Knowing the boundaries when it comes to privacy

The lead headline in the Sunday Independent of three days ago shrieked: “Cowen privacy case may open floodgates for the fallen elite”. It claimed in a sub-headline: “Ex-Taoiseach’s complaint against newspaper is watched by bankers, developers and politicians”.

The accompanying article went on to claim: “If upheld, [Brian] Cowen’s complaint [against the Irish Mail on Sunday, which had reported his enrolment in a six- week course at Stanford University] could have implications for the media, which has sought to report, analyse and comment on the activities of several figures associated with the economic collapse of the country.”

It is not at all established that Cowen made any complaint to anyone, but were he to do so it would have been to the Press Ombudsman, John Horgan. Also, it is unlikely a complaint would have been about the actual report on his enrolment in a course at Stanford, but about the intrusion on his privacy while at Stanford by a reporter, who, obviously, had established he was on the course, prior to the confrontation at Stanford.

The report last Sunday referred to the declared intention of Minister for Justice Alan Shatter to revive a 2006 Bill on privacy. Recently, David Norris introduced a privacy Bill in the Seanad.

Norris invoked a privacy entitlement under the Constitution in his celebrated challenge to the legality of laws criminalising gay sex. That initial invocation was unsuccessful when a majority of the Supreme Court found that in adopting the Constitution the people had not rendered “inoperative laws which had existed for hundreds of years, prohibiting unnatural sexual conduct, which Christian teaching also held to be gravely sinful”.

But in that judgment by the then chief justice, Tom O’Higgins, there was an implicit acknowledgment of a constitutional right to privacy when he stated a right to privacy “can never be absolute”.

The right to privacy was also addressed in the telephone tapping case of 1988 (Kennedy v Ireland – the Kennedy being Geraldine Kennedy, later editor of this newspaper). The late judge Liam Hamilton said in that case: “The nature of the right to privacy must be such as to ensure the dignity and freedom of the individual, in the type of society envisaged by the Constitution, namely, a sovereign, independent and democratic society”.

This right to privacy has been confirmed in numerous court judgments. In a Supreme Court case also in 1988 it was stated: “a right to privacy might exist in an individual, even while travelling in the public streets”.

The practised litigant, businessman Dermot Desmond, claimed a right to privacy which, it was argued on his behalf, should exclude an investigator from obtaining from the Central Bank information concerning the businessman. The court found that the public interest justified the release of the information.

Charlie Haughey claimed the Moriarty tribunal was seeking to breach his family’s privacy rights by seeking disclosure of their finances. Again that claim failed on the grounds that this encroachment of privacy was justified by the “exigencies of the common good”. Also unsuccessful, in another case, was a claim of privacy over an Ansbacher account.

A woman who was having an affair with a married man claimed a privacy right, which was unsuccessful because she previously had sought publicity in connection with the affair. In another case, the publication of an affair between a priest and a separated woman was deemed an unjustifiable invasion of privacy.

A claim that there had been an invasion of privacy by the use of a secret camera to expose maltreatment in a nursing home was unsuccessful because the demands of the common good justified the intrusion (that seems far-fetched, for the people whose privacy was invaded were the victims, not the perpetrators!).

So the reality is that invasion of a person’s privacy is unlawful, as of now, but that a right to privacy is not absolute and can be superseded by considerations of the common good, or by an implicit waiver of a privacy entitlement.

The excited reaction of sections of the media to the prospect of privacy legislation is usually a contrivance to justify the boosting of corporate profits at the expense of the hurtful and unjustifiable intrusion into private lives. Often this is accompanied by a claim that such legislation necessarily would curtail the exposure of injustice – usually by newspapers not even a tiny bit interested in injustice, but themselves instruments of injustice.

Michael McDowell was the author of the 2006 Privacy Bill, which avoided a definition of privacy on the grounds that this should be left to the courts. But that undermines the point of legislation. The media needs to know the boundaries of privacy and the consequences of unjustifiable invasions of privacy.

A definition might run along the lines of: privacy covers a secluded area of a person’s private life, her/his relationships, health, interests and activities, in so far as these do not impinge upon the legitimate public interest, including the equal and rightful entitlements of others.

The going rate for a legal definition is 5,000 guineas, 8,000 guineas if in Latin.