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:ACOMPARATIVE

PERSPECTIVE

PAUL MCDONAGH-FORDE*

Introduction

In the modern age, privacy isconstantly challenged bydevelopments in

technology, surveillance, and the administrative state. Recognised asa

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 nahÉireann. 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 inthe last three tofour 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 bya reluctance torecognise a

separate cause of action based solely on privacy interests, and so

equitable breach of confidence was used inthese jurisdictions asa

vehicle tointroduce 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 toshower without being watched all arise inthe 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’sprivacy protections through this analysis. Itissubmitted that

Ireland’sprivacy right pursuant tothe Constitution provides a weaker

protection than many common law causes of action, that the courts have

shown a tendency todraw 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 byWilliam Prosser into four causes of action: Public

Disclosure of Private Facts, Intrusion, Appropriation, and Portrayal ina

False Light.

2

Two of these causes of action will bedealt with directly in

detail in this article, and itwill 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‘offensiveto the

reasonable person test’isused here.

4

The second iscalled ‘public

disclosure of truth’,

5

or ‘public disclosure of private facts’.

6

This consists

of 1.a disclosure made inpublic 2.of facts that a reasonable person

would consider tobe private and 3. the facts must be highly offensive to

a reasonable person of ordinary sensibilities (from the perspective of the

aggrieved party). A ‘publicinterest’defence isalso 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 isalso a tort of ‘falselight’,pertaining tothe 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 beanalysed. 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 Keatonon 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.