Will privacy legislation follow TV3’s disclosure of Brian Lenihan’s illness?

TV3 News logo, via TV3 websiteJoe 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.