A privacy law may be difficult to frame, but for the media it might be better than precedents set by court judgments, writes Michael Foley
It should come as no surprise that Minister for Justice Michael McDowell's plans for libel reform and a press council would be stymied by his Cabinet colleagues - and not just because it afforded another opportunity to get at McDowell.
Since the Law Reform Commission recommended libel reform in 1991, politicians have been saying privately that there is nothing in it for them in allowing changes that would benefit the newspapers.
Mr McDowell probably thought he had come up with the solution that would deal with any objections: reform of libel, more or less in line with the Law Reform Commission, and the quid pro quo of a press council. As such he has already achieved a partial victory.
He has been given approval to go ahead with drafting a new libel law, which will include a clause recognising a press council, the details of which have already been agreed by the various interests in the press: publishers, editors and the National Union of Journalists.
What he is proposing is extremely subtle: wide-ranging libel reform that would include a press council recognised in legislation, but independent. His proposal reflected the balance that must be achieved between the need to protect an individual's good name and the importance of press freedom in a democracy.
As a lawyer in the common law tradition, Mr McDowell would not favour a privacy law, as such a law and the necessary definitions are considered very difficult to frame.
A privacy law is not necessarily a bad thing for the media. However, there is a question as to how well it would work. France has strong privacy laws, but also has a magazine culture which delves into the lives of celebrities despite them.
In Britain, where the European Convention on Human Rights has been the vehicle used by a number of celebrities to protect their privacy, there are those who have argued for a privacy law.
The eminent barrister, Geoffrey Robertson, says that the only alternative to the Press Complaints Commission, Britain's much-criticised voluntary regulatory system, is a "legal right to privacy, enforceable in courts required to pay attention to the public interest, but empowered to award damages to victims for the distress they have suffered in cases where that interest cannot justify the violation of their privacy."
In Ireland, even without new legislation, there is protection for privacy. Privacy is what is called an "unenumerated right" under the Irish Constitution. The courts have found for plaintiffs who have claimed their right to privacy was infringed, most spectacularly in the case of journalists Geraldine Kennedy (now editor of The Irish Times) and Bruce Arnold over phone-tapping, even though there is no specific privacy provision in the Constitution .
The European Convention on Human Rights states in Article 8 that: "Everyone has the right to respect for his private and family life, his home and his correspondence". The convention, which also contains a strong defence of freedom of expression, has been brought into Irish law. The proposed press council's code of ethics would also offer a protection to privacy.
With the right to privacy considered part of the Irish Constitution, as well as the provisions in the European Convention, it is only time before a case will be taken. Some years ago a model took a case against the Irish edition of the Mirror newspaper when it published photographs of her changing clothes back stage at a fashion show. The case was settled before going to court. Had it gone to court there is little doubt as to the decision the court would have taken, which would have left a precedent of judge-made law in place to haunt the press.
At least if a privacy Bill can be framed by a Cabinet working group it will have to conform to existing protections of free expression if it is to survive any legal challenge. Such a law will have to contain a strong public interest override, which could mean that politicians' lives will not be afforded the protection they think they will get, and for the newspapers it might be that a privacy law is not as draconian as the editors and publishers imagine.
• Michael Foley is a lecturer in journalism at the Dublin Institute of Technology