Unlawful and Public Domain
If conduct is unlawful or immoral, a right of privacy which might otherwise exist, may be denied. It does not follow, however, that people previously convicted of crimes forfeit all privacy. The courts have been reluctant to be judgmental in assessing morality in the context of expectation of privacy. Given that privacy entails a choice, what a person does within reasonable bounds is respected in the absence of objectively harmful facts.
If a matter has gone into the public domain, it will carry a lesser expectation of privacy and will be less likely to be protected. This principle applies to a deliberate waiver of privacy only. Where the circumstances of release are unintended or themselves constitute a breach of privacy, this consideration does not apply.
In some circumstances, privacy claims may be allowed notwithstanding that they protect something that is false. The right of privacy may include a right to prevent disclosure of falsehood. In some cases, the right to privacy may protect the dissemination of false claims where they interfere with a person’s dignity and autonomy.
Consent and Waiver I
Consent is a defence to breach of privacy. It must be voluntarily given. As with consent generally, it is negated by coercion, duress, misrepresentation, fraud or undue influence.
Implied consent may be shown in some cases. This may occur where a person brings information into the public domain. Explicit or informed consent may be required in some cases, where the intrusion is significant.
The consent must extend to the particular matters concerned. Where a person has consented to publication of pictures at a different time or in a different context, he may be able to restrain their publication in a different context or to a different audience by reason of his right to privacy.
Consent and Waiver II
A person may waive his right to privacy expressly or by implication. This may follow necessarily from a particular course of action. This occurs, for example, where a person takes legal action in relation to matters which of necessity entail the disclosure of private information. A person who seeks publicity may waive or limit his expectation of privacy. The failure to object to previous publications, does not necessarily imply a waiver.
Difficult issues arise with shared information. The issue has arisen, where celebrities who have had an affair, seek to restrain the other party from disclosing or selling their story. In some cases, the courts have held that the consent of one party to disclosure of the shared information is sufficient.
The consent of both parties is more likely to be required to publication of shared information has been required, where the details are intimate. The courts strike a balance between one person’s freedom of expression and the other person’s privacy.
The defence of so-called “public interest” is sometimes raised. Public interest is sometimes relevant to determining the extent to which a person may have a legitimate expectation of privacy. Privacy should not be used as a shield to protect wrongdoing. A balance is struck between the public interest and the right to privacy. The fact that a matter is of interest to the public, does not mean that it is in the public interest to disclose it.
The public interest must be sufficiently cogent to justify a breach of privacy. Matters affecting the government of the country, safety, security and legitimate matters of widespread public concern, may justify disclosure in the public interest. However, as the matter becomes of more limited interest, the defence is less likely to be available.
The courts have indicated that the personal affairs of public figures are not usually or necessarily a matter of public interest. This principle has been invoked to restrain intimate disclosures in relation to famous persons.
The Press Council’s Code of Conduct provides that the right of privacy does not prevent the publication of matters of public interest. Some matters in public records are presumptively public and will not generally sustain an expectation of privacy. Where the public bodies have been entrusted with private information such as health information in the course of their functions, an obligation of confidentiality is likely to apply.
Public Interest in Disclosing Wrongdoing
There is a general public interest in disclosure of illegality and wrongdoing. This may apply to illegal or wrongful conduct. It may extend to activity which is not illegal but constitutes misconduct or is objectionable. The fact that a celebrity falls short of high standards of probity, does not justify exposure. A mere technical offence or wrongdoing does not necessarily justify a denial of privacy.
The courts have suggested on several occasions that there is no public interest in automatically disclosing immoral and objectionable conduct. The right to privacy should not entail public judgment within a zone of privacy.
Dangers or risk to the public are more likely to justify disclosure. Where there is an actual risk to a person’s health or life, specifically or in general terms, disclosure will be generally permissible, and privacy would rarely be upheld.
Substantive and Procedural Limits on Interference
The more intrusive and intimate the intrusion of privacy, the more rigorous the justification must be. Interference with fundamental rights must be for the purpose of an objective social need and be proportionate. It need not be necessary, in the sense of being absolutely necessary, but they must be reasonable and proportionate. This proportionality may be exercised within the states’ margin of appreciation.
Laws which interfere with privacy must meet minimum standards of due process. For example, the laws on surveillance must have sufficient protective mechanisms built in, so that they ensure that interference with the right goes no further than necessary, in order to achieve a legitimate objective. They interference must not be arbitrary and must be protected by appropriate procedures.
The courts have also given expression to freedom of expression, which is also protected under the Convention. They have emphasised the parity of freedom of expression and the right to privacy. The weight to be given to each depends on the balance between competing rights. In the case of intrusion on privacy, there must be some sufficiently important countervailing consideration in the public interest, which is sufficient to justify it.
Holding Out a Particular Characteristics
The courts may allow disclosure where a person has allowed himself to be held out as a role model, even where he has not necessarily courted publicity in respect of his private life. This is particularly so, where the person in a position in which standards of conduct may be expected of him. Other cases have questioned this approach and have cautioned against abandoning protection for the private lives of those who have become role models, without seeking the position.
The House of Lords has held that where a public figure has chosen to create a false image and make untrue statements about his life, the press will normally be entitled to put the record straight. There are limits to this principle. It is likely to be limited to circumstances where a person deliberately puts forward a particular view, intentionally misleading the public in order to generate a positive image. More difficult questions arise where a state of affairs was true, but later ceases to be true.
Some older cases equate the defence of public interest disclosure to privilege. In the case of defamation, disclosure may be permissible to persons who might legitimately receive the information. For example, a complaint to a particular authority in relation to a matter of objective concern may be appropriate, while a disclosure to the whole world would not be so.
In some cases, the courts have taken this view in the context of privacy, so that disclosure should be to the relevant authority only. In other cases, they have held that disclosure to a wider public is appropriate.
Limited disclosure may be justified in circumstances where wider disclosure is not justified. The existence of public interest does not justify unlimited and disproportionate disclosure. Disclosure about a particular issue may be appropriate, without identifying the person concerned.
In striking the balance between the public interest and privacy, limits may be required on the degree of disclosure allowed. There must be proportionality between what the public interest requires, and the extent of privacy infringed.
Some cases on privacy take a similar approach to public interest to that taken in the context of defamation. This approach allows a certain latitude to journalists in dealing with stories under tight deadlines. The approach looks at the reasonableness and fairness of the journalist’s approach. It seeks not to impose an unreasonable standard on journalists, by examination of matters with the benefit of hindsight.
In some cases, the courts will not grant an injunction because it would be in vain to do so. Where matters have already passed into the public sphere, notwithstanding that there has been a breach of confidence or privacy, an injunction may be refused on the basis that it is too late to restrain circulation of the information.
An application for an injunction will often be the most appropriate and effective method of protecting privacy. It will typically be issued to restrain publication of information which infringes the applicant’s rights to privacy. An injunction may be granted where damages or compensation would be inadequate. This will be more readily satisfied in the context of a breach of privacy, because once publication takes place, the damage may be potentially limitless.
Procedural considerations arise. In the case of an “interlocutory” or “ex parte” injunction, the matter is usually determined speedily on the basis of affidavit evidence. In the latter case, it is decided on the basis of the applicant’s evidence only. In the case of an interlocutory injunction, the criteria are not the legal merits of the matter but is based on whether there is a fair or serious question of law to be resolved in a full trial of the matter.
Although in principle an injunction without notice may be obtained in a unilateral application, the courts do not favour so-called “prior restraints” on publication, granted without notice to the other side. A convincing case must be put forward before a pre-trial “ex-parte” injunction will be granted.
Under criminal law, the Gardaí have extensive investigatory powers that cut across rights of confidentiality and anonymity, that may otherwise exist. Persons may be required to give details of the names and addresses in particular contexts.
Parties with investigatory powers, in particular, the Gardai and in particular sectors, authorised officers may require persons to answer questions, furnish documents and electronic information. They may be required to work any computers and disclose information held on time. The position will depend on the particular statutory provision concerned.
There are numerous circumstances in criminal law where members of Garda Siochana may require evidence of a person’s identity, by way of their name and address. If he fails to give it or if the member of the Gardai reasonably suspects that the information is false, he may usually arrest the person concerned without a warrant.
Courts and Publicity
The Constitution requires that other than in limited and exceptional cases justice is to be administered in public. Allegations that the very fact of court proceedings might impair a person’s reputation are not generally accepted.
The Irish courts have rejected the argument that legal professional privilege in itself extends to the withholding the identity of clients, where the matter arises and the question is properly put in the course of proceedings. See the sections on evidence, in relation to the scope of “privilege”.
Anonymity is protected by statute in the case of sexual offenses, matters concerning children and cases where public officers might be in jeopardy, legislation exists preserving anonymity.
The Irish courts have been willing to protect the identity of children and vulnerable adults in other cases. Exceptionally the courts will also allow anonymity where there is another compelling reason.
Courts and Privacy
Certain classes of case are held in camera. In some cases, this is prescribed by statute. In other cases, the court has the discretion to permit a hearing “in camera” (in private). However, the courts will not readily grant anonymity, where there is no statutory requirement. This position is weighed against the freedom of the press and the administration of justice in public, each a constitutionally protected principle.
Only in cases of real and serious risk will the courts suppress the release of information about a person’s identity. Injunctions have issued suppressing the release of information on the identity, where there is a real and substantial risk to life.
Injunctions are granted by the courts in some cases, in order to protect information of a proprietary nature. Information of a type whose release would have grave and possibly fatal consequences may be restrained from release.
The English courts have issued injunctions protecting the identity of persons who have committed grave and high-profile crimes, where there was a very real risk that disclosure of their location and (new) identity would put their lives in jeopardy. As against this, injunctions have been refused in the case of attempts made to restrict information regarding extramarital affairs.
The Health (Provision of Information) Act, 1997 allows the National Cancer Registry Board, the Minister for Health and other health agents to compile details of names, addresses, and records of persons designed to participate in cancer-related programs and screening.
Anonymity and Journalist’s Sources
Historically, there was no general principle of anonymity in respect of confidential information given in confidence to journalists. In a number of cases, journalists had been required to reveal their sources. Within the last decade, the Irish Supreme court has recognised a measure of protection for journalistic sources.
The Constitution provides protection in Article 15.10 for certain things said and done in the Houses of the Oireachtas. However, the courts have been reluctant to interpret this provision so widely so as to prevent information sources, from being compelled to be disclosed in tribunals and legal proceedings. The courts are very reluctant to allow anonymity in court proceedings.
References and Sources
Data Protection Act 1988
Data Protection (Amendment) Act 2003
Data Protection Act 2018
Communications (Retention of Data) Act 2011
Criminal Justice (Surveillance) Act 2009
Criminal Justice (Surveillance) Act 2009 (Written Record of Approval) (An Garda Síochána) Regulations 2009, S.I. No. 275 of 2009
Criminal Justice (Surveillance) Act 2009 (Written Record of Approval) (Revenue Commissioners) Regulations 2009, S.I. No. 290 of 2009
Criminal Justice (Surveillance) Act 2009 (Written Record of Approval) (Defence Forces) Regulations 2010, S.I. No. 80 of 2010
Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (Official Journal L 8 of 12.1.2001, pp. 1-22)
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).
Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending (declared invalid by Court of Justice ruling, see below).
Directive 2002/58/EC (Official Journal L 105 of 13.4.2006, pp. 54-63)
Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009
Commission Regulation (EU) No 611/2013 of 24 June 2013 on the measures applicable to the notification of personal data breaches under Directive 2002/58/EC of the European Parliament and of the Council on privacy and electronic communications (Official Journal L 173 of 26.6.2013, pp. 2-8).
European Communities (Directive 2000/31/Ec) Regulations 2003
European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011, S.I. No. 336 of 2011
EU Data Protection Law Kelleher & Murray 2018
Information & Technology Communications Law Kennedy & Murphy 2017
Social Networking Lambert 2014
Law Society PPG Hyland Technology & Intellectual Property Law 2008
Information Technology Law in Ireland 2 Kelleher & Murray 2007
Data Protection Law in Ireland: Sources & Issues 2 Lambert 2016
Privacy & Data Protection Law in Ireland Kelleher 2015
Data Protection: A Practical Guide to Irish & EU Law Carey 2010
Practical Guide to Data Protection Law in Ireland A&L Goodbody 2003
Privacy and Data Protection Law in Ireland 2nd ed Denis Kelleher 2015
EU and UK Texts
Privacy and Legal Issues in Cloud Computing Privacy and Legal Issues in Cloud Computing Edited by: A. S. Y. Cheung, R. H. Weber 2016
Privacy and Legal Issues in Cloud Computing Privacy and Legal Issues in Cloud Computing Edited by: A. S. Y. Cheung, R. H. Weber 2015
Information Rights: Law and Practice Information Rights: Law and Practice 4th ed Philip Coppel 2014
Cloud Computing Law Christopher Millard 2013
Transborder Data Flow Regulation and Data Privacy Law (eBook) Christopher Kuner 2013
Consent in European Data Protection Law Consent in European Data Protection Law Eleni Kosta 2013
A User’s Guide to Data Protection A User’s Guide to Data Protection Paul Lambert 2013
Confidentiality (Book & eBook Pack) Confidentiality 3rd ed The Hon Mr Justice Toulson, Charles Phipps 2012
Binding Corporate Rules: Corporate Self-Regulation of Global Data Lokke Moerel 2012
Property Rights in Personal Data: A European Perspective Property Rights in Personal Data: A European Perspective Nadezhda Purtova 2011
Global Employee Privacy and Data Security Law 2nd ed Morrison & Foerster LLP 2011
Computers, Privacy and Data Protection: An Element of Choice Computers, Privacy and Data Protection: An Element of Choice Edited by: S. Gutwirth, Y. Poullet, P. De Hert, R. Leenes 2011
Information Rights: Law and Practice Information Rights: Law and Practice 3rd ed Philip Coppel 2010
Data Protection: Legal Compliance and Good Practice for Employers Data Protection: 2ed Lynda Macdonald 2008
The Law of Personal Privacy David Sherborne, Mark Thomson, Hugh Tomlinson Due August 2019
Tort Law and the Protection of Privacy John Hartshorne April 2019
The Privacy, Data Protection and Cybersecurity Law Review The Privacy, Data Protection and Cybersecurity Law Review 5th ed Edited by: Alan Charles Raul 2017
International Cybersecurity and Privacy Law in Practice International Cybersecurity and Privacy Law in Practice Charlotte A. Tschider 2017
Determann’s Field Guide to International Data Privacy Law 3rd ed Lothar Determann
The Law of Privacy and The Media 3rd ed Edited by: Nicole Moreham, Mark Warby 2016