PRIVACY legislation drawn up by Michael McDowell, the justice minister, has been criticised by legal academics as being rushed, ill-drafted, and uninformed by public consultation or debate, writes Stephen O’Brien.

At a conference organised by the National Union of Journalists yesterday, lawyers urged McDowell to withdraw the privacy bill and allow the courts to balance the rights to privacy and to freedom of expression on a case-by-case basis.

Andrea Martin, a solicitor and media law consultant, said the provisions were “premature, ill-thought-through and poorly drafted”.

The bill was brought to cabinet and published by McDowell in July, but only after his efforts to introduce a reform of defamation law first was rebuffed by other ministers who wanted the two bills introduced together.

Martin said: “The potential of this bill for inhibiting legitimate journalistic investigation and the exercise of the right to freedom of expression due to the lack of clarity and failure of the bill to set out comprehensively the public-interest factors, and the weighting that should be attached to these, is great.”

There had been inadequate consultation on the bill’s content, objectives and potential effects on the right to freedom of expression, she said.

If passed in its present form, it would serve to obscure rather than clarify the legal principles that had evolved to date under domestic and European case law concerning the protection of privacy.

“The overwhelming likelihood is that Irish case law . . . has developed to a point where a right for a private individual to sue another person for breach of privacy actually exists but has yet to be clearly implemented in an actual case before the courts,” Martin said.

“Privacy complaints should be dealt with for the time-being through the courts and the proposed Press Council as well as, in relation to broadcasting, the Broadcasting Complaints Commission.”

Martin added that any legislative change should be withheld until there was enough time to review how these bodies dealt with privacy issues.

The Press Council is being set up under the terms of McDowell’s defamation bill, introduced in the Seanad in July. The government’s autumn legislative programme is not due to be published for more than a week, so it will not be clear until then what priority the cabinet is giving these two pieces of legislation.

The International Federation of Journalists (IFJ), representing more than 500,000 members worldwide, called on McDowell to engage in discussions with the NUJ, as well as editors and proprietors, rather than enforce legislation that media lawyers believed would prevent Irish journalists from doing their job.

Donncha O’Connell, dean of law at National University of Ireland, Galway, warned that defining privacy was “conceptually elusive”. So too was defining the manner in which “legal shape could be put on that shapeless concept”.

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