Privacy Bill

The Government has published its long-flagged Defamation and Privacy Bills. There is little doubt that the antiquated provisions of the Defamation Act 1961 badly needed to be replaced: their outright bias in favour of plaintiffs meant that media outlets could be sued for the merest slights against character.

The Irish Times sports journalist Tom Humphries once recounted how, entirely innocently, he wrote a whimsical piece about corruption in horse racing – a week later, a leading racehorse trainer was briefing counsel: unbeknownst to Humphries, a number of months previously, the trainer had been involved in an obscure race where there was a suggestion of a fix, and the innuendo in the Irish Times piece was enough to give him a cause of action against the paper.

This state of affairs suited only the rich, powerful and corrupt, who merely by waving the threat of a writ against a newspaper regularly prevented coverage of their misdeeds. Or so the Irish media would have us believe: concrete evidence is rather thin on the ground (even Mr Humphries’ article, in which he merely recounted the court action, (!) has been removed from access); and those of us more sceptically disposed to defamation reform wondered why, if the fact that the allegation was true is an absolute defence to any defamation action, there is a problem at all. This scepticism was notwithstanding some of the clearly ludicrous elements of the law: a printed apology was, bizarrely, to be treated as an admission of liability; a defendant could not lodge funds in court (in the hope of settling the matter quickly) without similarly admitting their guilt; and plaintiffs were not required to give any undertakings as to the truth. All these problems have been catered for by the Defamation Bill, and it will now be a criminal offence for any plaintiff to knowingly lie in their statement of claim. In other words, they must tell the truth from the outset.

A judicial shift in this direction was trigged in 2003. In a High Court action taken by the Birmingham 6 against the publishers of a pamphlet impugning their innocence, Mr Justice Aindrias Ó Caoimh decided that it would be permissible for a defendant to plead that, even though they had defamed the defendant, the matter was of such public importance that the publication was justified. The publisher must also have acted in good faith and given the victim a chance to respond. This brought Ireland into line with English law, but the judgment was not appealed to the High Court, meaning that the Supreme Court was denied the chance to set the Irish law out definitively. Nonetheless, it would have been highly unlikely in this instance that the Supreme Court would disagree with either the House of Lords or the High Court. So, quite apart from the media agitation for change, this decision made it expedient for the Government to change the law.

So, we have the Defamation Bill, which has been welcomed with open arms by a grateful media. As the Italians say, ‘Don’t spit in the plate you’re eating from’. A technical parsing of the Bill does not interest me: in general terms, the new defence of ‘the public interest’ can only be a good thing if it allows the media to uncover dastardly tales of official misdeeds; whether or not it will make a concrete difference – and I am sceptical – is a judgment to be made in time. In a perfect world, the best solution to defamation is not to sue, but to give your side of the story to another news outlet; unfortunately, the Irish courts have been anxious to defend and vindicate the citizen’s constitutional right to a good name, and this means that defamation legislation is here to stay.

The Privacy Bill, on the other hand, has been roundly attacked by the media. One might think that its provisions are reasonable: it basically allows any individual whose privacy has been breached to sue the perpetrator in the Circuit or High Court. In general, this writer is in favour of press freedom. But this freedom cannot be absolute and it is abrogated by this Bill.

The rationale behind the introduction of the Bill is, however, slightly disingenuous. The Minister for Justice said in a speech two years ago that there was no need for such a Bill. Why the volte-face? Mr McDowell says that legislation is necessary as a result of Princess Caroline of Monaco’s victory in the European Court of Human Rights. This is pure hokum: at best, that verdict makes Irish legislation desirable; by no means is it necessary. The real reason is that certain members of the current cabinet, most notably and egregiously Martin Cullen, the Minister for Transport, have suffered breaches of privacy at the hands of an unrepentant media. In terms of political realities, this meant that no Defamation Bill had any chance whatsoever of making it to the floor of the Oireachtas without there being some quid pro quo. Hence the Bill, whatever Mr McDowell may say about Princess Caroline.

Nonetheless, this writer is very much in favour of the Privacy Bill. Let us leave political realities – which invariably we can do little about – to one side and examine the substance of the Bill.

First of all, why is it necessary? The Irish media has, in recent times, come to conduct itself in a reprehensible manner. Simply witness the brutal assault on Wayne O’Donoghue in the wake of his sentencing for the manslaughter of Robert Holohan: O’Donoghue’s life and physical well-being were undoubtedly put in danger by allegations that he was a paedophile; some of the media coverage, which consisted of a parroting of Garda innuendo, was disgusting and disgraceful. The coverage of the young boy’s disappearance was no better: warnings that paedophiles were on the loose screamed from every page (and not just of the red-tops), whipping the public into such a frenzy that parents were afraid to send their children to school and O’Donoghue’s life – for he was the perpetrator – was endangered. The notorious coverage by the Sunday Independent of the death of disgraced politician, Liam Lawlor, is another outstanding example of appalling editorial taste. Irish media standards have dropped, with more titles competing for a share of a decreasing market: fighting as well against rolling TV and increasing competition from the airwaves, Irish newspapers have become more sensationalist and vicious in their coverage of current affairs.

What relationship does a Privacy Bill have to this? In the first place, it protects citizens against intrusive reporting of their personal affairs. In the second, it reminds media that they have responsibilities as well as rights, a point seemingly lost on many of the Fourth Estate. The 'imposition' – for they repeatedly failed to form one of their own volition and are now having one foisted upon them – of an Independent Press Council, which will receive and act on complaints, is a welcome step in this regard.

Secondly, and it is worth stating this clearly, people have a right to privacy. Who can argue against that? We all, surely, have the right to conduct our private affairs as we see fit, without journalists peering in over the garden fence. Increasingly, it seems we are living in a valley of squinting windows. Mr Ian Bailey, an innocent man relentlessly hounded by the Irish media who have tried and convicted himself – in the absence of any jury save the fickle one of public opinion – of the murder of Sophie Tuscan du Plantier. Perhaps it is time to redress the balance in favour of men like Mr Bailey, who find themselves in the public spotlight through no fault of their own; Mr Bailey’s only apparent crime was to suggest that the Irish media might have defamed him in their coverage of the murder.

The third reason flows from this. When Mr McDowell speaks – insincerely – of Princess Caroline’s case, he is weakening quite a strong argument: while a right to privacy exists, it needs to be defined better. One can currently take an action for breach of privacy. In a landmark case taken by two journalists – Bruce Arnold and Geraldine Kennedy, the latter now the editor of the Irish Times – whose telephones were tapped by the government of the day, the Supreme Court held that there is an unenumerated right to privacy contained in the Constitution (that is, a right which exists though not written down). But there are hardly any other individuals who have successfully sued for a breach of their constitutional right to privacy.

The only successful case of which I am aware is an application for an interlocutory injunction granted to the girl at the centre of the notorious ‘X’ Case. She claimed that journalists were watching and besetting her: Mr Justice Costello said that she had “undoubtedly suffered” and granted the order. But in another case, concerning a judicial separation, the plaintiff was unsuccessful. There, the husband was claiming that his wife had engaged in an affair with a member of the clergy, thereby causing the break-up of their marriage. His estranged wife sought an order preventing any publicity. However, O’Hanlon J held that only in “extreme” circumstances were the courts allowed to interfere. Significantly, he also commented that “generally…it seems desirable that it should be left to the legislature, and not to the courts to stake out the exceptions to freedom of speech”. And here we have the legislature about to act with the Privacy Bill!

If the State is to vindicate this right, it makes sense to put a legislative structure in place which allows an individual to take advantage of it. As it is at the moment, an individual who wants to take a privacy action has very little idea of where she stands: the Constitution gives no guidance whatsoever (as you’ll recall, the word isn’t even written down) and the cases (many of which relate to attempts by witnesses before corruption tribunals to avoid giving evidence) give little guidance too: the absence of successful cases testifies strongly as to the need for privacy legislation. The Privacy Bill, on the other hand, lays down a clear procedure for plaintiffs to follow and a clear list of guidelines to be taken into account by judges.

The controversy over the Bill has generated acres of newsprint over the weekend. Much of the ink, however, has been expended in a fit of bluster, this Sunday Times editorial being particularly ill-informed. Only a handful of coherent counter-arguments to the Bill have emerged. The first is that the Bill will serve to protect the rich and famous. There is some profundity to this line of attack: the rich, to generalise, are more likely to take legal action to protect their rights; and they are, on balance, more likely to avail of any right to privacy than an average individual. But, so what? The right will be there to be availed of by anyone who wishes to invoke it. Perhaps Wayne O’Donoghue’s parents, or, indeed, Robert Holohan’s parents, would be able to use it against overly aggressive reporting. And, one might ask, what is wrong with the rich and famous not having their privacy invaded. Does someone successful become at some point, so famous that they no longer have a private life? That is surely nonsense, an argument which reminds one of Homer Simpson’s reaction when told that he couldn’t see a particular actor: “But you’re celebrities. We own you!” What a disincentive exists currently for people to enter public life, when one’s affairs are open to invasive scrutiny by the Fourth Estate. Who would want to be Martin Cullen, stalked by prurient coverage of his private life? Would more or fewer capable people enter politics, a profession already rendered unattractive by days filled by neurotics, policy wonks and endless canvassing, if there were some protection for their private lives?

Will this Bill protect the powerful absolutely, thereby damaging the public interest? No it won’t and it is misleading to claim otherwise. Any media outlet defending itself against an action under the Bill would be able to claim that the matter was of such public importance that, although it was an invasion of privacy, it was, in the greater scheme of things, for the public good. This is written down in black and white in the Bill. While there is a right to privacy, it is defined as “what is reasonable in all the circumstances having regard to the rights of others and to the requirements of public order, public morality and the common good”. The Minister giveth, but the Minister taketh away. Then, in deciding what constitutes reasonable, the court may have regard to a number of factors. Those relevant to the rich and powerful are: any office or position held by the individual and the purpose for which the information was obtained. Quite apart from that, there is a defence for media outlets contained in Section 5. The “act of newsgathering” is a defence, provided four criteria are satisfied: that it was done in good faith; to further discussion of a matter of public importance; for the public benefit; and was fair and reasonable in all the circumstances. Of those, the latter will almost always follow if the first three are satisfied. Good faith, public importance and public benefit. Is that too much to ask of our media outlets? Finally, Section 6 effectively provides protection for whistleblowers, with the same criteria as apply to newsgathering.

Furthermore, the courts will have to interpret the legislation in the light of a number of robust statements made by the Supreme Court in the late 1990s. Mr Justice O’Flaherty said, in the course of his judgment in Irish Times v Ireland that, “freedom of the press is guaranteed under Article 40.6.1 and…the protection in the constitutional provision is not confined to mere expression of convictions and opinions.” This was in the context of a Circuit Court judge attempting to restrict coverage of a trial. In the same case and more pointedly, Mrs Justice Denham spoke of the importance of the news media in the modern world:

“We are not living in ancient times or in a city state. We live in a modern democracy in the age of information technology. It is entirely impractical for all people to attend all courts. Nor is that required. What is required is that information of the hearings in court are in the public domain. In a modern democracy this information is brought into the public domain by many routes, but in reality most people learn of matters before the courts from the press. Thus any curtailment of the press must be viewed as a curtailment of the access of the people to the administration of justice and should be analysed accordingly”.

Those comments are applicable too to the current situation. One would expect the Irish courts to be robust in disallowing claims made by politicians or businessmen who would be the subject of exposés. All in all, the breadth of the Privacy Bill is not as sweeping as its opponents would have you believe.

There are other, technical aspects of the Bill which have come in for misguided criticism. Some have wondered why there is a provision for hearing these applications in private. The mind boggles! It would defeat the purpose of having the legislation if, in trying to invoke the right, the very breach of privacy that was being alleged could be splashed all over the front of the following day’s papers. ‘X alleges privacy would be breached if extra-marital affair exposed’.

In closing, Ireland’s Fourth Estate thinks itself judge, jury and executioner in any matters, ranging from the legitimate (inquiry into financial irregularities) to the prurient (the personal lives of people in the news). The race to the bottom in news standards may never be halted, but its pace will be slowed by a Privacy Bill which will belatedly force the media to examine its conduct and its place in society. It is no defence for the media to say that, whenever they publish salacious headlines, their sales go up. Any society has the right to impose standards: we don’t allow gratuitous sexual violence to be shown to minors, or in many cases, at all. The Privacy Bill is more subtle than outright regulation, but, hopefully, it will be no less effective for that. At the same time, the Defamation Bill should give them some protection from over-zealous litigants.