Publication of taped conversations breached privacy right

 

Herrity -v- Associated Newspapers [Ireland] Ltd High CourtJudgment was given by Ms Justice Dunne on July 18th, 2008

Judgment

A newspaper which published details of a woman's relationship with a priest, as described in telephone conversations illegally taped and published, was liable for ordinary, aggravated and punitive damages, amounting to €90,000.

Background

The case arose from the publication of a series of articles in November 2003 and early in 2004 in The Mail On Sunday newspaper, concerning the relationship of the plaintiff, Michelle Herrity, with Heber McMahon, at the time a priest. The articles were accompanied by transcripts of conversations between Ms Herrity and Mr McMahon, and between Ms Herrity and a female friend.

Ms Herrity was married to Liam Herrity at the time, but her marriage had broken down earlier in 2003. She outlined in court her concerns about his relationship with a young man who was employed by her husband when he was 17, and who accompanied Mr Herrity on holidays and on activities such as golf and horse-riding trips. She confronted Mr Herrity about this relationship, and on August 8th a Civil Bill was issued in connection with family law proceedings.

She said that at this time her relationship with Fr McMahon was one of friendship, but following her husband's departure from the family home it became more intimate. She is now living with Fr McMahon, who has applied to be laicised.

She said that she was a subscriber to the telephone which was in her name in the house, and she did not give permission to anyone to interfere with it.

She said the first intimation she had that her conversations had been taped was a call from her husband to her sister-in-law, where he said he was going to have transcripts of her conversations published if she did not sign over the family home to him for €20,000. She did not believe he had any transcripts. However, the day before the first article was published she received a call on her mobile phone at work from a journalist saying a story about her relationship was about to be published and asking for a comment. She became hysterical and was very upset.

Fr McMahon resigned from his position as parish priest following the publication of the first article.

Ms Herrity sued Associated Newspapers for damages for breach of privacy under the provisions of the Constitution. She pointed to the provisions of the Postal and Telecommunications Services Act 1983, which makes it illegal to intercept telecommunications messages, or to disclose their contents.

The defendants argued, among other things, that there was no cause of action for damages for breach of privacy against a defendant other than the State, that they and the husband both enjoyed the right of freedom of expression, and that the publication was justified by the public interest in the fact that a priest, who was held in high esteem by the community and was bound by an oath of celibacy, was involved in an adulterous relationship.

Decision

After assessing the case-law on privacy, Ms Justice Dunne first considered whether there was any right to sue a private body for breaching it. She said that both M v Drury [1994] and Cogley v RTÉ [2005] concerned a private person or entity. She acknowledged they both concerned interlocutory relief rather than damages. However, she did not consider that it followed that because there had been no full case on damages for breaching the right to privacy, that no such right existed.

While acknowledging the importance of the right to freedom of expression, she said: "There is a balancing exercise engaged in circumstances where the right to freedom of expression conflicts with the right to privacy."

One of the issues to be taken into consideration was the circumstances of the breach of privacy. "The telephone transcripts in this case were obtained in breach of the provisions of S. 98 of the Postal and Telecommunications Services Act 1983." She considered that one of the circumstances where the right to privacy might prevail over the right to freedom of expression was where the freedom of expression asserted was the publication of material obtained unlawfully.

"There may be other circumstances where the right to privacy prevails," she said. "For example, could a newspaper be entitled to publish details of a diagnosis of serious illness in respect of an individual, bearing in mind the nature of the confidential doctor-patient relationship? What if the individual was a well-known public figure? Would it make a difference if the individual was a celebrity or, say, a senior politician?"

Referring to the issue of the public interest in the fact that a priest was involved in a sexual relationship, she said Fr McMahon was not the plaintiff. Much of the material published did not relate directly to him.

While generally the right to freedom of expression might outweigh the right to privacy of the plaintiff, one would also have to consider the extent of the information about the plaintiff and the way in which the information was obtained.

Referring to the fact that the husband wished to publish the information about his wife's relationship, and he had a right to freedom of expression, she said: "One person's right to privacy . . . must impact on the other's right to freedom of expression. In such situations one has to weigh up the conflicting interests and find out where the balance lies."

However, she added, this did not arise in this case, as the material was obtained illegally.

"I am satisfied that the publication of the transcripts of telephone conversations in this particular case by the defendant in breach of S. 98 of the 1983 Act can only be described as a deliberate, conscious and unjustified breach of the plaintiff's right to privacy."

On the issue of damages, she said that the plaintiff was entitled to compensatory and aggravated damages, which she assessed at €60,000. She said that, while a court would seldom award punitive damages, the court's disapproval of the defendant's conduct warranted it in this case, and she set the punitive damages at €30,000.

The full judgment is on www.courts.ie

Michael McDowell SC, Paul O'Higgins SC, Michael McDowell SC and James O'Callaghan BL, instructed by Ryan and Ryan, for the plaintiff; Declan Doyle SC, Eoin McCullough, Vincent Nolan BL, instructed by William Fry, for the defendant