Susan McKay was appointed Press Ombudsman in 2022 at a time of enormous change for the traditional press. Niall Gormley spoke to her about her role.
Susan McKay is well known in journalist and writing circles for her reporting and commentary in Ireland over the past 30 years.
Born in Derry, she studied at Trinity College in Dublin and at Queens in Belfast. Her degree in Trinity covered English language and literature as well as French language and literature. In 1990 she completed a Master’s in Journalism at Dublin City University.
Her journalism has always been mixed with activism, sometimes outside of the press. She has been vocal on children’s and women’s rights and her first book was Sophia’s Story, about a child abuse survivor.
Inevitably, for someone raised at the beginning of the Troubles in the North, she has also written extensively about Northern affairs and has penned two books on the changes in the Protestant community as the Troubles and the peace process progressed.
The first book, Northern Protestants – An Unsettled People, comprised a series of interviews with people all over Northern Ireland published in 2000. A groundbreaking book, not least because of McKay’s own Protestant background, it involved closely observed interviews together with commentary and context.
The second book published in 2020, Northern Protestants: On Shifting Ground, updates the first and feeds into the broader discussion about Northern Ireland in the wake of Brexit and talk of a border poll and a United Ireland.
McKay has also used both radio and television in her work and has produced documentaries in both mediums.
In October 2022 she was appointed Press Ombudsman at a time when the traditional press is under severe pressure. A perfect storm of online content and online advertising has robbed newspapers and magazines of both readers and revenue.
Radio has performed better and arguably has added the popular world of podcasting to its stable. Traditional TV has also suffered as viewers have moved to streaming services.
The Press Council was set up to see off the threat of government regulation and the costs of legal actions, which can sometimes exact ruinous costs on publishing companies. Issues around privacy and accuracy were increasing the pressure on the state to act, and the scandals in the UK over phone hacking were not helping.
So the Press Council was born and has developed a Code of Practice which its members and writers are bound to observe. Part of the idea is to have an arbitrator to decide on complaints based on the code and the office of the Press Ombudsman is that referee.
Susan McKay with a copy of Jack B Yeats’ painting About to Write a Letter at the Press Council offices in Dublin (Pic: Niall Gormley)
The rationale
So what does Susan see as the rationale behind the Press Council?
“It was set up at a time when it looked as if the government was contemplating statutory regulation for the press, and the press did not want that, for obvious reasons. So that was why they decided that they would put forward their own proposal for a self-regulatory scheme. And that scheme was then noted in the defamation law – noted that the Press Council exists.”
The reason that this is important to the press is that it helps directs complaints away from the courts. People who believe that they have been wronged can go through a process while still reserving their right to go to law later.
The standard that the Press Ombudsman measures to is the Press Council Code of Conduct which commits Press Council members to certain standards in how they carry out their journalism. It also commits them to the process.
Susan says that therefore the press members take the process seriously because they have to abide by the decisions that she makes.
“So the system that we have in Ireland is that the ombudsperson is the person who interprets the code, and then the Press Council’s job is to ensure that I have done it according to all the proper procedures and that I’ve applied the code correctly.
“So if a person isn’t satisfied with my decision, they can appeal, but they have to appeal on certain grounds. Primarily the press industry has vested in me the authority to interpret the code. “
Online is different
I ask her about the problem of regulating the online space, which seems to be a Wild West when it comes to the idea of libel. Simply put, Irish defamation law doesn’t extend to the online world. What about Twitter, as we used to call it?
“If it’s the official Twitter platform of a publication, yes. So if, say, a newspaper operates a Twitter account and they publish something on Twitter, there could be a complaint made about it. But in general, we don’t cover the social media platforms.
“And what you often find is that they are where all the hatred gets generated, because people who write in the newspapers are ‘legalled’, lawyers would do their best to ensure that nothing is published which could be a in breach of the code of principles of the Press Council.
“If something is published by a publication on their official social media accounts, then we can take complaints about those.
“We can only oblige them to agree not to publish something like that. But Facebook, Twitter, Instagram. None of those platforms are answerable to us in any way in their own right. And that’s the problem. They they publish stuff and they republish stuff. And they have no editorial standards.”
Changing concerns
Ms McKay says that the nature of complaints have changed over the years. The first ombudsman was John Horgan and he dealt mainly with queries around truth and accuracy, which is covered by Principle 1 of the code.
The second ombudsman was Peter Feeney and he was in charge during the Covid outbreak. Many of the complaints he received was around press impartiality and there were orchestrated campaigns around the efficacy of the Covid vaccines. Because many of the complaints were similar the Office devised a method of allocating a ‘lead complaint’ to be adjudicated upon.
“A lot of what I seem to be doing is dealing with complaints about identity. Issues to do with LGBT rights,” she says.
Specifically the trans issue, which is a feature of the culture wars online and both sides of the Atlantic, seems to rile a lot of people.
“Obviously, you know, where there are there are people who are challenging the right of trans people to assert rights at all. Whereas obviously the code of practice expressly recognises that under Principle Eight.
“It says the press shall not publish material intended or likely to cause grave offence or stir up hatred against an individual or group on the basis of race, religion, nationality, colour, ethnic origin, membership of the travelling community, gender, sexual orientation, marital status, disability, illness or age. I take this to run right through the entirety of the code, that those groups of people enjoy that protection.”
Many complaints that the office receives now are around the protests against migrant accommodation. Some people object to being described as ‘far right’ or ‘racist’. Other complaints are about local communities being associated with the protests. She says that her office can’t deal with these issues because the people complaining are not identified in articles and are not personally affected by them.
Defamation
The national press has been running a vociferous campaign to have the defamation laws changed. Their stance is that there’s too much risk involved in leaving it up to juries to decide the level of awards and some cases in the past 20 years have cost seven figures in awards. One idea is to let the jury decide on guilt or innocence and allow the judge to set the award. Another idea is to abolish juries altogether.
There is a promise of a defamation law in the Programme for Government but it is looking increasingly likely that it won’t be passed before the rapidly approaching next election. She agrees that time is running out for the legislation to pass.
“Obviously our members are extremely anxious that it should go through because at the moment they are at high risk. And it’s not just how much might be awarded against you.
“It’s also because the cost of the preliminary defence is expensive. Like you’re going to have to get your lawyers involved at a very early stage. And so papers can be out a huge amount of money without a case ever even making it to court.
“And then, of course, when it does get to court, the cost of proceedings is extremely high. There’s the risk of an enormous judgement against you and at a time when our members are suffering serious loss of income, not least because of social media dominance.”
She says that these costs can be enough to potentially close a newspaper or lose a couple of journalists because they can no longer afford to pay their salaries. It means that a paper might have to curtail coverage due to a lack of resources.
The problem of Slapps
If the issue of common-or-garden defamation wasn’t enough for the press to deal with, there’s also the strategic use of the law to threaten reporters.
Strategic Lawsuits Against Public Participation or SLAPPS are now acknowledged internationally as a means of the powerful and wealthy to intimidate news organisations.
In 2023 then taoiseach Leo Varadkhar in the Dáil accused Sinn Féin of using lawsuits against the media: “to shout them down or sue them”. This is a position that Sinn Féin denies and while there have been numerous court cases involving party members, the party has also been targeted particularly in its relationship to the IRA during the Troubles.
Ms McKay recognises that SLAPPs are a reality for the press.
“It’s recognised in that term that they are they are designed to stop newspapers from doing what newspapers should at their best do, which is investigate power and explore abuses of power. So they are they are designed to stop people doing investigative work and they are very obviously then a contradiction of the notion of freedom of the press.”
I ask her does she think that people should see the ombudsman as an alternative to going to court?
“We are very much advocating for that. And it’s interesting to see that recently a number of senior judges have talked about the importance of alternative dispute resolution, which the Press Council offers through the Press Ombudsman’s Office,” she says.
She also points out that the service is free and is much quicker than the legal route.
“The whole process here could be done within three to five months. Which is nothing compared with a court case. In fact, it could be quicker than that.”
People wishing to object to something printed have to act within three months of the article being published. Ms McKay will ask them to lodge a complaint with the publication first to see if that can resolve the issue. The office will work with the two parties through responses and reply. These typically take 10 days each.
If it ends up that the Ombudsman has to make an adjudication then the decision takes three to four weeks.
“Then that’s either the end of it, or one or other party appeals it to the Press Council, and they will usually hear it at the nearest next monthly board meeting,” she says.
Defending the journalist
Susan is particularly vehement in her criticism of violence and the threat of violence against reporters.
“I always at every opportunity say that there is there can be no freedom of the press where there’s intimidation of journalists or violence against journalists. A fundamental principle of press freedom is that people have to respect the right of journalists to go about their business.
“It’s in the nature of journalism that you have to put yourself into very tricky situations, to say the least. Most sensible people get off side when there’s a riot happening. Journalists have to stick around.
“Most people would get out of the way if there was shooting. You just have to observe it. Most people, if there’s a car crash, will go on the other direction so as not to see upsetting things. Journalists have to get in there. Journalists are always working in circumstances where there’s violence.”
What’s in a name?
Of her own role she says: “I think it’s really good for girls to have role models, and I think it is good to have a woman in this role.”
Susan doesn’t accept that the word ‘ombudsman’ is gender neutral. The idea that ‘man’ is just a gender neutral word for ‘human’ is illogical and she doesn’t accept it for a minute.
The name is still on the website and the issue is up in the air. It won’t be up in the air, you suspect, when Susan McKay’s term is up.
