David Norris (Independent)
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I move: "That the Bill be now read a Second Time."

I welcome the Minister for Justice and Equality, Deputy Shatter, to the House. I express my sympathies to him on the recent burglary that took place in his home and ask him to pass on my sympathies also to his wife. Nothing could provide a more appropriate context for the introduction of a new tort of violation of privacy. Burglary is a significant violation of anyone's privacy and I express my sympathy to the Minister in that regard. I have a long history of raising these issues in the House, despite what some commentators have maintained, namely, that I only take them up in the interests of public figures such as myself. I have a series of files as long as my arm of cases I have raised relating to situations involving people's privacy and their private grief being invaded unjustifiably by the press.

I disagree completely with the idea that politicians are some special race. I use the phrase "ordinary people". I have been chastised for that by people within the press who use it regularly themselves. Everyone in this country uses it. I am an ordinary person. Politicians are just ordinary people who accept an extra burden of responsibility on behalf of the rest of the community. I do not think any lesser degree of truth should be required in dealing with them than for dealing with anybody else. I have never accepted that principle, although I know most other people appear to do so. I think they are foolish to do so. My principle is quite clear; it is "Tell the truth or pay the price." I have always said that.

We had a long battle in previous Seanad debates on the Defamation Bill. I am pleased my colleague, Senator Jim Walsh, is present. We do not agree on many things but this is one issue on which we agree. We were the two voices who spoke out on the Defamation Bill. I led the charge on the issue because I realised that it was being introduced at the instigation of newspaper editors in order to give them greater freedom to trample over the rights of ordinary people, and so it proved. In return for this we were promised that there would be a quid pro quo, namely, the introduction of a privacy Bill, the introduction of a tort of privacy, in order to protect the rights of citizens. I refer for example to the situation in 2006 when a statement was issued on behalf of the then Department of Justice, Equality and Law Reform saying that it would introduce a privacy Bill.

The main purpose of the new Bill will be to introduce a modern statutory framework to protect all citizens from the invasion of their privacy. Who could disagree with that? The main elements of the privacy Bill largely reflect the recommendations contained in the report of the working group on privacy which had been established by the Minister. One could refer to a series of cases including that of Princess Caroline von Hannover on which the European Court ruled that all persons are entitled to a personal sphere of privacy and non-intrusion. Why should they not be? What is privacy? It is essential for mental well-being and for citizens to have a sense of security in their own home and in their relationships. If anyone violates that, they should pay for it as far as I am concerned. I will do everything I can, despite the gutlessness of so many people in political life, to ensure that this will and does happen. I am not afraid of the consequences. Nothing worse could be said about me than has been said fairly generally already. The Minister will be pleased to hear that I will not rerun that situation because there are other more appropriate fora in which I intend to run those issues.

We are told that the public right to know is very important. So it is, but it is not simply a question of prurience. The public right to know is not just what the people want to know. Of course they want to know every dirty little detail of the sex lives of football players, but because they want to know it, does that mean they have a right to know? I do not think so. Public interest is deliberately confused by editors with public prurience. That is a grave mistake.

I referred to one case, the case of Princess Caroline von Hannover but there is another one with which I know the Minister is familiar, namely, Kennedy and Arnold v. Ireland in IR 587 of 1987. In that case, Hamilton P. decided:

The right to privacy is not an issue; the issue is the extent of that right or the extent of the right "to be let alone". Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the State.

He goes on to say: "It is not an unqualified right." and it is not in the Bill that I have presented.

He also states:

The nature of the right to privacy must be such as to ensure the dignity and freedom of an individual in the type of society envisaged by the Constitution, namely, a sovereign, independent and democratic society. The dignity and freedom of an individual in a democratic society cannot be ensured if his communications of a private nature, by they written or telephonic, are deliberately, consciously and unjustifiably intruded upon and interfered with.

I received a media release from a decent man, the secretary of the National Union of Journalists. He expressed strong reservations. "Well", as Ms Mandy Rice-Davis stated, "he would, wouldn't he?" He states that there is no overwhelming demand for such legislation. He should read a few publications such as Hot Press. I would have thought Hot Press was a popular magazine and it certainly makes a fairly strong case for it. If I have time I will read The Irish Times editorial into the record. It makes a compelling case and the Leveson inquiry in Britain is irrefutable in its requirement that there should be changes. Unless anybody dreams that these matters do not happen in good Catholic Ireland, let me say that witness after witness went into the box in Leveson, and there were persons who were editors or proprietors of newspapers which had Irish editions, and they all stated the same practices go on here. I can say for a fact that they certainly do.

I agree that the establishment of the Press Council and the Office of the Press Ombudsman have given aggrieved citizens a fair and efficient means of lodging complaints and I recognise the honoured presence of Mr. John Horgan in the Gallery. They have done some good work in addressing these matters, but there is no real sanction. It is fairly toothless. As I stated at the time of the Defamation Bill 2006, the Press Council is a complete and utter farce. The same group, newspaper editors, demanded independent regulation in architecture, medicine and the law. Every profession must be independently regulated except the press, which has become a tyranny.

I also received an interesting brief which had been prepared for the 2006 Bill. It was a commissioned hatchet job, extremely useful because it points the discerning reader directly to the points of weakness in the argument. They, rather delightfully, quote a case in which I am involved, Henchy, J. in Norris v. the Attorney General in the Supreme Court, 1983. Mr. Justice Henchy stated:

Amongst those basic personal rights is a complex of rights which vary in nature, purpose and range (each necessarily being a facet of the citizen's core of individuality within the constitutional order) and which may be compendiously referred to as the right of privacy.

However, Henchy was overruled, in a bad judgment, if I may say so, by the then Attorney General. Apparently, the NUJ wants the courts to do the legislating. The courts continually reprimand the Oireachtas for not legislating.

With regard to Leveson, I would cite a couple of quotes. There it was stated:

The indictment could as easily read as follows: Illegally accessing people's private voicemails, bribing employees into divulging personal information, blagging sensitive details through deception and trickery, blackmailing vulnerable or opportunistic individuals into breaking confidences about well-known people, the blatant intrusion into the grief of victims of crime, the vilification of ordinary members of the public unwittingly caught up in such events, the hounding of various well-known people, their families and friends, purely because this sells newspapers, and finally, the bullying of those who, in seeking to question these practices, are therefore merely exercising the very same freedom of speech behind which much of this behaviour is sought to be shielded or excused by the press.

I am in favour of freedom of speech. I was and still am a member of the NUJ. For three and a half years, I was a columnist in a tabloid newspaper where I wrote honourably and decently, and I am proud of every word I wrote. However, I am not proud of persons such as Mr. MacKenzie who boasted to the Leveson inquiry that in his considerable experience he only checked his sources once and then, when discussing the invasion of privacy, Mr. Sherbourne, QC, states:

Right at the outset in true media lawyer style, I know I meant to say in the clearest of terms that freedom of speech is an essential part of any democratic society, and I do. No one could ... say otherwise. ... it is only one part of the equation. The other side, so frequently ignored or understated by the press, is the right to respect for private life, for home, for family life, for correspondence.

Privacy, contrary to what the newspapers believe, is not a dirty word, and it does not necessarily mean the same as secret.

Further, there is the following quotation where it states that privacy is a dirty little place "for paedos". That is an interesting quote from the editor of a newspaper. That is what privacy means to him. The shame reflects back on him.

Terry Leyden (Fianna Fail)
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Senator Norris's time is up.

David Norris (Independent)
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I will finish on this and come back later because I have a right to reply. The question of Ms Charlotte Church was a complete fabrication, not least because she was not there on the night of the events of which she was accused. Nobody checked with her. Apparently, nobody thought about whether this was intrusive, let alone true. To use the Mr. Kelvin MacKenzie line, that "if it sounded right it was probably right and therefore we should lob it in," bugger sources or respect for people's private lives. That is what Mr. MacKenzie stated to the inquiry.

I will end by referring to The Irish Times editorial. It stated:

All the bounds of decency have been broken, not to mention criminality and mendacity on a breathtaking scale. Rights, dignity, trampled on. Privacy, be damned. And not alone by the late unlamented News of the World . A culture of anything-goes was pervasive, justified on the basis of a spurious "public interest", an attitude reflected most crassly last week by former NoW hack Paul McMullen at the hearing: "Privacy is the space bad people need to do bad things in. Privacy is for paedos. . .".

The general secretary of the National Union of Journalists in Britain to which I am affiliated, wrote that we want to show how the culture in the workplace is led from the top, how bullying and pressure from editors, accompanied with staff shortages and dwindling resources, puts journalists under huge pressure to deliver - a context where shortcuts become inevitable. I know of the way in which people are bullied in this country. I know the editors who do it. I know what they have done and the reason I cannot put it on the record is because I have been begged by these people not to expose them because they will not be protected, they will not be treated as whistleblowers and they will lose their jobs. This is rampant right throughout the industry of which I still remain a member.

Terry Leyden (Fianna Fail)
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Who is the seconder?

Jim Walsh (Fianna Fail)
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I second the motion.

As Senator Norris pointed out, he and I were very much ad idem on the debate in this House previously on the Defamation Bill 2006 and the Privacy Bill 2006. I think I referred to it, and he himself made an insinuation in that regard, as something of an unholy alliance because we have differing opinions on many other topics. Nonetheless, this is something which, at the time of the passing of the Defamation Bill 2006, should have been attached and enacted at the same time for reasons on which I would have expounded then.

It is important to recognise that we are debating an issue of two rights which are fundamental, namely, the right to freedom of expression and the right to privacy. People have a right to privacy and they have a right to their good reputation. There is an onus on the State to protect both of those. Those of us who would have argued in this House that they would see the State and, indeed, other states, move against, for example, freedom of religion in all sorts of different insidious ways would certainly have to articulate that we must stand up for all such freedoms - freedom of expression and freedom of assembly - which are all very much associated.

A free press is very much an essential component of our democratic infrastructure. In many regimes, we have seen that the work of good investigative journalism, often at considerable personal risk to the journalists themselves, has exposed not only corruption, but atrocities, in a way that has led to a resolution. Indeed, in some states some of them have sacrificed their lives in the pursuit of that, and that is something which we should acknowledge in these debates. In this country, we have also seen good investigative journalism into abuses by politicians and serious deficiencies within the public services and in the private sector. All of that is something that, in the enactment of any legislation, we should seek to protect.

However, I suppose it is fair to acknowledge as well that we have seen abuses by the media. Only in recent times we have seen the abuses by RTE in the Fr. Reynolds case, which displayed, at a fairly senior level within the organisation which is the national broadcaster, a complete disregard not only for the truth and good investigative practices, but also for the reputation of those whose lives can be destroyed as a consequence.

I know people against whom false allegations were made and who, subsequently, as result of the pressures that were brought to bear on them personally, committed suicide. It essential that these Houses and the representatives of the people ensure this fine balance is set at the right degree with regard to protecting the privacy of people, while at the same time ensuring freedom of expression, which can be difficult to define. I contend that, within our media, we have moved on from a situation where we were happy to read the written media or listen to or watch programmes on radio and television and be assured that what we were getting were the unvarnished facts of a situation because it was direct reporting. I rarely see any reporting in newspapers now as it is practically all commentary, often coloured with particular views and opinions and sometimes even the bias of those doing the writing.

The media has argued strongly against this Privacy Bill. I was highly critical of my own Government when it was in power for introducing a Press Council, although I do not in any way take from the integrity of the people who serve on it. However, a Press Council that is a creature of the media itself does not meet the first essential criteria of being independent. It should be established independently and should be seen to operate independently. I do not believe one that is paid for by the media itself can put itself forward in that light.

David Norris (Independent)
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Hear, hear.

Jim Walsh (Fianna Fail)
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I have raised in this House my concerns with regard to the Broadcasting Authority of Ireland. We have allowed a situation to develop where former senior executives of the national broadcaster play significant roles on that body and where people who are doing business and in contracts with RTE are on the body. This raises a question or a perception as to the operation of the independence of the functions of those bodies. When we are establishing such a body, we should in the first instance try to ensure it is absolutely independent.

There are not really any unfettered freedoms. We recognise that human beings have strengths but also weaknesses, and we are fallible in many ways. Indeed, the Mahon tribunal recently shone a light on that and showed weaknesses within politicians. It also, I have to add, shone a light on the avariciousness of the legal profession and the exorbitant fees that are being extracted, not just in those tribunals but generally from the public, the State and taxpayers.

It is important we get to a situation where the public can have confidence and where people's rights and the vindication of their good name are paramount. Since the publication of those Bills and since previous debates in this House, the Leveson inquiry in Britain has shown appalling abuses within the industry. We were lobbied in this regard by the secretary of the NUJ. I recall a preliminary debate in the O'Reilly Hall in UCD, when a previous Minister for Justice, Equality and Law Reform, Mr. McDowell, arranged a gathering of all interested parties to have an open conference on this issue. The secretary of the NUJ stood up at that event and acknowledged there had been a lowering of standards within our media. I do not believe anyone would disagree with that point because it has been happening, perhaps because of the pressures of competition or because of the influence of the media, particularly the tabloid media in Britain.

We in this House owe it to our citizens and have an obligation to ensure that does not happen in this State. As a consequence, I urge the Minister to consider the contents of this Bill, to vary it if he feels it necessary, but to come forward with a privacy Bill which has the fine balance required. Above all, it should ensure a right to the protection of the privacy of our citizens in situations where it should not be exposed by a media that is often driven by trying to get the most outlandish story from the point of view of the marketing of newspapers. I appeal to the Minister to ensure this does not happen. I second the motion.

Terry Leyden (Fianna Fail)
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Before calling the Minister, I welcome to the Distinguished Visitor's Gallery Professor John Horgan, a former distinguished Member of this House and the current Press Ombudsman.

Alan Shatter (Dublin South, Fine Gael)
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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.

David Norris (Independent)
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I happily agree with these provisions.

Alan Shatter (Dublin South, Fine Gael)
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However, there are certain very limited circumstances where some curtailment is necessary; for example, in family law cases the courts sit in private to protect the anonymity of individuals. There may be a case for allowing private hearings in certain circumstances where people are seeking to obtain protection for their right to privacy. I am not convinced by the noises of those who shout "super injunction" as if this should be the inevitable outcome of all privacy actions.

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

David Norris (Independent)
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Well said.

Alan Shatter (Dublin South, Fine Gael)
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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, 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 and prurience to life and it is not unknown for certain people to effectively consent to exposure for their own reasons. Where individuals do not give such consent there is no reason why their private personal lives should feature in the headlines of the national media.

David Norris (Independent)
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Hear, hear.

Alan Shatter (Dublin South, Fine Gael)
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The publication of pictures is a sensitive issue. However, the media needs to be careful of context. There were complaints the media were prevented from photographing witnesses attending court to give evidence in a certain high profile trial in the recent past. The interest at that time clearly went beyond the public interest to a somewhat prurient interest. Care is always required in the publication of photographs. Defamation may occur. Care is also needed in regard to children. Media rarely consider the impact on children of a family when stories are written which are intended to create scandal but are really essentially about the private lives of individuals and are not matters of major public interest.

I am of the view that the eventual outcome of the Leveson inquiry in the UK may 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, as revealed in Leveson.

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

I share many of the views expressed by Senators today. In opposing the Bill proposed by Senator Norris, and I think Senators Quinn and Barrett also have their names on the Bill, 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 should the Bill prove necessary. 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. In addressing this issue we should also never, in any respect, undervalue the central role played by the media, be it the press, print media or broadcast media, in our parliamentary democracy and their capacity, through good journalism, to properly hold those to account who should be held to account, and in particular those who hold public office, in circumstances in which there are allegations justifiably made of misconduct. We have a public interest in a free press but we also have a public interest in protecting an individual's privacy from unnecessary intrusion in circumstances in which such intrusion is entirely unwarranted.

Terry Leyden (Fianna Fail)
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I thank the Minister. I call another proposer to the Bill, Senator Feargal Quinn, and he has six minutes.

Feargal Quinn (Independent)
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I congratulate Senator Norris for introducing the Bill, it is a topic that needs exposure. I also thank the Minister for his words and the consideration that he has given the Bill.

Thirty years ago my family went through a period where we were quite concerned about privacy. It was at a time when two supermarket people had been kidnapped, Don Tidey and Ben Dunne, and we learned of a threat to myself and my family. We asked the media to keep the details of our family home private and we got an immediate positive response. There seemed to be a different attitude 30 years ago because in the past year I have witnessed Senator Norris get so frustrated at some invasions of his privacy and I realised that things have changed considerably. Therefore, I welcome the debate on privacy because it needs consideration. The Minister suggested in his speech that this is not the right time for the Bill but it seems the correct time for a discussion. The question of privacy and media standards is of particular importance and the Bill attempts to close the gaps in our current system.

The fundamental question is whether we should allow news organisations to publish whatever they want. If they are limited will they survive? In a 2008 speech by Mr. Paul Dacre, editor of the Daily Mail, he admitted that commercial survival was at stake. If mass market papers are not allowed to write about scandals as well as drive public policy, he said: "I doubt whether they will retain their mass circulations, with the obvious worrying implications for the democratic process."

Here in Ireland, the public's right to privacy and the right to be informed are governed by guidelines from the National Union of Journalists, the Press Council and the Broadcasting Authority of Ireland. They are just guidelines on ethics and morality and the way they are interpreted in a fast-paced and constantly changing news environment differs. Some extreme cases merit attention and one that I can think of is the sudden death of Gerry Ryan, the broadcaster, in May 2010. It was, and could be argued, public information of national importance and RTE found itself in the role of an employer and a messenger. That was quite a dilemma for the State broadcaster. If one argues that the public had a right to know and RTE had possession of the relevant information, more likely before anybody else other than close friends and family, then we might expect the news to be relayed almost immediately. However, confirmation of his death was not transmitted until nearly three hours after his body was found. RTE's editorial decision was to balance the public's right to know with the feelings of Gerry Ryan's wife and family who had to be made aware of his death before the general public. The decision was made somewhat irrelevant given that a high profile RTE celebrity, Miriam O'Callaghan, tweeted about the death of Gerry Ryan before the official RTE confirmation. She stated: "Tragically it is true. So terribly shocking and sad. Life is just too cruel sometimes. RIP." The message was instantly re-tweeted by dozens of others on the site but Ms O'Callaghan deleted her original message after receiving a call from RTE. Then RTE introduced Twitter guidelines for its employees to avoid a similar occurrence. RTE's programme makers' guidelines on privacy rule that there is an onus, under law, to ensure an individual's right to privacy and it came into play regarding Gerry Ryan.

Are guidelines enough for RTE? If we consider a recent development where Sky News told its journalists not to report information from any Twitter accounts whose owners are not employees of the organisation. The new guidelines also warn Sky News journalists not to tweet about non-work subjects from their professional accounts. This is an interesting development because Sky News has used Twitter to break news on events, including the Arab spring uprising and other events. Should we allow RTE employees to use their position to impart knowledge and information that may infringe on privacy and perhaps be false? Should they be allowed to tweet at all? Let us consider the case of the late Brian Lenihan. It was not right that TV3 broadcast the news of his illness but we can look back on that later. On the subject of Twitter, we have all read about the controversy about the tweet that supposedly issued from a Sinn Féin account when Sean Gallagher was leading the presidential race.

In Sweden, privacy is policed by self-regulation and newspapers that publish false stories must publish press council rulings across most of the page, which is humiliating for them. This results in stronger privacy laws and a stronger defence of journalism in the public interest. However, a row broke out when one newspaper published details of the suspected killer of the foreign minister in 2003. I wonder whether the case of Sweden where a strong definition of the phrase "public figure" is provided for is worth following. That is a crucial question. One must also consider whether our privacy laws are good enough. A significant debate is under way in the UK following the telephone hacking scandal. The UK is examining our model of regulation under which the Press Ombudsman is recognised by the Oireachtas. Our ombudsman, Mr. John Horgan, who is in the Visitors Gallery, describes this as "independent regulation rather than self-regulation".

We must consider the fact that our system is looked upon as a model others should follow. Some argue our standards are too strict. Journalists have told me about scandals that affect the public interest, which are widely known in their circles, but they do not publish them as a favour or out of fear of our libel system. Do journalism students or practising journalists without formal training have sufficient training in the ethics of journalism?

David Norris (Independent)
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Definitely not.

Feargal Quinn (Independent)
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I agree. I welcome the debate and I welcome Senator Norris's proposal. I doubt the entire Bill will become law and the Minister has suggested a number of provisions that we should reconsider. However, this is a good debate and I welcome his contribution. It is the commencement of a debate that will be beneficial to both the privacy of individuals and journalism in the future.

Paul Bradford (Fine Gael)
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I welcome the Minister back to the House. We have not seen him for at least a fortnight and I was wondering whether he had gone missing in action.

I welcome the Bill. It is an important element of the ongoing debate on the question of privacy and media standards. I hope, at the conclusion of the debate, we will reach a consensus to allow work to continue and to allow the Senator's work, previous work in this area and the Minister's current thinking to bring the matter to effective and useful fruition.

The walls of the self-service restaurant are decorated with front pages of old newspapers. One is from The Irish Times in 1932 and it gives the visual and factual account of the election of Mr. Éamon de Valera as Taoiseach and, I suppose to give balance, there is an Irish Independent front page from 1948 recounting the election of Mr. John A. Costello as Taoiseach. The pages are full of fact, not opinion. They give a factual description of what happened on the day, who voted for whom, the biographies of both men and from where they came politically and philosophically. They are faithful records of what happened the previous day.

While we expect the public to be cynical and doubtful about what they read in particular newspapers, as politicians, we believe nothing of what we read. It has, sadly, reached that stage. In the 1930s and 1940s, newspapers reported fact but nowadays, as far as most of us are concerned, they mostly report speculation and opinion rather than news. That is the difficulty facing the Minister, his ministerial colleagues and his advisers as he tries to put in place appropriate legislation.

We have moved on from the Ireland of silence and squinting windows and we have all the capability now of modern media and the problems that come with them. That is why the Minister's task is so difficult in balancing rights and responsibilities as far as the media is concerned. He summed up the political difficulty when he stated, "We are debating what some would see as legislation which might bring about certain restrictions". The Dáil is debating the Mahon report currently and we may have to revisit other tribunal reports. However, many of the tribunals would have been unnecessary and, more important, many of the problems that were investigated may not have emerged and the actions that led to them may not have happened if certain politicians had feared their activities or lack of action could have been highlighted and reported on in the national media. The Minister must strike a balance between freedom of speech and expression and the right to appropriate privacy.

I do not envy his task but a substantial body of work is available to assist him. He referred to the 2006 Bill and the Bill tabled by Senator Norris and his colleague adds to this. Notwithstanding the fact that the Minister has formally declared his opposition to the Bill, he will give it fair and due consideration. There is public demand for higher standards not only in politics and public life but also in the media, particularly in the context of taking responsibility.

As was stated by previous speakers, most newspaper articles are opinion pieces and do not report what happened the previous day. They are often ideologically driven, with which I have no problem, but newspaper reporting is much different now from 30 or 40 years ago and that makes the Minister's task more difficult. We must seek balance. He mentioned that one of his predecessors, the late Brian Lenihan, proposed a two-year window before he would act further on privacy legislation. This window has passed but we have a new Minister and a new Government and it is only fair they would have time to reflect.

Senator Quinn referred to recent presidential election and "tweetgate". The possibility that the outcome of an election to one of the highest offices of the State may have been adversely affected by such an intervention is a matter of serious and grave concern.

David Norris (Independent)
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It was by no means the only intervention.

Paul Bradford (Fine Gael)
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I do not disagree with the Senator's intervention. We must avoid these incidents and provide against them. I look forward to the Minister working with all of us to bring about legislation that will work and that will provide the standards we require.

Thomas Byrne (Fianna Fail)
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I compliment Senator Norris on introducing the Bill, which seeks to implement a commitment of both the previous and current Governments. I thank the Minister, who is not shy about attending the House, for his excellent and detailed contribution on this issue. Senator Norris's contribution was so good and the Minister's response so positive, yet cautious, that there must be a strong argument for the acceptance of the Bill and revisiting it on Committee Stage in due course. That should not be done in a rush or a panic; it should be done in consultation with the various parties concerned. While supporting the Bill and acknowledging the role and importance of the media, I also recognise this is a significant industry providing jobs and economic opportunities. That has to be remembered in the debate as part of the balancing act.

The reference to the Mahon and Moriarty tribunal reports is important. The media should have nothing to fear from a privacy Bill if the transparency envisaged in the legislation before us and in the Mahon tribunal report is provided for. A privacy law would be very safe from their point of view because as long as we are transparent as politicians about what we need, what we do in the rest of our lives can be private.

There have not been widespread breaches of privacy. There are examples which are very difficult for the people concerned, but prurient intervention in people's lives is not a common feature of the Irish media. I have heard journalists talk about stories they will not publish because there is no public interest in them. Such stories might be of interest, but they do not affect decision-making or standards of probity, rather they involve the personal fallibility of people. There is a sense that there are certain things the media will not publish.

Celebrities seem to be fair game and privacy is important for them. Nevertheless, this has to be balanced against the activities recorded in some of the various super injunction cases taken. Football players were portraying themselves as eminent family men and making a living from promoting family-based products, while acting completely differently. Such persons do not deserve a right to privacy.

The right to privacy has an important history in constitutional law. It was invoked in America in the Griswold case on contraception. The Minister referred to the McGee case in Ireland. Many of the old restrictions on how the State interacted with the public were lifted following the establishment of a right to privacy in the Constitution. It is right we then move to protect people's privacy from unnecessary intrusion, particularly but not exclusively by the media.

There is a very strong Defamation Act in place for the media. It has been strangled somewhat because some of the legal advice received by many newspapers is extremely restrictive and based on old thinking rather than the changes introduced in the recent Act. There was meant to be a quid pro quo in liberalising the law on defamation or expanding the defences available to the effect that a privacy Bill would be introduced. That has not yet happened, which is regrettable.

We stand for a free media, but people are entitled to live their lives within the law as they see fit. I repeat my call to the Minister that, if Senator David Norris agrees, the Bill be accepted on Second Stage and that after a considerable period of reflection, the Government come back with proposals. The general principles of the Bill should be passed. The Minister has justly raised various points which do not go against the principles of the Bill but call for a substantial and detailed debate on Committee Stage. The adoption of such an approach might be appropriate.

Ivana Bacik (Independent)
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I welcome the Minister and the opportunity to debate the Bill. I commend Senator David Norris for taking the initiative and reintroducing a privacy Bill to the House. The 2006 Bill is on the Order Paper having been reintroduced by the Minister in June 2011. I pay particular tribute to the Senator who in litigation has done a good deal to give force and meaning to the privacy provisions in Article 8 of the European Convention on Human Rights. It is important to note this point.

There is a good deal of consensus on the Bill. It appears there is agreement on the need for a statutory framework to balance the competing interests of the public's right to know and an individual's right to privacy. Whether the Bill, in its current format, is appropriate is an open question, as the Senator would probably acknowledge. His Bill has been closely modelled on the 2006 Bill, but he has introduced a number of changes, including one which is appropriate, namely, that a defendant be ordered to publish an apology. A good deal more could be done to improve the 2006 Bill, as there have been a lot of changes since it was published which, as the Minister said, will have to be incorporated in any new legislation introduced.

We have gained a more nuanced understanding of how conflicting rights can be balanced. Through the Defamation Act 2010 and the establishment of the Press Ombudsman and the Press Council of Ireland we have a panoply of new protections for the privacy of individuals, the public's right to know and the right of freedom of expression. I acknowledge the presence of Professor John Horgan, the distinguished Press Ombudsman. The changes made to the balance of interests as a result of the introduction of the new framework need to be considered and reviewed in the course of redrafting the privacy Bill.

The position on a good number of political issues has changed. The Minister has referred to the emergence of new technologies which will have to be taken into account in any redrafting. As Senator David Norris said so eloquently, we have seen appalling revelations about tabloid newspapers and the invasion of the privacy of individuals in Britain, a matter which is under investigation in the Leveson inquiry. We have not only had an investigation in the case of Fr. Kevin Reynolds which has been mentioned but also the recent revelations in the Mahon tribunal report. There was concern that there was an excessive fear among journalists about the law at the time in curbing the freedom to investigate.

David Norris (Independent)
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They did nothing. It was done by Michael Smith and Colm Mac Eochaidh. There was no investigative journalism in this country.

Ivana Bacik (Independent)
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I was just about to say that. The Senator has highlighted the fact that my good friends and colleagues, Colm Mac Eoichaidh and Michael Smith, did the public interest a great service and in moving outside the jurisdiction of the State which they felt they had to do to prompt what ultimately transpired in the Mahon tribunal investigations. Clearly, there was a problem with investigative journalism. The Minister has said, rightly, that there is enormous public interest in insuring freedom of the press and having healthy investigative journalism to hold public figures to account. All of these considerations will have to be taken into account. When one bears this in mind, as well as the provisions in the original and 2006 Bills, not to mention the Senator's Bill, one realises a good number of changes will have to be made in any new Bill introduced.

We have to be conscious of the need to balance more clearly the public interest. I am conscious that we have all been provided with the commentary of the National Union of Journalists by Mr. Seamus Dooley who has clearly said the media were inhibited by the law on defamation in investigating corruption in the past, a clear position taken by the NUJ. While I am not sure I agree with his conclusion that there is no need for a privacy Bill, the analysis by Ms Andrea Martin, a respected legal expert in this area, he provided is a very helpful appraisal and critique of the 2006 Bill. She is right in saying the uncertainty surrounding the parameters of the actionable tort of privacy would not be clarified by the provisions included in the Bill. She also says the terminology used is unhelpful and terms such as "public interest" are not in the defined in the Bill but should be. Instead, as Professor Horgan has pointed out, we have a definition of "public interest" in the preamble to the code of practice drawn up by the Press Council of Ireland. There is no equivalent definition in the Bill, as drafted. Phrases which are used which do not have provenance in Irish or ECHR law include "news gathering".

Ms Martin has made a number of pertinent and reasonable points in highlighting flaws in the Bill. She concludes that it has the potential to inhibit legitimate journalistic investigations and the exercise of freedom of expression and that there are concerns about issues such as the hearing of actions other than in public. One can go through the Bill in a piecemeal fashion but the overarching principle is the need for a review of the mechanisms in place, to ascertain how the Defamation Act has worked in practice and, in particular, how the Press Council of Ireland and the ombudsman are operating to protect the privacy of individuals while safeguarding legitimate freedom of expression. It is worth noting the Press Council upheld a complaint by a Minister against a newspaper which had called her a liar. It is also worth noting that the former chair of the Press Council said the best balance might be through the combination of the civil court powers on defamation cases and the ombudsman and council framework. There is a need to review the machinery to ascertain whether a statutory framework is required, which it probably is. On balance I would be in favour of a Bill but not this one and not in this format. However, I welcome Senator Norris's initiative as it is helpful to debate the issue. I hope we can move forward, leaving the Bill on the Order Paper, and conduct the review described by the Minister.

David Cullinane (Sinn Fein)
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I welcome the Minister to the House and thank Senator Norris and those who proposed the Bill. I apologise to the Minister for not being in the House for his contribution as I had meeting but I will commit to reading his contribution. Given what previous speakers have said it was a significant and important contribution in the context of the Bill. I understand Senator Norris will not push the Bill to a vote which gives us an opportunity to discuss the issue at a later stage.

In any democracy it is difficult to strike a balance between competing rights. For example, the right to private property can often conflict with the public good. The building of an infrastructure where a person's property rights are set against the public good in terms of the need for the infrastructure to be built. It is important to strike an appropriate balance and in most instances we do. Likewise, the right of the public to be informed of matters of public concern can come into conflict with the rights of individual citizens to privacy. It is important to look at best practice and jurisprudence across Europe and in countries outside Europe. One has only to look at what happened in the UK. We had a debate on standards in the media recently. It is clear the News of the World crossed a line in regard to the invasion of privacy into people's affairs whether celebrities, politicians or whoever. There was no conflict in that case, it was a clear breach of the privacy of those individuals.

I consider the Bill useful in shaping a debate. It clarifies and bolsters the law in this area and potentially allows us to strike a greater balance between the two competing but essential rights - the right to public concern and the right of the public to have information and privacy. If the Bill is pursued there may be a need for a number of amendments to ensure the place of investigative journalism is protected. I am concerned at the use of pre-emptive injunctions. I am aware of the exception provided for in the Bill for investigative journalism among a number of other defences, which is to protect this crucial function. However, I am not convinced that the exception adequately safeguards that right but I am open to persuasion. If the Minister has not referred to the issue perhaps he will do so in his reply.

I wish to look briefly at the law governing the right to privacy. I understand there is a common law, a tort of invasion of privacy. The Bill would, effectively, put that on a statutory basis. There is also a right to privacy under the Constitution and in Article 8 of the European Convention on Human Rights which provides individuals with the right to privacy which is balanced against the right to free expression. While Kennedy and Ireland v. the Attorney General and Hanahoe v. Hussey are a good guide to the law on the right to privacy, as enforced against the State, I understand there are no decided Irish privacy cases involving non-State bodies such as the media. Recent European jurisprudence was seen to be hostile to the intrusion of the media into the private lives of public figures in cases where there is no overriding pubic interest. This is positive and arises from those breaches of privacy and where certain media outlets crossed the line we would all oppose that robustly. It is important that is set in the context of the issue being debated.

The most prominent European Court of Human Rights case is von Hannover v. Germany which involved Princess Caroline of Monaco while the British case Campbell v. MGN involved the supermodel Naomi Campbell. Campbell is also of interest because the House of Lords held that the established right of breach of confidence extended to protecting "right to respect for private life" without there being a need for a confidential relationship between the newspaper and Ms Campbell.

The most recent Irish case, the Gray case, seems to indicate that one can be guilty of invasion of privacy by way of negligence rather than previously where the intention had to be deliberate or involve bad fate. The law on privacy, in terms of individuals' ability to pursue the media, has been described as being in its infancy. Therefore, useful and relatively comprehensive legislation, such as this, which can be built on if the Minister so desires, with the support of political parties, would be a valuable way of advancing the law in this area.

I mention briefly an example of the danger of inadequate right to privacy. In November 2010 the annual report of the judge who oversees the data retention system of the Garda confirmed reports that a sergeant who thenworked in the Garda intelligence division had abused her position by accessing the telephone records of her former boyfriend, tracking details of his communications. That garda is still a serving member of the force. It is important that those who are there to uphold the law do so.

I apologise for not being in the House for the Minister's contribution. It is important when we make contributions that we listen to what the Minister has to say. I will read his contribution. I hope we return to the issue at some future date.

Martin Conway (Fine Gael)
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As Senator Catherine Noone is anxious to make a few comments I will facilitate her.

Some of the issues I wished to raise have been discussed. I commend Senator Norris for tabling the Bill which is necessary. We do need privacy legislation but it must be the right legislation and that will take time. Having listened to the Minister's contribution, which was one of the most comprehensive I have heard on Private Members' business since becoming a Member, he is genuinely committed to getting it right, and as Senator Cullinane said, getting the balance right can be difficult. One has to try to balance freedom of speech, empowering people to investigate and at the same time ensure peoples' human rights are protected. There is also the evolving media of the past five to ten years - Facebook, Twitter, the Internet, live news sites, text messages - which has added an uncontrollable dimension to the whole notion of media. Media is a broad church which will include social media. There has been some case law in the area of social media in the recent past. There is a need to get the legislation right and Senator Norris would want us as a combined body to get it right. That is the reason I take hope and encouragement from the Minister's contribution. The matter is a priority for the Government and the House. I am disappointed at the low level of attendance given that during the Order of Business when the Fr. Kevin Reynolds case, Twitter and so on were raised, Members were very anxious to have a debate.

David Norris (Independent)
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It was a safe one.

Martin Conway (Fine Gael)
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If we want to make the Seanad relevant we need to engage in debate.

Catherine Noone (Fine Gael)
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I thank the Senator and Senator Norris for tabling the Bill. I welcome the Minister to the House and congratulate him on his work. As there is much to be considered in the Bill I do not want to repeat what other speakers have said. As Senator Conway has said, Twitter and Facebook make the area much more difficult to regulate. I welcome the Minister's reference to the potential for in camera hearings in privacy cases. In many instances, when one has to go to court to vindicates one's reputation, the issue involved is highlighted more than it was in the first place. It is also welcome that we will have an opportunity to digest the outcome of the Leveson inquiry, which could be of use to the Government in drafting legislation. The Minister clearly needs more time to review the Bill. I welcome the debate and look forward to reviewing privacy legislation in the not too distant future.

David Norris (Independent)
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I thank the Minister and his advisers for the careful, reasoned and balanced approach they have taken to the Bill, which I find heartening. They noticed the tweaking I had done, but I accept more needs to be done. Obviously, people who take street photographs as an art form should not be excluded. The Minister stated, "...there is no substantial evidence that the indefensible excesses of the British tabloid media have been applied to prey on individuals in this state." However, there is such evidence which I undertake in the next few months to provide for the Minister directly, I hope with confidence, in order that he can consider it at his leisure.

The preamble to the Press Ombudsman's code of practice refers to the right of a newspaper to publish what it considers to be news. I find this laughable and offensive. The highest figure for truth and accuracy was 116 in the most recently published figures and the second, at 90, was for the invasion of privacy. The Minister may have more recent figures, but they have not yet been published.

With regard to the Press Council in Britain, Lady Buscombe said she had found it impossible to control the newspapers, that she had struggled to be independent of the industry and that she had failed. The central theme in the submissions to the Leveson inquiry is that there was a cavalier disregard for solid, old-fashioned journalistic virtues such as engaging in methodical analysis and research and producing solid evidence. The same might well be said in Ireland but for different reasons. A culture has developed here in which there is scant regard for privacy or principle, deep research or time consuming trawls for evidence. The media have moved well beyond reportage and are engaged in news making. I refer to the case of the Polish woman who asked, "How is it possible for anyone to publish something that is just not true, completely not true? It is just misinterpretation or mistranslation. It is just a completely different story." There was also the case of The Star on Sunday publishing a photograph related to a case being heard in camera . In another the name, address and occupation of a witness were published.