Secrecy in Privacy Bill a worry

It was a huge headline, taking up the lion's share of the tabloid front page. "Harney Mother Jumped Queue", it blared

It was a huge headline, taking up the lion's share of the tabloid front page. "Harney Mother Jumped Queue", it blared. It was the kind of article likely to confirm many in the view that we do indeed need privacy legislation in this country. The lead article in last week's Ireland on Sunday dealt with the illness and treatment of Sarah Harney, the Tánaiste's elderly mother. She had fractured her hip and was admitted to Tallaght hospital for emergency treatment.

The basis for the newspaper's strident headline appeared to be an allegation that Mrs Harney had received surgery ahead of two other patients who had been admitted prior to her. The implication was that Mrs Harney had received preferential treatment.

However, no evidence was adduced to support this. Mary Harney herself categorically stated that she had not interfered in decisions concerning her mother's care. The hospital has confirmed that it received no representations from the Tánaiste and that all decisions relating to Sarah Harney's treatment were based entirely on her urgent medical needs.

Mary Harney was understandably upset (and visibly so) at having to refute allegations that she had secured preferential treatment for her mother. That these allegations were unfounded is cold comfort to the Harney family, whose ill mother has been dragged into the limelight in a manner which is entirely unwarranted.

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By any standards, this must constitute a gross infringement of her privacy.

It is abuses of this kind that the new privacy legislation is designed to curb. Section 5 of the Privacy Bill 2006 allows for a defence that publication of any information on an individual is "for the purpose of discussing a subject of public importance".

In other words, if you can show that publication is in the public interest, then the issue of invasion of privacy does not arise.

In the Harney case, were there even a shred of evidence that improper influence had been brought to bear, then it certainly would have been a valid story to publish. However, in the absence of such evidence, legislation which might give editors pause for thought on these kinds of stories can only be a good thing.

This is not to say that the Privacy Bill 2006, in its current form, is without its flaws. Its vagueness in a number of areas has already been described as a lawyer's delight, providing them in the future with many happy hours and fat fees arguing over its semantics in court.

More worrying are the elements of secrecy enshrined within the Bill. These are not immediately evident on a reading of it by a lay person. They were, however, identified by lawyer Andrew O'Rorke, writing in this newspaper last month. Section 13 of the Bill allows for a court to grant in complete secrecy an application from an individual to prevent publication of information relating to him or her. In such a case, the public interest argument may never be heard, as the journalist or media outlet concerned does not even have to be present for an injunction of this kind to be granted. Further, the court can direct that this entire process remain forever sealed from public view. The dangers here are all too evident.

Powerful individuals, rich enough to pay the legal fees, could in total secrecy put all sorts of obstacles in the path of investigations of their activities. On the other hand, it is not at all clear whether the Bill, as currently constituted, would protect someone like Margaret Lawler. She has just been awarded €25,000 for unfair dismissal from her job at Irish Biscuits.

She had sustained a back injury at work, had gone to her GP, who prescribed medication and certified her unfit for work. The company gave her one day's notice for a medical examination by its own doctor. When she was unable to attend, it set a private investigator on her.

In "covert surveillance", he secretly videod her walking her dog, lifting a box and getting into her car. When she attended for the rescheduled examination by the company's medic, it did not happen. Instead, she was promptly dismissed from her job.

Ms Lawler's own doctor, in evidence before the tribunal, asserted that with the medication she was on, her activities, as shown in the video, were not inconsistent with her back injury. The tribunal found in Ms Lawler's favour, describing the behaviour of Irish Biscuits as "incredible".

It is difficult to avoid the conclusion that the Privacy Bill may have little to offer those in society who are relatively powerless from the kind of intrusion suffered by Ms Lawler.

As far as the responsibilities of the media are concerned, it is important that it engage in self-criticism and not shirk from exposing its own excesses in order to protect its power.

It is also a moral imperative that we should support those, be they public figures or not, whose privacy has been grossly invaded.

However, it is equally crucial that the means designed to control intrusions on privacy of all kinds should do just that, and not serve merely as protection mechanisms for the rich and powerful.