4115/2019 - Mr Ken O'Shea and The Sunday Business Post
On 25 February 2019 a sub-committee of the Press Council of Ireland upheld a complaint from Mr Ken O’Shea that articles published by The Sunday Business Post on 16 September 2018 breached Principle 1 (Truth and Accuracy), Principle 2 (Distinguishing Fact and Comment) and Principle 4 (Respect for Rights) of the Code of Practice of the Press Council of Ireland. Other parts of the complaint were not upheld.
The articles reported on an internal RTÉ disciplinary procedure which took place in 2012 following the broadcasting in 2011 of the Programme “Frontline” - a televised presidential candidates’ debate hosted by Pat Kenny - in which a tweet, which purported to come from the official twitter account of Martin McGuinness (but was subsequently found to be a fake) was read out in the middle of the programme.
Mr O’Shea complained that by utilising selectively leaked documents from a confidential internal disciplinary process the article contrived to paint him in the worst possible light and was designed to do as much damage to him as possible. He complained that the reporting was one-sided, partial, speculative and inaccurate, and the manner in which it was presented conveyed the impression that it was the definitive account of what happened. He complained in particular about a statement in the article that attributed him as having said, when the tweet had been received by RTÉ, “Send it down to Pat. Just fucking tell him to put it to him”.
He said the article breached Principle 1 of the Code of Practice because the statement purporting to come from him was published in full quotation marks and presented as if he had actually said those words. He denied having said them.
He said the article breached Principle 2.2 because the statement complained about was comment, conjecture and unconfirmed report presented as fact.
He said that the article breached Principle 4 because the newspaper published the statement in an article which was based on malicious misrepresentation or unfounded accusations and it did not take reasonable care in checking facts before publication.
The editor responded that the newspaper had made diligent attempts to clarify issues with Mr O’Shea prior to publication and that they published in full the response received from RTÉ. He said the article made clear that the story was based on a written statement of another named person in RTE, that its publication was in the public interest, and that the sections relating to Mr O’Shea made it clear that it was his colleague’s remembrances of the incident, as contained in his statement, that were reported.
He said the story relied on an important statement made by one of the pivotal actors in the incident and that short of carrying statements from all of the parties involved, all accounts of the story were by definition selective in some sense. He said it would set a dangerous precedent if such content and documents could not be reported as they were deemed to be “selective” in the eyes of one of the parties. He referred to an offer of a right of reply made to Mr O’Shea by his predecessor which, he said, Mr O’Shea could not take up for reasons connected to RTÉ procedures, but which he said was emblematic of the newspaper attempting to be fair to all parties.
Mr O’Shea responded that that the newspaper’s reply to his complaint did not address his detailed concerns or the substantive arguments raised by him under the Code of Practice. He said that it was clear that the account of one person had been presented as definitive and that the newspaper admitted that it was a single-source story, unconfirmed and obtained from partial and selectively leaked documents. He referred to the fact that the newspaper had been warned by RTÉ in their statement that the documents on which the articles were to be based were a small select number of documents, not allowing for full context, and should be treated with caution when reporting on named individuals. Mr O’Shea said that he could not take up the offer of a right of reply made to him by the newspaper as he was precluded by the terms of his employment with RTE from speaking publicly about an internal disciplinary process, and that the response given by RTÉ was a corporate statement by them and was not made on his behalf.
As the complaint could not be resolved by conciliation it was referred to the Press Ombudsman for his consideration. The Press Ombudsman exercised his right to refer the complaint to the Press Council of Ireland and the Council’s Chairman activated a sub-committee of the Council to consider the complaint.
The sub-committee found that while the article may have accurately reported a statement contained in a document from an internal disciplinary process, the newspaper had accepted that the story relied on what it described as one important statement made by one of the pivotal actors in the story. The fact that the statement was a contested statement, the prominence given to this pejorative and critical statement in the articles, both in the context of its repetition and presentation, resulted in the publication of a distorted report in breach of Principle 1 of the Code.
The statement complained about was presented in a large headline inside quotations marks. The presentation of the statement in this manner gave the impression that the words inside the quotation marks accurately reflected the words spoken by the person to whom they were attributed, and were therefore factually correct. However, the words in question were the words of another person’s recollection of what had occurred as presented in a disciplinary process. The presentation of the words as fact was conjecture and therefore in breach of Principle 2 of the Code.
The sub-committee acknowledged that Mr O’Shea was given an opportunity to respond to the material to be published in advance of publication and accepts that he was contract-barred from responding. However, the sub-committee felt that the publication could have taken greater care in checking its facts before publication, particularly when it was alerted by RTÉ in its statement to the fact that the documents on which the story was based were a small select number, not allowing for full context, and should be treated with caution when reporting on named individuals. Therefore this part of the complaint is also upheld.
While acknowledging that the newspaper offered a right-of-reply to Mr O’Shea, the sub-committee felt that this offer was not sufficient to resolve the complaint as Mr O’Shea was precluded from taking it up.
Other parts of the complaint were not upheld.
Mr O’Shea complained that the manner in which the article was published suggested that the publication was influenced by undisclosed interests, suggesting that some form of agreement was reached in terms of how the story was treated, in breach of Principle 2.3 of the Code. The sub-committee could find no evidence to support this part of the complaint.
Mr O’Shea complained that the article breached Principle 3 (Fair Procedures and Honesty) because taking a partial and contested statement and presenting it as fact was unfair, as was the manner in which the publication handled the story and sought his response. The sub-committee found that by attempting to obtain a response from Mr O’Shea on the Friday afternoon before publication it followed fair procedure and honesty, and the fact that Mr O’Shea was constrained from responding was outside the control of the newspaper.
Finally, Mr O’Shea complained under Principle 5 (Privacy) of the Code that his privacy was breached because the events centred on an internal, confidential disciplinary inquiry. The sub-committee found that publication of the material in question did not breach Mr O’Shea’s privacy.
The newspaper appealed the decision to the Press Council of Ireland
The newspaper appealed the decision on the grounds (i) that significant new information was available that could not have been or was not made available to the sub-committee before making its decision and (ii) that there had been an error in the sub-committee’s application of the Principles of the Code of Practice.
At its meeting on 3 May 2019 the Press Council admitted and considered the appeal under each of the grounds cited.
The Council decided to reject the appeal on the grounds (i) that no significant new information was provided and (ii) that there was no error in the sub-committee’s application of the Code of Practice.