If 'Mum' is the Word, is it the Law? Irish Privacy Law: A Comparative Perspective

Author:Paul McDonagh-Forde
Position:Senior Sophister LL.B. candidate and Scholar of Trinity College Dublin
Pages:64-93
© 2017 Paul McDonagh-Forde and Dublin University Law Society
IF ‘MUM IS THE WORD, IS IT THE LAW?
IRISH PRIVACY LAW: A COMPARATIVE
PERSPECTIVE
PAUL MCDONAGH-FORDE*
Introduction
In the modern age, privacy is constantly challenged by developments in
technology, surveillance, and the administrative state. Recognised as a
legal value by Warren and Brandeis in their famed article,
1
Ireland
protects privacy through an unenumerated constitutional right, pursuant
to Article 40.3. of Bunreacht na hÉireann. In the United Kingdom, and in
other jurisdictions (most notably New Zealand and the United States of
America (USA), common law protections of privacy have seen important
developments in the last three to four years. These increasingly provide
strong tortious protections based on objective reasonableness standards,
and also provide clear defences. Privacy protections at common law in
the UK and Australia are characterized by a reluctance to recognise a
separate cause of action based solely on privacy interests, and so
equitable breach of confidence was used in these jurisdictions as a
vehicle to introduce similar protections. Privacy interests that arise in
these cases often encompass some of the most personal aspects of life:
intimate photographs, private records, wedding photographs, and even
the ability to shower without being watched all arise in the case law.
This article will examine three key causes of action in privacy that occur
throughout the common law world, and will critique the strength of
Ireland’s privacy protections through this analysis. It is submitted that
Ireland’s privacy right pursuant to the Constitution provides a weaker
protection than many common law causes of action, that the courts have
shown a tendency to draw inspiration from ill-advised strands of
jurisprudence from other jurisdictions, and that some of the strongest
*Senior Sophister LL.B. candidate and Scholar of Trinity College Dublin. The author would
like to thank Dr. Eoin O’Dell for his invaluable guidance, Dr. Niamh Connolly for her
insightful comments on an earlier draft of this article, Alastair Richardson, Sch., and the
Editorial Board of the TCLR for being the epitome of professionalism.
1
Samuel Warren and Louis Brandeis, The Right to Privacy (1890) 4 Harvard LR 193.
2017] Irish Privacy Law: A Comparative Perspective
65
constitutional protections of privacy here actually stem from the right of
the person in Article 40.3, rather than the unenumerated right to privacy.
Legal protections of privacy have a long history in the United
States, and the torts protecting privacy interests recognised there have
been categorised by William Prosser into four causes of action: Public
Disclosure of Private Facts, Intrusion, Appropriation, and Portrayal in a
False Light.
2
Two of these causes of action will be dealt with directly in
detail in this article, and it will also address privacy protections framed
through breach of confidence, as this has arisen in Australia, the UK, and
this jurisdiction. The first of Prosser’s torts this article will address is
‘intrusion’, often called ‘intrusion upon seclusion’ in some jurisdictions.
3
This relates to physical intrusion such as stalking, and can also relate to
intrusion based on activities like eavesdropping. An ‘offensive to the
reasonable person test’ is used here.
4
The second is called ‘public
disclosure of truth’,
5
or ‘public disclosure of private facts’.
6
This consists
of 1. a disclosure made in public 2. of facts that a reasonable person
would consider to be private and 3. the facts must be highly offensive to
a reasonable person of ordinary sensibilities (from the perspective of the
aggrieved party). A ‘public interest’ defence is also available.
7
This
defence is balanced against the reasonableness consideration, and arises
in circumstances where the media has an interest in informing the
public. There is also a tort of ‘false light’, pertaining to the portrayal of
the aggrieved party in a false light,
8
and a tort of ‘appropriation’, mostly
relating to the use of images or likenesses of a celebrity without consent,
to secure financial gain.
9
The privacy protections introduced through the
doctrine of breach of confidence will also be analysed. These have been
particularly prominent in the UK and Australia, and has been referenced
at times by the Irish courts.
This article will comparatively assess Irish law through an analysis
of remedies for ‘intrusion’, followed by a critique of protections of
privacy through doctrines based on ‘confidence’. The third part will
focus on ‘publication’, dealing with the interests that most commonly
2
William Prosser, Werdner Page Keeton, Dan Dobbs, Robert Keeton, David Owen, Prosser
and Keaton on The Law of Torts (5th edn, West Publishing Co 1984) 855.
3
Marc Franklin, Robert Rabin, Michael Green, Tort Law and Alternatives (Foundation Press
2011) 1091; ibid 854.
4
Prosser & Keaton (n 2) 855.
5
Franklin & Rabin (n 3) 1046.
6
Prosser & Keaton (n 2) 856.
7
ibid 857.
8
Franklin & Rabin (n 3) 1080; Prosser & Keaton (n 2) 863.
9
Franklin & Rabin (n 3) 1114; Prosser & Keaton (n 2) 851-852.

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