Should TDs be allowed to use privilege to permit media to circumvent existing court orders?
The controversy surrounding Catherine Murphy's comments in the Dáil last Thursday raises a novel point of constitutional law that has not previously been before an Irish court: whether the media may publish remarks made under Dáil privilege that include information covered by a previous court order restraining publication.
Ordinarily, it is clear that anything said by a TD during Dáil proceedings is privileged, and media outlets are free to report it -even if its content is defamatory. The rationale underlying this rule is to protect democracy by facilitating free speech and robust debate.
The democratic process would be severely undermined if elected representatives were unwilling to debate matters of public interest for fear of potential litigation and repercussions. Moreover, since the media plays a key role in informing the citizenry and scrutinising the conduct of government, it too must enjoy immunity from suit when reporting on statements made in the Oireachtas.
Of course, such a privilege is open to abuse. While a defamed party may not pursue defamation proceedings against either the TD involved or the media, he or she may seek to correct the record of the House if defamation is proven.
Statements made by Mary Lou McDonald in November incorrectly linking six former politicians with tax evasion were a recent example.
Two aspects of the current controversy differ. First, Denis O'Brien has not just complained that Catherine Murphy's statement was inaccurate; he also argues that it breached his right to privacy in his financial affairs. The significance of this is that correcting the record of the House is a less-suitable remedy.
It may correct an inaccuracy, but it cannot put the cat back into the bag. Thus, there is a case to be made for a stronger remedy in the form of an injunction prohibiting publication.
Second, an injunction was already in place restraining RTE and all other media outlets on notice of it from publishing the same information contained in Deputy Murphy's statement.
Should TDs be allowed to use privilege to allow the media to circumvent existing court orders, undermining the authority of the courts?
As against this, the text of the Constitution and the relevant case law strongly suggest a broad application of the rules on Dáil privilege.
In a series of cases involving the Beef Tribunal in 1992, it was held that the Constitution relieves "members of the House from being answerable for what would otherwise be a contempt of Court".
Moreover, it was stated that privilege extends to any form of legal proceedings and also covers "the outside publication of actual utterances made in either House, as, for instance, reporting in a newspaper".
More recently, in a case brought by Senator Ivor Callelly, the Supreme Court observed that privilege guards against "legal action of any sort".
The other key issue is whether the information concerned is covered by an individual right to privacy.
If there is a legitimate public interest in its publication, this would trump the rights of the individual. Moreover, it can be questioned whether there is any longer a reasonable expectation of privacy, given that the information is already in the public domain. Between the Oireachtas website, international media reports and social media, the cat is well and truly out of the bag by now.
Finally, the individual right to privacy falls to be balanced against the importance of Dáil privilege to the democratic process as a whole. An aggrieved individual may have to settle for a lesser remedy than an injunction in the name of the greater good.
How to balance these competing constitutional principles is what the High Court will be called upon to do today. Whatever it decides, it is likely that a Supreme Court appeal will follow.
Dr Conor O'Mahony is a senior lecturer in Constitutional Law at University College Cork