Wednesday 23 October 2019

Why McDowell needs to look again at this privacy bill

Eoin O'Dell

AS the Dail returns to face into the countdown to next year's general election, it will have to attend to many significant pieces of legislative business.

Not least among them is the package of reforms of our archaic defamation and privacy laws announced by the Government last July.

On this package, however, to echo the slogan used during the last election by the senior party now in government, there is a lot done, but more to do.

The defamation reforms, by and large, are a balanced - if cautiously unadventurous - set of necessary changes to obsolescent rules. However, if the Oireachtas enacts the Privacy Bill as it currently stands, it will have acted in ill-judged haste, because there are at least four respects in which it seems to be in need of improvement.

First, the Bill is concerned almost exclusively with press invasions of privacy, and has little to say about other sources of possible intrusion, from state gathering and storage of information, through private CCTV cameras, to the 'clickstream' we leave behind online.

Second, if the Bill is under-inclusive in ignoring many other pressing privacy issues, it is over-inclusive in its obsession with press intrusion: two key protections for journalists, on which hang much of the defensible legitimacy of the Bill, seem to be very narrowly drawn. A publication in good faith, for the purpose of discussing a subject of public importance, for the public benefit, which is fair and reasonable in all of the circumstances, will not constitute an invasion of privacy by publication of private facts; and an act of news-gathering in preparation for such a publication will not constitute an invasion of privacy by intrusion.

These crucial provisions are meant to be the cornerstone of the Bill's protections for investigative journalism, but they seem at first blush to be very technically drawn. The defence of reasonable publication (in both the Defamation Bill and the Privacy Bill) is hedged about by so many adjectives that, although each individual one might be reasonable, taken together they constitute an extremely high standard. Moreover, the news-gathering defence seems to apply to the acquisition of material for publication or broadcast, but might not reach on-going long-term background research. Both defences should be stated in much broader, less hedged, terms.

Third, the Bill proposes that court action in respect of invasions of privacy could be held in private; and this would include hearings seeking temporary injunctions to restrain publication pending full trial of the action. This has raised the spectre the defamation gagging writ of old simply being replaced by a shiny new privacy gagging writ. One aspect of the two Bills together puts journalists into a potentially invidious situation. To be able to rely on the defence of reasonable publication in a defamation action, one of the factors which the court will take into account is the extent to which a reasonable attempt was made by the journalist to obtain and publish a response from the person who is the subject of the article.

However, a journalist who makes such contacts in advance, now runs the risk of precipitating a privacy action from that person.

The journalist is now potentially damned by the Privacy Bill for contacting the subject of the article, and damned by the Defamation Bill for not doing so.

A strong statement of the importance of freedom of expression in the section of the Privacy Bill allowing for privacy actions to be heard in private would go a long way towards getting the balance right.

Fourth, although the minister commissioned a report to aid in the drafting of the Bill, and received a very fine piece of legal analysis, there has been no widespread consultation about it.

The parallel Broadcasting Bill is at present the subject of a sophisticated e-consultation process.

But although the Tanaiste and Minister for Justice has now agreed to meet with the media about the Privacy Bill, there has been no such similar formal and extensive consultation process.

Because there is little legislative guidance to be had elsewhere, the enactment of a Privacy Bill is a leap in the dark, which suggests that the government should not act precipitately but rather ought to proceed with caution.

At a seminar organised by the NUJ last week, the view was gaining ground that if this imperfect privacy reform is the price for much-needed defamation reform, then the price would be too high. This would be a matter for regret.

Though modest, the Defamation Bill is well worth having; on that front, a lot has been done, and largely done well.

THE press council, if it turns out to have sufficient teeth to gain credibility with the public, would also be a good day's work. The Government should therefore enact the Defamation Bill, but hold back on enacting the Privacy Bill until it has properly engaged in effective consultation about it.

Dr Eoin O'Dell is a Fellow in TCD's School of Law, he will speak at a conference on defamation and privacy in the college on Saturday

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