Friday 21 October 2016

Judges may have to square up to Dail over privilege row

There are principles of free speech and privacy at stake in the row over Catherine Murphy's Dail comments, says Colum Kenny

Published 31/05/2015 | 02:30

Catherine Murphy
Catherine Murphy

The Irish media this weekend have decided not to report statements made by Catherine Murphy TD in the Dail. Those statements refer to billionaire Denis O'Brien, a major shareholder in Independent News & Media and other important companies in Ireland and abroad.

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Members of the Oireachtas and the media are worried about the situation. Ms Murphy's statements concern Mr O'Brien's banking arrangements with the Irish Bank Resolution Corporation (IBRC), including interest rates on his loans.

A spokesperson for Mr O'Brien has accused Deputy Murphy of "peddling… illegally procured information which contains falsehood".

The Irish Constitution protects deputies and senators from being sued for defamation for anything said in the Oireachtas.

The reason for this privilege, also found in Britain and other democracies, is to allow scope for important matters to be raised in the public interest that could not be discussed otherwise.

Accurate media reports of any such statements made in the Oireachtas are also protected against costly defamation actions.

So the reason that the media are refraining from reporting what Ms Murphy said is not that they fear being sued for defamation. It is that Mr O'Brien has recently secured a temporary injunction from the High Court, pending a full hearing that could, if it goes in his favour, limit the right of the media to report statements made in the Dail.

Until that case is heard in full, the media feel constrained from reporting what Ms Murphy claims. However, as cases can drag on a very long time, some deputies and media are seeking to have matters clarified urgently.

On Tuesday, both RTE and the Irish Times will go to the High Court to review the present position. Fianna Fail has also called on the Government itself to take action to defend the right of the media to publish, pointing out that the cost involved for media in contesting wealthy litigants through the courts can be very significant. The Government has declined to recall the Dail, whose June bank holiday lasts all this week.

The clash gives rise to very serious questions.

What if the courts limit privilege by, for example, referring to an individual's privacy rights? The editor of Britain's satirical magazine Private Eye has described privacy as "the new libel", a means whereby the rich and mighty attempt to prevent the publication of details that they want suppressed.

Implicit in the statement by Mr O'Brien's spokesperson is also another argument, that statements made on the basis of "illegally procured information" might properly be suppressed by the courts. This could cover leaked material where a whistleblower feels that it is in the public interest to inform a TD of something.

Yet citizens - even wealthy ones like Mr O'Brien - are also entitled not to have their reputations thrashed recklessly by deputies on the basis of false information, or to have their private business affairs paraded merely for gossip.

That is why the Oireachtas itself has procedures in place to punish deputies who abuse privilege. Traditionally, most deputies have exercised great discretion in resorting to accusations under the blanket of privilege.

However, there has been major slippage recently - most notably when Mary Lou McDonald named individuals concerning tax matters in what some observers took to be a blatant ploy to distract attention from coverage of Sinn Fein's handling of historic child abuse by members of the IRA.

The Dail's own Committee on Procedure and Privileges ruled against McDonald, but the penalties available to it at present seem very ineffective.

To increase penalties could risk voiding the public-interest benefits of parliamentary privilege by threatening deputies, whom the bulk of their colleagues simply do not like, for personal or political reasons.

Ms Murphy's remarks are still on the Oireachtas website. Former IBRC chief, Mike Aynsley, has said that she did not contact him prior to her speech to check her facts. Aynsley also complained that "blatant untruths had been uttered in relation to the affair". Indeed, Mr O'Brien's spokesman has accused Murphy of "falsehood". That is a word that may just refer to something contrary to fact or truth but, especially taken with the word "peddling" that he also used, has overtones of deceit.

Mr O'Brien's spokesman further claimed that: "The Dail is a bit of a talking club, they want their own rules for themselves."

One may be, as this writer has been, very critical of aspects of the Dail and of the failure of political reform. But parliamentary privilege is a long-standing democratic freedom and it was the people of Ireland who approved the rule when they voted for the Irish Constitution.

Article 15 of the Constitution states that: "All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged." The Constitution thus does not explicitly confine privilege to defamatory statements. Any decision by a court that so restricts it may lead to tension between the judges and the Dail.

Sunday Independent

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