BAR COUNCIL CONFERENCE:THE PRIVACY Bill, before the Seanad since 2006, does not pose a threat to good journalism that rightly seeks to hold Government, business and other organisations to account, according to Minister for Justice Dermot Ahern.
Mr Ahern was speaking at a Bar Council conference on privacy at the weekend, and he also said he expects to see the Defamation Bill, currently before the Dáil, to be enacted by the summer.
He said it was important that the discussion about the Privacy Bill was not left to what some might call the protagonists.
"There are wider issues that affect all our citizens here. That is why I have stated that I am open to a wider, structured discussion and further consultation on the issue to ensure the Bill achieves [ its] ends," he said.
Welcoming the call for a considered debate, Michael McDowell SC, a former minister for justice, said he thought the Privacy Bill needed to be looked at again. At present it offered far too wide a definition of privacy, and allowed the judiciary to be too creative.
"It does not adequately address the question of a private citizen's right to invade the privacy of another, for example, the right of employers to look at the activities of employees or the position of private detectives. The defences are too media-centred," he said.
He pointed out that there had been recent case law on the issue of privacy with the judgments in the Leas Cross nursing home case and the Michelle Herrity v Associated Newspapers (Ireland) case. In this case, the court ruled that the publication by a newspaper of a person's taped conversations was in breach of her fight to privacy.
The approach of Ms Justice Dunne in this case could be seen to contrast with the contents of the 2006 Privacy Bill, he said. "It may be, curiously, that the scheme of the published Bill would have had a far more and radical effect if ultimately enacted in its published form than would be the case if the law were left to be developed by the judiciary," he said.
Paul O'Higgins SC told the conference that applications for injunctions against the publication of material that invaded a person's privacy should be heard in private.
Otherwise the right to privacy could not be vindicated without being destroyed by the fact of having to hold the proceedings in public. Mr Justice Frank Clarke, who chaired the proceedings, said there was concern about the holding of proceedings in private that things might happen in court that were not open to scrutiny.
However, there should be a remedy of having the proceedings partly in private, or giving documents to the judge that were not opened in court, or not revealing the identity of the applicant.
"It should be possible to devise something to conduct as much as possible in public while keeping material that would defeat the purpose of the application out of the proceedings," he said.
Lord David Eady, judge of the High Court of England and Wales, said the judges of the higher courts in England and Wales had, in a series of judgments, outlined a new methodology for resolving competing rights under the European Convention on Human Rights.
It meant that no one convention right could take automatic precedence over another and it was up to judges to weigh up competing interests. This would often involve the judge weighing up the defendant's motives, and distinguishing between "political speech" at one end and "tittle tattle" at the other.
"This is a fundamental shift in our approach to free speech," he said.
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Law Matters: page 18