While the political fall out from Denis O’Brien’s legal action and the subsequent comments made by Catherine Murphy in the Dáil continues to gather steam there remains a lot of uncertainty about the exact constitutional position when it comes to Dáil Privilege and publication.
What is certain is that Denis O’Brien and others successfully obtained an injunction restraining RTÉ from publishing a details about Mr O’Brien’s banking and commercial arrangements.
Yesterday Catherine Murphy TD made a number of comments on the record in the Dáil in connection with a seemingly related matter. Questions have been posed since asking whether media outlets are free to report the comments made by Deputy Murphy under the generally accepted Dáil Privilege or whether the comments are still covered by the restraining injunction previously granted.
In the normal course of events if an injunction was granted then any subsequent breach of that injunction would be considered a contempt of Court however Dáil Privilege has the potential to alter this dynamic. The original concept of Parliamentary privilege covered privilege from defamation actions concerning any utterances made in the houses of Parliament. What is not entirely clear, legally speaking, if this privilege extents to some form of immunity from contempt of Court.
The most relevant Article of the Constitution here is 15.12. Article 15.13 has important protections for the TDs and Senators themselves but does not directly concern the media. Article 15.12 however tells us that “all official reports and publications of the Oireachtas…and utterances made in either House wherever published shall be privileged”.
The exact meaning of privilege and the extent of this protection in this situation is uncertain as we have never had a case exactly on point however the Supreme Court did rule in Attorney General v Hamilton (No 2) in 1993 that this privilege was wide ranging and extends “to any form of legal proceedings” and is not merely confined to defamation.
The Irish text of the Constitution (which is the authoritative text) makes this somewhat clearer whereby the Irish text says “táid saor ar chúrsaí dlí cibé áit a bhfoilsítear” which translates literally as “being free from matters of law wherever published” which would seem to suggest that publication of official records is absolutely covered and extents to all forms of legal actions including contempt of Court.
A further question arises as to whether the protection granted by Article 15.12 merely extends to official publications which are published by the Oireachtas itself or whether others who publish the materials are also covered. The law in the area of defamation defines publishing very broadly as bringing material to the attention of another and it is difficult to see any Court willing to define publication in this context so narrowly as to only cover documents published directly by the Oireachtas themselves.
On balance it would appear that publication of comments made in the Dáil should enjoy the protection of privilege particularly with a view to the seemingly wider scope offered by the Irish text of Article 15.12 however questions still arise as to the limits of this privilege. Could TDs, for example, constantly frustrate all publication based injunctions simply by making statements in the Dáil which could then be reported? This would bring us to the point where the Court’s Order would essentially become irrelevant and worthless and then questions would naturally arise as to what extent Courts should continue to allow privilege to reach.
It is worth noting that Dáil Standing Order 57 (3) requires that “a matter shall not be raised in such an overt manner so that it appears to be an attempt by the Dáil to encroach on the functions of the Courts or a Judicial Tribunal”. This goes some of the way to allaying these fears by way of the Dáil’s own rules however the Courts have recently expressed serious concerns in Callely v Moylan & Others about ever intervening any such issue even if the Dáil itself failed to do so.