When Michael McDowell brought proposals for reform of Ireland’s defamation laws to government more than a year ago he assured his cabinet colleagues there was no need to enact new privacy laws.
The justice minister argued that privacy was already enshrined in the constitution and the European convention on human rights.
As a former libel lawyer and attorney general, McDowell knew more about the law than any of his colleagues round the table. But his credentials cut no ice with Fianna Fail ministers who were incensed at the media’s portrayal of certain events.
Dermot Ahern, the minister for foreign affairs, and Martin Cullen, the transport minister, pulled rank on the Progressive Democrat president. Launching an anti-media offensive Ahern, not known as a victim of any notable media intrusion, demanded a quid pro quo: no libel reform without new legislation on privacy.
Cullen was incensed at what he considered to be breaches of his family’s privacy during newspaper investigations into “Monicagate” last year. He was extensively investigated by the media after it emerged Monica Leech, a political associate, had been awarded €300,000 in consultancy contracts by his department.
Mary Hanafin, the education minister, who was pictured in her bathing suit on board a pleasure cruiser during a parliamentary junket to Australia last year, shored up the party line. Significantly, Brian Cowen, the finance minister and taoiseach-in-waiting, also offered support.
Faced with this onslaught, McDowell caved in. Last week he returned to cabinet with a defamation bill broadly welcomed by the media who agreed, under protest, to abide by the rules of a statutory press council. But to appease Fianna Fail, McDowell also produced a privacy bill — the very thing he argued against a year ago.
The media cried foul, claiming the Irish public has been sold a political pup.
“This privacy bill is clearly motivated by certain members of the cabinet with an axe to grind,” said Ger Colleran, editor of The Irish Star. Last week the paper identified and pictured the couple at the centre of the frozen embryos case, despite a judicial request not to do so.
“There will always be conflict between members of the government and the media,” said Colleran. “It is a healthy sign when politicians hate the media. It means we are doing our job effectively. When a government hates the media, it will do everything in its power to nullify its impact. And this government hates the media.”
It certainly hated the coverage of the death of Liam Lawlor, a former Fianna Fail TD. He was a political reprobate, a corrupt public official who lived and died on the edge and whose reputation had foundered long before he perished last October on a Russian highway. His death was a big news story and editors in Sunday paper newsrooms cleared front pages to mark the event.
The Sunday Independent rose to the challenge with a Lawlor exclusive. It was so pleased with its package it delivered 2,000 copies to the Gleneagles Hotel in Killarney, where the Fianna Fail Ard Fheis was in full swing, hours after Lawlor’s demise.
The paper claimed he had been killed in a red-light district in the company of a teenage girl who “was likely to be a prostitute”. The paper was wrong, but the sensational exclusive prompted a number of other newspapers to tear up their first editions and follow suit, so that Sunday morning’s newsstands blazed the erroneously lurid details of Lawlor’s death.
The Sunday Times did not run with the salacious line on the basis that it amounted to little more than speculation from a Moscow policeman.
Not since Kevin Myers wrote a column in The Irish Times labelling lone parents as “mothers of bastards” was there such an outpouring of outrage on the nation’s airwaves.
Politicians, many of whom have felt the lash of the Sunday Independent’s pen, were apoplectic. The Sunday Independent had gambled on a “flyer” — a story that was poorly sourced — and it gambled on taste. Both backfired spectacularly and galvanised political zeal for new privacy laws.
IRELAND already has comprehensive privacy laws, but the new bill — if passed — will create a specific offence of violating the privacy of an individual, a tort that will allow individuals to take privacy actions if they feel “distressed” following inquiries by journalists.
One individual who couldn’t take the heat was John Gilligan, the crime lord.
“Distressed” by Veronica Guerin’s tenacity and commitment to exposing his nefarious activities, he refused to answer phone calls from the crusading Sunday Independent crime correspondent. Undeterred, Guerin called at his home in Kildare and was assaulted on the doorstep. She had crossed the line by invading Gilligan’s privacy.
One of the more alarming features of the proposed legislation is that it will allow claimants, such as Gilligan, to stop stories in advance, via court injunctions, simply by raising the flag of privacy. Journalists will be hauled before the courts to justify the importance of a story by people seeking to shield their misdeeds from media scrutiny.
“This is a chancers’ charter,” said Simon McAleese, a solicitor who acts for Independent News & Media.
“The government are signing over a blank cheque to corrupt politicians and dodgy builders. Surveillance is now a civil wrong and a violation of privacy.
“The law will have a detrimental impact on newsgathering and put many journalists, who twig on to a genuine scandal, to place their efforts on the back burner.”
Injunctive relief is already available to those who are victims of media excess. Last year the Edge, U2’s guitarist, obtained an injunction preventing the Sunday World from reporting details of a family illness. The illness forced U2, who are notoriously sensitive over their privacy, to postpone part of their Vertigo world tour.
The Sunday World ignored the Edge’s pleas for privacy. It defied a pre-publication threat by his lawyers to prevent the paper revealing the gender and condition of the family member. It then published the details, kickstarting what could be the first significant battle between the Irish media and a celebrity over privacy.
SOME lawyers, including those who specialise in holding the Irish media to account for its excesses, say the proposed privacy bill is a nightmare for journalists and editors and could sound the death knell for quality, investigative reporting.
“This is a very worrying development,” said Michael Kealey, a media law partner at William Fry Solicitors. “This bill, if made law, will allow those who have a lot to hide — such as corrupt politicians and career criminals — to seek an injunction preventing journalists from investigating their affairs.
“It will allow them, at a very early stage in investigations, to cloak themselves with a shroud of secrecy by claiming their privacy is being breached. What is even more worrying is the fact that they will be entitled to have those injunctions heard and granted in private. That is not serving the public interest.”
Others disagree and say the new law will not gag the media or allow plaintiffs to issue pre-emptive strikes and dictate what editors can or cannot publish.
“In the long term the media has nothing to fear,” said Eoin O’Dell, a lecturer in law at Trinity College, Dublin. “The bill does maintain a newsgathering defence already available to the media. Privacy will only be protected where there has been an intentional infringement or intrusion.
“There will be protests from newspapers during the bedding-down period, but this law brings clarity for all concerned. Despite what newspapers claim, the government is not sacrificing publication at the altar of privacy.”
O’Dell predicts that judges will be sympathetic to editors and their staff who produce compelling investigations. He points to the recent decision by Frank Clarke, a High Court judge, who refused to grant an injunction to the owners of the Leas Cross nursing home.
The injunction was sought in advance of the screening of an RTE documentary that used hidden cameras to expose a litany of abuse against elderly people in the home. Days before it was due to air, Leas Cross sought an injunction to stop it being screened.
A senior member of staff claimed her privacy had been breached and the owners alleged the surveillance was a breach of their residents’ privacy. But Clarke ruled it was in the public interest to air the programme, which prompted widespread debate about care of the elderly.
POLITICIANS have fled the Dail for the summer recess, but they can expect intense lobbying by the media in their absence. The National Union of Journalists has warned it will vigorously oppose the bill throughout the summer and again in September when McDowell plans to place it on to the statute books.
The NUJ insists that by agreeing to state regulation, in the form of a statutory press council, the government already has its pound of flesh. As we know from his comments last year, McDowell agrees. But unless he can convince his cabinet colleagues not to hold out for more, the justice minister will have his name attached to one of the most restrictive pieces of legislation ever introduced in this country.
