Newspaper seeks ruling on privacy issues

A newspaper which published a photograph of a GAA player in which his private parts were exposed is seeking a Supreme Court determination of issues relating to the constitutional right to privacy, including whether one citizen can enforce a right to privacy against another citizen.

A second issue is whether a person is entitled to be awarded damages when a court finds there was a breach of their right to privacy as a result of a negligent action.

These issues are of great importance to newspapers, Martin Nolan, for the Carlow Nationalistnewspaper, told the High Court yesterday. If the Supreme Court was to find that negligent publication of such photographs entitled a citizen to damages for breach of their constitutional right to privacy, even when such publication was not deliberate, this would have "huge ramifications" for the newspaper industry.

After considering these and other legal submissions, Mr Justice Declan Budd adjourned to February 12th next the issue of whether he will refer such issues to the Supreme Court for determination.

Simon Boyle SC, with Margaret Levey, for GAA player Richard Sinnott, earlier argued no questions arose which required to be decided by the Supreme Court. The law already provides that a person can recover damages for negligent breach of their right to privacy and there is also legal authority to the effect that the right to privacy exists between citizens and not only against State agencies, he said.

If the court decided to refer issues for decision, Mr Boyle argued these should be based on the judge's findings of fact in the case, including the finding that the publication of the photograph of Mr Sinnott was negligent and also that the photographer involved, as well as those involved in the production process, must, on the balance of probabilities, have been aware of the objectionable content of the photograph.

The proceedings arise from a decision by Carlow Circuit Court awarding Mr Sinnott (23), of Clonegal, Co Carlow, €6,500 damages for breach of privacy, intentional infliction of emotional harm and negligence arising from publication in the Carlow Nationalistin June 2005, on pages one and three of its sports section, of pictures of Mr Sinnott taken while he was playing in a GAA match. His private parts were visible in one photograph.

Mr Sinnott, who is now in Australia, had given evidence of being very upset by the publication and said his dream as an amateur footballer at the peak of his career, of playing at Croke Park for the first time on the Sunday after publication, was ruined.

The newspaper appealed to the High Court, and the case entered its seventh day yesterday.

Mr Justice Budd told the sides he had reached a number of findings of fact in the case, which he had delivered on an interim basis last Friday, and these would be made available to the sides in written form shortly.

He said he wanted to make clear that he had found the publication of the offending photograph of Mr Sinnott was negligent and resulted from "a publishing mess". The judge said he had also found that it "strained all credulity" that the publication was simply accidental. But he also accepted the evidence of the newspaper's sports editor, Paul Donaghy, who had said he was not aware of the offending nature of the photograph and would not have published it if he was.