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Wednesday 7 June 2023 Dublin: 13°C
Column Striking the balance between freedom of speech and the right to a fair trial
Public interest, freedom of speech and the right to a fair trial: all these factors form a carefully-balanced relationship between the media and criminal justice system. But just how clear-cut is the law? asks Fergal Crehan.

WHETHER IT’S MITT Romney, Michal Lowry, or the Anglo management doing the talking, the use of recorded material – made with or without the recorded person’s consent – is increasingly a feature of the news business.

It makes sense. With news media increasingly an online platform, opportunities exist as never before to use multimedia sources in breaking and covering stories. Plus, there’s something visceral about recordings that is lacking from simple transcripts.

The Anglo Tapes hit us in a way transcripts never could

The Anglo Tapes told us nothing we hadn’t already known or at least suspected. What was new was the tone of voice, the laughter, the macho bullishness. These hit us in a place that a dry recital of facts couldn’t reach.

However, publishing recorded matter is not without its risks, both to the publisher and to society at large.

Firstly, let’s have a look at the law. Actually, there isn’t much of it. Interception of phone calls is forbidden by the Postal and Telecommunications Services Act 1983, but this applies to phone tapping by third parties. Recording by one of the participants is expressly excluded, even where the other party is unaware. And, in any case, that law only applies to telecommunications.

Recordings of face-to-face communications are not covered. Certain uses of the recording may cause problems (they may not be admissible as evidence in court, for example)  but there is nothing illegal about the simple fact of making them.

Data protection and the public interest

Voice or video recordings are personal data, and in the normal course of events, it will be contrary to the provisions of the Data Protection Acts to publish them. However, the Data Protection Acts provide for exemptions for journalistic purposes. While one may quibble as to the quality or merit of certain stories, the media outlet need only show that they reasonably believed that the publication would be in the public interest.

Without an overriding journalistic or public interest of this sort, it is unwise to to publish any kind of recording without the consent of the person recorded. All manner of unintended consequences can arise for others and perhaps, if legal action arises, for you.

Some time ago, a Dublin student was put to considerable expense and distress when a video of someone running out on a taxi fair was incorrectly identified as being of him. What was lost in the fuss was that under the Data Protection Act, in-taxi cameras may not be legal. Certainly, publication of the video without consent is an unauthorised use of personal data. And putting a video of wrongdoing to a forum and asking for guesses as to the identity of the people is quite simply a defamation waiting to happen.

Freedom of speech and the right to a fair trial

This question, the indirect consequences of the publication, also has a bearing on the criminal law. Publication of such explosive material is an invitation to comment. And the more explosive the material, the more indignant the comment is likely to be. In consequence, any person featuring in a recording, should they be charged with a criminal offence, needs only to collect a few of the more vitriolic web comments about him in order to argue that there is no possibility of an unbiased jury being found for his case.

In 2000, the trial of Charles Haughey on charges of obstructing the McCracken Tribunal was indefinitely stayed, on just this basis. Much of the commentary at the time focused on comments by Mary Harney, but the court also gave weight to matters such as flyers for a protest which featured a photo of Mr Haughey and the slogan “jail the corrupt politicians”.

Even in those pre-social media days, that was enough to create a doubt that a fair trial was possible. These days, a legal team could find thousands of such statements. Of course there is a potential absurdity here – if we follow the logic too closely, no hate figure could ever be tried for the very thing that made them a hate figure.

The ‘fade factor’

However, there is also a view among some judges that a sensible jury, properly charged by the court, will be able to separate what they have heard in evidence from what they have seen in the media.

After all, judges often have to make such decisions themselves. There is also what is referred to as “the fade factor”: as time passes, certain outrages are partly forgotten, and the emotion aroused by them decreases. Haughey’s case was only stayed, after all, not cancelled. It was still pending when he died.

Nonetheless, similar applications may be made in the event that key banking figures are criminally prosecuted, and the courts will have to balance freedom of speech and the right to a fair trial. Media and society meanwhile have their own balances to strike. Media must consider how their right to publish is to be tempered by others’ right to privacy. The rest of need to question whether we value the satisfaction of having our say over that of seeing justice done.

Fergal Crehan is a barrister practicing in a variety of areas of the law. He has his own blog which you can view here.

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