Michael McDowell (Dublin South East, Progressive Democrats)

I welcome this opportunity to again address Seanad Éireann on this topic. Members may recall that I last spoke here in this regard on 9 December 2003, a few days after a major conference which I organised as part of the public consultation process on the topic of defamation.

Our debate today is on privacy and defamation, which though related are not the same thing. I said during our discussion in December 2003 that I came to the debate with a personal prejudice in favour of free speech and against unnecessary regulation, and as a constitutional republican with liberal values I still hold that point of view. I also wish to ensure that we have a vigorous and inquiring media functioning in our society. What I am attempting to do and will do in the near future is to bring forward a reform which is sufficiently balanced to gain the necessary acceptance both politically and in the community. For that reason I have engaged in a process of public consultation on the subject.

The broadcast media in this State operating under the broadcasting Acts are statute bound to have regard to ensuring that the privacy of an individual is not unfairly encroached upon in the process of programme making. Remedies are provided for breaches in this regard. I am not aware of any particular difficulties that have arisen for our radio and television stations in that regard but if there are such difficulties I will discuss the matter with the Minister for Communications, Marine and Natural Resources, Deputy Noel Dempsey. I am confining my approach in these matters largely to the print media though the defamation law applies to all media.

In my response to a parliamentary question yesterday I indicated that there is a tort of invasion of privacy and that I would be keeping the law under review in light of developments in the jurisprudence of our courts and in the European Court of Human Rights. Legislation governing privacy issues exists in certain specific areas. We have, for example, stringent data protection legislation covering the handling of the information held in regard to citizens across a wide range of institutions. There are reporting restrictions contained in legislation such as the Children Act, the Child Care Act, the Criminal Assets Bureau Act, in the Criminal Justice Acts, in the Garda Bill which this House debated in recent times and in family law matters.

What is the current position concerning privacy law in Ireland? Our Constitution guarantees the right to freedom of expression on the one hand and, though the right is unenumerated, to the enjoyment of privacy on the other. When we think of the development of the constitutional right to privacy we think of the Supreme Court's decision in McGee v. Attorney General, which related to marital privacy in the area of contraception, and in other cases which followed, including Kearney v. Ireland, in which a prisoner whose mail was stopped and read by prison staff was awarded damages for breach of his constitutional rights. Of particular interest in this debate are the actions for breaches of the constitutional right to privacy taken in 1987 byGeraldine Kennedy and Bruce Arnold following the wrongful tapping of their telephones and in the Bermingham case in 1997.

Irish newspapers, as distinct from other actors in society, have traditionally steered clear of the kind of intrusive coverage — or as the respected media commentator Roy Greenslade puts it, the "British disease"— of personal lives that has long been the daily fodder of British tabloids. However, as British newspapers, or the Irish version of British newspapers, increasingly gain in circulation in Ireland and with the profit motive seemingly uppermost in some people's minds, that tradition has somewhat changed. No amount of high-minded and often self-serving justifications from certain commentators can hide that fact. There have been intrusions by the print media, for example, through sensational "colour" press coverage of the criminal trial process. This was visibly demonstrated by the decision of Mr. Justice White yesterday in a trial in the Central Criminal Court to impose a significant fine of €100,000 on the Irish Sun for contempt of court. I must refrain from further comment as I understand the judge may be contemplating further action against other newspapers.

Moves to develop the tort of privacy require consideration against a very broad canvas given that redress is offered under our Constitution. It is also a right guaranteed by the European Convention on Human Rights. Since 1 January 2004, that convention requires every Irish court to interpret every judge-made and statute law in a manner compatible with the provisions of the convention. It means that long-established rules of common law will fall to be interpreted as necessary to make them fully compliant with the European Convention on Human Rights and the jurisprudence of the Strasbourg court. Article 8 of the convention effectively guarantees and imposes on the state an obligation to uphold 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 debate today around press freedom, defamation and the protection of privacy.

Media privacy issues have also come to the fore, in the judicial sense, in recent times in the UK. There can be few in this House who are not aware of the outcome of the Naomi Campbell case against the Daily Mirror. The emphasis of the Law Lords in their decision in that case had regard for the law of confidentiality in deciding to allow Ms Campbell's appeal. They did not set out a new generic law of privacy and seemed careful not to do so. That is the difference between the law of the United Kingdom and that of this Republic. In Ireland, we have a written Constitution and Article 40 imposes upon the State an obligation to uphold the rights of the individual through its laws, including explicit and implicit rights, referred to by lawyers as the "unenumerated rights" in the Constitution. Privacy is most certainly one of those rights. We have a justiciable right not to have our privacy infringed, whereas the English Judiciary has been slow to take that route without guidance from Parliament.

While the importance of freedom of expression was stressed very often, the importance of privacy was less stressed in the English cases but no less important to liberty in a democratic state. Other noteworthy cases of interest in recent times were the Douglas, Zeta-Jones and Northern and Shell plc v. Hello! Limited and, of much greater significance, the Venables and Thompson v. News Group Newspapers Limited, where the plaintiffs were effectively granted anonymity for life. Both cases were concerned with privacy rights and suggest a willingness on the part of the courts in the United Kingdom to allow for at least some degree of horizontal application of convention rights. Again, in neither case did the court go so far as to create a new cause of action for a breach of privacy rights, though it did not rule out the development of such an action.

However, that caution on the part of the Law Lords in the UK, and to some extent here, will change following the judgment by the European Court of Human Rights in June 2004 in conclusion of a decade-long action pursued by Princess Caroline, one of the Grimaldi family of Monaco. That case effectively concerned the privacy rights of a public figure. The German media, in this case, had argued that the princess was a "figure of contemporary society par excellence" and was not entitled to privacy while in public places, even while engaged in mundane activities such as doing her shopping.

The European Court of Human Rights unanimously rejected that approach. It decided that the zone of interaction of a person, even in a public place, fell within the sphere of private life. The magazine argued the contrary, namely, that people's privacy applied in their homes but that, when they went out onto the public street and became a public person, they left their privacy behind them. The European Court of Human Rights effectively said that even public persons had a portable sphere of privacy, meaning that if they go out to do their shopping in the supermarket or go with their daughter to have a meal in a restaurant or a coffee, they cannot simply be the subject of massive and intrusive paparazzi surveillance.

It also decided that a positive obligation was owed by the state — in this case, the German state — towards measures designed to secure respect for private life, even in relations among individuals themselves. Finally, the court held that, in considering the appropriate balance of rights, the publication of the photographs in question did not contribute to the public debate vital to a democratic society. That was bad news for the untrammelled rights of the paparazzi in European society.

It is clear that a new jurisprudence is emerging. The question is whether any developments in that area should be left to the courts in Ireland or whether the State, through its legislative institutions — particularly the Oireachtas — has a duty to act pre-emptively by forging ahead with a privacy tort law reform. I believe that in the area of tort our courts have amply demonstrated their capacity over the years to develop principles of law and redress on a case-by-case basis as necessary. This is one of the areas of our common law that has remained largely untouched by legislation. It seems, with few exceptions, the better for it. I wonder whether there are clever people in this House or the other who could sit down and draw up a new tort of invasion of privacy without, two years later, exclaiming how the judges were interpreting it in a way never intended. At least if one leaves it to an organic, case-by-case build-up of jurisprudence, the Legislature is in a position to correct trends with which it does not agree rather than unleash forces that it never had in mind.

It is interesting that the United Kingdom Government has declined to follow the recommendations contained in a parliamentary commission report of 2003 which recommended the introduction of a privacy law in the United Kingdom. It would appear that there is a general inclination on the part of the British Government to rely on the normal route of development of the law by the courts rather than introduce a law on privacy. One has the proposal that there should be such a law and Government reluctance to introduce it in the context of a differential in the development of the concept of justiciable breach of privacy rights between British and Irish law.

Will the new concentration on privacy affect the way that those who work in the media carry out their activities? My answer to that question is that it depends what they do. I spoke at the Royal Irish Academy in May 2004 on the occasion of its launch of the excellent pamphlet produced by Baroness Onora O'Neill, one of the most respected commentators in the United Kingdom on media issues. I recommend that pamphlet to all Members, and not simply because I launched it. Of the documents that I have launched I found it one of the most interesting.

I noted her conclusion that much of what purports to be journalism — sometimes worthy journalism — is no such thing. It is invasive, intrusive and does nothing to further the role of a free press in society. It does not lead or shape political discourse on the issues of the day, and some people might say that it is sleazy and intended simply to make profits for the media owner. On occasion one has to look at the reality. Baroness O'Neill said that it was all very well to have a notion going back to the period of the American War of Independence of local news editors producing the Pittsburgh Bugle, articulating political views, developing public awareness and educating public opinion. That is a classic view of the media with which I have great sympathy.

However, there is also the other side of the media, which is that they are organisations selling newspapers as a commodity for profit. The height of the pile in every newsagent outlet is the issue with which they are concerned. They are selling a product and, as some people have argued, setting the agenda and developing the debate in society with a view to profit rather than social improvement. There are therefore two sides to that story. I do not wish to come down categorically on one side or the other, except to say that it is naive to portray the media in an 18th century mode when they have a very different role in modern society. I need hardly mention that when they are owned by multinational conglomerates, it is very far removed from the Pittsburgh Bugle.

Thus, while I am unconvinced of the need for the statutory development of a privacy tort at this stage, the same cannot be said of the reform of our law on defamation. It is on that subject that I can now usefully comment. The focus of my efforts over the past two years has been reform in this area. There is, of course, some overlap between privacy and defamation. I am currently preparing proposals to bring to Government that will provide for the extensive reform of the law relating to defamation, taking into account the work of the Law Reform Commission, the Commission on the Newspaper Industry, the legal advisory group on defamation and the public consultation process that I initiated on publication of the group's report. A majority of the responses received during the consultation process addressed the recommendations put forward by the legal advisory group regarding the establishment of a statutory press council.

That recommendation came on foot of one of the specific terms of reference of the legal advisory group, namely, to consider the nature and extent of any statutory intervention that might attach to the establishment of an entity concerned with the regulation of the press. That is a subject where there is a divergence of views and sometimes heated debate regarding the optimum approach. The group recommended the establishment of a statutory, Government-appointed press council with functions that would include the preparation of a press code of conduct and the investigation of complaints concerning alleged breaches. The report set out in some detail the main features of such a council, including matters pertaining to its operational structure. However, I expressed the view on several occasions — the first time was at the launch of that report — that the model examined and proposed by the advisory group was by no means the only or most obvious one for a press council. My own stated preference is for an independent rather than State-appointed body, composed of persons representative of civic society, with minority representation from media interests and journalists only.

Appropriate recognition, which could bring certain privileges such as immunity from action in respect of their judgments, decisions, directions and so on could be conferred by a statute on such a press council. I envisage that such a council would have, as its central focus, a press code of standards supported by and subscribed to by all print media organisations with operations in the State who are members. I also envisage that such a code would provide an added protection to citizens' privacy from media intrusion and harassment and an ombudsman service to deal with complaints from those affected by breaches of standards as set out in such a privacy code.

I emphasise that I do not intend to propose a Government appointed press council. My preferred model would involve providing statutory recognition by way of a resolution to be moved in both Houses of the Oireachtas for an independent organisation which might formally request me to be so recognised as the press council of Ireland for the purposes of the future defamation Act.

Obviously, to move a resolution granting recognition the Minister for Justice, Equality and Law Reform, the Government and the Oireachtas would have to be satisfied as to certain considerations or criteria. These would involve the composition, broadly representative character and funding and adherence to a code of standards by such an organisation seeking recognition as a press council. The act of recognition would not affect in any way the independent nature of such a council.

One of the primary benefits of a statutorily recognised press council would be that qualified privilege would attach to its reports and decisions or those of a subsidiary body such as the press ombudsman service it would operate. Subscription to the press council and adherence to its code of standards by a current affairs type publication would strengthen its entitlement to avail equally of the defence of reasonable publication, which is a new defence in the proposed defamation Bill, in any court action. Non-members of the press council, for whatever reason, would be required to have in place an equivalent fairness regime or to operate an equivalent and publicised code of conduct to avail of that defence.

This would be partly in line with the recommendations of the legal advisory group on defamation, which suggested that a court might decide to accord the new defence of reasonable publication to a newspaper because of the extent to which that newspaper towed the line in regard to a press council appointed under the Act. The report linked the notion of reasonable publication to a willingness to accept press council decisions and to act on foot thereof. There is a certain logic to that linkage. It connects to the notion of a fair press being allowed a greater degree of latitude in which to operate.

I say also, and not for the first time in the context of non-defamatory wrongs, that I am conscious of the danger in arguing that all press activity should somehow be capable of regulation in the interests of, for example, good taste, good behaviour or conventional mores, a subject which arose in this House only yesterday. That is not and never will be my approach. It is not the business of a press council to start telling columnists what they should or should not say.