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Cathaoirleach,

 

The Privacy Bill, proposed by Senators Norris, Quinn and Barrett, seeks to make violation of privacy actionable. In other words, it seeks to create a tort of violation of privacy. Although I will be opposing the Bill, principally on the ground that it is premature, I thank the Senators for providing an invaluable opportunity to debate this evolving area of law and policy.

 

This is an interesting moment in our political history. While we are today debating in this House this Privacy Bill and the importance of privacy, the other House is debating the Mahon Report and the importance of transparency and accountability in public life. Of course, it is imperative to find the right balance in these matters, since there is no doubt that the public interest in democratic transparency and accountability can collide with the individual’s interest in privacy. The challenge is to ensure democratic transparency and accountability on the part of public officials when engaged in public duties while also guaranteeing proper legal protection for those privacies of life to which individuals, including public officials, have reasonable expectation.

 

 I recognise that the Bill seeks to build, constructively, on the Privacy Bill 2006 published by the former Minister for Justice, Michael McDowell, which I had restored to the Seanad Order Paper in June last year. In restoring the 2006 Bill to the Order Paper, my intention was to examine how its provisions stand up and to improve the text. The previous Government had left the Bill on the Order Paper to give adequate time, first, to assess the effectiveness of the Press Council in dealing voluntarily with issues addressed in the Bill, and, second, to assess the impact of the new Defamation Act.  I did not want to frustrate those processes in any way. For this reason I judged it sensible merely to restore the Bill in it’s original form. I intend, however, to review in 2013 how the current architecture is working. In light of this practical consideration, I believe that it is premature to enact the Senators’ Bill at this stage. I also have substantial concerns about the content of both the 2006 Bill and the Bill now before the House.

 

If the government decides that we need substantive legislation in this area, then the 2006 Bill will need repair to ensure it achieves its twofold objective of preventing unwarranted intrusions into individuals’ personal privacy and striking a proper balance between the rights of individuals and the public interest. It must do so in a manner that protects the right to individual privacy and other individual rights whilst respecting democratic values and the constitutional right to freedom of expression.  Prurient revelations about individuals’ private personal lives for financial gain by the media where the matters reported have no relevance to public affairs or matters of genuine public controversy or the unwarranted invasion or targeting by the media of individuals’ personal and private lives have, of course, nothing to do with democratic values or freedom of expression.  Such revelations turn on prurient interest and financial gain rather than public interest and the frequently proclaimed "right to know".  Where value is attached to the individual’s right to privacy, there is no right to know about every aspect of every individual’s personal life. Such a right to know and alleged right to report is nothing other than a claim to a licence to undermine individual freedom and dignity.

 

The evidence before the Leveson Inquiry in England reveals the excesses to which media may go when news values are undermined by prurience, ethics are abandoned and sensationalism and the pursuit of profit are slavishly pursued.  We are not totally immune from that in this jurisdiction but to date there is no substantial evidence that the indefensible excesses of the British tabloid media have been applied to prey on individuals in this State.  Should there be such revelations, however, I will not hesitate to progress any legislation necessary to protect citizens and those who reside here.  Such legislation in the new communication age will have to carefully ensure that it practically and effectively applies to both new and old media in the context of the multiple ways now available to disseminate information online. 

 

Whilst there is no hard evidence that the Leveson excesses revealed have visited our shores, it is clear that some of our media, parts of the prints media and some in the broadcast media, have lost sight of credible values and the ethic of ensuring the accuracy of stories of alleged news published.  There is today a substantial grey area between the reporting of news, the expression of opinion and the pursuit by sections of the media of their own agenda. On occasions, it seems the desire to promote a narrative that serves a particular agenda or that appeals to the biases of the author or which brings sensationalism to the mundane in order to justify a headline presents a real barrier to objective and accurate reporting of events.

 

There was a time, when I first entered politics, when the vast majority of journalists took pride in ensuring the accuracy of their reporting and the trustworthiness of their sources. Accurate reporting and vigorous investigative journalism were correctly put on a very high pedestal.  There are, of course, today many good journalists and broadcasters who respect these values. Unfortunately, there are some for whom these values appear to have no relevance. Speed in reporting an issue is regarded by some as a greater value than accuracy as is a contrived narrative that will either attract substantial public interest or scandalise readers.  Where inconvenient facts undermine the desired narrative there are some journalists who willingly omit them from the story written and published. For those who so conduct themselves the hurt caused to individuals by their reporting is of no consequence nor is the resulting damage to reputation.  In this context, our defamation laws are of crucial importance. It is extraordinary how newspapers and some journalists who proclaim a commitment in the public interest to hold others to account for their actions, seek to avoid and evade accountability when, by inaccurate reporting, they do damage to the reputation of individuals innocent of allegations made. 

 

In my experience, there is an extraordinary reluctance to apologise and acknowledge mistakes made. There is also an over-reliance on the financial strength of newspaper groups to withstand the possible consequences of court action and the burden and pressure that the taking of such action imposes on individuals who seek redress. This is an issue that requires further consideration on another day and it is about more than the constructive tension that has existed between the media, politicians and others in public life over the centuries. It is centrally about how the individual who is seriously wronged by media reports can be ensured of appropriate speedy redress.    The jury is out on how well our current mechanisms both statutorily and voluntarily are dealing with this issue.  

 

I believe that it is important that we review the adequacy of the 2006 Bill’s provisions in light of developments, including case-law in this area since its publication. There is a broad spectrum of issues that need to be carefully examined in this sensitive area, ranging from the role of emerging technologies, the role of the State, freedom of expression, the abilities of corporations to protect their legitimate interests and the rights of private citizens to go about their lawful private affairs without undue interference.

 

As I see it, privacy as dealt with by the Privacy Bill 2006 and by the Senators’ Bill occupies the space between, on the one hand, the Data Protection Acts and, on the other, the necessary and appropriate provisions in regard to dealing with security and crime issues. There may be some overlap in provisions and effect.

 

Cathaoirleach,

 

The Privacy Bill being debated here today, and the 2006 Bill, both seek to introduce a modern statutory framework to protect all citizens from the invasion of their privacy. The Bills draw from the recommendations contained in the 2006 Report of the Working Group on Privacy Law, from the Law Reform Commission Report on Privacy of 1998 and give statutory expression to jurisprudence of our own courts as well as the European Court of Human Rights. The philosophy of both Bills is to support the publication of material that is in the public interest and clarify the law for publishers and reduce uncertainty. They reflect the judgment that the arguments in favour of the introduction of a clear statutory cause of action for violation of privacy outweigh the arguments against it.

 

The essential arguments are:

 

 

 

 

The Report of the Working Group was adopted by the then Government. It contains a draft Bill that inspired the Privacy Bill of 2006. While the statute book does contain provisions in certain situations for the protection of privacy, there is currently no dedicated statutory provision of a remedy for a violation of privacy.

 

The Privacy Bill 2006 proposes a new statutory tort of violation of privacy. It puts on a statutory footing the constitutional rights of the individual. In several cases, the Supreme Court has ruled that an individual may invoke an unspecified or unenumerated right of privacy under Article 40.3.1 of the Constitution. In McGee v the Attorney General in 1974, for instance, the Supreme Court recognised the right to marital privacy. In that case, Mr. Justice Budd stated that "it is scarcely to be doubted in our society that the right to privacy is universally recognised and accepted with possibly the rarest of exceptions". In Kennedy and Arnold v Ireland in 1987 the Supreme Court ruled that the illegal wiretapping of two journalists was a violation of the constitution, stating that, "The nature of the right to privacy is such that it must ensure the dignity and freedom of the individual in a democratic society. This cannot be insured if his private communications, whether written or telephonic, are deliberately and unjustifiably interfered with."

 

These cases concerned State interference – in some form – with the privacy of the individual. It is now clear, however, that the constitutional right to privacy also has horizontal effect and may be invoked as against private persons or entities such as media organisations. For example, in the Bermingham case in 1997 photographs were surreptitiously taken of a professional model in a state of undress with a long-distance camera and the photographs were later published in a tabloid newspaper. Ms. Bermingham successfully sued for damages for breach of her constitutional right to privacy.

 

Privacy is also a right guaranteed by the European Convention on Human Rights (the ECHR). Since the 1st of January 2004, the European Convention on Human Rights Act requires every Irish court to interpret every judge made and statute law in a manner compatible with the provisions of the ECHR. It means that long-established rules of common law will fall to be interpreted as necessary to make them fully compliant with the ECHR and the jurisprudence of the European Court of Human Rights in Strasbourg. Article 8 of the Convention effectively guarantees the right to privacy, balanced by Article 10 which allows for freedom of expression. It is the tension between those very often competing rights that is at the core of the general debate around press freedom, defamation and the protection of privacy.

 

Quite often the debate on the right to privacy centres on public personalities and celebrities. But we should keep in mind that the likely beneficiaries of reform of privacy law are not just celebrities, but ordinary people who can find themselves in the media spotlight for whatever reason. It could be through some innocent action or they might be caught up in an event for whatever reason. A person has the right to be simply left alone to get on with their life without intrusion into their privacy. 

 

Violations of privacy are not the exclusive preserve of the media.  They can also relate to invasions of privacy in very ordinary circumstances, say for example, in situations where a neighbour installs a CCTV camera on their property, ostensibly as a security measure, but where the camera is positioned in such a way that it encroaches on an adjoining property and records images of a neighbour in a way that might be inappropriate.

 

Cathaoirleach,

 

The Privacy Bill 2006 was published by the then Government at the same time as the Defamation Bill. That latter bill was enacted in 2009 and came into effect on 1 January, 2010. The Defamation Act gave recognition and certain privileges to an independent Press Council and Press Ombudsman in regard to the setting of standards and the regulation of media behaviour through an independent complaints procedure.

 

My late predecessor as Minister for Justice, Brian Lenihan, T.D., launching the first Annual Report of the Press Council in January 2009 announced that he would allow the Council a period of at least two years of operation before deciding to progress the Privacy Bill. This time would permit the Council to elaborate under its Code of Practice a sufficiently robust privacy provision and to ensure that was enforced and adhered to by its members. The privacy provision in Principle 5 of the Press Council’s Code of Practice is useful – but its members must continue to be willing to subscribe to the standards set down there.

 

The Press Council and the Office of Press Ombudsman have been positive developments in regard to the independent regulation of the print media in Ireland. The relative success of the Press Council here in the upholding of standards and in the prevention of much that might be called media outrages, stands in stark contrast to the role of the Press Complaints Commission in the UK.

 

Of course defamation legislation and, ultimately, if we are to have privacy legislation will apply to all media. Perhaps, to be fair to the Irish media, figures for 2011 show very little complaints in regard to privacy. Only 2 complaints out of 217 were made to the statutory Broadcasting Authority of Ireland.

 

The Office of the Press Ombudsman received a total of 343 enquiries in relation to possible complaints under the Code of Practice for Newspapers and Magazines of which 40 related to Principle 5 on Privacy of the Code of Practice. 16 of these enquiries resulted in formal complaints being lodged, resulting in the Press Ombudsman making 14 decisions under Principle 5. The final 2 complaints were successfully resolved when the editor in question wrote a personal letter of apology to the complainant for the distress and upset caused to the family.

 

While violations of privacy by the media are not a daily occurrence, this does not excuse us from the need to remain vigilant or to take legislative action.

 

With technological advancement, the lines between traditional media and new media are becoming increasingly blurred. It might be a useful reminder if I were to point out that the provisions of the Defamation Act 2009 and the current protections of privacy afforded by our Constitution and through case law, both domestic and from the ECHR, apply to all material deemed to be published. There is no particular protection afforded to a person who commits a violation online as opposed to the traditional media.

 

Cathaoirleach,

 

I turn to the provisions contained in both the Senators’ Bill. I am of the view - and this is partly my reason for opposing the Senators’ Bill - that many of these provisions need further work to render them serviceable. I value the Senators’ work and today’s debate today because they comprise a significant milestone on the road to statutory reform in this area.

 

Section 1 does not attempt to define ‘privacy’. This was the approach recommended by the Working Group on Privacy. I wish to further consider whether this approach remains valid. It may be useful to fashion an inclusive but not exhaustive definition that captures the facets of the right of privacy.

 

Section 2 provides for the tort of violation of privacy actionable without proof of special damage. I fully recognise that the intention is to make a violation of privacy actionable per se. The harm is the violation itself. Some jurisdictions in the United States use the phrase ‘dignatory tort’ to describe such actions. Should the Bill stipulate nominal damages for a violation of privacy per se? Is there a need to provide for a procedure to actions taking up time in the courts for trivial violations? These are issues we must take time to reflect on.

 

Section 3 of the Bill deals with the entitlement to privacy. It states that the privacy to which an individual is entitled is that which is reasonable in all the circumstances having regard to other important, lawful interests. This principle is justifiable. But we have to consider this further. Might it be better for provide that the nature and degree of privacy to which an individual is entitled is based on reasonable expectation. Don’t we need to specify other matters, for example, national security, against which privacy must be balanced? Section 3(2) provides that, subject to subsection (1) and sections 5 and 6, certain acts involve a violation of privacy. It does not appear to deal adequately with the acquisition or collection of private information; it mentions surveillance but does not say whether the violation occurs whether or not the surveillance is accomplished by trespass or other unlawful means.

 

Subsection (2)(c) of the Section 3 makes it a violation of privacy to use the name, likeness or voice of an identifiable individual, without the consent of that individual, for a commercial purpose or financial gain. This provision might prevent newspapers from showing photographs of spectators at football matches. Would a photograph be a ‘likeness’ even if the person’s face is not disclosed? There is no mention of electronic recordings in Section 3(2)(d). The tort here seems to overlap with the torts of trespass, nuisance, breach of confidence, and harassment. I also have concerns about the broad nature of the provision and whether it’s application would in practice as presently framed bring desired clarity or make a real difference.  For example, does the reference to "public morality" grant licence to report on the intimate details of the private lives of public figures in all circumstances?

 

I do appreciate the principle behind Section 3, which is an innovative provision. It provides for the first time in Irish law for the protection of a person’s rights to control the exploitation of their own image for commercial purposes. This important proposition is already the law in many other States and is designed to prevent false advertising or misrepresentation for commercial purposes.

 

Section 4 deals with matters to which the courts must have regard to determining whether a violation has occurred. An important question in relation to this provision is whether the courts should be required in an action for the violation of privacy to consider whether the intrusion is of a nature and degree that is highly offensive to a reasonable person of ordinary sensibilities? Another issue arises from Section 4’s stipulation that a claim will not be defeated just because the information was in the public domain. I would like to consider this further so as not to risk creating undue legal difficulties for freedom of the press.  It is difficult to fathom how an individuals right to privacy could be regarded as violated where something already in the public domain is legitimately reported.

 

Section 5 provides for a number of defences available to a defendant in an action for an alleged violation of privacy. These are eminently sensible. In particular, the section provides protection for an act of newsgathering by a newspaper or broadcaster provided that any disclosure of material obtained was done in good faith, was for the purpose of discussing a subject of public importance, was for the public benefit and was fair and reasonable in all of the circumstances.

 

Section 6 provides that certain disclosures are not a violation of privacy. I feel there is a need to consider whether further additions may be required here. For example, we could suggest that the following should also not involve a violation of privacy: the person consented to disclosure; the act that is incidental to the exercise of a lawful right of defence of person or property; the act was authorised or required under statute, by a court or by any process of a court; the act was done in the course of a criminal investigation or for crime prevention.

 

Section 7 provides for court jurisdiction in privacy actions, with provision for claims in the Circuit Court up to €50,000. This mirrors the provision in the Defamation Act and is sensible.

 

Section 8 provides for a number of remedies that the Court may order. Here the Senators’ Bill proposes adding that the Court can direct an apology. Presumably this would be in cases where the respondent had not offered it.  This is a reasonable change to the 2006 Bill that deserves serious consideration should we proceed to legislate in this area.

 

Sections 11 and 12 deal with limitation of action and notice of intention to bring an action. I would not agree with the Senators proposal to extend these periods to two and three years respectively in section 11 and 6 months in section 12.

 

Section 13 provides for the hearing of an action other than in public. This provision was designed for the rare cases where the mere application for protection from violation of privacy could in itself compound the damage to the person, beyond that which could be remedied by the award of monetary damages by the Court. Our Courts have shown a long tradition in the administration of justice in public and I expect that to continue. However, there are certain very limited circumstances where some curtailment of that situation is necessary, for example, in family law cases. I am not convinced by the noises of those who shout "super injunction" as if this would be the inevitable outcome of all privacy actions.

 

Cathaoirleach,

 

Privacy legislation, it is sometimes suggested, will prevent investigative journalism. My answer is if the material published is true and clearly involves the public interest then journalists will have nothing to fear.

 

It is incumbent on the media – both traditional and new - to exercise due care and attention with regard to potential violations of privacy. This is particularly so in cases where exposure of private behaviour is not the public interest that is concerned but rather the public’s prurience. Where the behaviour of a person is not illegal or does not place anyone at risk of injury or financial loss  or does not impact on public duties that they may be required to perform, I do not believe that it is fair for the media or anyone to expose such personal behaviour.

 

Quite frankly, some exposés are done for commercial gain, though it is often dressed up as some type of morality lecture. Media moralising, like moralising of any kind, should be avoided. Significant hurt can be done to innocent third parties, especially children. It is very difficult to argue that kiss and tell exposure stories are really vital to the maintenance of press freedom and investigative journalism. They may add some spice to life and it is not unknown for certain people to effectively consent to exposure for their own reasons.

 

The publication of pictures is a sensitive issue. However, media needs to be careful of context. There were complaints that media were prevented from photographing witnesses attending court to give evidence in a certain high profile trial in the recent past. However, the interest at that time clearly went beyond the public interest to a somewhat prurient interest. Care is always required in the publication of photos. Defamation may occur. Also care is needed in regard to children.

 

I am of the view that the eventual outcome of the Leveson Inquiry in the UK may also contain important lessons for the future regulation and conduct of the media in regard to the violation of privacy. We share many of the same media outlets and influences, but we would hope none of the significant defects and behaviour involved.

 

We have seen some shocking revelation as to the methods used by media to obtain information about private citizens, very little involving the public interest, but for commercial gain. Similar outrages in this jurisdiction, I am sure Senators would agree, would merit and would receive a swift response. Abuse of the necessary freedoms afforded to the media in a democracy is a serious matter.

 

Cathaoirleach,

 

In conclusion, I share many of the views expressed by Senators today. In opposing the Bill proposed by Senators Norris, Quinn and Barrett, I do not oppose the substance of the proposal, rather its timing.

           

I will continue to review the provisions contained in the Privacy Bill 2006 taking into account developments in the law of privacy in our courts and elsewhere, with a view to necessary amendments to improve the Bill. I recognise that citizens justifiably worry about intrusions upon their privacy. And that the potential for unjustified intrusion into personal lives is now unparalleled. I recognise that, ultimately, it may be preferable to legislate for privacy rather than simply leave the matter to develop through case law.  The final content of this legislation, should it be required, will be a matter for government next year.

 

Thank you