Joe Ryan wrote both an interesting comment on this morning’s post and a great post about the issue on his own blog. My reply to him became too long for a comment, so I’ve upgraded it to this post.

First, I should say that I worked with Brian Lenihan for a few years in TCD, and my thoughts and best wishes are with him and his family at this difficult time. It may be a cliché, but it’s nonetheless true for all that, and I hope he returns to rude good health as quickly as possible.

Second, as TJ McIntyre and Jason Walsh argue, Brian’s illness must be a prime example of a public interest in disclosure. On the other hand, Jim Tormey argues that it is a legitimate matter of public interest only when Brian finds or it appears obvious that he cannot do his job. This is a strong argument, and even some who are wary of overbearing privacy laws are discomfited by TV3’s insensitivity and lack of self-restraint. In the circumstances, I think that Brian showed great restraint in not seeking an injunction to prevent TV3’s broadcast, and I agree with Joe (and with Myles Duffy on The Crimson Observer) that, if Brian chooses to make an issue of it, the matter should go to the recently-fully-established Broadcasting Authority of Ireland (BAI). Compare the adjudications of the Press Ombudsman and Press Council upholding a complaint by Tony Gregory TD that a reporter for the Evening Herald confronting his brother at his home was an invasion of privacy justified neither by the complainant’s public position as a Dáil deputy, nor by the significance of the information being sought about his ongoing battle with cancer. (Ironically, the Herald now thinks that TV3 treated Brian and his family badly).

However, my point – indeed my worry – in my previous post, is not what he himself would do but what others might do ‘on his behalf’, and seek to resurrect the moribund (but flawed) Privacy Bill, 2006?

When he was Minister for Justice in January 2008 (amplifying something he had said two months earlier), Brian did not rule out introducing such a Bill, but instead gave the media 2 years to prove that it was not necessary. Last April, his successor as Minister for Justice, Dermot Ahern (rather controversially) said that he plans to revive the dormant Privacy Bill, citing a worrying trend in media intrusion to get a good story. We’re nearly at the end of Brian’s two year grace period, and TV3’s actions are being seen as another example of just such intrusive gutter journalism. As a consequence, I think it very likely that those who want privacy legislation are even now lining up to use it as an excuse to drum up support for it. It would be a great pity if the politicians were to legislate in haste, leaving the rest of us to repent at leisure. Let us first see if the BAI can resolve the issue; only then, with cooler heads, should we proceed to consider whether further legislative intervention is required. If that comes to pass, then TV3’s short-sighted decision to broadcast may have gained them some short-term beneift but in the long-run we will all be short-changed.

There has been much comment over the weekend about TV3’s disclosure of the serious illness with which Brian Lenihan, Minister for Finance, has recently been diagnosed. This poses many questions, but I want to ask only one: will the public anger at TV3’s disclosure provide the political impetus – or perhaps simply political cover – to proceed with the enactment of the (misconceived) Privacy Bill, 2006?

From the cover of Kathryn Dalziel’s Privacy in Schools: A guide to the Privacy Act for principals, teachers and boards of trustees (Privacy Commissioner of New Zealand, 2009), a cartoon by Chris Slane:

Image: teacher and schoolboys in a classroom surveyed by several cctv cameras.
Caption: schoolboy to teacher: “Please sir, can I have some more privacy?”

I remember this one time, at BarCamp Dublin, I went to Darren Barefoot’s presentation, and he said

Things live forever on the web … the internet never forgets.

Total recall online is now a common trope, and one which forms the starting point of Viktor Mayer-Schönberger’s provocative new book Delete: The Virtue of Forgetting in the Digital Age (Princeton University Press, 2009). Your privacy is gone, and you don’t know what you’ve lost till it’s too late. Two years ago, Dan Solove warned in The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press, 2007) that a permanent online chronicle of our private lives could mean that the freedom of the internet makes us less free. Now, for the “future that is forever unforgiving because it is unforgetting”, Mayer-Schönberger proposes the remedy of induced forgetting for the internet’s elephantine memory Read the rest of this entry »

Professor Sir Alec Jeffreys, the scientist behind DNA fingerprinting, in a BBC interview to mark the 25th anniversary of that discovery, has spoken of the importance of allowing academics freedom to research. He said that academics should be able to pursue “unfettered, fundamental, curiosity-driven” research of the kind which led to his discovery. It is an important defence not only of academic freedom but also of traditional research methodology in the face of increasingly dirigiste institutional, sectoral and national research strategies.

Equally important – though more newsworthy – is his call, in the same interview, for a change to the UK’s law governing DNA databases. In that interview, he said that “innocent people do not belong on that database”, and he renewed his calls for the UK government to change the law governing the UK’s DNA databases – particularly the practice of keeping the DNA profiles of thousands of people who have neither been charged nor convicted.

In S and Marper v UK 30562/04 [2008] ECHR 1581 (4 December 2008), the applicants complained that their fingerprints, cellular samples and DNA profiles had been retained by the police, pursuant to section 64 (1A) of the Police and Criminal Evidence Act 1984, notwithstanding that proceedings against them had ended with an acquittal or had been discontinued. The European Court of Human Rights upheld their complaints:

125. … the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.

The UK government’s response, after consultation, was to say that, whilst the underlying samples would be destroyed, the DNA profiles derived from them would continue to be stored on the database. In an interview with the Guardian last April, Prof Jeffreys said he was left “almost speechless” by reports of this response. Moreover, in an extraordinary move, police have subsequently been instructed to ignore the ECHR decision until these new guidelines could come into force next year. Inevitably, there have been objections that this response will also be found wanting in the ECHR.

I am sure the Department of Justice is watching this issue very closely, given that they published a scheme for a Criminal Justice (Forensic Sampling and Evidence) Bill in 2007, which also provides for the storing of samples from suspects in a database. Marper has probably taken the wind out of the sails of the detail of that proposal, but whatever the UK government successfully gets away with in the ECHR will provide a map to the Department as it continues its work on that Bill.

The title of this post is the provocative title of a recently published book from Oxford University Press written by Jon L Mills (on the author, see University of Florida Levin College of Law | University of Miami School of Law; on the book, see Amazon | Barnes & Noble | Google Books | OUP; if you want to judge it by its cover, that’s it on the right left).

The OUP blurb says that the book:

• Provides a straightforward and concise history of the regulations and policies governing our personal privacy
• Reviews the full range of privacy issues that affect United States citizens, including identity theft, government surveillance, tabloid journalism, and video surveillance in public places
• Considers the legal tools available to individuals who wish to protect their personal privacy

The disturbing reality of contemporary life is that technology has laid bare the private facts of most people’s lives. Email, cell phone calls, and individual purchasing habits are no longer secret. Individuals may be discussed on a blog, victimized by an inaccurate credit report, or have their email read by an employer or government agency without their knowledge. Government policy, mass media, and modern technology pose new challenges to privacy rights, while the law struggles to keep up with the rapid changes.

Privacy: The Lost Right evaluates the status of citizens’ right to privacy in today’s intrusive world. Mills reviews the history of privacy protections, the general loss of privacy, and the inadequacy of current legal remedies, especially with respect to more recent privacy concerns, such as identity theft, government surveillance, tabloid journalism, and video surveillance in public places. Mills concludes that existing regulations do not adequately protect individual privacy, and he presents options for improving privacy protections.

This is only one of several recent books which make for compelling but depressing reading about the state of the protection of privacy today. Against that background, it was surely intended that the title have echoes of “Privacy: The Last Rite(s)”?

Via Chris Slane’s wonderful Privacy Cartoon Portfolio, a poster for last month’s Privacy Awareness Week in New Zealand:

Three stories from today’s Irish Times caught my eye. First, the good. The Press Council of Ireland and the Office of the Press Ombudsman launched their first annual report yesterday. The press industry undoubtedly did a good thing in establishing the Press Council and the Ombudsman, and yesterday’s report on the first year of operation shows the wisdom of that decision. The launch of the report is covered in the Home News section of the Irish Times, and welcomed in the lead editorial . From the report [with added links]:

Praise for complaints system after release of Press Ombudsman’s report

AGGRIEVED READERS made over 370 complaints about newspapers and magazines last year during the Press Ombudsman’s first year of work, his annual report reveals. … Reviewing the performance of the Press Council of Ireland and the Office of the Press Ombudsman in their annual report published yesterday, council chairman Prof Tom Mitchell said the innovative and effective regulatory system offered significant benefits to the press and public. …

Moreover, speaking at the launch, the Minister for Justice, Dermot Ahern, said he hoped that the long-delayed Defamation Bill, 2006 would become law by the summer, an aspiration which Prof Mitchell greeted as “wonderful news”.

Second, the bad. Well, it’s no much that it’s bad as that it’s not enough. At present, Irish broadcasting law bans political advertising, and tightly regulates religious advertising. It was originally intended simply to restate this position in the Broadcasting Bill, 2006, but the Minister for Communications, Eamon Ryan, has announced that the restrictions on religious advertisements. This, too, is a good thing. But it is not enough of a good thing. The ban on political advertising should also have been revisited. And the failure to address this issue is a bad thing. From the report:

Controls on religious ads for broadcast to be relaxed

MINISTER FOR Communications Eamon Ryan will soften current restrictions on religious advertisements that are broadcast on television and radio. … “Advertising shouldn’t be used for promoting a particular religion or as an agent for recruitment. At the same time, I don’t want to completely restrict advertising that has a religious connotation.” …

Third, the ugly. And this is downright ugly. When the Defamation Bill, 2006 was introduced into the Seanad, it had an ugly twin, the Privacy Bill, 2006. However, as the Defamation Bill proceeded on its fitful way through the Oireachtas [Parliament], the Privacy Bill seemed to fade. Now, it is back with a bang. I do not for one moment doubt that Irish law on privacy is in need of reform, but I likewise do not think that the Privacy Bill as it was introduced in 2006 is the answer to that need. It was overly-restrictive on the meida, whilst ignoring almost every other aspect of privacy protection (eg, cctv, online privacy, genetic privacy, and so on). It now seems that the revived Bill will address some at least of those other issue, but the tone of the Minister’s comments yesterday suggest that the draconian media provisions will remain. And if they do, that would be an ugly thing. From the report:

Ahern says he plans to revive privacy Bill

MINISTER FOR Justice Dermot Ahern has revived plans to introduce laws to protect the privacy of individuals, citing a “worrying trend in media intrusion in order to get a good story”.

Yesterday, however, Mr Ahern announced he planned to inject fresh momentum into the Bill by updating its provisions to reflect recent legal and technological developments. … The violation of privacy was not the exclusive preserve of the media, he said, and many complaints over privacy now concerned actions by individual citizens against others. …

He made these comments at the launch of the Press Ombudsman’s annual report referred to above, and today’s Irish Independent’s report of the launch led with this aspect of his speech. This was where he made his comments on the prospects for the Defamation Bill’s eventual enactment (which I think is a good thing). But he said that he had “misgivings” about the defence of reasonable publication. And if these misgivings translate into the removal of the defence from the Bill, that would be a very ugly thing indeed.

Update (5 April 2009): Leave Press Council to do its work: in the Sunday Independent, Emer O’Kelly argues that the Government’s plan to amend the law on privacy will restrict freedom of enquiry, and it would be better if the Press Ombudsman and Press Council were to develop a body of decisions to cover the area.