Such cases 'may be few and far between'


THE NUMBER of cases where the constitutional right to privacy outweighs the right to freedom of expression "may well be few and far between", a High Court judge has said.

However, one of those few cases arises where the freedom of expression is asserted over material unlawfully obtained, as from telephone tapping, Ms Justice Elizabeth Dunne said.

Other exceptions could include reporting details of a well-known individual's serious illness.

The judge also took the view that entities other than the State may be sued for damages arising out of illegal phone tapping.

Analysing the law on the right to privacy, the judge noted that the 1987 High Court judgment in the case involving tapping by the State of phone conversations of journalists Geraldine Kennedy and Bruce Arnold established a constitutional right to privacy.

That case and others had established the right to privacy was not unqualified, may have to be balanced against other competing rights and interest, and may be derived from the nature of the information at issue, ie matters entirely private to an individual.

The right to sue for damages for breach of the right to privacy was also not confined to actions against the State or State bodies. While a person may not be able to maintain certain information must always be kept private, they may complain about how it was obtained.

Applying those principles to this case, the judge said the right to freedom of expression was not unqualified and had to be balanced against the right to privacy.

As a general proposition, she believed cases in which the right to privacy outweighs the right to freedom of expression "may well be few and far between".

However, she could not see how the right to freedom of expression could be claimed when the information to be published was obtained unlawfully.

"No one expects to see their private phone conversations printed in a newspaper to excite prurient curiosity or provide amusement for readers," she said.

Other circumstances where the right to privacy may prevail could include publication of details of serious illness of a person, including illnesses of celebrities or well-known politicians.

The fact the material published in this case was accurate did not assist the newspaper, as it was disclosed contrary to a statutory exception to the right of freedom of expression, she also found.

On arguments that publication was in the public interest, the newspaper contended that the public interest involved was regarding the behaviour of Fr Heber McMahon, the judge noted. However, he was not the plaintiff, and much of the material concerned Michelle Herrity.

Given the nature of a Catholic priest in Irish society, it could be said Fr McMahon is a person whose conduct was subject to public scrutiny, she said. It was inevitable that information disclosed about his conduct could expose others like Ms Herrity to unwelcome intrusion into their lives.

The court had to take into account the extent of the information published and the means by which it was obtained. While accepting there was a public interest in material related to such behaviour by a priest, the public interest could not set at naught the law preventing disclosure of material obtained by illegal recording of phone conversations.

On the argument about Liam Herrity's right to freedom of expression, the judge said the balancing exercise between that right and Ms Herrity's right to privacy did not arise because the material came from a source prohibited by law, phone tapping.