Swing-gate: Maria Bailey loses four-year privacy battle over reports on compensation linked to fall from ‘unsupervised’ swing

The politician made a series of claims to the Data Protection Commission (DPC) including that this media organisation unlawfully obtained her health information, second-guessed her conduct and was hiding behind “sources”.

She also rejected the idea that her position as a TD meant she was open to public scrutiny, saying that being an elected representative “was not relevant”.

The former chair of the Oireachtas Housing Committee lodged a complaint with the DPC in June 2020 and an inquiry began the following March.

Ms Bailey found herself at the centre of the so-called “swing-gate” controversy in 2019 after launching a personal injuries claim against The Dean Hotel in Dublin as a result of a fall from a swing.

Over the course of several days, journalists revealed details of the incident and alleged injuries.

Ms Bailey’s lawsuit included a claim that the hotel was liable for the accident because the swing was “unsupervised”.

Legal papers lodged by the hotel showed it planned to counter-argue that she was holding items in both hands at the time of the fall.

Further investigation by the Irish Independent uncovered evidence that she ran a 10km race three weeks after the fall despite signing an affidavit which said she was unable to run at all for three months.

In her DPC case, the former Dún Laoghaire representative claimed there was “intent to malign and that the publication was timed to damage me”.

Ultimately she says she was “intimidated” into withdrawing her case from the Circuit Court where awards of up to €60,000 are allowed.

She had reported suffering soft-tissue injuries, contusions and concussion, and requiring dental treatment and intense physiotherapy.

The hotel planned to argue that Ms Bailey was holding a bottle of beer in one hand and a wine cooler containing a bottle of wine in the other.

Her complaint to the DPC was taken against Mediahuis Ireland, publishers of the Irish Independent, Sunday ­Independent and The Herald. She cited coverage in all three newspapers and online. If Mediahuis had been found to have breached data protection law, the company would have been served with a fine. There is no clear precedent for how big that fine might have been.

The media organisation argued it had a right to freedom of expression and exemptions to privacy law existed once the story could be proven to be in the public interest.

The publisher explained it considered a personal injuries action by a member of a government party to be in the public interest, especially in the context of Fine Gael’s well-publicised policy of combating an “insurance claims culture”.

Mediahuis noted there was already an “ongoing public debate” about so-called compo culture and “the effect that was having on insurance premia for people and businesses”.

“A government TD must accept they are exposed to a higher standard of public scrutiny than ordinary citizens. TDs hold themselves out as people of trust and integrity, their character is a central aspect of what voters assess when deciding whether to vote for them,” it said.

Responding to Ms Bailey’s claim that “malicious prominence” was given to her alleged inability to run after the accident, Mediahuis said this piece of information was central to its defence.

The publisher said while Ms Bailey sought to “downplay” her affidavit, “the simple factual position is that an elected representative gave sworn evidence in writing that was patently untrue”.

Mediahuis added that “it may never have learned of the 10km race if it had not published the level of detail it did”, including her health information.

In its ruling, the DPC sought to balance Ms Bailey’s right to privacy with the Irish Independent’s right to report in the public interest.

It also looked at the “accuracy and reliability” of the reporting.

The DPC dismissed a number of Ms Bailey’s claims, including that her health information was obtained through illegal means and that Mediahuis had interfered with the administration of justice.

The decision noted that in order to pursue a legal claim for damages, Ms Bailey would have to “impliedly waive privacy over the medical conditions for which compensation was sought”.

“The reporting did not relate to matters concerning the complainant’s intimate private life as such, but rather details of personal injury proceedings she had commenced to be heard in a public court,” the ruling said.

The DPC added that details of her court pleadings were stitched together with other data such as photographs from her Facebook account but this “appeared to have relevance” to the public debate around insurance.

It concluded the Irish Independent “was reporting on matters in the public interest” and “it is clear that the private sphere of the politicians is narrower”.

“The public debate ongoing about personal injury claims and their effect on insurance costs created a public interest in the reporting of the information concerned,” the DPC said.