Privacy Bill, 2006

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Michael Merrigan

Privacy Bill, 2006

Legg inn av Michael Merrigan » 17 sep 2006 12:37:47

A Chairde,

Another two Bills have come to the attention of members of the
Genealogical Society of Ireland - the Defamation Bill, 2006 and the
Privacy Bill, 2006 as there is concern about the apparent conflict
between the Defamation Bill, 2006 - Section 16 (3) & Schedule 1 (10)
and the Privacy Bill, 2006 - Section 4 (3) (a) in respect of bona fide
genealogical research and data obtained from a public register.

Should the Privacy Bill, 2006 be enacted as published, it is argued,
that it could impede genealogical and heraldic research and frustrate
the publication of such through the threat of litigation. Officials
could avail of this legislation to arbitrarily restrict or deny access
to records on the grounds that such access could facilitate an
infringement of rights and protections afforded by the legislation.

The Genealogical Society of Ireland has asked the Minister of Justice,
Equality & Law Reform, Mr. Michael McDowell, TD, to insert a clause
excluding bona fide genealogical research from the provisions of both
the Defamation Bill, 2006 and the Privacy Bill, 2006.

For ease of access:-

Privacy Bill, 2006
http://www.oireachtas.ie/documents/bill ... b4406s.pdf

Defamation Bill, 2006
http://www.oireachtas.ie/documents/bill ... b4306s.pdf

Kindest regards,

Michael Merrigan
http://www.familyhistory.ie

Emungo

Re: Privacy Bill, 2006

Legg inn av Emungo » 20 sep 2006 12:07:50

Michael Merrigan wrote:
A Chairde,

Another two Bills have come to the attention of members of the
Genealogical Society of Ireland - the Defamation Bill, 2006 and the
Privacy Bill, 2006 as there is concern about the apparent conflict
between the Defamation Bill, 2006 - Section 16 (3) & Schedule 1 (10)
and the Privacy Bill, 2006 - Section 4 (3) (a) in respect of bona fide
genealogical research and data obtained from a public register.

Should the Privacy Bill, 2006 be enacted as published, it is argued,
that it could impede genealogical and heraldic research and frustrate
the publication of such through the threat of litigation. Officials
could avail of this legislation to arbitrarily restrict or deny access
to records on the grounds that such access could facilitate an
infringement of rights and protections afforded by the legislation.

The Genealogical Society of Ireland has asked the Minister of Justice,
Equality & Law Reform, Mr. Michael McDowell, TD, to insert a clause
excluding bona fide genealogical research from the provisions of both
the Defamation Bill, 2006 and the Privacy Bill, 2006.

Not sure about the conflict (defamation is not the same as the new tort

of violation of privacy, so what is a defence to one need not be a
defence to the other) but I'm surprised no-one has picked up on your
flagging of this issue here.

In the Privacy Bill in particular the (lack of) definition of the term
'other documents concerning the individual' in the basic setting out of
the new tort (s 3 (2) (d)) seems troubling. Even the phrase 'concerning
the individual' invites inflation, since it might be argued that info
regarding x's parents concerns x too.

An exemption or rather a defence for bona fide genealogists added to
section 5 is one way (though how then to define b.f. genealogists?) and
may be the only politically available option; but it does not really
address the heart of the question. If documents are public, why can't
they be published or publicized?

A better way, rather than merely adding genealogy to the list of
defence-giving activities in s 5, would be to redraft that entire
section more liberally and generally to cover disclosure of publically
available information that was appropriate in the context of any
published narrative or account (this defence to be defeated on proof of
malice), and to get rid of 4 (3) (a) entirely. As presently drafted the
only form of defence relevant to genealogists is the one flowing from
section 2 (1) defining the relevant degree of privacy as a reasonable
one in the circumstances. It might be unwise to expect the courts to
interpret this in favour of defendants.

Michael Merrigan

Re: Privacy Bill, 2006

Legg inn av Michael Merrigan » 21 sep 2006 14:33:50

Emungo, a Chara,

Thanks for that very informative and useful reply. I'll put your
suggestion to the Board of the Genealogical Society of Ireland for
consideration as I believe that it is certainly a way forward.

Yes, I was also very surprised at the lack of response to the serious
issues raised by the Privacy Bill, 2006 for genealogical, heraldic,
biographical or social historical research. Whilst, I understand that
the issues are complicated and smothered in legal jargon in both Bills,
the issues regarding the use of material obtained from a Public
Register seem clear enough as to have raised alarm bells amongst
researchers.

Another negative possibility of the enactment of the Bills in their
published format is the fear of the threat of legal action may
encourage some to seek the closure or imposition of very restrictive
access to records currently open to the public in our national
repositories. Indeed, it is possible that records currently only
accessible under very restrictive conditions may overnight become
"closed" or "private records".

All with an interest in Irish genealogy and heraldry should take notice
of the implications of these Bills and support the call by the
Genealogical Society of Ireland for the insertion of clauses in each to
exclude "bona fide genealogical research" from the provisions of the
Bills.

Kindest regards

Michael Merrigan
http://www.familyhistory.ie


Emungo wrote:
Michael Merrigan wrote:
A Chairde,

Another two Bills have come to the attention of members of the
Genealogical Society of Ireland - the Defamation Bill, 2006 and the
Privacy Bill, 2006 as there is concern about the apparent conflict
between the Defamation Bill, 2006 - Section 16 (3) & Schedule 1 (10)
and the Privacy Bill, 2006 - Section 4 (3) (a) in respect of bona fide
genealogical research and data obtained from a public register.

Should the Privacy Bill, 2006 be enacted as published, it is argued,
that it could impede genealogical and heraldic research and frustrate
the publication of such through the threat of litigation. Officials
could avail of this legislation to arbitrarily restrict or deny access
to records on the grounds that such access could facilitate an
infringement of rights and protections afforded by the legislation.

The Genealogical Society of Ireland has asked the Minister of Justice,
Equality & Law Reform, Mr. Michael McDowell, TD, to insert a clause
excluding bona fide genealogical research from the provisions of both
the Defamation Bill, 2006 and the Privacy Bill, 2006.

Not sure about the conflict (defamation is not the same as the new tort
of violation of privacy, so what is a defence to one need not be a
defence to the other) but I'm surprised no-one has picked up on your
flagging of this issue here.

In the Privacy Bill in particular the (lack of) definition of the term
'other documents concerning the individual' in the basic setting out of
the new tort (s 3 (2) (d)) seems troubling. Even the phrase 'concerning
the individual' invites inflation, since it might be argued that info
regarding x's parents concerns x too.

An exemption or rather a defence for bona fide genealogists added to
section 5 is one way (though how then to define b.f. genealogists?) and
may be the only politically available option; but it does not really
address the heart of the question. If documents are public, why can't
they be published or publicized?

A better way, rather than merely adding genealogy to the list of
defence-giving activities in s 5, would be to redraft that entire
section more liberally and generally to cover disclosure of publically
available information that was appropriate in the context of any
published narrative or account (this defence to be defeated on proof of
malice), and to get rid of 4 (3) (a) entirely. As presently drafted the
only form of defence relevant to genealogists is the one flowing from
section 2 (1) defining the relevant degree of privacy as a reasonable
one in the circumstances. It might be unwise to expect the courts to
interpret this in favour of defendants.

Sean J Murphy

Re: Privacy Bill, 2006

Legg inn av Sean J Murphy » 23 sep 2006 00:05:59

Michael Merrigan wrote:
A Chairde,

Another two Bills have come to the attention of members of the
Genealogical Society of Ireland - the Defamation Bill, 2006 and the
Privacy Bill, 2006 as there is concern about the apparent conflict
between the Defamation Bill, 2006 - Section 16 (3) & Schedule 1 (10)
and the Privacy Bill, 2006 - Section 4 (3) (a) in respect of bona fide
genealogical research and data obtained from a public register.

Should the Privacy Bill, 2006 be enacted as published, it is argued,
that it could impede genealogical and heraldic research and frustrate
the publication of such through the threat of litigation. Officials
could avail of this legislation to arbitrarily restrict or deny access
to records on the grounds that such access could facilitate an
infringement of rights and protections afforded by the legislation.

The Genealogical Society of Ireland has asked the Minister of Justice,
Equality & Law Reform, Mr. Michael McDowell, TD, to insert a clause
excluding bona fide genealogical research from the provisions of both
the Defamation Bill, 2006 and the Privacy Bill, 2006.

For ease of access:-

Privacy Bill, 2006
http://www.oireachtas.ie/documents/bill ... b4406s.pdf

Defamation Bill, 2006
http://www.oireachtas.ie/documents/bill ... b4306s.pdf


Having been preoccupied with the existing problem of refusal or
inhibition of access to records of the Office of the Chief Herald of
Ireland, or Genealogical Office records, I am just now finding the time
to consider possible future problems of access to records in the context
of the Privacy Bill. Yes, it is worrying that section 4(3)(a) of this
bill states that it shall not be a defence in a privacy action that the
information disclosed was contained in a register or document to which
the public had access. This could indeed cause vital registers to become
less open to genealogists, adding to the problems resulting from
identify theft. I note that journalists are also worried that this bill
goes beyond defending individuals from improper prying and may prevent
or inhibit investigation of corruption or wrong-doing. Thus I would
think that amendments to the bill might be better couched in more
general terms to protect various forms of research and investigation
rather than referring to bona fide genealogical or heraldic research
specifically.

I am also concerned that the Defamation Bill does not maintain the
crucial balance between protection of an individual's reputation and
providing scope for publishing exposure of wrong-doing. Terence
MacCarthy 'Mór' wielded the threat of 'criminal libel' very effectively
to discourage people from criticising what we now know to have been a
completely bogus claim to Gaelic chiefship. It could be imagined how a
bogus claimant to a noble title could exploit provisions of both the
Irish Privacy and Defamation bills to prevent publication of his true
birth certificate and statements that he is questionable or an impostor.
However, section 14(1) of the Defamation Bill does recognise a powerful
defence against a charge of defamation, which I have relied on in my
fortunately few legal jousts to date: 'It shall be a defence (to be
known and in this Act referred to as the “the defence of truth”) to a
defamation action for the defendant to prove that the statement in
respect of which the action was brought is true in all material
respects.' And as pointed out, in contrast to the Privacy Bill, the
Defamation Bill does allow the defence that an allegedly actionable
statement is contained in a publicy accessible register or document.

Sean Murphy
Irish Chiefs http://homepage.eircom.net/%7Eseanjmurphy/chiefs/

Michael Merrigan

Re: Privacy Bill, 2006

Legg inn av Michael Merrigan » 23 sep 2006 10:28:22

A Sheáin, a Chara,

I must say that I am relieved that, at last, someone else in the Irish
genealogical community has realised the serious implications of these
Bills, as published, for genealogical, heraldic, biographical and
social history research.

What is absolutely clear is that if this legislation was in place a
number of years ago, the "bogus chiefs" affair would have been
impossible to investigate and to publicise in the media. It is possible
that such legislation would have actually facilitated the "Prince of
Desmond" in his activities and indeed, encouraged others to follow.

It is also clear that if such legislation were in place no meaningful
official investigation or inquiry into the operation of the
Genealogical Office during the "bogus chiefs" period could ever be
envisaged and therefore, the beneficiaries of this scam and those who
may have facilitated it would be forever protected from public
scrutiny. This is totally unacceptable as the full scale of the
affair, including any financial implications for the Genealogical
Office, the "Prince of Desmond" and others, is a matter of public
concern and should be investigated and, if necessary, any report
emanating from such an inquiry could be published under privilege by
the Oireachtas (Irish Parliament).

However, unlike many, I strongly believe that an inquiry will
eventually have to be established to investigate what role, if any, the
Irish State or its officials had in the facilitation of this fraudulent
enterprise which possibly netted millions for its perpetrators.
Without this inquiry the Genealogical Office and Irish heraldry will
continue to exist under a cloud of suspicion which may unjustifiably
reflect on the reputations of officials and others. This is totally
unacceptable.

Whilst, the Genealogical Society of Ireland has called for the
insertion of clauses excluding "bona fide genealogical research"
from the provisions of both Bills, it is absolutely clear that a broad
coalition of interested parties is emerging to demand wider changes to
these Bills. In this regard, I agree that a broader exclusion could
and should be considered.

The protections afforded to the individual as proposed by the Privacy
Bill, 2006 will certainly enable persons with sufficient financial,
political or commercial clout to avoid investigation and to possibly
evade other aspects of their legal or financial obligations within the
State.

Kindest regards,

Michael Merrigan
http://www.familyhistory.ie





Sean J Murphy wrote:
Michael Merrigan wrote:
A Chairde,

Another two Bills have come to the attention of members of the
Genealogical Society of Ireland - the Defamation Bill, 2006 and the
Privacy Bill, 2006 as there is concern about the apparent conflict
between the Defamation Bill, 2006 - Section 16 (3) & Schedule 1 (10)
and the Privacy Bill, 2006 - Section 4 (3) (a) in respect of bona fide
genealogical research and data obtained from a public register.

Should the Privacy Bill, 2006 be enacted as published, it is argued,
that it could impede genealogical and heraldic research and frustrate
the publication of such through the threat of litigation. Officials
could avail of this legislation to arbitrarily restrict or deny access
to records on the grounds that such access could facilitate an
infringement of rights and protections afforded by the legislation.

The Genealogical Society of Ireland has asked the Minister of Justice,
Equality & Law Reform, Mr. Michael McDowell, TD, to insert a clause
excluding bona fide genealogical research from the provisions of both
the Defamation Bill, 2006 and the Privacy Bill, 2006.

For ease of access:-

Privacy Bill, 2006
http://www.oireachtas.ie/documents/bill ... b4406s.pdf

Defamation Bill, 2006
http://www.oireachtas.ie/documents/bill ... b4306s.pdf


Having been preoccupied with the existing problem of refusal or
inhibition of access to records of the Office of the Chief Herald of
Ireland, or Genealogical Office records, I am just now finding the time
to consider possible future problems of access to records in the context
of the Privacy Bill. Yes, it is worrying that section 4(3)(a) of this
bill states that it shall not be a defence in a privacy action that the
information disclosed was contained in a register or document to which
the public had access. This could indeed cause vital registers to become
less open to genealogists, adding to the problems resulting from
identify theft. I note that journalists are also worried that this bill
goes beyond defending individuals from improper prying and may prevent
or inhibit investigation of corruption or wrong-doing. Thus I would
think that amendments to the bill might be better couched in more
general terms to protect various forms of research and investigation
rather than referring to bona fide genealogical or heraldic research
specifically.

I am also concerned that the Defamation Bill does not maintain the
crucial balance between protection of an individual's reputation and
providing scope for publishing exposure of wrong-doing. Terence
MacCarthy 'Mór' wielded the threat of 'criminal libel' very effectively
to discourage people from criticising what we now know to have been a
completely bogus claim to Gaelic chiefship. It could be imagined how a
bogus claimant to a noble title could exploit provisions of both the
Irish Privacy and Defamation bills to prevent publication of his true
birth certificate and statements that he is questionable or an impostor.
However, section 14(1) of the Defamation Bill does recognise a powerful
defence against a charge of defamation, which I have relied on in my
fortunately few legal jousts to date: 'It shall be a defence (to be
known and in this Act referred to as the "the defence of truth") to a
defamation action for the defendant to prove that the statement in
respect of which the action was brought is true in all material
respects.' And as pointed out, in contrast to the Privacy Bill, the
Defamation Bill does allow the defence that an allegedly actionable
statement is contained in a publicy accessible register or document.

Sean Murphy
Irish Chiefs http://homepage.eircom.net/%7Eseanjmurphy/chiefs/

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