Cathaoirleach,
The Privacy Bill, proposed by Senators Norris, Quinn and Barrett, seeks to
make violation of privacy actionable. In other words, it seeks to create a
tort of violation of privacy. Although I will be opposing the Bill,
principally on the ground that it is premature, I thank the Senators for
providing an invaluable opportunity to debate this evolving area of law and
policy.
This is an interesting moment in our political history. While we are today
debating in this House this Privacy Bill and the importance of privacy, the
other House is debating the Mahon Report and the importance of transparency
and accountability in public life. Of course, it is imperative to find the
right balance in these matters, since there is no doubt that the public
interest in democratic transparency and accountability can collide with the
individual’s interest in privacy. The challenge is to ensure democratic
transparency and accountability on the part of public officials when
engaged in public duties while also guaranteeing proper legal protection
for those privacies of life to which individuals, including public
officials, have reasonable expectation.
I recognise that the Bill seeks to build, constructively, on the Privacy
Bill 2006 published by the former Minister for Justice, Michael McDowell,
which I had restored to the Seanad Order Paper in June last year. In
restoring the 2006 Bill to the Order Paper, my intention was to examine how
its provisions stand up and to improve the text. The previous Government
had left the Bill on the Order Paper to give adequate time, first, to
assess the effectiveness of the Press Council in dealing voluntarily with
issues addressed in the Bill, and, second, to assess the impact of the new
Defamation Act. I did not want to frustrate those processes in any way.
For this reason I judged it sensible merely to restore the Bill in it’s
original form. I intend, however, to review in 2013 how the current
architecture is working. In light of this practical consideration, I
believe that it is premature to enact the Senators’ Bill at this stage. I
also have substantial concerns about the content of both the 2006 Bill and
the Bill now before the House.
If the government decides that we need substantive legislation in this
area, then the 2006 Bill will need repair to ensure it achieves its twofold
objective of preventing unwarranted intrusions into individuals’ personal
privacy and striking a proper balance between the rights of individuals and
the public interest. It must do so in a manner that protects the right to
individual privacy and other individual rights whilst respecting democratic
values and the constitutional right to freedom of expression. Prurient
revelations about individuals’ private personal lives for financial gain by
the media where the matters reported have no relevance to public affairs or
matters of genuine public controversy or the unwarranted invasion or
targeting by the media of individuals’ personal and private lives have, of
course, nothing to do with democratic values or freedom of expression.
Such revelations turn on prurient interest and financial gain rather than
public interest and the frequently proclaimed “right to know”. Where value
is attached to the individual’s right to privacy, there is no right to know
about every aspect of every individual’s personal life. Such a right to
know and alleged right to report is nothing other than a claim to a licence
to undermine individual freedom and dignity.
The evidence before the Leveson Inquiry in England reveals the excesses to
which media may go when news values are undermined by prurience, ethics are
abandoned and sensationalism and the pursuit of profit are slavishly
pursued. We are not totally immune from that in this jurisdiction but to
date there is no substantial evidence that the indefensible excesses of the
British tabloid media have been applied to prey on individuals in this
State. Should there be such revelations, however, I will not hesitate to
progress any legislation necessary to protect citizens and those who reside
here. Such legislation in the new communication age will have to carefully
ensure that it practically and effectively applies to both new and old
media in the context of the multiple ways now available to disseminate
information online.
Whilst there is no hard evidence that the Leveson excesses revealed have
visited our shores, it is clear that some of our media, parts of the prints
media and some in the broadcast media, have lost sight of credible values
and the ethic of ensuring the accuracy of stories of alleged news
published. There is today a substantial grey area between the reporting of
news, the expression of opinion and the pursuit by sections of the media of
their own agenda. On occasions, it seems the desire to promote a narrative
that serves a particular agenda or that appeals to the biases of the author
or which brings sensationalism to the mundane in order to justify a
headline presents a real barrier to objective and accurate reporting of
events.
There was a time, when I first entered politics, when the vast majority of
journalists took pride in ensuring the accuracy of their reporting and the
trustworthiness of their sources. Accurate reporting and vigorous
investigative journalism were correctly put on a very high pedestal. There
are, of course, today many good journalists and broadcasters who respect
these values. Unfortunately, there are some for whom these values appear to
have no relevance. Speed in reporting an issue is regarded by some as a
greater value than accuracy as is a contrived narrative that will either
attract substantial public interest or scandalise readers. Where
inconvenient facts undermine the desired narrative there are some
journalists who willingly omit them from the story written and published.
For those who so conduct themselves the hurt caused to individuals by their
reporting is of no consequence nor is the resulting damage to reputation.
In this context, our defamation laws are of crucial importance. It is
extraordinary how newspapers and some journalists who proclaim a commitment
in the public interest to hold others to account for their actions, seek to
avoid and evade accountability when, by inaccurate reporting, they do
damage to the reputation of individuals innocent of allegations made.
In my experience, there is an extraordinary reluctance to apologise and
acknowledge mistakes made. There is also an over-reliance on the financial
strength of newspaper groups to withstand the possible consequences of
court action and the burden and pressure that the taking of such action
imposes on individuals who seek redress. This is an issue that requires
further consideration on another day and it is about more than the
constructive tension that has existed between the media, politicians and
others in public life over the centuries. It is centrally about how the
individual who is seriously wronged by media reports can be ensured of
appropriate speedy redress. The jury is out on how well our current
mechanisms both statutorily and voluntarily are dealing with this issue.
I believe that it is important that we review the adequacy of the
2006
Bill’s provisions in light of developments, including case-law in this area
since its publication. There is a broad spectrum of issues that need to be
carefully examined in this sensitive area, ranging from the role of
emerging technologies, the role of the State, freedom of expression, the
abilities of corporations to protect their legitimate interests and the
rights of private citizens to go about their lawful private affairs without
undue interference.
As I see it, privacy as dealt with by the Privacy Bill 2006 and by the
Senators’ Bill occupies the space between, on the one hand, the Data
Protection Acts and, on the other, the necessary and appropriate provisions
in regard to dealing with security and crime issues. There may be some
overlap in provisions and effect.
Cathaoirleach,
The Privacy Bill being debated here today, and the 2006 Bill, both seek to
introduce a modern statutory framework to protect all citizens from the
invasion of their privacy. The Bills draw from the recommendations
contained in the 2006 Report of the Working Group on Privacy Law, from the
Law Reform Commission Report on Privacy of 1998 and give statutory
expression to jurisprudence of our own courts as well as the European Court
of Human Rights. The philosophy of both Bills is to support the publication
of material that is in the public interest and clarify the law for
publishers and reduce uncertainty. They reflect the judgment that the
arguments in favour of the introduction of a clear statutory cause of
action for violation of privacy outweigh the arguments against it.
The essential arguments are:
· 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 does contain provisions in certain situations for the
protection of privacy, there is currently no dedicated statutory provision
of a remedy for a violation of privacy.
The Privacy Bill 2006 proposes a new statutory tort of violation of
privacy. It puts on a statutory footing the constitutional rights of the
individual. In several cases, the Supreme Court has ruled that an
individual may invoke an unspecified or unenumerated right of privacy under
Article 40.3.1 of the Constitution. In McGee v the Attorney General in
1974, for instance, the Supreme Court recognised the right to marital
privacy. In that case, Mr. Justice Budd stated that "it is scarcely to be
doubted in our society that the right to privacy is universally recognised
and accepted with possibly the rarest of exceptions". In Kennedy and Arnold
v Ireland in 1987 the Supreme Court ruled that the illegal wiretapping of
two journalists was a violation of the constitution, stating that, "The
nature of the right to privacy is such that it must ensure the dignity and
freedom of the individual in a democratic society. This cannot be insured
if his private communications, whether written or telephonic, are
deliberately and unjustifiably interfered with."
These cases concerned State interference – in some form – with the privacy
of the individual. It is now clear, however, that the constitutional right
to privacy also has horizontal effect and may be invoked as against private
persons or entities such as media organisations. For example, in the
Bermingham case in 1997 photographs were surreptitiously taken of a
professional model in a state of undress with a long-distance camera and
the photographs were later published in a tabloid newspaper. Ms. Bermingham
successfully sued for damages for breach of her constitutional right to
privacy.
Privacy is also a right guaranteed by the European Convention on Human
Rights (the ECHR). Since the 1st of January 2004, the European Convention
on Human Rights Act requires every Irish court to interpret every judge
made and statute law in a manner compatible with the provisions of the
ECHR. It means that long-established rules of common law will fall to be
interpreted as necessary to make them fully compliant with the ECHR and the
jurisprudence of the European Court of Human Rights in Strasbourg. Article
8 of the Convention effectively guarantees the right to privacy, balanced
by Article 10 which allows for freedom of expression. It is the tension
between those very often competing rights that is at the core of the
general debate around press freedom, defamation and the protection of
privacy.
Quite often the debate on the right to privacy centres on public
personalities and celebrities. But we should keep in mind that the likely
beneficiaries of reform of privacy law are not just celebrities, but
ordinary people who can find themselves in the media spotlight for whatever
reason. It could be through some innocent action or they might be caught up
in an event for whatever reason. A person has the right to be simply left
alone to get on with their life without intrusion into their privacy.
Violations of privacy are not the exclusive preserve of the media. They
can also relate to invasions of privacy in very ordinary circumstances, say
for example, in situations where a neighbour installs a CCTV camera on
their property, ostensibly as a security measure, but where the camera is
positioned in such a way that it encroaches on an adjoining property and
records images of a neighbour in a way that might be inappropriate.
Cathaoirleach,
The Privacy Bill 2006 was published by the then Government at the same time
as the Defamation Bill. That latter bill was enacted in 2009 and came into
effect on 1 January, 2010. The Defamation Act gave recognition and certain
privileges to an independent Press Council and Press Ombudsman in regard to
the setting of standards and the regulation of media behaviour through an
independent complaints procedure.
My late predecessor as Minister for Justice, Brian Lenihan, T.D., launching
the first Annual Report of the Press Council in January 2009 announced that
he would allow the Council a period of at least two years of operation
before deciding to progress the Privacy Bill. This time would permit the
Council to elaborate under its Code of Practice a sufficiently robust
privacy provision and to ensure that was enforced and adhered to by its
members. The privacy provision in Principle 5 of the Press Council’s Code
of Practice is useful – but its members must continue to be willing to
subscribe to the standards set down there.
The Press Council and the Office of
Press Ombudsman have been positive
developments in regard to the independent regulation of the print media in
Ireland. The relative success of the Press Council here in the upholding of
standards and in the prevention of much that might be called media
outrages, stands in stark contrast to the role of the Press Complaints
Commission in the UK.
Of course defamation legislation and, ultimately, if we are to have privacy
legislation will apply to all media. Perhaps, to be fair to the Irish
media, figures for 2011 show very little complaints in regard to privacy.
Only 2 complaints out of 217 were made to the statutory Broadcasting
Authority of Ireland.
The Office of the Press Ombudsman received a total of 343 enquiries in
relation to possible complaints under the Code of Practice for Newspapers
and Magazines of which 40 related to Principle 5 on Privacy of the Code of
Practice. 16 of these enquiries resulted in formal complaints being lodged,
resulting in the Press Ombudsman making 14 decisions under Principle 5. The
final 2 complaints were successfully resolved when the editor in question
wrote a personal letter of apology to the complainant for the distress and
upset caused to the family.
While violations of privacy by the media are not a daily occurrence, this
does not excuse us from the need to remain vigilant or to take legislative
action.
With technological advancement, the lines between traditional media and new
media are becoming increasingly blurred. It might be a useful reminder if I
were to point out that the provisions of the Defamation Act 2009 and the
current protections of privacy afforded by our Constitution and through
case law, both domestic and from the ECHR, apply to all material deemed to
be published. There is no particular protection afforded to a person who
commits a violation online as opposed to the traditional media.
Cathaoirleach,
I turn to the provisions contained in both the Senators’ Bill. I am of the
view - and this is partly my reason for opposing the Senators’ Bill - that
many of these provisions need further work to render them serviceable. I
value the Senators’ work and today’s debate today because they comprise a
significant milestone on the road to statutory reform in this area.
Section 1 does not attempt to define ‘privacy’. This was the approach
recommended by the Working Group on Privacy. I wish to further consider
whether this approach remains valid. It may be useful to fashion an
inclusive but not exhaustive definition that captures the facets of the
right of privacy.
Section 2 provides for the tort of violation of privacy actionable without
proof of special damage. I fully recognise that the intention is to make a
violation of privacy actionable per se. The harm is the violation itself.
Some jurisdictions in the United States use the phrase ‘dignatory tort’ to
describe such actions. Should the Bill stipulate nominal damages for a
violation of privacy per se? Is there a need to provide for a procedure to
actions taking up time in the courts for trivial violations? These are
issues we must take time to reflect on.
Section 3 of the Bill deals with the entitlement to privacy. It states that
the privacy to which an individual is entitled is that which is reasonable
in all the circumstances having regard to other important, lawful
interests. This principle is justifiable. But we have to consider this
further. Might it be better for provide that the nature and degree of
privacy to which an individual is entitled is based on reasonable
expectation. Don’t we need to specify other matters, for example, national
security, against which privacy must be balanced? Section 3(2) provides
that, subject to subsection (1) and sections 5 and 6, certain acts involve
a violation of privacy. It does not appear to deal adequately with the
acquisition or collection of private information; it mentions surveillance
but does not say whether the violation occurs whether or not the
surveillance is accomplished by trespass or other unlawful means.
Subsection (2)(c) of the Section 3 makes it a violation of privacy to use
the name, likeness or voice of an identifiable individual, without the
consent of that individual, for a commercial purpose or financial gain.
This provision might prevent newspapers from showing photographs of
spectators at football matches. Would a photograph be a ‘likeness’ even if
the person’s face is not disclosed? There is no mention of electronic
recordings in Section 3(2)(d). The tort here seems to overlap with the
torts of trespass, nuisance, breach of confidence, and harassment. I also
have concerns about the broad nature of the provision and whether it’s
application would in practice as presently framed bring desired clarity or
make a real difference. For example, does the reference to “public
morality” grant licence to report on the intimate details of the private
lives of public figures in all circumstances?
I do appreciate the principle behind Section 3, which is an innovative
provision. It provides for the first time in Irish law for the protection
of a person’s rights to control the exploitation of their own image for
commercial purposes. This important proposition is already the law in many
other States and is designed to prevent false advertising or
misrepresentation for commercial purposes.
Section 4 deals with matters to which the courts must have regard to
determining whether a violation has occurred. An important question in
relation to this provision is whether the courts should be required in an
action for the violation of privacy to consider whether the intrusion is of
a nature and degree that is highly offensive to a reasonable person of
ordinary sensibilities? Another issue arises from Section 4’s stipulation
that a claim will not be defeated just because the information was in the
public domain. I would like to consider this further so as not to risk
creating undue legal difficulties for freedom of the press. It is
difficult to fathom how an individuals right to privacy could be regarded
as violated where something already in the public domain is legitimately
reported.
Section 5 provides for a number of defences available to a defendant in an
action for an alleged violation of privacy. These are eminently sensible.
In particular, the section provides protection for an act of newsgathering
by a newspaper or broadcaster provided that any disclosure of material
obtained was done in good faith, was for the purpose of discussing a
subject of public importance, was for the public benefit and was fair and
reasonable in all of the circumstances.
Section 6 provides that certain disclosures are not a violation of privacy.
I feel there is a need to consider whether further additions may be
required here. For example, we could suggest that the following should also
not involve a violation of privacy: the person consented to disclosure; the
act that is incidental to the exercise of a lawful right of defence of
person or property; the act was authorised or
required under statute, by a
court or by any process of a court; the act was done in the course of a
criminal investigation or for crime prevention.
Section 7 provides for court jurisdiction in privacy actions, with
provision for claims in the Circuit Court up to €50,000. This mirrors the
provision in the Defamation Act and is sensible.
Section 8 provides for a number of remedies that the Court may order. Here
the Senators’ Bill proposes adding that the Court can direct an apology.
Presumably this would be in cases where the respondent had not offered it.
This is a reasonable change to the 2006 Bill that deserves serious
consideration should we proceed to legislate in this area.
Sections 11 and 12 deal with limitation of action and notice of intention
to bring an action. I would not agree with the Senators proposal to extend
these periods to two and three years respectively in section 11 and 6
months in section 12.
Section 13 provides for the hearing of an action other than in public. This
provision was designed for the rare cases where the mere application for
protection from violation of privacy could in itself compound the damage to
the person, beyond that which could be remedied by the award of monetary
damages by the Court. Our Courts have shown a long tradition in the
administration of justice in public and I expect that to continue. However,
there are certain very limited circumstances where some curtailment of that
situation is necessary, for example, in family law cases. I am not
convinced by the noises of those who shout “super injunction” as if this
would be the inevitable outcome of all privacy actions.
Cathaoirleach,
Privacy legislation, it is sometimes suggested, will prevent investigative
journalism. My answer is if the material published is true and clearly
involves the public interest then journalists will have nothing to fear.
It is incumbent on the media – both traditional and new - to exercise due
care and attention with regard to potential violations of privacy. This is
particularly so in cases where exposure of private behaviour is not the
public interest that is concerned but rather the public’s prurience. Where
the behaviour of a person is not illegal or does not place anyone at risk
of injury or financial loss or does not impact on public duties that they
may be required to perform, I do not believe that it is fair for the media
or anyone to expose such personal behaviour.
Quite frankly, some exposés are done for commercial gain, though it is
often dressed up as some type of morality lecture. Media moralising, like
moralising of any kind, should be avoided. Significant hurt can be done to
innocent third parties, especially children. It is very difficult to argue
that kiss and tell exposure stories are really vital to the maintenance of
press freedom and investigative journalism. They may add some spice to life
and it is not unknown for certain people to effectively consent to exposure
for their own reasons.
The publication of pictures is a sensitive issue. However, media needs to
be careful of context. There were complaints that media were prevented from
photographing witnesses attending court to give evidence in a certain high
profile trial in the recent past. However, the interest at that time
clearly went beyond the public interest to a somewhat prurient interest.
Care is always required in the publication of photos. Defamation may occur.
Also care is needed in regard to children.
I am of the view that the eventual outcome of the Leveson Inquiry in the UK
may also contain important lessons for the future regulation and conduct of
the media in regard to the violation of privacy. We share many of the same
media outlets and influences, but we would hope none of the significant
defects and behaviour involved.
We have seen some shocking revelation as to the methods used by media to
obtain information about private citizens, very little involving the public
interest, but for commercial gain. Similar outrages in this jurisdiction, I
am sure Senators would agree, would merit and would receive a swift
response. Abuse of the necessary freedoms afforded to the media in a
democracy is a serious matter.
Cathaoirleach,
In conclusion, I share many of the views expressed by Senators today. In
opposing the Bill proposed by Senators Norris, Quinn and Barrett, I do not
oppose the substance of the proposal, rather its timing.
I will continue to review the provisions contained in the Privacy Bill 2006
taking into account developments in the law of privacy in our courts and
elsewhere, with a view to necessary amendments to improve the Bill. I
recognise that citizens justifiably worry about intrusions upon their
privacy. And that the potential for unjustified intrusion into personal
lives is now unparalleled. I recognise that, ultimately, it may be
preferable to legislate for privacy rather than simply leave the matter to
develop through case law. The final content of this legislation, should it
be required, will be a matter for government next year.
Thank you