THERE SHOULD be a substantial financial penalty on the media when they infringe the right to privacy, according to a leading media lawyer.
Otherwise, protection of a family’s privacy will depend on the whim of the media, Paul Tweed, a Belfast-based solicitor who regularly represents Hollywood personalities, told the Four Jurisdictions Family Law Conference at the weekend.
He told the event, attended by family lawyers from the Republic, Northern Ireland, Scotland, England and Wales that the highest damages won for invasion of privacy was £60,000 (€69,000), and that they were usually much less. This contrasted with damages in defamation actions. “Yet intrusion into a family’s privacy cannot be remedied retrospectively,” he said, noting that damage to a person’s reputation could be remedied by a libel action.
Ireland and the UK appeared to be lagging behind countries such as Italy and France in terms of setting out clear guidelines on what is acceptable in terms of press intrusion and what is not, he said.
“Without any financial deterrent the tabloid press in particular will ‘publish and profit’ in the absence of any serious consequences,” he said. Referring to recent cases in Ireland, he said: “The contest between freedom of speech and the protection of privacy looks likely to intensify, with the interests of the family remaining very much in the front line of the battle.”
Lord Justice Wall of the English Court of Appeal said the judiciary and media needed to negotiate a protocol for reporting of family law cases, pointing out that such a protocol had been negotiated between the Chief Justice and the media regarding criminal law reporting in England and Wales.
“Judges deal with issues, journalists deal with stories. This gap has to be bridged,” he said. “We have to address the question of publicity in family law proceedings. We need to meet the press halfway.”
Ways to do this included publishing anonymised judgments on a database, issuing press statements with the main points of judgments, or employing a journalist to sit in on cases and produce reports of them, he said.
“We make very difficult decisions about children and their parents. What we do is important. These are serious matters. We need conscientious reporting of family law proceedings,” he said.
Janys Scott QC told the conference the law on reporting family law was in a state of confusion in Scotland. The basic principle was that all court cases took place in public, including divorce cases.
Child protection cases before a sheriff took place in chambers, but the press could be invited in. Adoption cases took place in private. Recently, the Data Protection Act had been invoked to protect the privacy of JK Rowling’s young child. She asked whether the European Convention on Human Rights could be invoked to protect a child’s privacy in divorce proceedings in future.
“Having open access to family law cases is going too far,” said Cork-based solicitor Rosemary Horgan.
She said supporters of the in camera rule argued that the victims of domestic violence would be inhibited from seeking protection if they had to run the gauntlet of publicity in seeking a remedy from the courts. Publicity and the threat of publicity could affect the dynamics of some disputes and be used as a tactic in negotiations.
Critics of the rule argued that it prevented public scrutiny of the family law process and proper and healthy discussion on political and moral issues, she said.
However, the easing of the in camera rule began with the 2004 Civil Liability and Courts Act, which led to the setting up of the Courts Service Family Law Reporting Pilot Project, and this had generally been welcomed. The lifting of the veil entirely was unlikely, given constitutional considerations.