Privacy Bill

There has been a self-interested campaign against the Privacy Bill in the media.

Women are murdered, husbands are arrested, charged. It would be the odd newspaper of this century (or indeed of the previous two centuries) that wouldn't make the most of such circumstances.

The question for journalists, and perhaps ultimately for judges, is just how much is "the most". Tradition, history and law in this jurisdiction, and in Britain, have dictated media restraint in approaching ongoing criminal investigations and proceedings, at least as compared to the US model. The papers usually make up for their previous silence only when the trial rolls around, filling pages with further gory detail once someone has been convicted and sentenced.

How would a public that has been whipped (or entertained) into a state of excitement about crime react if prejudicial media coverage, fed by gardaí, ended up having a negative influence on a high-profile prosecution?

It's safe to say it wouldn't elicit any further sympathy for the media's campaign against the government's misbegotten Privacy Bill. On the contrary, it would offer further support to the widespread and undeniably accurate observation that the media often "overstep the mark" – even if no one knows precisely where the mark is and the proposed legislation once again signally fails to inscribe it.

The self-interested campaign against the Privacy Bill has tended to focus on its vagueness (a definition of "private", anyone?) alongside the ample opportunities it appears to offer for people – primarily, one imagines, wealthy and/or well-connected people – to legally block media investigations into matters that might conceivably be of genuine public interest, even where those matters are revealed via publicly available documents.

As has been widely noted, the bill does offer a four-part defence for journalists against a privacy action: the putative intrusion must be (1) made in good faith, (2) to discuss a subject of public importance, (3) for the public benefit and (4) fair and reasonable in all of the circumstances. (Phew!)

What has not been widely noted is that the bill places strict limits on what sort of journalists can avail of such a defence. You thought this was the era of the citizen journalist, that journalism was being redefined by technology and a changing marketplace into something anyone can do, rather than a sharply delineated profession? Think again.

The four-part defence, you see, is limited to an "act of newsgathering". That, in turn, is defined as "an act that is reasonable in all of the circumstances and that consists of, or is necessary or incidental to (a) the acquisition or preparation of material for publication in a periodical, or (b) the acquisition or preparation of material for broadcasting". Broadcasting means by a licensed broadcaster; and a periodical is "any newspaper, magazine, journal or other publication that is printed, published or issued, or that circulates, in the state at regular or substantially regular intervals and includes any version thereof published, in whole or in part, on the internet or by other electronic means".

In short, unless your blog, news-site, podcast or whatever you're having yourself is simply an online "version thereof" – of an ink-and-paper publication – you can forget about availing of even this difficult defence, buddy.

Even as the government is accused of bullying the media, and the question of a "right" (as opposed to duty) for journalists to protect sources is raised by events at the Mahon tribunal, this bill creates a special layer of slightly-licensed intruders-upon-privacy who are privileged by virtue of their connection to old-technology professional media organisations.

There is certainly a strong argument that some of us who "newsgather", report and analyse professionally have sufficient social and political privileges already. I know few honest journalists who aren't occasionally gobsmacked at the latitude we may (occasionally) enjoy.

A page or so in a weekly magazine of moderate circulation is an extraordinary platform by most measures. So it was with hesitation that, a fortnight ago, I hazarded into the letters page to insist – against a reader's invective to the contrary – that I am as a matter of obvious fact a journalist, for what it's worth. For all that Village is generous with space for readers' input, it remains tight: last week, for example, a statement about upcoming anti-war events failed to make the cut. There instead was another blast at me from the same reader, prompted by my reply.

All sensitivity aside, such abuse is a small price that journalists pay for our privileges.