Court brings clarity for first time to issue of privacy versus Dáil privilege

One might characterise Mr Justice Binchy’s admirably prompt, informal and concise ruling on Tuesday, in favour of “the entitlement of the media to report” statements made in the Oireachtas, as tantamount to saying: “so what’s the problem?”

This precedent should be regarded as among the most useful contributions to media freedom in Irish constitutional history.

A particular reason for this praise is that the judge declined to take the easy way of resolving the case, which would have been to put his decision on the basis that the relevant information was already in the public domain through, amongst other outlets, the Guardian, the Sunday Times and social media.

If he had wanted to go down this road, there would have been a convenient precedent in the form of the UK Spycatcher case. This arose when the man who is the original for Q in the James Bond stories fell into a dispute with MI5 over his pension. In reaction he sought to publish his memoirs, and the UK government naturally went to court seeking an injunction to enjoin him from publishing them.

But the critical point in the case was that the memoirs had already been published in the US and elsewhere. Copies of the book were brought into the UK by several thousand travellers. In these circumstances, the European Court of Human Rights eventually held, it was useless for the British government to argue that Q was under all kinds of legal obligations to keep the Secret Service secret. The essential point was that the memoirs had ceased to be confidential. And one of the leading principles of the law is not to issue court orders which have no practical effect: it devalues the currency. The same could certainly have been said in the O’Brien case.

Instead of taking this narrower path, Mr Justice Binchy hauled out into the broader waters to reach a much more useful decision. Readers may well have wondered why such an elementary question as whether Oireachtas privilege extended to fair media reports of Deputy Catherine Murphy’s “utterance” (to use the constitutional language) had not been settled long ago.

Now, if we were concerned with the reporting of an alleged libel in the Oireachtas, there is an answer of sorts, namely that the media would be protected by the Defamation Act. But, where the recently discovered wrong of breach of privacy is concerned, there is no equivalent legislation. The result, in the present episode, is that, as regards whether parliamentary privilege extends to media reports of a speech which is alleged to amount to a breach of privacy, before the O’Brien decision we were left trying to interpret some not-very-well-drafted provisions of the Constitution. Now, for the first time, as a result of this decision, we have a sound judicial ruling.

In line with the zeitgeist

A pedant might object that, in fact, this decision offers a classic example of hard cases making bad law, in that it involved an unpopular plaintiff using extensively the law of privacy and affords an extreme example of legal money-power. In addition, the judgment was substantially extemporaneous and, on this central point, it is reported that it is not to be appealed.

But my feeling is that (provided Oireachtas members and the media do not abuse it) this ruling will stick: there are parts of the wording of the Constitution which support it; it is in line with the zeitgeist in favour of free speech; and it is faithful to the idea of a parliament responsible to the electorate, as contrasted with what Denis O’Brien’s spokesman memorably called a “talking shop”.

It is reported that Mr O’Brien’s lawyers are going to take an action against the State, to determine the correct demarcation between the courts and the Oireachtas. It sounds like manna for professors of law. But it does not sound like a typical, or even perhaps acceptable, subject for a court case. For courts do not usually decide hypotheticals. Judges prefer to issue a ruling only when they have a cut and dried set of facts before them. To do otherwise would be to move into the territory of the legislature.

Quite apart from the Oireachtas dimension of the judgment, it contained a strong sense of the importance of free speech, and particularly the notion that free speech depends critically on a free news media and that this brings with it certain practical implications. That aspect of the case recalled strongly Miss Justice Carroll’s remark in an earlier case: “What is at stake is the very important constitutional right to communicate now, not in a year or more when the case has worked its way through the courts”. Labourers in the gagging writ industry, please take note.

But there are judgments on the other side of the ledger, in which, in finely balanced decisions, the news media has lost. A recent example occurred last month, when Mr O’Brien secured an injunction, which was directed not only at RTÉ but also at any other person or media outlet on notice of it, which was going to report on the same subject.

‘Blunderbuss injunction’

Such a “blunderbuss injunction” constitutes a very far-reaching and, above all, undiscriminating interference with free speech. By contrast, the normal idea of litigation is that it involves two distinct parties, each of whom is before the court and can lay before it their individual cases. Instead, “blunderbuss injunctions” catch defendants, who are not in court and may or may not have heard of the case. Thus, they violate the right to a hearing, on which the courts insist strongly when dealing with departments of State or other public bodies.

All in all, a mixed few weeks for the media in the courts.

David Gwynn Morgan is an emeritus professor of law at University College Cork