By way of a break from #CRC12, I’ve been musing since Wednesday about motes and beams. A quick online search confirmed to me that the phrase comes from the King James version of St Matthew’s Gospel (chapter 7, verse 3):

And why beholdest thou the mote that is in thy brother’s eye, but considerest not the beam that is in thine own eye?

The essence is that those who would judge or regulate others should look first to themselves. On Wednesday, when Senator David Norris (pictured left) introduced a Privacy Bill, 2012 into the Seanad, the debate focussed largely on media invasions of privacy, with little recognition of the massive privacy issues attendant upon the modern regulatory state and increasing law enforcement powers (to say nothing of widespread private surveillance or the aggregation of data by private corporations). All of the contributors to the debate were quick to behold the privacy mote in the eye of the media, and that they do not consider the privacy beam in their own eye: they are quick to criticise media invasions of privacy, but they are far slower to perceive the potential for the State’s invasion of its citizens’ privacy. Worse, it wasn’t even a particularly good debate.

Senator Norris’s Bill is little more than a re-thread of the lapsed Privacy Bill, 2006 and Privacy Bill, 2006 (which I consider briefly here and here), and when it was announced last week that he would introduce the Bill, the National Union of Journalists predictably expressed strong reservations about it. Many of the points made during the Seanad debate on Wednesday were just as predictable (and duly obtained the intended coverage). But in the race for headlines, they missed the real point.

For example, there was much simplistic reference to the decision of the European Court of Human Rights in von Hannover v Germany 59320/00, (2005) 40 EHRR 1, [2004] ECHR 294 (24 June 2004)), without reference to the significantly narrower sequel in von Hannover v Germany (No 2) 40660/08 and 60641/08 [2012] ECHR 228 (7 February 2012) and Axel Springer AG v Germany 39954/08 [2012] ECHR 227 (7 February 2012).

There were many references to the Leveson Inquiry in the UK, but no real attempt to consider whether the issues emerging there are replicated here, and the Press Council & Press Ombudsman were damned with faint praise. Again, there was much conjuring with versions of the old saw that what interests the public is not necessarily in the public interest, and with paeans to freedom of expression immediately undercut by references to media abuses. There was a great deal of confusion between unjustifiable publication of true facts (which is invasion of privacy) and publication of falsity (which is defamation). And there was harking back to a supposed golden age when newspapers were concerned simply with reporting the facts, and not with opinion and ideology.

The Minister for Justice, Alan Shatter TD, opposed the Bill “principally on the ground that it is premature”:

I recognise the Bill seeks to build constructively on the Privacy Bill 2006 published by the former Minister for Justice, Equality and Law Reform, Mr. Michael McDowell, which I had restored to the Seanad Order Paper in June last year. In restoring the 2006 Bill to the Order Paper, my intention was to examine how its provisions stand up and to improve the text. The previous Government had left the Bill on the Order Paper to give adequate time, first, to assess the effectiveness of the Press Council in dealing voluntarily with issues addressed in the Bill and, second, to assess the impact of the new Defamation Act [2009]. I did not want to frustrate those processes in any way. For this reason, I judged it sensible merely to restore the Bill in its original form. I intend, however, to review in 2013 how the current architecture is working. In light of this practical consideration, I believe it is premature to enact the Senators’ Bill at this stage. I also have substantial concerns about the content of both the 2006 Bill and the Bill now before the House.

If the Government decides we need substantive legislation in this area, the 2006 Bill will need repair to ensure it achieves its twofold objective of preventing unwarranted intrusions into individuals’ personal privacy and striking a proper balance between the rights of individuals and the public interest. It must do so in a manner that protects the right to individual privacy and other individual rights while respecting democratic values and the constitutional right to freedom of expression.

I agree with him that a broad range of issues needs to be examined carefully. The Bill is predominantly about media invasion of privacy, with little or no focus on any of the many other modern challenges to privacy, many of which the Law Reform Commission addressed as long ago as 1998. Some of them may well be dealt with by the EU’s proposed Data Protection Regulation. This will cover many of the private actors, and address some of the governmental regulatory issues, but there will still be large gaps, in particular in relation to the ongoing increase in law enforcement powers. Minister Shatter referred in passing to these issues, but chose to focus his fire on the press. In particular, he took the opportunity to complain that there are some journalists for whom the values of accurate reporting and vigorous investigative journalism “appear to have no relevance”:

Speed in reporting an issue is regarded by some as a greater value than accuracy, as is a contrived narrative that will either attract substantial public interest or scandalise readers. Where inconvenient facts undermine the desired narrative, there are some journalists who willingly omit them from the story written and published. … It is extraordinary how newspapers and some journalists who proclaim a commitment in the public interest to hold others to account for their actions seek to avoid and evade accountability when, by inaccurate reporting, they do damage to the reputation of individuals innocent of allegations made.

When he turned to the 2006 and 2012 Privacy Bills, the Minister took the view that “many of its provisions need further work to render them serviceable”. I agree. More than that, not only does it need significant revision to its terms, it also needs a great deal added, to ensure that privacy regulation does not miss other areas where privacy protection is at least as crucial. Perhaps the most significant difference between the debates in 2006 and the debate on Wednesday is the rise in the interim of online social media. As a consequence, Wednesday’s debate took aim not just at traditional journalism but also at online sites, in particular twitter. About the best contribution was that of my colleague, Senator Ivana Bacik, highlighting the flaws in the Bill:

… it has the potential to inhibit legitimate journalistic investigations and the exercise of freedom of expression[, and] … there are concerns about issues such as the hearing of actions other than in public. One can go through the Bill in a piecemeal fashion but the overarching principle is the need for a review of the mechanisms in place, to ascertain how the Defamation Act has worked in practice and, in particular, how the Press Council of Ireland and the Ombudsman are operating to protect the privacy of individuals while safeguarding legitimate freedom of expression. … There is a need to review the machinery to ascertain whether a statutory framework is required, which it probably is. On balance I would be in favour of a Bill but not this one and not in this format. However, I welcome Senator Norris’s initiative as it is helpful to debate the issue. I hope we can move forward, leaving the Bill on the Order Paper, and conduct the review described by the Minister.

The Bill was not pressed to a vote, and the debate was adjourned, so the matter can – and undoubtedly will – be revisited. When it is, let us hope for a more balanced consideration of the issues, which beholds both the privacy mote in the eye of the media and the privacy beam in the eye of the State, and which neither hobbles freedom of expression nor ignores the many other threats to privacy in the modern state.