital journalism in Ireland.