A new mechanism for dealing with complaints about the media would probably focus on taste and decency as well as privacy, writes Marie McGonagle
The reporting of the death of Liam Lawlor in the media has rekindled the debate about privacy, defamation, taste and decency, and media standards generally.
In relation to defamation, it is long established that the constitutional right to good name belongs to living persons only. The reason usually advanced in support, apart from theory and principle, is that otherwise history could not be written, as actions for defamation would follow many revelations.
Defamation applies to allegations that are false. If the allegations are true, a defamation action is not the answer. If the allegations expose an aspect of a person's private life that should be protected from the public glare, how can that revelation of private life be remedied? Whereas a finding of defamation and compensation can help to restore a person's good name, in many instances a finding of invasion of privacy can do little to undo the wrong or restore the dignity of the individual.
If the allegations are true but in the circumstances do not amount to an invasion of privacy, there may still be an issue of taste and decency, and what is, or is not, appropriate in media reporting. As it happens, the Broadcasting Commission of Ireland, the regulatory body for the independent broadcasting sector, is currently engaged in drafting a code on taste and decency in accordance with the Broadcasting Act 2001.
Earlier this year it was widely reported that when Minister for Justice Michael McDowell presented the outline of his new defamation bill to Cabinet he was told to consider privacy legislation as well. He set up a group to do so and their views may become known shortly.
A privacy law that would adequately protect privacy with any degree of clarity and precision in a time-proof way without unnecessarily encroaching on freedom of expression would not be easy to draft. The deliberations of the Law Reform Commission leading to its report in 1998 illustrate the issues and difficulties.
Calls for privacy laws, of course, are not new. It is not that we have no laws in Ireland to protect privacy; it is rather that we have no one-law-fits-all. The courts have recognised that there is a right to privacy in our Constitution, and some aspects of that right have been elaborated by the courts: the right to marital privacy and the right to privacy in one's telephone conversations, for example. Other aspects remain to be identified and overall the parameters of a general right to privacy remain elusive and liable to shift at the margins as society's values and mores change.
Few would dispute the formulation in Article 8 of the European Convention on Human Rights that everyone is entitled to respect for his/her private and family life, home and correspondence.
Few would dispute either that notions of intimacy, autonomy, individuality and human dignity warrant such respect for privacy.
However, even with a constitutional right to privacy, now fortified by the incorporation of the European Convention's standards and value system as a result of the ECHR Act 2003, not everyone can afford to take a court case to establish their right and not everyone may want to.
Celebrities, who are often the "victims" of media intrusion, are seldom media-shy or media-naïve.
Their celebrity status depends on media exposure, which is carefully managed by their agents and managers, and rarely left to chance.
Nonetheless, it is accepted that they, too, despite their manipulation or entente cordiale with the media, are deserving of some measure of privacy in their daily lives; even more so their families, and especially children. Indeed, the judgment of the European Court of Human Rights last year in the Princess Caroline case (Von Hannover v Germany), recognises a right to privacy even in public places, like restaurants and shopping centres, when not carrying out official functions or a public role. The decisive factor, in the court's view, is the contribution the published photos and articles make to a debate on a matter of public interest.
Yet, as well as the professional, career celebrity who uses the media, there are the incidental or accidental celebrities who, unplanned, find themselves in the spotlight because of an event or a position taken on an issue. The recent winner of the EuroMillions is one such example. At what point should the natural interest and curiosity of the public about her life, before and after that momentous change, cede to her right to go on living as she wishes away from the media glare?
Although there is no tort of invasion of privacy as such, civil actions are open to those whose private life is affected by interference with their person, land or goods (trespass), or whose use or enjoyment of their property is affected by media intrusion (nuisance), or whose confidentiality is breached.
In other words, there are already laws in place but they are not as comprehensive or as developed as they might be. Broadcasters are required by broadcasting legislation not to "unreasonably encroach on the privacy of the individual". RTÉ, as a result, has clear guidelines for programme-makers on both the methods used to make programmes and the material obtained.
Complaints of invasion of privacy against any broadcaster licensed in the State can be made by members of the public to the Broadcasting Complaints Commission.
The print media also have now accepted the need for an independent forum for complaints, where a reader aggrieved at treatment of them in the print media can complain and, if warranted, obtain appropriate redress, simply, speedily and at little or no cost.
The establishment of such a system, a press council and ombudsman independent of media and Government, which would operate an agreed code of practice, is expected to be included in Mr McDowell's new defamation bill.
Codes have the advantage of being able to set out basic principles and standards on a given topic and, unlike legislation, can be reviewed relatively easily and swiftly at regular intervals.
A press council and ombudsman, independent of political, media and commercial interference, could fulfil a role in relation to privacy and matters of taste and decency, as well as a range of other issues. The advantage of a free press is that when there is a public outcry about media invasion of privacy, at least a public debate takes place in the media.
The actual number of individual complaints made against the media in Ireland and, for that matter in other countries, for invasion of privacy is relatively low.
Even then, the complaints that are categorised by complainants as pertaining to privacy often have more to do with taste and decency than with privacy as such.
Many are from unconnected third parties offended by the tastelessness or insensitivity of the coverage, but voicing it as outrage for the privacy of the individual at the centre of it. Whatever the basis of the complaints, it is important that there be an independent forum to deal with them.
The right to privacy is best developed in the courts, in accordance with the Constitution and strengthened by the ECHR Act. For those who do not want to go to court, an alternative forum is welcome.
Marie McGonagle is head of the Law Department at NUI, Galway and author of Media Law (2nd edition), Thomson Round Hall, 2003