Lex Ferenda

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.

With no inspiration from Tom, readers with an interest in either insurance matters, or indeed Irish defamation law, may wish to consider the following post. As a useful sidebar, Michael Geist has been writing about bloggers as journalists. An interesting one to muse on, in the context of a law blog having a post squashed (of course, I would not suggest that the MDU would do anything like that!

Originally posted on the McGarr blog, but reproduced for your interest from Google’s cache.

QUESTION: When is an insurer not an insurer?

ANSWER: When it is the Medical Defence Union (MDU) or a copycat version of it. (See Link)
Medical practitioners are obliged (for self and patient protection) to have professional indemnity insurance.

An insurer (usually an insurance company) is an entity contractually bound to indemnify the insured in the event of a loss or claim arising within the risk insured against. Building insurance and motor insurance policies are common examples.

Professional indemnity insurance indemnifies the insured professional against claims arising from alleged negligence of the professional in the practice of the profession. Doctors, lawyers, architects or engineers all need insurance of this type.

Confusion, it might be thought, would not surround such an issue, but in the case of the Medical Defence Union, it does.

It offers membership to doctors for a year. That may or may not be renewed. (See Link )

Medical practitioner members are not contractually entitled to indemnity from the MDU; they are offered the benefit of the serious consideration of the MDU to extend an indemnity. That is, MDU will not lightly refuse an indemnity. If it does indemnify, it will behave just like an insurer, but if not, not. (See Link)

The Irish Department of Health, on hearing of allegations of a lapse from high standards of corporate governance by MDU (the chief executive was in receipt of a higher salary than that of which the non-executive directors were aware), suggested in a letter to MDU that it might withdraw recognition of MDU as an insurer of general practitioners in the Department’s Medical Card Scheme. Of course a body such as MDU is in the absolute control of the directors/executive and not the members, given the contingency of membership.

The Department informed the press that it had sent a copy of its letter to the financial regulators of Ireland and the UK.

Why?

The Department, as appears from the report in the Irish Times on 19th September 2006, knows the “indemnity” offered by MDU is at the discretion of MDU.

The financial regulators have no regulatory role over an entity such as MDU.

The Department is in dispute with the MDU, as the MDU retreats from the Irish medical market. MDU will no longer “cover” members in Ireland; the Irish Government will become the indemnifier of the doctors. However, rather than just declining to take new members or continue membership for Irish doctors, MDU, having taken “membership fees” for many years has declined to indemnify some members for “historical claims”.
Which prompts the question; why is the Department of Health, even yet, treating membership of MDU as equivalent to a policy of insurance?

A doctor and his/her patient must have certainty that, in the event of a claim of negligence, given the very high legal costs in establishing the fault or otherwise of the doctor, it cannot be left in doubt that an indemnity will be forthcoming for the claim and the costs associated with it. (See Link)

Oops! I’m back now.

“Worth reading” of the week. The Gowers Report (PDF) on IP in the UK is finally out. It’s good, but not great. Mick Hucknall wrote a terrible opinion piece on the relationship between copyright and socialism - obviously that well-known doctrine of “from each according to their ability, to each according to the number of record companies they own”. Hucknall’s argument didn’t work, and Gowers failed to recommend extending copyright in sound recordings. Awww.

Other stuff I did. I gave this speech on the Bologna Process and e-learning (and other things!) at the University of Vienna and attended the European University Association’s seminar on doctoral programmes. And reaching back, presentations from the GikII event I attended and blogged a little about in September (but didn’t present at) are now available (thanks, Lilian).

Department of Legal Trivia. The honourable Richard Posner, American circuit court judge, appeared in avatar form in Second Life. A transcript is promised, but here’s a great picture:

Antoin (eire.com) wrote about the ability to make small claims online in Ireland. Good news.

More to follow…