Does Ireland need stronger laws on privacy?

Does Ireland need stronger laws on privacy?

Reviewing the law to ensure it is updated is always a worthwhile exercise.  But are Ireland's privacy laws in need of reform? This is the position of Alan Shatter, the Irish Minister of Justice, who has indicated that his Government will act because “It is clear that some sections of the print media are either unable or unwilling in their reportage to distinguish between “prurient interest” and “the public interest”.  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, 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.  Interstitial lawmaking has given rise to a right of privacy in relation to marital privacy and in relation to telephone communications, but in short, the right has not been properly articulated.  This may therefore be the right time to flesh out the actual nature of the right.  This does not mean that such a right need be a creature of statute, but it is hard to see how judges will want to take steps here by themselves.  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.

So where are things: 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.   Further, 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 Kate Middleton’s case it is difficult to see how the primary act by Closer was not an invasion of privacy under current privacy law, and arguably a breach of confidentiality, and it is probably not a stretch of judicial imagination to arrive at a situation where this instance would be an invasion of an Irish constitutional right or the human right set out in Article 8 of the European Convention as analysed by the German Courts and the European Court of Human Rights.

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.
One thing is for sure – there will be more of this, and the current ambiguities around a right to privacy in Ireland will be examined either judicially or through the legislature in the near future.
 

If you require further information on this article please contact Jon Legorburu.