Jim O'Keeffe (Cork South West, Fine Gael)
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Question 84: To ask the Tánaiste and Minister for Justice, Equality and Law Reform if he intends to proceed with the Privacy Bill 2006 or withdraw it. [36428/06]

Michael McDowell (Dublin South East, Progressive Democrats)
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The Privacy Bill implements a commitment contained in the agreed programme for Government of 2002 that the Government would, "in the context of a statutory Press Council and improved privacy laws, move to implement reforms of libel laws designed to bring them into line with those of other states". The recent judgment of the European Court of Human Rights in the Wainwright case is of interest in the context of a need for legislative provision on privacy. In that decision, which was handed down in September, the court found that in the circumstances in English law in which there was no general tort of invasion of privacy, the applicants did not have available to them a means of obtaining redress for the interference with their rights under the European Convention on Human Rights. This is of interest in that the court made a direct finding that the absence of a tort of invasion of privacy did not amount to a proper vindication of people's privacy rights under the convention.

I also note that the Bill is now before the Seanad and is awaiting Second Stage debate there. Fine Gael has suggested that the Bill should be withdrawn, whereas the Labour Party has welcomed the introduction of legislation in this area, in principle.

The report of the working group on privacy, which led to the introduction of the Privacy Bill 2006, contained a number of key conclusions. It pointed out that the absence of any clearly defined and comprehensive cause of action in Ireland to provide for a definite remedy for violations of privacy interests was undesirable. It found that the arguments in favour of the introduction of such a clear statutory cause of action outweighed the arguments against it. The working group, which was chaired by Mr. Brian Murray SC, evaluated the arguments for and against a written privacy law.

I do not want to muzzle the media in any way. For example, if a television presenter has just given birth to a child and a newspaper sends a photographer disguised as a nurse into the room where she is nursing her child in the first few hours after the birth, I want to ensure that the woman in question has an effective remedy against the newspaper in question. That is not an imaginary case — many of us have knowledge of a case of that nature. We have to protect people's rights without unduly affecting the rights of the media to cover matters of public importance. It is difficult to achieve a balance between those two sets of rights. I look forward to achieving that balance in the best way possible in the course of the passage of the legislation in question through the Oireachtas.

It seems to me that doing nothing is no longer a sustainable option, under European convention law, in the aftermath of the Wainwright case. If that is not a sustainable option, we have to do something in this area. Rather than arguing about points of abstract principle, I would prefer to argue about the nitty-gritty of the exact content of our privacy law to ensure it protects people who need protection. We need to strip away the protection that the defamation law used to afford to people who abused it. Such people were able to engage in misbehaviour in the sure and certain knowledge that our defamation and privacy law was such that they were protected to the detriment of the common good.

Jim O'Keeffe (Cork South West, Fine Gael)
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My concern is that the Government's privacy legislation is dangerous. It will cripple investigative journalism and gag the media, while doing nothing to protect the public. I would like to discuss a couple of aspects of it with the Minister. Does he accept that privacy rights are already protected under the Constitution? Does he accept that there has been a recognition of the right to privacy not only by the Supreme Court, but also under this country's general jurisprudence since the cases of Geraldine Kennedy, Bruce Arnold and others? Does the Minister accept that Article 8 of the European Convention on Human Rights, which has been incorporated into domestic law, represents a further reinforcement of the right to privacy? Does he accept that we have put in place legislative protections in specific areas, such as data protection? There are restrictions on reporting in a number of other areas, such as children's cases.

What caused the Minister's Pauline conversion? I understand that he made it clear in the Seanad earlier this year that he was not convinced of the need for the statutory development of a privacy tort at this stage. Does the Minister not accept that the proper approach would be to proceed with the changes in defamation law, which I think are necessary? I will support those changes, subject to detail. He should also proceed with the establishment of a press council and a press ombudsman with very strict guidelines. While we should have done that long ago, we should certainly do it now. We should not rush to make changes in an area in which there appears to be no urgent need for change, other than a certain anti-media approach on the part of some people. If such an approach cannot be associated with the Minister, perhaps it can be associated with many of his Fianna Fáil colleagues in the Cabinet.

Michael McDowell (Dublin South East, Progressive Democrats)
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I accept the general proposition that, as an academic principle, there is a right of privacy defended by the Constitution. I can advance an unfortunate proposition, however. In different circumstances, Deputy O'Keeffe and I might not be Members of this House — we might be sitting behind our desks dealing with legal issues. We might be contacted by a client who wants to know whether she can sue on a certain basis. She might ask us whether she has a right of privacy that gives her a right to sue. She might want to know whether she can sue in the Circuit Court or the High Court. She might ask us whether she can take out an injunction against a newspaper that had taken photographs of her sunbathing in her back garden. In such circumstances, we would have to tell her that we are not sure whether she can take a case.

Brendan Howlin (Wexford, Labour)
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No, the lawyers would say that she could take a case but they could not guarantee that she would be successful.

Michael McDowell (Dublin South East, Progressive Democrats)
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That is right. Deputy Howlin has interrupted in a disorderly manner to point out that many lawyers would tell such a client that while she could sue, they could not guarantee that she would win. Deputy O'Keeffe asked about the origin of the Pauline conversion on my part. The report of the group chaired by Mr. Brian Murray SC evaluated a view which I have expressed previously, which is that it might be better to have no statutory law and to allow judges to develop this law.

Jim O'Keeffe (Cork South West, Fine Gael)
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That was earlier this year.

Michael McDowell (Dublin South East, Progressive Democrats)
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The Murray group evaluated that proposition in the context of our obligations under the European Convention on Human Rights. Two things of importance have happened in the jurisprudence of Strasbourg. First, as a result of the Caroline von Hannover case, there is now a clear statement that any old set of privacy laws will not do.

Jim O'Keeffe (Cork South West, Fine Gael)
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That ruling was given in June of last year.

Michael McDowell (Dublin South East, Progressive Democrats)
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Exactly. In addition, following the Murray report's evaluation of the two issues, we now have the Wainwright decision. The point that has just been made by the Deputy — that the provisions of Article 8 of the convention are enough — seems to have been canvassed before the European Court of Human Rights by British lawyers acting for the British state in that case. They were told by the court that those provisions are not enough, as countries have to provide for an actionable right of invasion of privacy in their legal systems. It is not enough to say that a mish-mash of other rights, such as the right to confidentiality, will do. If the Wainwright decision has that implication——

Jim O'Keeffe (Cork South West, Fine Gael)
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I do not accept that.

Michael McDowell (Dublin South East, Progressive Democrats)
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——it moves the matter forward and makes some form of protection necessary.

Jim O'Keeffe (Cork South West, Fine Gael)
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The Princess Caroline case certainly has no such implications.

Séamus Pattison (Carlow-Kilkenny, Labour)
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We need to move on to Question No. 85.

Michael McDowell (Dublin South East, Progressive Democrats)
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I would like to say, a Leas Cheann-Comhairle, that I am open to reasonable discussion with all relevant interests about the exact sequencing of the defamation and privacy legislation. I agree with the Deputy — there is a consensus to this effect in each of the Houses — that we should proceed with the day-to-day nitty-gritty of putting in place protections for ordinary people in their dealings with the press.

Jim O'Keeffe (Cork South West, Fine Gael)
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Yes.

Michael McDowell (Dublin South East, Progressive Democrats)
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The press council may go a long way to achieving that end.

Jim O'Keeffe (Cork South West, Fine Gael)
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The sooner, the better.