IS your good name or reputation of greater value than your privacy? In Irish law it is, if one is to judge by the degree to which the law protects it. Defamation law affords a high level of protection to the individual. There is no corresponding law of privacy.
An individual whose good name is affected by press reports is likely to receive thousands of pounds in compensation; for an invasion of privacy, a person may get nothing.
To wrongly suggest that a person is unreliable or running up expenses overcharging could carry a price tag of tens of thousands of pounds, "yet a case in which a man at the centre of a tragic event was harassed by reporters, constantly telephoned at home at all hours, shouted to through the letter box of this family home and descended - upon every time he appeared, was met with compensation of £100. There was no law of privacy he could call in aid, only laws on trespass and nuisance. What does this say about our value system?
The Law Reform Commission, in its, consultation paper published this week, acknowledges that privacy - like good name - is a human right. Our courts, too, have recognised that there is in the Constitution an unspecified right to privacy deserving protection, but so far they have spelled out only particular facets of that right.
In Kennedy and Arnold v Ireland in 1987, a case in which two journalists telephones were tapped, the court recognised as a constitutional right the right to privacy in one's telephone conversations. It is relatively easy to recognise particular areas of our lives and activities such as this that we regard as private, but one of the difficulties with a general right to privacy is how to define it.
VARIOUS commissions here and abroad have struggled with this problem for decades and failed to come up with any suitable definition. There may be certain aspects of our home and family lives we would all agree should be protected, but beyond that it is impossible to achieve either consensus or a theory of privacy that will meet both philosophical and human rights principles and the practicalities of everyday life.
The European Convention on Human Rights at Article 8 recognises that everyone has the right to respect for his private and family life, his home and correspondence but goes on to indicate that interference by a public authority may be permitted where it is necessary in a democratic society in support of certain other interests, such as public safety or the prevention of crime.
The Law Reform Commission appears to take a similar approach. In a communications age, and the given nature of the technology available, a certain amount of inadvertent interference is inevitable. The media play a central role in informing the public, and increasingly in entertaining the public.
As a result, individual privacy has to be sacrificed in part and yet it is so crucial to our autonomy, personality, identity and relationships, that protection becomes even more necessary than before. How are we to reconcile society's needs for a free and vibrant media with a measure of seclusion and the opportunity to live at least part of our lives out of the spotlight and glare of media attention - the so called right to be let alone?
The Law Reform Commission (in far as I have been able to gauge) appears to have taken account of the realities of our media or communication age and concentrated on protecting the individual from unwarranted intrusion. The commission suggests tightening surveillance by State authorities, for example, and alerting people to situations where surveillance equipment is in use.
In relation to the media, it proposes certain offences, which need to be scrutinised in terms of their objective's, to what extent, if any, they would impinge on freedom of expression and the public interest. If such offences were to be introduced, then defences such as those indicated in the European Convention on Human Rights would be vital.
ON the question of surveillance, the National Union of Journalists has in its Code of Conduct, dating from 1936, a provision which journalists to obtain information, photographs and illustrations only by straightforward means. The use of other means can be justified only by overriding considerations of the public interest.
On the issue of privacy, the code provides that subject to justification by overriding considerations of the public interest, journalists "shall doe nothing which entails intrusion into private grief and distress."
In practice, Irish journalists have for the most part lived up to the standards of their code. An examination of complaints to two national newspaper groups published last year (Boyle and McGonagle, Media Accountabillty: the Readers Representative in Irish Newspapers) showed fewer than 1 per cent alleged invasions of privacy, and even those tended to be from concerned but unconnected third parties.
In the case of the broadcast media, there is a section of the Broadcasting Acts that obliges them, not to broadcast anything that will unreasonably encroach on the privacy of the individual. The Broadcasting Complaints Commission has received few complaints in this regard in the past. That does not mean the situation in both print and broadcast media is not going to change.
In seeking reform of defamation laws and contempt of court in order to update them, to take account of the practicalities of a media age, it may well be that the introduction of privacy laws will have to be accepted on the same basis. Perhaps, too, journalists would benefit from updating their own code of conduct. But there is a caveat. To add privacy laws to unreformed defamation and contempt laws would add to the burdens of an already overburdened indigenous media.
The Law Reform Commission has consistently produced consultation papers and reports of a very high quality, yet many are ignored. A consultation paper invites responses from the public and from interested parties - we should seize the opportunity. A Law Reform Commission report, which has taken account of those responses, deserves to be taken seriously and acted upon by Government and legislators sooner rather than later.
