Sunday 4 December 2016

This issue was legally never as simple as some were suggesting

Conor O'Mahony

Published 03/06/2015 | 02:30

A balance is struck between the good name of individual citizens and the need for free speech in the Dáil
A balance is struck between the good name of individual citizens and the need for free speech in the Dáil

After a weekend of intense speculation, the High Court clarified that the injunction restraining RTÉ from broadcasting a report on Denis O'Brien's financial affairs did not preclude reporting of Catherine Murphy's subsequent Dáil speech on the same issues.

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More than a few commentators have stated that this was obvious all along, and questioned why a court ruling was necessary. However, the issue was not as simple as some are portraying it. Yesterday's ruling was always likely, but it was not entirely inevitable.

The specific set of circumstances had not previously been before an Irish court, and so while lawyers could make a strong guess as to the outcome, they could not give a cast-iron assurance. In such circumstances, it is too easy for those who'd not be risking anything to criticise the caution of those who would.

The controversy has two distinct elements: one involving alleged defamation and one involving a breach of privacy. These raise separate considerations.

If Dáil privilege is used to defame someone, their constitutional right to a good name is protected through a complaint to the Dáil Committee on Procedures and Privileges seeking to correct the record of the House. Inaccurate information is corrected and the truth comes to light.

The remedy is a weaker one than a court action and an award of damages, but nonetheless, it is an official recognition that the statements made were incorrect and injurious.

Thus, a balance is struck between the good name of individual citizens and the need for free speech in the Dáil and free reporting of that speech.

The privacy issue is more complex. Correcting the record of the Dáil after genuinely private information is put into the public domain does not make that information private again, or undo any damage caused by the breach of privacy. It is unduly simplistic to suggest there is no argument to the effect that there is no effective remedy available to protect the constitutional right to privacy of individual citizens. Of course, this argument would have to be balanced against the public interest in the reporting of the subject matter of the Dáil speech, as well as the broader public interest in free speech.

In most (if not all) cases, a court would be highly likely to find that the individual right to privacy must give way to the bigger interests at stake.

Once the speech in the Dáil is made, the information is in the public domain, and no injunction restraining media reporting of that information will change that fact.

The aggrieved individual could still obtain a ruling from the Dáil Committee on Procedures and Privileges that privilege had been abused, which is a remedy of sorts.

Nonetheless, whatever about this particular case, most people could imagine circumstances involving egregious breaches of privacy in which this remedy is rather meaningless.

Ultimately, Denis O'Brien's lawyers did not pursue these arguments, choosing instead to concede that the original injunction did not apply to subsequent statements in the Dáil. This means we do not have the benefit of a judgment providing a broad ruling on the balance between Dáil privilege and the constitutional right to privacy. The door may have been left open to future proceedings alleging the current complaints mechanism is not sufficiently robust to remedy breaches of constitutional rights. Such proceedings might not have much chance of success, but neither would they be entirely baseless.

Dr Conor O'Mahony is a senior lecturer in constitutional law at UCC.

Irish Independent

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