In writing his Inforrm post on the basis of a speculative report in a Sunday newspaper, Dr Eoin O’Dell was not to know that a Complaint had in fact already been lodged with the Press Ombudsman on behalf of the former Taoiseach, Mr Brian Cowen. Dr O’Dell’s comments were made while the matter was still the subject of an ongoing adjudication process which has the full support of the newspaper industry. Neither I nor Michael Kealey, the lawyer for the Irish Mail on Sunday, had been in a position to comment at the time in respect for the Ombudsman’s understandable preference that confidentiality be maintained during the initial stages of a complaints procedure aimed at encouraging a “mediated” solution in the first instance.
In this particular case, this process had a successful outcome with the publication of an apology that was acceptable to both my client and the newspaper. Significantly, the inclusion of the Press Council’s logo alongside Dr O’Dell’s article serves to highlight a fundamental anomaly which I believe should be addressed in both the Irish and UK jurisdictions, whereby we have the totally unfair and unsatisfactory situation of the traditional press subscribing to the Press Council and PCC Codes of Practice, but with no similar acknowledgment or requirement on the part of their online competition.
While I continue to have reservations in relation to the Irish Press Council’s and, to a much more significant extent, the PCC’s role in providing an effective pre-publication deterrent, basic standards and principles have nonetheless been established (if not always adhered to by the press), which are often absent from social networking sites, not to mention the “comments” section of some of the online publishers.
The absence of an adequate deterrent remains a core problem. As has frequently been pointed out by a range of contributors to Inforrm, once the “privacy horse” has bolted then it is too late for any adequate remedy. The same of course also applies to the “defamation horse”.
An alternative to injunctive relief (even in the relatively rare situations where it is available) is urgently required. Often a journalist will present a victim with a series of loaded questions only hours before a newspaper is due to go to print, in circumstances where the article is going to be published regardless of any pleas for more time or robust denials. If only there was at this crucial stage a facility to seek the assistance of a regulator who would have the power to intervene and stipulate a delay of say forty-eight hours in publication in order to afford the victim time to produce evidence that could establish blatant falsity or a breach of a fundamental right. This concession could of course be subject to an appropriate costs sanction in the event of an unsuccessful application. Surely this would represent a move in the right direction? For economic reasons alone, setting up this facility could represent a significant financial saving in terms of damages, not to mention costs, for a newspaper.
However, perhaps this is wishful thinking on my part. Regrettably, I anticipate that the traditional and online media will still want to know, and publish, what we all did last summer!
Paul Tweed, Senior Partner at Johnsons Law.