If politicians really cared, they would reform the libel laws
I f a TD stands up in the Dáil and makes a speech but the media is unable to report it, has the TD effectively been gagged? This, in essence, is what the High Court will be asked to decide today when three media outlets seek permission to report details of a Dáil speech by Independent TD Catherine Murphy, in which she made a number of allegations about businessman Denis O'Brien's banking arrangements with IBRC.
Ordinarily, the media can report any statement made by a TD or Senator in Leinster House. As long as the report is an accurate account of what was said in the chamber, the media is immune from any court action.
However, in this instance, the existence of an injunction secured by Mr O'Brien against RTÉ, which pre-dates Ms Murphy's speech and which debars the media from reporting details of Mr O'Brien's banking arrangements, has confused matters.
The media, if it printed Ms Murphy's speech, would have an absolute defence against any defamation action taken by Mr O'Brien, but uncertainty has arisen about whether publication would be a contempt of court. Consequently, a constitutional crisis has erupted in which two branches of government appear to be in conflict - the High Court and its order protecting Mr O'Brien's privacy rights over his banking transactions versus the legislature's right to freedom of expression.
While parliamentary privilege is expressly protected in the 1937 Constitution, its roots can be traced back as far as 1397, when the House of Commons passed a bill denouncing the household costs of King Richard II. The MP behind the bill, Thomas Haxey, was promptly put on trial for treason and sentenced to death before ultimately securing a royal pardon, with the concept of parliamentary privilege evolving from there and MPs who wanted to criticise the king and keep their heads.
More than 600 years later, the principle has been described by the Supreme Court as a cornerstone of Ireland's democracy, which ensures TDs and Senators remain independent from either the courts or the executive.
This is why it has been odd, in recent days, to hear Mr O'Brien's spokesman, James Morrissey, wonder if parliamentary privilege permits politicians "to say whatever they like, be they correct or incorrect" - because, that is exactly how parliamentary privilege has worked for hundreds of years.
TDs can say whatever they like about whomever they like, be it right or wrong, and no court in the country can interfere with that right.
The European Court of Human Rights has also considered this issue, in a case concerning a complaint from a UK citizen named in parliament who subsequently received hate mail and had to move house, and it too refused to impose any limitations on MPs' right to free speech.
While this gives politicians an awesome, unchecked power, the people we elect to represent us are usually a conscientious lot who wield this power responsibly and are not in the business of maliciously denigrating people's reputations.
Patently, in this instance, there is a serious disagreement between Mr O'Brien and Ms Murphy about the accuracy of the information relied upon by her in her Dáil statements. It is also clear that Ms Murphy deliberately breached an injunction when she made her comments in the Dáil last week.
One can understand Mr O'Brien feeling aggrieved that, having won a battle to prevent RTÉ publishing details of his banking affairs, Ms Murphy ignored that ruling and released some of that information anyway. His spokesman, Mr Morrissey, has further claimed the information the TD released came from "stolen" documents, which had been doctored before being leaked to Ms Murphy and she is therefore unwittingly "peddling" lies.
For her part, Ms Murphy is adamant that she trusts her source implicitly and has no personal animus against Mr O'Brien, but simply wants large loans extended by a wholly State-owned bank, IBRC, to be investigated in the public interest.
As this war of words continues between the two camps, the media has found itself in the ignominious position of having to effectively pretend that information that is now in the public domain doesn't exist.
While most of the Irish media have opted not to report Ms Murphy's speech, its details have been widely reported on social media and in the international press, meaning Irish citizens now have to read titles based off the island for an account of proceedings in their parliament.
When Mr O'Brien secured his injunction, it served a purpose - the information was private.
However, the rationale for the injunction evaporated as soon as Ms Murphy got to her feet on Thursday. Pretending otherwise is pointless and it could be argued it merely serves to sap public confidence in traditional media institutions.
While the media will have to consider whether it has become too supine in the face of legal threats from powerful people, not all criticisms can be viewed as constructive.
It has been particularly galling to witness certain TDs calling the media spineless for exercising caution, particularly when those TDs only ever seem to care about press freedom when journalists are tasked with reporting their comments and are nowhere to be found when wide-ranging reform of Ireland's draconian libel laws is touted.
The impassioned defence of parliamentary privilege from Government representatives, who can't even be bothered to reconvene the Dáil to debate what's supposed to be a constitutional crisis, also rings hollow.
Whatever happens in the court today, the weaknesses of both parliament and the press that have been exposed don't bode well for the health of our democracy.
Ultimately, of course, if TDs really want a strong media, they will need to reform our libel laws.