K (a minor) -v- Independent Star Ltd Ors
Neutral Citation [2010] IEHC 500
High Court
Judgment was delivered on March 11th, 2011, by Mr Justice John Hedigan
Judgment
The publication of the name and address of a man who raped and sexually assaulted two children, and which led to the family being identified, was not intended to lead to the identification of the victims, which was not foreseeable; their rights to privacy were not breached and they were not entitled to damages.
Background
The plaintiff, suing through her mother, was born in 1996 and suffers a mild learning disability. She and her family lived in an estate in a rural village. In April 2005 the plaintiff was raped by a neighbour, D, who lived across the road in an adjoining estate. When the child returned home in a distressed state her mother called gardaí, who arrested D and took him away.
In the course of interviews it emerged he had also sexually abused one of the girl’s older brothers four years earlier. In November 2006 D pleaded guilty to the rape of the plaintiff and the sexual assault of her brother. The Star newspaper and the Dundalk Democrat both published the man’s name and address and the fact he had been convicted of raping and sexually assaulting a male and a female. The news of the man’s conviction was also carried on LMFM radio.
The plaintiff claimed the publication of these details enabled her and her brother to be identified, and that this caused them considerable distress.
They said the publication enabled the neighbours to put two and two together, and the matter was a topic of conversation in the village. The two children felt unable to leave the house, and as a result they moved to another county. They were unable to obtain public housing there and had to live in rented accommodation.
The newspapers admitted the publication, but denied their actions had led to the identification of the family, or that they could have known these actions might do so.
A psychologist who interviewed the girl for the criminal trial advised against asking her to give evidence in these proceedings, and against interviewing her again for them. She said the brother felt stigmatised by the abuse, and that it would not be helpful for him to be interviewed for these proceedings.
Asked about the impact of the publicity, she said a child who had been abused may feel stigmatised and different to other people. For a boy who had been abused by a male there would be issues around sexual orientation. When abuse is reported and there are concerns that other people know about the abuse, this repeats some of the stigmatisation.
Counsel for the defendants said the editors involved had all reported they considered there was nothing in the reports to lead to the identification of the victims. They had published a report from a highly respected court reporter, which did not give the location of the offence, the nature of the offence, the ages or addresses of the victims, or whether they were related to the perpetrator or to each other.
Counsel for the plaintiff relied on the judgment in Herrity -v- Associated Newspapers, which found there was a constitutional right to privacy but that it was not an unqualified right, and that the right to sue for damages was not confined to actions against the State.
Counsel for the defendants said there was no common law action for damages for breach of privacy, and that the 1981 Criminal Law (Rape) Act, which protects the privacy of rape victims, provides for criminal, not civil, penalties.
They argued the information published referred only to D and that a significant amount of supposition, guesswork and other information would be required to make a connection between that person and the victims.
Decision
Mr Justice Hedigan said there was nothing in the 1981 Act to indicate the media owed a duty of care to a complainant. The Act represented an attempt by the Oireachtas to balance the constitutional requirement that justice be administered in public, with the desire to encourage the victims of sexual offences to come forward and assist in the prosecution of offences while protecting them from unnecessary publicity.
The Act excluded the general public, but allowed bona fide representatives of the press to be present and to report the proceedings. There was a public interest in knowing the identities of convicted sex offenders, but not at the price of the complainant’s right to anonymity. The court had the jurisdiction to restrict the publication of the identity of an accused or convicted person if this would indirectly identify the complainant in the case. No application not to identify the perpetrator was made in this case.
It was clear from the report of the court reporter that the victims could have been adults, could have been unrelated to each other and the offences could have been committed anywhere. The defendants did not know or have reason to suspect the information published was likely to lead to the identification of the victims. Therefore, the publication of the information was not unlawful under S 7 of the 1981 Act.
Where a publication was found not to be unlawful under the Act, a breach of the constitutional right to privacy did not arise. The factual background of the case was a very sad one. However, Mr Justice Hedigan felt obliged to dismiss the plaintiff’s action.
The full judgment is on www.courts.ie
Peter Finlay SC, Eoin McGonigal SC and Nuala O’Donohue BL, instructed by Richard H McDonnell and Son, for the plaintiff; Oisin Quinn SC and Patrick O’Reilly BL, instructed by Dillon Eustace, for the respondents