We have reached a defining moment in Irish journalism. For the first time in 45 years, this Coalition Government has set out a new regulatory regime for the practice of our profession that will set the template for journalism for perhaps the next half century.
The new Defamation Bill, published recently by Minister for Justice, Equality and Law Reform Michael McDowell, will set the ground rules for defamation and the principles governing the establishment of an independent Press Ombudsman and Press Council. Both developments are welcome, especially the Press Council of Ireland which would give citizens a forum for complaint and redress against the media.
The new Privacy Bill, the quid pro quo demanded by Fianna Fáil Ministers for the changes in the law on defamation, is another matter. If implemented, it will change utterly the practice of news-gathering as we know it; jeopardise the production of a daily newspaper in the pressurised, deadline-driven, timeframe in which most of us work; and tip the balance of the constitutional rights of freedom of expression versus the citizen's right to a good name in favour of an undefined and unworkable right to privacy.
The National Union of Journalists did a public service at the weekend by exposing the new Privacy Bill to scrutiny. However well-intentioned, that Bill will circumscribe good journalism in ways more draconian than the Defamation Act of 1961. It is iniquitous.
There has been a spate of intrusive stories in some sections of the media in recent years. The lowering of standards goes beyond the occasional lapse which we can all be guilty of from time to time. The Liam Lawlor story marked a tipping point in Irish journalism. But, it would be a mistake to believe that the target of the proposed Privacy Bill will be simply those newspapers that publish often-invasive stories. If enacted, it will change fundamentally the practice of news-gathering and investigative journalism in the print and broadcasting media in ways that its authors could not possibly have imagined.
The proposals will have three effects on the legitimate journalistic activities of newspapers: they will render unlawful a wide variety of normal and generally acceptable means of gathering news; they will render unlawful the publication of a wide variety of material whose publication to date has been thought to be for the public good; and, they will expand the range of injunctions and court cases that can be fought in camera, before and after publication.
Whereas the law of defamation punishes a newspaper post-publication, the new privacy law will be used to prevent publication. Privacy is not defined, thereby enabling a pre-emptive strike to stop the publication of anything displeasing to a wealthy and influential individual. Privacy will be the new gagging writ but the story will be censored in camera in closed courts and cannot be reported.
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This writer believes in privacy and is one of a handful of citizens who, with Bruce Arnold, asserted the constitutional right to privacy in a legal action on telephone tapping in the courts. There is nothing to stop others from taking similar actions.
The proposed Privacy Bill, however, will prevent good journalism and make it impossible for many serious matters of public interest to be investigated properly, never mind being brought to publication. It would be our modus operandi in The Irish Times to seek both sides of the story before publication. The politician, businessman or whomsoever would know that we were investigating a story. It will now be open to that person to stop the investigation in its tracks by taking an injunction in the courts on the grounds of invasion of privacy. This newspaper would be compelled to justify the investigation of a story even before it had marshalled the facts to arrive at a decision to publish it.
The Bill is proposing a four-part test to defend a privacy action: the disclosure of the information must be done in good faith, for the purpose of discussing a subject of public importance, for the public benefit and it must be fair and reasonable in all of the circumstances. How on earth could a newspaper muster such proof when it is at the investigative stage of a story?
Possession of a document, in the peculiar ways that we do in journalism, requires us to protect our sources. The obtaining of a letter or an invoice or some other record which had not come into the public domain would, at the injunctive stage, give rise to a prima facie case against a newspaper because of the private nature of such communication. The story might well have huge public interest but fall at the first challenge behind closed doors because possession of the relevant document may have breached privacy.
There are several stories which were published in the public interest in the past which could fall foul of the Privacy Bill. Sam Smyth revealed in the Irish Independent some years ago that Ben Dunne and Dunnes Stores had paid for a massive extension to then Minister, Michael Lowry's home. We now know that this information was contained in a sworn affidavit before the courts. Could Mr Dunne or any other third party to the proceedings have taken an injunction to prevent its publication? How could the journalist have protected his sources and defended such an action?
The sale of the Mespil flats to a perceived golden circle was also a matter of public interest some years ago. The story emerged when a concerned citizen brought the schedule for sale document in a brown envelope to The Irish Times. That was another private document.
The Privacy Bill, if enacted, will have a chilling effect on good journalism.