X v Sunday Newspapers Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gilligan |
| Judgment Date | 24 October 2014 |
| Neutral Citation | [2014] IEHC 696 |
| Docket Number | [2014 No. 8912 P] |
| Court | High Court |
| Date | 24 October 2014 |
[2014] IEHC 696
THE HIGH COURT
Gilligan J.
[2014 No. 8912 P]
Constitutional law – Freedom of press – Right of privacy – Interlocutory order – Restrictions to be proportionate
Facts: Following the order of the Court on an ex-parte application filed by the minor/plaintiff through his mother, wherein the Court granted an order restraining the defendant from publishing any article identifying the minor and his mother concerning his conception and parentage, the plaintiff now sought an interlocutory order restraining the defendant from publishing an article in a newspaper with photographs of the plaintiff. The mother of the plaintiff alleged that the publication of the information that the conception of the plaintiff occurred in the prison contrary to the prison rules from the partner of the mother who was a notorious gangland figure would be in violation of the right of privacy of the plaintiff.
Mr. Justice Gilligan granted an interlocutory order to the plaintiff in the same form as the earlier order that had been granted, thereby restraining the defendant from publishing any information identifying the plaintiff, his mother or facts surroundings his conception and parentage. The Court held that freedom of expression was a very important right and the Court should not make any attempt to unnecessarily curtail the freedom of press because news was a perishable commodity and a delay in its publication would deprive it of all its value. The Court, however, observed that such freedom of expression could be curtailed if it breached the right of privacy of a minor who had rights to maintain dignity and integrity regarding his conception and parentage. The Court held that the defendant could exercise its rights by publishing the report in an appropriate manner without naming the plaintiff or the mother of the plaintiff while exposing the story about conjugal rights taking place in the prison and hence, the restrictions that the Court sought to imposed would be proportionate to the aim that it wanted to achieve, that is, the welfare of the minor.
The issue that arises on this application is that of the right to privacy of the infant plaintiff (hereinafter referred to as the 'the minor') aged one year, and the right to freedom of expression on the part of the defendant newspaper.
In the words of the defendant, in its newspaper publication of 19th October, 2014, a notorious gangland figure has been granted a court order stopping the Sunday World revealing that 'he has gotten his girlfriend pregnant twice since he was put behind bars. The violent criminal is suspected of fathering a child more than three months after he was locked up in a high security prison. The feared thug even had his name put on the child's birth cert and the youngster bears his surname. This is despite the fact that conjugal visits are not allowed in Irish jails and sexual contact between prisoners and their visitors is strictly prohibited'.
The minor's mother, becoming aware that the defendant proposed to publish an article involving her minor child sought ex parte relief from this Court on Saturday, 18th October, 2014, which application was based on the affidavit of the plaintiff's solicitor which specifically stated at para. 5 thereof as follows:-
'I say that it has come to the attention of my client by virtue of the newspaper contacting the mother's partner via the prison authorities that the Sunday World newspaper intends to publish an article in this jurisdiction to the effect that the mother's partner is named as the father of the minor plaintiff on the birth register and concluding that the implication to be drawn from that is that the conception of the minor occurred in prison and contrary to prison rules. The other implication which readers of the article may draw is that the mother's partner is not the biological father of the minor plaintiff.'
The plaintiff's solicitor goes on to aver at para. 6 of the affidavit as follows:-
'I say that the minor's mother is extremely concerned at the prospect of publication of the said article and the effect such speculation as to parentage will have upon the future welfare and psychological wellbeing of the minor. I say that the minor is entitled to privacy concerning the circumstances of his conception and/or parentage and is also entitled to protection from unjustified injury to his psychological health.'
The mother's partner is named on the minor's state registered birth certificate as the father of the minor and the plaintiff's solicitor accepts in her grounding affidavit that the birth certificate is a public document, but she believes that commenting on the circumstances of his conception and parentage is a separate matter and one which engages in an immediate and obvious way with his right to privacy. She avers that she believes that the use of the identity of the minor is no more than a detail of the story and she says and believes that the right to privacy, bodily integrity in the form of psychological/mental health of the minor, far outweighs any possible public interest in the anticipated publication.
On the hearing of the application on Saturday, 18th October last, this Court (Moriarty J.) ordered that the publication or broadcast of any matter reporting the within proceedings which would or would be likely to identify the minor, or the minor's mother, the intended plaintiff's next friend herein, is prohibited.
It was further ordered that the intended defendant and any person having knowledge of the making of this order:
(1) be restrained from publishing any article identifying the said minor, expressly or impliedly as the subject matter of a controversy concerning his conception and/or parentage pending further order of this Court.
(2) be restrained from any publication of the identity of the minor and the minor's mother herein and each of them in any reports concerning this application for injunctive relief or related proceedings whether such identification be occasioned expressly or impliedly pending further order of this Court.
Against this background the Sunday World published on 19th October, 2014, a story which was headed " Exclusive Bosses Launch Prison Sex Investigation", and goes on to allege, as previously referred to herein, that a notorious gangland figure fathers two children while he is behind bars despite a high security jail's strict rule of no conjugal rights and the article, inter alia, goes on to state that prison chiefs have launched an investigation into the incidents and are believed to have confronted the thug and that the investigation was initiated after his partner recently announced publicly on a social media site that she is pregnant again and was openly congratulated by her caged lover's family.
In any event, neither the notorious gangland figure nor the minor plaintiff herein, or his mother, were named or identified in the article, but it is now indicated to the court that it is proposed this coming Sunday to run a follow up article in which the notorious gangland figure will be named and the article will be accompanied by photographs of him. It is specifically indicated to the court that neither the minor, nor his mother, will be named in the article and it is against this background that the plaintiff now seeks interlocutory relief in the terms of the order as granted by this Court (Moriarty J.) on the interim ex parte application.
The minor's mother and next friend on a private Facebook website has referred extensively to the birth of her son, the minor, and she is pictured with the mother's partner and another child. There is a reference on her site to her being pregnant again but in an affidavit she avers that, in fact, she is not pregnant again and that a relation of hers, as a prank, put certain information on her website which did indicate that she was pregnant and this reference has since been taken down from her site. In any event, it appears that the defendant now accepts that the minor's mother is not pregnant again, and an indication has been given to the court that this aspect will not be referred to in any subsequent article.
Mr. Kirwan on the defendant's behalf, submits to the court that these matters pertaining to the mother and mother's Facebook website should all have been brought to the attention of this Court on the making of the ex parte application, but it does appear to this Court solely for the purpose of this application that such information is unlikely to have influenced the judge on the interim application, particularly bearing in mind that the mother's partner is named on the minor's birth certificate and registered as his father.
In a grounding affidavit on the defendant's behalf, Niall Donald, the journalist who wrote the first article on 19th October and who proposes to write the article for this coming Sunday's edition, queries as to how the plaintiff's solicitor can make an allegation that the minor will suffer from harmful speculation, controversy and prejudice and he says that the question of a child's privacy in the context of an issue of wider context or significance will be a matter of legal submission. In this regard, the court sought a copy of the proposed article for this coming Sunday's newspaper and was advised by counsel that it was not yet written.
He also avers that the minor's parents are recorded as a matter of public record due to the fact that his birth certificate is a publicly available document, and that in any event the people most likely to be able to identify him are really those who...
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