Alan Shatter (Dublin South, Fine Gael)

The Privacy Bill, proposed by Senator Norris and seconded by Senator Walsh, seeks to create a tort of violation of privacy, which is, of course, already actionable by way of constitutional action. As the Senators know, damages have been awarded for violation of constitutional rights. 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 this Privacy Bill and the importance of privacy in this House, 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 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 the Bill seeks to build constructively on the Privacy Bill 2006 published by the former Minister for Justice, Equality and Law Reform, Mr. 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 its original form. I intend, however, to review in 2013 how the current architecture is working. In light of this practical consideration, I believe 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 we need substantive legislation in this area, 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 while 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 must carefully ensure it applies practically and effectively to both new and old media in the context of the multiple ways now available to disseminate information online, including the social websites.

While there is no hard evidence that the excesses revealed by the Leveson inquiry 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, that appeals to the biases of the author or that brings sensationalism to the mundane 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 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. This is a vital part of our democracy. 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 crucial.

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 proper 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 statutory and voluntary are dealing with this issue.

It is important 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 examined carefully 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 1988 to 2003 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.

The Privacy Bill being debated 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 1998 report on privacy. The Bills give statutory expression to jurisprudence of our own courts as well as of the European Court of Human Rights. The philosophy of both Bills is to support the publication of material that is in the public interest, 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, first, that the absence of legal certainty in relation to a legal remedy for violations of privacy interests is undesirable, second, the absence of a precise legal remedy is likely to render it more difficult for persons to predict whether their actions may generate legal liability for invasions of the privacy of others, and third, that legislation was necessary to better meet the State's obligations under the European Convention of Human Rights which are set out in an evolving jurisprudence.

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 contains provisions in certain situations for the protection of privacy, there is no dedicated statutory provision for a remedy of a violation of privacy. The Privacy Bill 2006 proposed a new statutory tort of violation of privacy, as does this Bill. 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: "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 the case mentioned by Senator Norris, Kennedy and Arnold v. Ireland in 1987, the Supreme Court ruled that the illegal wire tapping of two journalists was a violation of the constitution, stating:

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 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 1 January 2004, the European Convention on Human Rights Act requires every Irish court to interpret every judgement 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, which the two previous speakers correctly mentioned, 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. We should keep in mind, however, 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 a variety of reasons. It could be through some innocent action or they might be caught up in an event for whatever reason. A person has the right simply to be 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 closed circuit television, 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.

The Privacy Bill 2006 was published by the then Government at the same time as the Defamation Bill, which has now become the Defamation Act 2009 and which came into effect on 1 January 2010. That 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 predecessor as Minister for Justice and Equality, the late Brian Lenihan, in launching the first annual report of the Press Council of Ireland in January 2009, announced that he would allow the council a period of operation of at least two years before deciding to progress the Privacy Bill. This would permit the council to elaborate in its code of practice on a sufficiently robust privacy provision and ensure it was enforced and adhered to by its members. The privacy provision in Principle 5 of the council's code of practice is useful, but its members must continue to be willing to subscribe to the standards set down in the code.

The Press Council of Ireland and the Office of Press Ombudsman have been positive developments in the independent regulation of the print media in Ireland. The relative success of the council in the upholding of standards and the prevention of much that might be called media outrages stands in stark contrast to the role of the Press Complaints Commission in the United Kingdom. Of course, defamation legislation and, ultimately, a privacy Bill will apply to all media. To be fair to the Irish media, figures for 2011 show very few complaints in regard to privacy - only two out of 217 complaints made to the statutory Broadcasting Authority of Ireland.

The Office of the Press Ombudsman received a total of 343 inquiries in relation to possible complaints under the code of practice for newspapers and magazines, of which 40 were related to Principle 5 on privacy. Some 16 of the inquiries resulted in formal complaints being lodged, resulting in the Press Ombudsman making 14 decisions. The final two 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 concerned.

While violations of privacy by the media are not a daily occurrence, this does not excuse us from the need to remain vigilant or take legislative action. With technological advancement, the lines between traditional and new media are becoming increasingly blurred. It might be a useful reminder to point out that the provisions of the Defamation Act 2009 and the protections of privacy afforded by the 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 on-line as opposed to the traditional media.

I turn to the provisions contained in the Senators' Bill and the 2006 Bill. I hold the view - this is partly my reason for opposing the Privacy Bill 2012 - that many of its provisions need further work to render them serviceable. However, I value the Senators' work and this debate because they are a significant milestone on the road to statutory reform should it be required.

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 an exhaustive definition to capture the facets of the right to 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 done by the violation. 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 for actions taking up time in the courts for trivial violations? These are issues on which we must take time to reflect.

Section 3 deals with the entitlement to privacy. It states 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 the issue further. Might it be better to provide that the nature and degree of privacy to which an individual is entitled are based on reasonable expectation? Do we not need to specify other matters, for example, national security, against which the entitlement to 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 state whether the violation occurs whether the surveillance is accomplished by trespass or other unlawful means.

Section 3(2)(c) 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 or hurling matches. Would a photograph be a "likeness," even if the person's face was not disclosed?

There is no mention of electronic recordings in section 3(2)(d). The tort 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 its application would in practice, as 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 appreciate the principle behind section 3 which is an innovative provision. It would provide 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 law in many other states and designed to prevent false advertising or misrepresentation for commercial purposes and gain.

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

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 would provide protection for an act of news gathering by a newspaper or broadcaster provided that any disclosure of material obtained was made 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 the circumstances.

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

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. The Bill proposes adding that the court could direct that an apology be made. Presumably, this would be in cases in which the respondent had not offered such apology. 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 do not agree with the Senators' proposal to extend these periods to two and three years, respectively, in section 11 and six 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 in which the mere application for protection from violation of privacy could in itself compound the damage done to the person, beyond that which could be remedied by the award of monetary damages by the court. The courts have a long tradition of the administration of justice in public and I expect this to continue. Public administration of law is a crucial and important democratic value and a democratic safeguard against judicial misconduct or other aspects of judicial behaviour which are not appropriate.