A statutory privacy law may not be the best way to protect a citizen's right to privacy, according to the Minister for Justice.
While a privacy law was promised in the Programme for Government, it might be best to leave it to the judiciary to uphold a person's right to privacy, guaranteed by the Constitution.
Mr McDowell made his remarks during a discussion on the impact of the European Convention on Human Rights privacy provisions at a conference on new human rights legislation jointly organised by the Law Society and the Human Rights Commission at the weekend.
"It may be that judge-made law is better [in this regard\] than legislation," he said. "Legislation, while intending to protect the little and the good, may end up protecting the great and the bad."
The Minister noted that in the Programme for Government there was a commitment to bring defamation law into line with best international practice. This included the setting up of a statutory press council and the enactment of a law on privacy.
He said the question of a statutory press council would be discussed at a colloquium in December. "Will there be a new law of privacy?" he asked. "I think we should be extremely cautious. We must consider whether it should be statutory or more organic."
Given the strengthening of the right to privacy under the convention, he asked if the media could be immune from suit in a case where the State might have been found to have failed in its duty to provide adequate protections to prevent publication which infringed an individual's right to privacy.
Mr Michael Kealey, a solicitor with William Fry Solicitors, said the influence of the convention's guarantee of freedom of expression had already been felt even before incorporation.
He said article 10 of the European Convention on Human Rights had already had an effect in a recent case where it was recognised, for the first time, that some media reports were privileged.
This occurred in the case involving two of the Birmingham Six, Mr Gerry Hunter and Mr Hugh Callaghan, where they sued an English barrister, Sir Louis Blom-Cooper QC, and his publishers, Duckworth, for a statement in a booklet implying that the quashing of their convictions did not mean they were entitled to be presumed innocent.
The defendants had argued they could not be sued because of the protections they had under article 10 and the Irish Constitution.
Mr Kealey pointed out that in his judgment, Mr Justice Ó Caoimh had adopted into Irish law the "flexible approach" of the House of Lords in the Albert Reynolds case, when the former Taoiseach appealed against the decision in a libel case he took against the Sunday Times.
"The House of Lords had properly recognised that the role of the press was crucial in a democratic society and that, in certain instances, their duty to inform the public outweighed the rights of individuals about whom defamatory statements were made," he said.
In defending this "right to be wrong", the House of Lords had laid down 10 criteria to be taken into consideration. These included the seriousness of the allegation, the steps taken to verify facts, the tone of the article, whether it contained the wronged person's side of the story, the source of the information and its status.
"The significance of the newly formulated defence is that, for the first time, the press can get things wrong, provided they have followed good practice," he said.
"However, this does not give the press 'carte blanche'. Their actions will be closely scrutinised to see if they meet the law's stringent criteria for the defence.
"The convention is by no means a media charter," he said. "There is little doubt that the right to privacy enshrined in article 8 will increasingly become a counterweight to article 10."