Reviewing the law to ensure it is updated is always a worthwhile exercise. But are Ireland's privacy laws in need of reform? The position in Ireland is not dissimilar to that in the United Kingdom, but the common law world has struggled with the concept of a right to privacy generally. The United States has recognised it. Australia has expressly denied the right and the United Kingdom and Canada have not conclusively determined the position, although there is increasing acceptance in England of the right given its incorporation through the European Convention of Human Rights.
What Ireland does have, over and above the British position is a constitutional right, and the Irish position at common law (really in equity and tort) is also reasonably developed. However, a fundamental principle yet to be established by the Irish courts is whether the obligation to keep something confidential extends to those who surreptitiously acquire information by surveillance techniques (phone tapping and photos/videos). This is a crucial question left largely unanswered. It applies in the Kate Middleton case to the Irish Daily Star (back in 2012), and threatened actual publications elsewhere.
The Irish Courts have the benefit of having a somewhat established constitutional right, and so the law has developed in this area. It is somewhat established, because it is not clearly set out, that the Constitution provides a conceptual and intellectual backdrop for developing a jurisprudence in relation to privacy that the English courts cannot directly avail themselves of. Creative lawmaking has generated useful decisions in the past, but the interplay between freedom of expression and the sanctity of a private world free from press intrusion is a cornerstone debate in our society at large. Answering this is possibly best determined by the body politic rather than the judges.
The present position is that the Irish Courts have accepted what we may call the Garbo principle – that there is the right to be left alone. The trouble is they may need help in defining the boundaries of that right. The Irish courts have noted the decision in Von Hannover v Germany No. 1 where a complex interplay between the public status of an individual, the potential for a campaign of harassment, the contribution of the publication to a debate of current interest in contemporary society, and the potential mere entertainment value would be relevant factors in reaching a decision. Furthermore, the Irish Courts will be reluctant to allow a right of privacy to subsist where public figures court publicity in relation to the matters they subsequently seek to protect.
In the United Kingdom the press are very sensitive to issues of intrusion with regard to members of the British Royal Family, not least in the aftermath of the phone hacking scandal, and so reluctance to publish in that country has more to do with political and economic fallout than it does to a stronger and more well established right of privacy than in Ireland. Ireland if anything is a possibly safer harbour legally for those wishing to assert their rights of freedom generally. However, as we have seen in France, one can have strong privacy laws, but without teeth, there will always be those who will be prepared to break the law for a wider commercial gain.
These privacy laws have been thrown into the spotlight again in respect of Denis O’Brien’s high Court injunction against RTE. It certainly is an interesting area.
If you have any query in relation to this topic please contact John Bollard on 01-679 4165 or by email: john@donaghys.ie