The newly-established Press Council and Ombudsman may not satisfy the privacy protection standards of the European Court of Human Rights, according to an expert on privacy law.
Barrister Eoin Carolan told a conference on media law in Trinity College last night that the decision of the Minister for Justice to "park" the privacy legislation meant the Ombudsman and Press Council would have to shoulder much of the burden of ensuring the Irish media respected people's right to privacy. These were guaranteed by both the Irish Constitution and the European Convention on Human Rights.
He said that recent decisions of the European Court of Human Rights underlined the extensive obligations Article 8 of the European Convention on Human Rights, guaranteeing the right to privacy, imposed on contracting states.
In a case, Stoll v Switzerland, the court found the conviction of a journalist for publishing an official document did not contravene Article 10, guaranteeing freedom of the press. He had published the document in an article relating to the treatment of unclaimed funds belonging to victims of the Holocaust held in Swiss banks.
The court came to its decision because of the treatment of the story by the journalist and its sensationalist headline.
Another case, Pfeifer v Austria, imposed a positive obligation on domestic authorities to defend public figures engaged in political speech from aggressive attack, Mr Carolan said.
In this case a professor of political science published an article in the yearbook of the right-wing Freedom Party alleging the Jews had declared war on Germany in 1933. Mr Pfeifer, an editor of a Jewish magazine, commented that he was disseminating "old Nazi lies".
The professor sued him for defamation and lost, and was then charged with "national-socialist activities". Before the case came to trial he committed suicide.
A right-wing magazine then accused Mr Pfeifer of forming a "hunting society" which had caused the man's death. He sued for defamation, and also lost. He then took his case to the European Court of Human Rights on the grounds that his rights had been infringed under Article 8, guaranteeing protection of his private and family life.
The court agreed, finding that the article fell within the ambit of Article 8, even though Mr Pfeifer was contributing to a vigorous public debate.
"[This] means that actions or speech which unquestionably concern 'public' matters can be brought within the scope of Article 8 as a result of the way in which they are understood by third parties," Mr Carolan said.
"Pfeifer indicates that very extensive regulation of the Irish media industry may be required to satisfy these obligations. Given the limited nature of the council and Ombudsman's powers, it must be questionable if they will be able to shoulder this burden by themselves."
Mr Carolan said the courts tended to defer to the professional expertise of editors and journalists but with the establishment of standards by a body like the Press Council, adherence to such standards was likely to be examined by the courts.