Saturday 1 November 2014

Cowen privacy case may open floodgates for the fallen elite

Ex-taoiseach's complaint against newspaper is watched by bankers, developers and politicians

JODY CORCORAN EXCLUSIVE

Published 20/01/2013 | 05:00

FORMER Taoiseach Brian Cowen is to make a complaint to the Office of the Press Ombudsman in which he will claim a breach of his constitutional right to privacy, the Sunday Independent has learned.



It can also be revealed that separately, another former Taoiseach, Bertie Ahern, has also consulted a lawyer in recent months. However, last night it was confirmed that he does not intend to make a similar complaint.

If upheld, Mr Cowen's complaint could have implications for the media, which has sought to report, analyse and comment on the activities of several figures associated with the economic collapse of the country.

Mr Cowen, who served as Taoiseach from 2008 to 2011, has an annual pension of €151,061. He is said to feel particularly aggrieved at the manner in which the Irish Mail on Sunday last year reported his enrolment in a six-week course at Stanford University in California.

It is likely that his complaint to the Office of the Press Ombudsman will be referred to the Press Council of Ireland for adjudication.

The development will be closely monitored by bankers, property developers and individuals associated with the regulatory authorities, as well as other politicians from the boom-to-bust era who have also retired on substantial packages, including annual six-figure pensions.

Almost five years on from the 2008 bank guarantee, the Government has yet to put in place a banking inquiry. Both Mr Cowen and Mr Ahern have said that they will co-operate with such an inquiry.

Mr Ahern, who served as Taoiseach from 1997 to 2008, has an annual pension of €152,331.

The Minister for Justice Alan Shatter, who has announced his intention to revisit the 2006 Privacy Bill, is expected to keep a close eye on such a complaint as Mr Cowen's as the outcome may inform a decision on whether to legislate for privacy.

Meanwhile, on another front, the Government remains determined that "abuses" of social media will be investigated and a report will be made to the Minister for Communications Pat Rabbitte.

The Oireachtas Committee on Transport and Communications is to invite submissions and expressions of interest from individuals and groups. These will then be followed by private and public hearings.

The issue was highlighted at the funeral of Minister of State for Agriculture Shane McEntee, who took his own life. His brother Gerry referred to the "flak" that his late brother had endured through social media.

Last night there were tentative indications that an attempt may be made to broaden the inquiry to involve the traditional media. However, any such move is likely to be fiercely resisted by both the broadcast and print media.

Procedures exist for privacy complaints to the Broadcasting Authority of Ireland. However, no mechanism exists for such a complaint to be made in respect of alleged breaches of privacy online.

Following publication by the Irish Daily Star of topless photographs of the Duchess of Cambridge, Mr Shatter said he intended to revisit the Privacy Bill, which was prepared by the Government led by Mr Ahern and in which Mr Cowen was Minister for Finance.

However, Mr Rabbitte, who is an advocate of the role played by the Press Council and the Office of the Press Ombudsman, has said that he is not inclined to "get worked up" about the privacy issue.

Asked about his intention to make a complaint, a source close to Mr Cowen last week said: "No comment."

Last July, the Irish Mail on Sunday reported that Mr Cowen had "gone back to school" by enrolling on a €50,000 six-week course at Stanford University in California.

"Family and friends" of Mr Cowen were reported to have said he intended to use the summer study programme to "work towards something else" and maybe "return to public life".

The newspaper raised a question as to whether Mr Cowen had availed of an Enterprise Ireland 'leadership for growth' programme in order to part-finance his further studies.

Mr Cowen refused to comment when he was approached by the newspaper while he was leaving morning lectures. He was reported to have said: "I'm not doing any interviews, I'm here on a private matter."

When asked who had paid the substantial fees for his course, he is reported to have grown visibly irritated and asked: "Are you serious?"

Asked whether the Stanford trip had been sponsored by a future employer, he added: "It's got absolutely nothing to do with you at all."

The newspaper also published several photographs of a casually dressed Mr Cowen while outdoors on the campus.

A day after publication, other media reported friends of Mr Cowen to the effect that the former Taoiseach had himself paid to attend the course and that the implication that Enterprise Ireland had part-funded the course was completely untrue.

The media proprietor Denis O'Brien subsequently said: "I thought chasing Brian Cowen to some university in California was an appalling thing to do. He's out of public life. He's a private citizen. Leave him alone."

It is likely that Associated Newspapers, which publishes the Irish Mail on Sunday, will robustly defend any complaint taken by Mr Cowen on the grounds of public interest.

The Press Council of Ireland states that privacy is a human right, protected as a personal right in the Constitution and the European Convention on Human Rights, which is incorporated into Irish law. It says the private and family life, home and correspondence of everyone must be respected.

Readers are entitled to have news and comment presented with respect for the privacy and sensibilities of individuals. However, the right to privacy should not prevent publication of matters of public record or which are in the public interest.

It also states that public people are entitled to privacy. However, where a person holds public office, deals with public affairs, follows a public career or has sought or obtained publicity for his activities, publication of relevant details of his private life and circumstances "may be justifiable".

Justification is allowed where the information revealed relates to the validity of the person's conduct, the credibility of his public statements, the value of his publicly expressed views or is otherwise "in the public interest".

Potentially central in the case of Mr Cowen, it also states that taking photographs of individuals in private places without their consent is not acceptable, unless this is justified by the public interest.

The Constitution does not specifically state a right to privacy but the courts recognise that the personal rights in the Constitution imply the right to privacy.

The High Court has delivered a series of decisions on privacy, which suggests that there now appear to be three potential tests for identifying an actionable breach of privacy: a test as to whether an alleged breach is highly offensive to a reasonable person of ordinary sensibilities; a reasonable expectation of privacy test; and a deliberate, conscious and unjustified violation-of-privacy test.

Sunday Independent

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