K (L) (A Minor) v Independent Star Ltd and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Hedigan
• Judgment Date: 03 November 2010
• Neutral Citation: [2010] IEHC 500
• Court: High Court
• Date: 03 November 2010

[2010] IEHC 500

THE HIGH COURT

[No. 5734 P/2007]

K (L) (A Minor) v Independent Star Ltd & Ors

BETWEEN

L.K. (A MINOR) SUING BY HER MOTHER AND NEXT FRIEND M.K.

PLAINTIFF

AND

INDEPENDENT STAR LIMITED, THE DUNDALK DEMOCRAT LIMITED AND INDEPENDENT BROADCASTING CORPORATION LIMITED T/A LMFM

DEFENDANT

CRIMINAL LAW (RAPE) ACT 1981 S7

CRIMINAL LAW (RAPE) ACT 1981 S8

CRIMINAL LAW (RAPE) ACT 1981 S6

CRIMINAL LAW (RAPE) ACT 1981 S11

CRIMINAL LAW (RAPE) ACT 1981 S8(1)(B)

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

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

WAINWRIGHT v HOME OFFICE 2004 2 AC 406 2003 3 WLR 1137 2003 4 AER 969

ATLANTIC MARINE SUPPLIES LTD & ROGERS v MIN FOR TRANSPORT & ORS UNREP CLARKE 26.3.2010 2011 2 ILRM 12 2010/3/567 2010 IEHC 104

CRIMINAL LAW (RAPE) ACT 1981 S6(4)

DATA PROTECTION ACT 1988 S7

CRIMINAL LAW (RAPE) ACT 1981 S6(1)

CRIMINAL LAW (RAPE) ACT 1981 S7(2)

CRIMINAL LAW (RAPE) ACT 1981 S7(6)

CRIMINAL LAW (RAPE) ACT 1981 S8(2)

CRIMINAL LAW (RAPE) ACT 1981 S8(8)

CRIMINAL LAW (RAPE) ACT 1981 S8(1)

CRIMINAL LAW (RAPE) ACT 1981 S7(1)

INDEPENDENT STAR LTD v JUDGE O'CONNOR 2002 4 IR 166 2002/13/3159

O'RIORDAN v DPP 2005 AER (D) 291 (MAY) 2005 EWHC 1240 (ADMIN)

AG v GREATER MANCHESTER NEWSPAPERS LTD UNREP 4.12.2001 2001 EWHC QB 451

CRIMINAL LAW (RAPE) ACT 1981 S11(1)

CRIMINAL LAW (RAPE) ACT 1981 S11(3)

CHARLETON & ORS CRIMINAL LAW 1999 415

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 SCHED 1 RULE 7

NORRIS v AG 1984 IR 36

CONSTITUTION ART 34

IRISH TIMES LTD & ORS v IRELAND & ORS 1998 1 IR 359

CONSTITUTION ART 40.6.1.i

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

CONSTITUTIONAL LAW

Personal rights

Right to privacy - Minor - Rape victim - Alleged breach of right to privacy - Damages - Alleged breach of statutory restrictions on publication - Alleged unauthorised and unlawful publication of reports leading to identification of victim - Publication of name and age and address of perpetrator - Entitlement to anonymity - Whether breach of statute gave rise to cause of action in damages - Whether information published or broadcast in breach of statute - Whether information likely to lead to identification of complainant - Defence - Subjective view of defendant - Whether information published in breach of right to privacy - Administration of justice in public - Proportionality - Absence of application to trial judge for direction regarding publication - Whether information private - Whether violation conscious and deliberate - Kennedy v Ireland [1987] IR 587; Herrity v Associated Newspapers (Ireland) Ltd [2009] 1 IR 316; Wainright v Home Office [2003] 4 All ER 969; Atlantic Marine Supplies Ltd v Minister for Transport [2010] IEHC 104, (Unrep, Clarke J, 26/3/2010); Moyne v Londonderry Port and Harbour Commissioners [1986] IR 299; Sweeney v Duggan [1991]2 IR 274; Independent Star Ltd v O'Connor [2002] 4 IR 166; O'Riordan v Director of Public Prosecutions [2005] EWHC 1250, (Unrep, English Court of Appeal, 19/5/2005); Attorney General v Greater Manchester Newspapers Ltd [2001] QB 451; Norris v Attorney General [1984] IR 36; Irish Times Ltd v Ireland [1998] 1 IR 359 considered - Criminal Law (Rape) Act 1981 (No 10), ss 7 and 8 - Claim dismissed (2007/5734P- Hedigan J - 3/11/2010) [2010] IEHC 500

K (L) v Independent Star Limited

Facts: The plaintiff claimed damages for alleged breaches of her constitutional right to privacy and pursuant to ss. 7 and 8 Criminal Law (Rape) Act 1981, as amended, arising out of alleged unlawful and unauthorised publications or broadcasts by the defendants respective in November 2006. The plaintiff had been raped by her neighbour, which had resulted in criminal charges. She alleged that by reason of the publications and broadcasts of the defendants that she became identified to persons in her locality and suffered distress, upset, anxiety and embarrassment as a result, in breach of her constitutional rights and the provisions of the Act of 1981. The question arose whether the publications and broadcasts had been intentional, conscious and deliberate.

Held by Hedigan J. that while the information published was not private, and the publication was deliberate, it was done without knowledge that it would identify the plaintiff and without any intention to violate her privacy. It was therefore not a deliberate violation. It was not conscious and was not then unjustified. The details published were the barest minimum and did not breach s. 7 of the 1981 Act. The defendants did not violate the constitutional right to privacy of the plaintiff and the action of the plaintiff would be dismissed.

Reporter: E.F

Introduction

1 The plaintiff's claim is for damages for alleged breaches of the plaintiff's constitutional right to privacy and under ss. 7 and 8 of the Criminal Law (Rape) Act 1981, as amended, arising out of alleged unlawful and unauthorised publications or broadcasts by the defendants respectively in November, 2006.

2 The plaintiff is a minor, suing by her mother and next friend. The plaintiff was born in 1996 and is the youngest of three children. The plaintiff has a moderate learning disability and attends a special needs school.

3 Until recently, the plaintiff and her mother resided in a small village in rural Ireland. The plaintiff lived with her family on an estate therein. D, a neighbour, lived across the road from the plaintiff's house on another adjoining estate.

4 On the 18 ^th April, 2005, the plaintiff, who was eight years old at the time, was raped by her neighbour, D. The plaintiff had been missing on the evening in question and her mother sent her two brothers to look for her. Her brothers called to D.'s house and were told the plaintiff was not there. It later emerged the plaintiff was in the house and had been locked in a room with D. The child made her own way home in a distressed state. Her mother noticed her clothing was put on back-to-front. The plaintiff's mother contacted the Gardaí who arrived at the house in a squad car. On the same evening, the Gardaí called to D.'s house. Later that evening the Gardaí returned to the plaintiff's house to make further inquiries. D was arrested that night and brought to the local Garda station. Naturally, these events aroused the curiosity of the plaintiff's neighbours and a number of them saw the Gardaí call to the plaintiff's house and to D's house and saw him being taken away.

5 In the course of interviews with the Gardaí it also emerged that one of the plaintiff's older brothers had four years earlier been sexually assaulted by D.

6 On the 27 ^th November, 2006, D pleaded guilty in the Central Criminal Court to charges of rape of the plaintiff and sexual assault of her brother.

7 The defendants are respectively the publishers and proprietors of the The Star and The Dundalk Democrat, and the broadcaster and proprietor of LMFM radio.

8 It is alleged that by reason of the defendants' publications and broadcasts the plaintiff herein became identified to persons in her locality and has suffered considerable distress, upset, anxiety and embarrassment as a result. It is stated that since these publications and broadcasts the plaintiff regularly questions her mother about who knows about the case and what happened to her. The plaintiff feels nervous, self conscious and worries about people knowing what happened to her.

9 Following D's conviction in the Central Criminal Court, the following publications or broadcasts were made. On the 27 ^th November, 2006, LMFM radio broadcast on several occasions during the day, the name, age and address of D and the fact he had been convicted of rape of a female and the sexual assault of a male. It is admitted these reports were broadcast, but it is denied that these words led to members of the public identifying the plaintiff or that the defendants could have known or reasonably suspected they might do so.

10 On the 28 ^th November, 2006, The Star published the following report:

"D [full name] (31) of [address], pleaded guilty to raping a female on April 18, 2005, and to sexually assaulting a male in July 2001."

It is admitted this report was published, but it is denied that these words led members of the public to identify the plaintiff or that the defendants could have known or reasonably suspected they might do so.

11 On the 29 ^th November, 2006, The Dundalk Democrat published the following report:

2 "31-year-old D [full name] of [address], pleaded guilty to raping a female on April 18, 2005 and sexually assaulting a male on a date unknown between July 1 and July 31 2001."

It is admitted this report was published, but it is denied that these words led to members of the public identifying the plaintiff or that the defendants could have known or reasonably suspected they might do so.

12 It is alleged that after these publications and broadcasts, the plaintiff's neighbours immediately understood the conviction to relate to the events that occurred on the 18 ^th April, 2005. The disclosure of D's address, in particular, allowed the plaintiff's neighbours to put two and two together and to understand that it was the plaintiff and her brother who were the victims of the crimes of which the defendant was convicted. It is claimed that the matter immediately became a topic of conversation for the people of the village.

13 As a result of the publications and broadcasts, it is claimed that the plaintiff's brother who also was a victim of D refused to leave the house, even to go to school. Similarly, the plaintiff also refused to leave the house. As a result, the plaintiff and her family felt obliged to leave the village and they moved to a different county. The family were unable to obtain public housing in...