The Press and Privacy

T.P. O'Mahony

Issue 380, vol.95, Winter 2006

In the 32 years since I wrote on “The Press and Democracy” for Studies (Spring,1974, Vol. 63, No. 249, pp. 47-58), Irish society has undergone profound and far-reaching change. The media, because of their special position, have helped to drive that process of change while, at the same time, being far from immune to it. And if the socio-moral and socio-political landscapes are very different now to what they were in 1974, so is the media landscape. No one word is sufficiently elastic or all embracing to capture the extent of the changes in that landscape, but if one word had to suffice, it would surely be tabloidization.

If some of the great institutions of Irish life have been severely buffeted by the changes of the past 30 years – the Catholic Church itself comes immediately to mind – so have our media institutions. The Irish Press, the one I knew and loved best (not least because I worked there, as religious affairs correspondent, for 22 years), sadly no longer exists. Seven years before its demise in 1995, the paper, which had been a broadsheet since its foundation in 1931, switched to a tabloid format in a futile bid to reverse the slide in its fortunes. That such a paper should feel it necessary to turn tabloid was symptomatic of the "new" Ireland.

This was an Ireland in which profit was being increasingly put before people, an Ireland that all too readily embraced "free market" economics, and an Ireland, therefore, that was willing to sacrifice standards and ethics on the altar of "success". The media were inevitably caught up in all of this. Even as they drove change, they were in thrall to it. The cosy world of the Sixties – at least from the viewpoint of the domestic media – would all too soon give way to a world characterised by intense and untrammelled competition.

This has been most noticeable, and its effects felt most deleteriously, on the newspaper front. The increasing penetration of the Irish market by the British tabloids, in particular, is largely to blame for this; largely, but not wholly. The commercial benefits of embracing sensationalism, of allowing the "soft" news of celebrity culture and show biz to displace hard news, of peddling sleaze, of substituting soft porn features for serious comment and analysis, and of disregarding good taste and respect for privacy, had already been learned here at home. What the growing competition from the English redtops did was merely accelerate the downward trend in terms of standards and ethics. They had been at it longer and were very slick at it, so the sensible thing to do was follow more determinedly in their footsteps. Thus the pertinence here as well as over there of John Simpson’s view of the media as a "moral vacuum".

One result of all of this is that, in an age that has seen the rapid spread of "celebrity culture", the tension between two basic rights – freedom of expression and protection of reputation – has grown acute. Both of these rights are acknowledged in charters, national and international. The importance of each is widely acknowledged, but the task of balancing them in the context of 21^st century society is becoming increasingly difficult and complex.

Citizens are entitled to the comfort and security of knowing that society will not stand idly by when rights of reputation and privacy are being threatened or undermined. At the same time, society – especially a society that claims to be democratic – has a vested interest in safeguarding freedom of expression. The challenge and the test of what we mean by tolerance arise when these rights come into conflict.

It is undoubtedly the case that one of the features of the present media landscape is the emergence of what might be called "jackboot journalism" (I call it this because "getting the story" self-justifies trampling all over other people and their right to privacy and personal dignity). Against this background, the question of how the "public interest" can best be served permits of no easy answer. Irish lawmakers are grappling with this right now as new defamation and privacy legislation (published by the Minister for Justice in June, before the Oireachtas went into recess for the summer) is being processed.

One element of the Defamation Bill provides for statutory recognition of an independent Press Council, a development well signalled in advance and one that has the support of the National Union of Journalists (NUJ). But even with this new legislation, the task of giving practical effect to the principle that every citizen has a zone of privacy into which the media may not intrude is going to become more and more difficult.

Traditionally, because of the very significance of the role played by the media in a democracy, society has accorded a special importance and status and protection to the right to freedom of expression. Without this status and protection, the media would be greatly hampered and handicapped in the performance of what is acknowledged to be throughout western society a very important public duty.

Accordingly, the right to freedom of expression is recognised in a host of international instruments, including the International Convention on Civil and Political Rights (Art 19), the European Convention on Human Rights (Art 10), the Charter of Fundamental Rights of the European Union (Art 11), as well as in Article 40 of the Irish Constitution. But despite this high level of recognition, the right to free speech is not an unlimited one. The famous American jurist, Oliver Wendell Homes, said we are not free to shout "Fire!" in a crowded theatre, thus causing a stampede. One of the great defenders of the First Amendment of the American Constitution (which protects free speech), the late Justice William Brennan of the US Supreme Court, said "freedom of expression" doesn’t entitle one to drive through a residential area at three in the morning broadcasting the text of the American Constitution through a loud hailer.

It is in the right to protect one’s reputation and privacy that we find the most cogent and most consistently cited restriction on freedom of expression. In recognising this latter right, society also acknowledges the individual’s interest in protecting his or her reputation from unwarranted attack.

Defamation law is the point at which these two rights intersect or come into conflict. And the problem for society and its lawmakers arises in attempting to strike a balance between these two rights. If the balance is tilted too far in favour of protecting personal reputation, the danger is that the dissemination of information and public discourse will be stultified to an unhealthy degree. Conversely, if it is tilted too far in favour of freedom of expression there will be little to contain people from lying, exaggerating and distorting facts, and causing irreparable harm to the reputation of individuals.

A line has to be drawn. But where do we draw it? As technology (the advent of the Internet), culture and attitudes change, the positioning of the line needs constant review. And because we live in an age of celebrity culture (to which the media undoubtedly contribute, and off which they feed), distinguishing between what is genuinely in the "public interest" and what the public are interested in becomes increasingly complex. We have seen this recently in a number of high profile cases involving such celebrities as the Beckhams, their nanny and the News of the World; Michael Douglas and Catherine Zeta-Jones and Hello! magazine; Naomi Campbell and the Daily Mirror, and Princess Caroline of Monaco and German magazines.

There has been up to now no discrete law of privacy in Ireland. The word "privacy" doesn’t appear in the text of the Constitution, and the Oireachtas has never enacted a privacy law (though that is now about to change). There have, however, long been two precedents on which the Oireachtas could build. Twice since Independence the Supreme Court has ruled that among the "unenumerated" (unspecified) rights "embedded" in the Constitution are (a) a right to marital privacy (McGee v Attorney General [1974]), and a general right to privacy (Kennedy v Ireland [1987]). The first case concerned the use of contraceptives; the second was about phone tapping. What is important is that these unenumerated rights would provide constitutional underpinning for a new Privacy Act, which is where the Government is now heading.

The great fear in media circles with any privacy law is that, however well intended, it will in practice end up furnishing a whole range of public figures – including politicians – with yet another means of shielding their affairs from public scrutiny. The other great and ever-present concern in a wider context is that, by abusing the freedom they have traditionally enjoyed, the media may have placed that very freedom in jeopardy.

To the extent that this is so, it will nullify any protests now about the possible inhibiting effects of a new privacy regime on the media. Critics of the latter, on the other hand, will no doubt say that if the media have given up on ethics from within, then they can hardly complain if society seeks to impose some from outside.

T.P. O’Mahony is a columnist in The Irish Examiner