Analysis

Saturday 26 July 2014

Jody Corcoran: All citizens must resist assault on media liberty

A freedom which is restricted to what government and judges think to be responsible or in the public interest is no freedom

Jody Corcoran

Published 06/01/2013|05:00

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Alan Shatter has effectively said that he intends – in the words of Lord Denning – 'to stake out the exceptions to freedom of speech'. It is time to wake up, folks; this may be about to get scary

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The justice minister has seized upon the publication, by the Irish Daily Star, of topless photographs of the Duchess of Cambridge, widely published on the internet, to announce his intention to revisit the 2006 Privacy Bill.

The right to privacy is enshrined in the Constitution, but so, too, and to no lesser extent, is the right to freedom of expression.

The minister said in September that it was clear some sections of the print media were either unable or unwilling to distinguish between "prurient interest" and "the public interest".

We will come back to that, but first, what is absolutely clear is that Shatter intends to legislate for what can and can not be published, that is, for what is and is not in 'the public interest'.

If that is not enough to scare you, then this should:

In his revisit to the Privacy Bill, with the intention to introduce legislation, it is likely that Shatter will have regard to a formulation referred to in the English Court of Appeal in a case which involved the supermodel Naomi Campbell.

Campbell makes a living from "being photographed"; the public will – in the words of Baroness Hale – "obviously be interested to see how she looks if and when she pops out to the shops for a bottle of milk", except, in her case, she popped out of Narcotics Anonymous.

In restatement, the formulation which Shatter is likely to rely upon, which has been expressed in Australia, drawn from cases in the United States, is whether or not the alleged breach of privacy is "highly offensive to a reasonable person".

The European Court of Human Rights has also said: "We consider that the test of highly offensive to the reasonable person is appropriate."

Therefore, in the first instance, it may fall to Shatter, when drafting privacy legislation, to define what is or is not "highly offensive"; more than that, it may also fall to him to define what is or is not a "reasonable person".

Leo Varadkar, who also wants to legislate for privacy, will get to decide on this, too, because the Executive is all powerful; not the Dail, not the Seanad, not the Oireachtas, not really. In this country, it is the Executive, or the Cabinet, that is all powerful.

That is because the Government, in order to retain an authority over our lives, has, so far, failed to honour a promise to introduce proper political reform.

Therefore, if Shatter has his way, people like, for example, James Reilly and, say, Phil Hogan, or perhaps even Eamon Gilmore, will also get to assist it staking out the exceptions to freedom of speech.

So they, too, may get to decide what is highly offensive, or what is a reasonable person, and even what opinion you are allowed or not allowed to express.

For example, would a 'reasonable person' object to the erection of strident pro-life, pro-choice or other posters directed at a particular minister and would such posters be deemed to infringe upon such a minister's privacy?

In his denunciation of the Irish Daily Star, Shatter said that it was "perceived financial gain" as opposed to any "principled freedom of expression" that, for some in the print media, was the dominant value.

The publication of the topless photographs of Kate Middleton, which were already widely available on the internet, was a "clear illustration" of this, he said.

Thankfully, the Minister for Communications, Pat Rabbitte, is not inclined to "get worked up" about this; although, that said, Pat does tend to get worked up about the "consequences" of the "all-pervasive negativity" which informs media reporting on politics.

Make no mistake, privacy legislation will sound the deathknell for many newspapers, without a doubt, more so than does already a repressive defamation regime, even more than the rise of the internet.

But now refer to Mr Justice Fennelly in the Supreme Court 2004: "Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage...

"But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which 'right thinking people' regard as dangerous or irresponsible."

It is very well established that the right to privacy regularly, and correctly, outweighs the right to freedom of expression. For example, it is only fair and right for people not to expect to see their private medical information printed in a newspaper.

But what about a scenario where a well-known public figure, say, a judge or a politician, as was the case with the late Brian Lenihan, is diagnosed with a serious illness that will adversely impact upon their ability to fulfil critical public duties? Surely the public has a right to know.

It is far from easy to determine where the parameters to the right of privacy may lie. But Alan Shatter intends to do just that, to stake out the exceptions to freedom of speech on the provocation of a naive young duchess who got her kit off within the scope of a lens in France where, unlike in Ireland, the right to one's own image is recognised.

This is not an issue confined to the newspaper industry.

On the provocation of the death by suicide of a colleague, undoubtedly a complex and multifaceted not to mention tragic event, the Government has also set its sights on the online community of bloggers and anonymous trolls.

Now refer again to the European Court of Human Rights, which Alan Shatter also cited in his announcement of his intention to, effectively, 'stake out the exceptions to freedom of speech': "By living in communities, individuals necessarily give up seclusion and expectations of complete privacy."

The trolls should be required to give up their anonymity and, necessarily, discover the consequences of their abuse of freedom of expression.

Like many in the public eye, I have also been subject to online abuse; websites are dedicated to my name, upon which there is written the most appalling lies of a most personal nature that have hurt me and the people I love most sincerely.

But in the face of this assault by the establishment, I have come to a conclusion that all citizens must defend their media, traditional and new, who have common cause to resist the intentions of the likes of Alan Shatter.

Sunday Independent

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