The Chorus: Stop the Smuthounds

Privacy legislation is necessary because of the conduct of journalists and newspapers, and no other reason. This needs to be loudly asserted in the debate that follows the publication of the Defamation Bill 2006 and the Privacy Bill 2006, both designed to address the situation pertaining to libel and related issues. If journalism had been capable of voluntarily behaving decently and responsibly, it would not be necessary to create a formal legislative framework to protect privacy. Irish newspapers have demonstrated, however, that they are incapable of observing even the most basic principles with regard to privacy.

And it isn't just the tabloids. Many times in recent years, allegedly "quality" broadsheets have been happy to tailgate on intrusive stories published first in tabloid newspapers, or to gain full benefit from the prurient aspects of such stories by publishing dishonest "analyses" of their "media treatment". This, together with a general media failure to use the privileged position of media to properly ventilate the moral issues relating to invasions of privacy, has sealed the fate of the media. We will shortly have the most rigorous privacy climate in Europe, and a good thing too.

The publication of the proposed legislation has been met with the usual self-serving analyses, distortions and red herrings. It has been bandied about in the past week, for example, that there already existed sufficient legal and safeguards to protect privacy. Why, then, has no one been able to rein in the smuthounds? In fact, having several times sought to take actions to protect my family's privacy from press intrusion, I have been told by lawyers that the constitution would be an unreliable ally. You would think that, when they are under scrutiny for their own failings and misdemeanours, media personnel would seek to present some tokenistic semblance of a balanced argument.

But, for the past week, yet again, virtually all media coverage of the privacy/defamation issues has followed a familiar line. The proposals regarding defamation reform have been welcomed, as has Michael McDowell's pulled punch regarding a press council, while the privacy provisions have been widely condemned. Invariably the arguments have been about what is good for the media, although these tend to be liberally sprinkled with references to "the public interest". Does it occur to anyone else in the media that if you are presenting yourself as an advocate of the public interest, you should try to extend a little beyond your own agenda? The hoary old argument that privacy legislation will "protect the rich and the powerful" has been trotted out again and again. Investigative journalism, we are warned, will be "stymied". Democracy and the public will be the losers if the law goes ahead. This is palpable nonsense. If there is any argument concerning a disproportionate advantage accruing to rich and powerful people in litigation, this argument goes to the heart of our legal system, its costs and procedures, rather than specifically to the matter of privacy. The same case has long been employed by media interests seeking to bring about changes to the libel laws, but the high costs in defamation actions overwhelmingly favour media defendants over ordinary citizens. Usually, in deciding whether or not to proceed, a potential litigant must consider not so much whether he can afford to lose (almost nobody can) but whether there is the slightest risk of this happening. Usually, a disputed publication will involve such manifest wrongdoing by media personnel that there is almost no chance of losing, and this, rather than the cost issue, is what mostly influences such decisions. Libel litigation is always a calculated gamble, with most of the emphasis on the calculation. The same principle will apply to most decisions of whether or not to invoke the privacy laws.