THE DECISION of Minister for Justice Alan Shatter to disinter the late and unlamented 2006 Privacy Bill has all the hallmarks of a cynical piece of populist politicking on the back of the equally lamentable Irish Daily Star Duchess of Cambridge breasts exposé. Hard cases make bad law, and the reality that it may be difficult to vindicate the well-established constitutional right to privacy should not be an argument for what would be, irrespective of perhaps benign intentions, a serious attack on the freedom of the press.
Currently rightly languishing somewhere near the end of the Seanad’s Order Paper, the Bill was bad law in 2006, justifiably shelved unpassed by the late Brian Lenihan, and is bad law now. It was an attempt by politicians – specifically three Fianna Fáil ministers – concerned by what they saw as overclose scrutiny of their broadly defined “private” affairs, to make the press pay a quid pro quo for the important reform of the defamation laws. The hugely costly and cumbersome defamation system had arguably played the single most important role in this State in chilling press investigation of politicians like Charles Haughey and their links. Its welcome reform, and the establishment of an independent Press Council and Ombudsman to vindicate a new code of conduct, has played an important part both in providing a means of redress for the public and in eradicating some of the most egregious conduct of the press. Ireland has not needed a Leveson inquiry.
The noxious “twin” to the defamation Bill, the Privacy Bill, however, prompted widespread concern in legal, civil rights and media circles. It was described in these pages as “draconian” and an immediate threat to the practice of professional news gathering.
The Bill provides only the vaguest definition of privacy as “that which is reasonable in all the circumstances having regard to the rights of others and to the requirements of public order, morality and the common good”. And, whereas the law of defamation punishes a newspaper after publication, the new privacy law would be used in advance. Its provisions for what is known as “prior restraint” are far-reaching, and akin to the secret super-injunctions in the UK which have recently caused such a furore: under section 13 an applicant can apply to the court in advance of any publication to injunct an investigation which may be in the public interest, and to have this application heard in the journalist’s absence, in private. It would allow the court to direct that the identity of the applicant should not be disclosed and that there should be no publication of the application or the order. And such is the sweeping nature of the prohibition on the publication of photographs without permission, that one lawyer has suggested that football crowd pictures would become illegal.
In practice such a law would become a vehicle simply for the rich and powerful, politicians, businessmen, bankers and footballers, secretly to muzzle press investigation. It is a blunt, disproportionate and unnecessary response to the Star’s Peeping Tom images which can be dealt with by other means. The Minister should think again.