Privacy Bill – Second-class protection for Web journalists

The Privacy Bill has been introduced in the (Irish) Seanad (“Senate”). It is part of a ‘package’ with the (long-promised) Defamation Bill, which is much less objectionable, and for some time it seemed as if the passage of one would depend on the other. This is not entirely clear right now, and the Defamation Bill has started to wind its way through the Upper House, but that’s another day’s work.

The problems with the Privacy Bill are well-documented. I should plug the Trinity conference (hosted by the Irish Centre for European Law) on privacy law taking place this week, if you want to know more. Also, have a look at some Irish Times articles, if you have a subscription, here and here (criticism from Eoin O’Dell and Pat Rabbitte: disclaimer, the former is my academic supervisor and the latter is the leader of the party of which I am a member). Article 19, the international freedom of expression group, has also been extremely criticial of the Privacy Bill.

The bill will create a tort of the violation of privacy (public figure privacy, essentially – there’s very little about data protection or anything else in it, so perhaps not the best title!) Here’s my beef, though, which I don’t think has been documented elsewhere, yet.

Section 5 deals with various defences. One of them, s. 5(1)(e) deals with something that is an ‘act of newsgathering’. This is subject to various caveats – the first lump is that the act is “(i) done in good faith, (ii) for the purpose of discussing a subject of public importance, (iii) for the public benefit, and (iv) fair and reasonable in all of the circumstances.”

However, the serious bit is what follows, in s. 5(2):

In this section—

“act of newsgathering” means 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” shall be construed in accordance with the Broadcasting Act 2001;
“periodical” means 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.

Can you see the problem?

“Periodical” deals with publications, traditional and online (although it’s limited to the conufsed definition that means that an online-only publication must also be
(a) a newspaper, magazine, journal or other publication, and
(b) coming out at ‘regular or substantially similar intervals’.

It seems, too, that something must be “a version” of a non-Internet publication, in order to qualify, although I’m not sure on that – it seems very sloppy in drafting. So let’s assume that I’m wrong on that for now.

Remember, now, that we are not talking about licencing media providers, but about allowing them to use a statutory defence in privacy actions. So, the once-off Internet publication is out, and can’t use the defence.

Is that all, I hear you say?

Well, no. It gets better.

See that reference to the Broadcasting Act, 2001? Let’s chase that and see what we find.

“broadcaster” means a person who supplies a compilation of programme material for the purpose of its being transmitted or relayed as a broadcasting service (whether that person transmits or relays that material as such a service or not)

Not too useful, so let’s go further into what a ‘broadcasting service’ is:

“broadcasting service” means a service which comprises a compilation of programme material of any description and which is transmitted or relayed by means of wireless telegraphy, a cable or MMD system or a satellite device, directly or indirectly for reception by the general public, whether that material is actually received or not, but does not include such a service that is provided by means of the Internet

Aha! So now we see what protection the journalist using Internet radio or TV services have. None whatsoever. However, if their report is simulcast on traditional radio, they can (assuming all other conditions are satisfied) avail of the s. 5(1)(e) newsgathering defence.

Can the authors of the Privacy Bill seriously have intended this result? Inquiring minds want to know.

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