Hickey & Agnew (A Minor) v Sunday Newspapers Ltd

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 08 October 2010
• Neutral Citation: [2010] IEHC 349
• Court: High Court
• Docket Number: [2006 No. 4257 P]
• Date: 08 October 2010

[2010] IEHC 349

THE HIGH COURT

No: 4257P/2006

Hickey & Agnew (A Minor) v Sunday Newspapers Ltd

BETWEEN

RUTH HICKEY

AND

JESSE ISAAC AGNEW (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND RUTH HICKEY)

PLAINTIFFS

AND

SUNDAY NEWSPAPERS LIMITED

DEFENDANT

KENNEDY & ARNOLD v IRELAND & AG 1987 IR 587 1988 ILRM 472 1988/2/367

NORRIS v AG 1984 IR 36

HERRITY v ASSOCIATED NEWSPAPERS (IRL) LTD 2009 1 IR 316 2008/28/6242 2008 IEHC 249

CAMPBELL v MIRROR GROUP NEWSPAPERS LTD 2004 2 AC 457 2004 2 WLR 1232 2004 2 AER 995

VON HANNOVER v GERMANY 2005 40 EHRR 1 2004 EMLR 21 16 BHRC 545 2004 ECHR 294

CONSTITUTION ART 40.3

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.6.1

JUDGE MAHON & ORS (PLANNING TRIBUNAL) v POST PUBLICATIONS LTD T/A SUNDAY BUSINESS POST 2007 3 IR 338 2007 2 ILRM 1 2007/38/7912 2007 IESC 15

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

HOSKING v RUNTING & PACIFIC MAGAZINES NZ LTD 2005 1 NZLR 1 2004 NZCA 34

R v CENTRAL INDEPENDENT TELEVISION PLC 1994 FAM 192 1994 3 WLR 20 1994 3 AER 641 1994 2 FLR 151 1995 1 FCR 521

A v B PLC & ANOR 2003 QB 195 2002 3 WLR 542 2002 2 AER 545

M v DRURY & ORS 1994 2 IR 8 1995 1 ILRM 108 1994/11/3447

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S98

INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 17

WOODWARD & ORS v HUTCHINS & ORS 1977 1 WLR 760 1977 2 AER 751

LENNON v NEWS GROUP NEWSPAPERS LTD & TWIST 1978 FSR 573

MILMO & RODGERS GATLEY ON LIBEL & SLANDER 11ED 2008 PARA 3.29

CONSTITUTIONAL LAW

Personal rights

Privacy - Freedom of expression - Press - Balance of rights - Whether performance of public function could give rise to legitimate expectation of privacy - Whether publication of photographs taken in public place amounted to breach of privacy - Whether party who had sought publicity entitled to claim privacy - Defamation - Libel - Press - Reported speech - Use of word "whore" - Vulgar abuse - Context - Whether use of word "whore" defamatory -M v Drury [1994] 2 IR 8 approved; Von Hannover v Germany [2004] ECHR 294 and Campbell v MGN Ltd. [2004] 2 AC 457 distinguished; Hosking v Runting [2005] 1 NZLR 1, Woodward v Hutchins [1977] 1 WLR 760 and Lennon v News Group Newspapers Ltd [1978] FSR 573 approved - Constitution of Ireland, 1937, Articles 40.3 and 40.6 - European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Articles 8 and 10 - Claim dismissed (2006/4257P - Kearns P - 8/10/2010) [2010] IEHC 349

Hickey v Sunday Newspapers Ltd

Facts The first-named plaintiff was the mother of the second-named plaintiff. It was common case that the first-named plaintiff was in a relationship with a third-party a Mr. Agnew (who was the husband of the entertainer known as 'Twink'). The first-named plaintiff brought a case seeking damages, including exemplary and punitive damages, against the defendant newspaper both on grounds of alleged breach of rights of privacy enjoyed by her and her son, the second-named plaintiff and also in respect of alleged defamation of her character in articles published by the defendant. The first-named plaintiff and Mr. Agnew had attended at the Registry of Births and were photographed emerging from the office by a photographer employed by the defendant. The first-named plaintiff was seen carrying some baby clothes and Mr. Agnew was shown carrying the second-named plaintiff. It was contended that there had been no legitimate public interest in the taking and/or publication of the photographs in question. On behalf of the plaintiffs, it was submitted that although the photographs of the plaintiffs were taken in a public place, the context in which they were used and linked to the articles amounted to an unacceptable intrusion into their private lives. Counsel on behalf of the defendant accepted that the right to privacy was one of the unenumerated rights recognised under Article 40.3 of the Constitution. However freedom of expression was also afforded recognition in the Constitution under Article 40.3.1 and Article 40.6.1. The plaintiffs had been attending a public office in a public place and performing a public function. The plaintiffs had not established in evidence that there had been any ongoing surveillance of the plaintiffs or either of them.

Held by Kearns P in dismissing the case. While it was clear that newspapers are free to publish all sorts of matters regardless of public interest, the right to freedom of expression, like the right to privacy itself, was not an unqualified right. The photographs were taken when both the photographer and the plaintiffs were in a public place and performing a routine public function. The photographs did not disclose anything that could not have been seen by anyone else who turned up at the Registry Office at the same time. The existence of the second-named plaintiff, his age and the identity of his parents were already matters of public record. The defendant could have gone into the Registry Office, found the information, and published it. No evidence had been adduced to establish that a campaign of surveillance had been carried out by the defendants. The first-named plaintiff and her partner themselves elected to bring the child to the Registry Office. Furthermore the first-named plaintiff had spoken to a journalist with the specific intention of publicity being accorded to the very matters in respect of which she now sought to claim privacy. There was an inherent illogicality in asserting rights of privacy over material which was already in public circulation. The repetition of something said by another person afforded no defence to a newspaper who published a defamation, however the vulgar expression complained of was not defamatory in the context in which it appeared in this case.

Reporter: R.F.

1 JUDGMENT of Kearns P. delivered the 8th day of October, 2010

2 This is a case in which the first-named plaintiff seeks damages, including exemplary and punitive damages, against the defendant newspaper both on grounds of alleged breach of rights of privacy enjoyed by her and her son, the second-named plaintiff herein, and also in respect of alleged defamation of her character in articles published by the defendant's newspaper, The Sunday World, on 14 ^th May, 2006, and 27 ^th August, 2006.

3 The first-named plaintiff, Ruth Hickey, was born on 19 ^th April, 1974. Following completion of her secondary schooling, she studied music at Trinity College and at the College of Music in Dublin. For a number of years she worked as a classical musician and part-time teacher before switching careers to work as a full-time PR consultant with a training firm called The Communications Clinic.

4 On 15 ^th February, 2006 she gave birth to a baby boy, Jesse Isaac, fathered by David Agnew, a professional musician, who at the time was married to the well-known entertainer, Adele King, more commonly known as 'Twink'. The relationship between Mr. Agnew and the first-named plaintiff had commenced sometime prior to Mr. Agnew's departure from the family home he shared with Ms. King in 2004. In 2004 Mr. Agnew moved into the first-named plaintiff's home in Castleknock. These events attracted widespread publicity in the media and understandably caused great hurt and offence to Ms. King, who spoke publicly on more than one occasion about her sense of outrage, not least, it would appear, because Mr. Agnew had fathered another child by a different woman some years previously. It emerged in evidence that Ms. King's annoyance included harassment of the first-named plaintiff which ultimately led to complaints being made by the plaintiff to the gardaí.

5 In August, 2005, the first-named plaintiff wrote an article for the magazine Social and Personal in relation to the spa resort at Powerscourt Springs which described a stay she had had there with "partner" David Agnew and in which they appeared photographed together. She became pregnant in 2005 and in September of that year gave details of the impending birth to a journalist, Mr. P.J. Gibbons, including the information that they expected the baby would be a boy, and the information thus imparted appeared in the Irish Examiner on 17 ^th September, 2005. In the course of her evidence, the first-named plaintiff explained that, in discussion with Mr. Gibbons, she had decided to publicly release this information herself in an effort to control media speculation which had been ongoing since 2004.

6 Following the announcement by the first-named plaintiff and Mr. Agnew of the birth of their son on 15 ^th February, 2006, a voicemail message containing a torrent of abuse from Ms. King against her husband and Ms. Hickey was left on Mr. Agnew's telephone. Whether this message was left on a mobile phone owned by Mr. Agnew or on the landline in the first-named plaintiff's home was not clarified in evidence. Nor was there evidence to clarify exactly when or in what circumstances this notoriously abusive voicemail message subsequently ended up on the internet. It was certainly there prior to the second publication complained of by the plaintiff because the article itself so states and this fact was not disputed at the trial. In evidence the first-named plaintiff stated that she had no knowledge as to how this had happened. In the course of the particular tirade delivered by Ms. King, the first-named plaintiff was referred to as a "whore" and her child as a "bastard". The general tone of the message may be deduced from one of its milder passages in which Ms. King's described Mr. Agnew as a "fat, bald, middle-aged dickhead".

7 On 10 ^th May, 2006, the first-named plaintiff and Mr. Agnew attended at the Registry of Births, Deaths and Marriages Office in Dublin's Lombard Street. They were photographed emerging from...