IF ‘MUM’ IS THE WORD, IS IT THE LAW?
IRISH PRIVACY LAW: A COMPARATIVE
PERSPECTIVE
PAUL MCDONAGH-FORDE, SCH.*
Introduction
In the modern age, privacy is constantly challenged by
developments in technology, surveillance, and the administrative
state. Recognised as a legal value by Warren and Brandeis in their
famed article,1 Ireland protects privacy through an unenumerated
constitutional right, pursuant to Article 40.3. of Bunreacht na
hÉireann. In the United Kingdom, and in other jurisdictions (most
notably New Zealand and the United States of America (USA),
common law protections of privacy have seen important
developments in the last three to four years. These increasingly
provide strong tortious protections based on objective
reasonableness standards, and also provide clear defences. Privacy
protections at common law in the UK and Australia are
characterized by a reluctance to recognise a separate cause of
action based solely on privacy interests, and so equitable breach of
confidence was used in these jurisdictions as a vehicle to introduce
similar protections. Privacy interests that arise in these cases often
encompass some of the most personal aspects of life: intimate
photographs, private records, wedding photographs, and even the
ability to shower without being watched all arise in the case law.
This article will examine three key causes of action in privacy that
occur throughout the common law world, and will critique the
strength of Ireland’s privacy protections through this analysis. It is
*Senior Sophister LL.B. candidate and Scholar of Trinity College Dublin. The author
would like to thank Dr. Eoin O’Dell for his invaluable guidance, Dr. Niamh
Connolly for her insightful comments on an earlier draft of this article, Alastair
Richardson, Sch., and the Editorial Board of the TCLR for being the epitome of
professionalism.
1 Samuel Warren and Louis Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard LR
193.
submitted that Ireland’s privacy right pursuant to the Constitution
provides a weaker protection than many common law causes of
action, that the courts have shown a tendency to draw inspiration
from ill-advised strands of jurisprudence from other jurisdictions,
and that some of the strongest constitutional protections of privacy
here actually stem from the right of the person in Article 40.3,
rather than the unenumerated right to privacy.
Legal protections of privacy have a long history in the United
States, and the torts protecting privacy interests recognised there
have been categorised by William Prosser into four causes of
action: Public Disclosure of Private Facts, Intrusion, Appropriation,
and Portrayal in a False Light.2 Two of these causes of action will
be dealt with directly in detail in this article, and it will also
address privacy protections framed through breach of confidence,
as this has arisen in Australia, the UK, and this jurisdiction. The
first of Prosser’s torts this article will address is ‘intrusion’, often
called ‘intrusion upon seclusion’ in some jurisdictions.3 This relates
to physical intrusion such as stalking, and can also relate to
intrusion based on activities like eavesdropping. An ‘offensive to
the reasonable person test’ is used here.4 The second is called
‘public disclosure of truth’,5 or ‘public disclosure of private facts’.6
This consists of 1. a disclosure made in public 2. of facts that a
reasonable person would consider to be private and 3. the facts
must be highly offensive to a reasonable person of ordinary
sensibilities (from the perspective of the aggrieved party). A ‘public
interest’ defence is also available.7 This defence is balanced against
the reasonableness consideration, and arises in circumstances
where the media has an interest in informing the public. There is
also a tort of ‘false light’, pertaining to the portrayal of the
aggrieved party in a false light,8 and a tort of ‘appropriation’,
mostly relating to the use of images or likenesses of a celebrity
2
William Prosser, Werdner Page Keeton, Dan Dobbs, Robert Keeton, David Owen,
Prosser and Keaton on The Law of Torts (5th edn, West Publishing Co 1984).
3 Marc Franklin, Robert Rabin, Michael Green, Tort Law and Alternatives
(Foundation Press 2011) 1091; ibid 854.
4 Prosser & Keaton (n 2) 855.
5 Franklin & Rabin (n 3) 1046.
6 Prosser & Keaton (n 2) 856.
7 ibid 857.
8 Franklin & Rabin (n 3) 1080; Prosser & Keaton (n 2) 863.
without consent, to secure financial gain.9 The privacy protections
introduced through the doctrine of breach of confidence will also
be analysed. These have been particularly prominent in the UK and
Australia, and has been referenced at times by the Irish courts.
This article will comparatively assess Irish law through an
analysis of remedies for ‘intrusion’, followed by a critique of
protections of privacy through doctrines based on ‘confidence’. The
third part will focus on ‘publication’, dealing with the interests that
most commonly arise in the tort of public disclosure mentioned
above, but sometimes encompass interests protected in the USA by
the last two torts as well.
I. Intrusion
The Irish constitutional protection on privacy is fundamentally
grounded in the ‘natural law’ theory that was prominent during an
era of judicial constitutional activism. The Kennedy case,
concerning the tapping of a journalist’s phone, prompted Hamilton
P to discover the right as stemming from the ‘Christian and
democratic nature of the State’.10 He echoed the dissent of Henchy
J in the Norris case, where it was also suggested that the
constitution protected a right to privacy.11 The ‘natural’ nature of
the right is supported by Digital Rights Ireland v Minister for
Communications, where it was held that any corporate protection
was as far as possible from the right’s ‘core’.12 The test elucidated
by Hamilton P in Kennedy was that any interference by the State
into this right must be justified by the ‘exigencies of the common
good’, and an actionable interference must be done ‘deliberately,
consciously, and unjustifiably’.13 This requirement for a ‘deliberate’
interference is seen in other areas of constitutional protections in
this jurisdiction as well, such as the recent reformulation of the
exclusionary rule in the context of criminal evidence.14 This test
does not seem to be applied stringently, as a party who did not
have their right ‘deliberately’ interfered with was awarded
9
Franklin & Rabin (n 3) 1114; Prosser & Keaton (n 2) 851-852.
Kennedy v Ireland [1987] IR 587, 592.
11 Norris v Attorney General [1984] IR 36, 71.
12 [2010] IEHC 221; See also the South African position in Bernstein v Bester [1996]
ZACC 2.
13 Kennedy (n 10) 593.
14 JC v DPP [2015] IESC 31.
10
damages, albeit only 50% of the figure awarded to those who did
have their rights ‘deliberately’ interfered with.15
Moving on from the initial circumstances of intrusion in
Kennedy, it is worth viewing other intrusion-based remedies from a
comparative perspective, in order to assess the effectiveness of the
Irish model. The first observation to make is that there is a
shortage of case law from Ireland relating to intrusions that are
decided on privacy grounds. The Kennedy case is an obvious
exception. Other cases involving warrants have shown that various
safeguards in relation to searches exist to protect the privacy rights
of the citizen,16 and some cases have utilised privacy as a general
guarantee in criminal trials, such as the interception of phone calls
without notice.17 A right of non-disclosure also exists in relation to
one’s gender and sexual identities, meaning that an employer or
other individual cannot acquire this information through
intrusion.18 One of the most significant cases in this jurisdiction
that deals with an instance of intrusion is the Cogley case, where
recordings of abuse in a nursing home for the elderly were made
without the consent of the owners and operators of the home. The
applicants sought an interlocutory injunction from the High Court
to prevent the broadcasting of a documentary on RTÉ, and the
application was rejected by Clarke J. In his speech, the trial judge
addressed the privacy concerns arising from the presence of a
journalist; an unauthorised intruder. He held that a right to privacy
might be engaged as a result of how the information was acquired
(through intrusion). 19 He held that he saw no reason why
information on the conduct of their business being abusive should
engage a privacy protection, and that stronger questions were
raised by the intrusion consideration.20 Clarke J relied on a case
from New Zealand with very similar facts, but where the
misconduct was on the part of a medical practitioner. In this case,
TV3 Network Services Ltd v Fahey, the New Zealand Court of
Appeal did not concern itself with a tort of privacy, but it was held
that if the film was obtained ‘in breach of the plaintiff’s rights’
(again, through intrusion), then the competing rights and interests
15
Kennedy (n 10) 595.
Hanahoe v Hussey [1998] 3 IR 69, 96.
17 DPP v Dillon [2002] 4 IR 501.
18 MA v Minister for Justice [2011] 3 IR 41.
19 Cogley v RTÉ [2005] 4 IR 79, [28].
20 ibid 34.
16
would be balanced against the plaintiff’s.21 The trial judge followed
the approach in TV3, where he decided to balance a public interest
consideration and find for RTÉ. We see that where privacy
concerns are raised in the context of intrusion in Ireland, this
constitutional balancing act once again comes into play. No
consideration was given to a ‘deliberate and conscious’ test, and
thus it is not clear if this is applicable when privacy disputes of this
nature arise. It is submitted that a balance of this nature could be
struck more effectively by applying an objective test reminiscent of
tort law, even if it were to derive from the Constitution.
Moving on to New Zealand, we see that intrusion on
seclusion has recently been accepted as a cause of action there as
well. Moreover, their Law Reform Commission has suggested that
codification in relation to privacy is not necessary, and judicial
development should continue.22 In C v Holland,23 the High Court
was asked to consider intrusion on seclusion when the defendant
was found to have installed a camera to watch his housemate’s
girlfriend while she was showering. Whata J almost immediately
introduced Prosser’s four torts to his judgment.24 He summarised
the law on this issue in New Zealand, Australia, Canada, and the
UK.25 As well as opining on the general benefits of protecting an
entitlement not to have one’s seclusion intruded on, Whata J also
referred to the Law Reform Commission’s recommendation that
the courts continue to develop the law, rather than defer to
hypothetical legislative action on privacy. 26 He held that such
privacy protections are merited by modern technological
developments, independent of any obligation to conform to
international standards.27 The North American standard for the tort
was followed, while requirements for a ‘reasonable expectation of
privacy’ and an unreasonable invasion that was ‘highly offensive to
a reasonable person’.28 This test protects the relevant interest, and
21
TV3 Network Services Ltd v Fahey [1999] 2 NZLR 129.
New Zealand Law Commission Report 113 ‘Invasion of Privacy: Penalties and
Remedies – Review of the Law of Privacy Stage 3’ ch 7, January 2010,
<http://www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/NZLC%20R
113.pdf> accessed on 15 January 2017
23 [2012] NZHC 2155 (24 August 2012).
24 ibid [12].
25 ibid [33]-[64].
26 ibid [83].
27 ibid [86].
28 ibid [94].
22
clearly elucidates the standards that must be met, by using the
commonly accepted ‘reasonableness’ tortious standards.
In the same year that the Holland case was decided, a tort of
‘intrusion on seclusion’ was recognised in the province of Ontario.
Most of the other Canadian provinces have statutory causes of
action for breach of privacy,29 and so common law developments
have generally been confined to Ontario. In the case of Jones v
Tsige,30 Sharpe J held that Prosser’s four torts were an acceptable
method of defining the different causes of action that could exist in
privacy claims.31 The trial judge rejected an argument that it was a
matter for the legislature, holding that there was no expression of
legislative reluctance in respect of individual civil actions.32 The
decision to recognise the tort was based on other common law
developments, general protections of privacy in Canada, and the
judge’s view that the facts ‘cried out for a remedy’.33 The test is
similar to that of New Zealand, but there is no ‘reasonable
expectation’ element; only intrusion on seclusion that would be
highly offensive to a reasonable person.34 It may be taken as given
that the expectation of seclusion must be a reasonable one, but
clarity on this would have been welcome. It was also held that
where competing interests such as freedom of expression might
arise, they should be balanced appropriately, in line with Canada’s
constitutional framework.35 The test was applied in Ontario once
again very recently, where a plaintiff was awarded $15,000 in
damages against a defendant who filmed her in her bedroom
without permission.36 The strong reliance on Prosser’s torts once
again does bring clarity, but, admittedly leaves little scope for
jurisdiction-specific innovation such as is facilitated by the right of
the person in Ireland.
29
Personal Information Protection Act 2003 (Alberta), Personal Information
Protection Act (British Columbia) 2004, Personal Information Protection Act (Nova
Scotia) 2003, Privacy Act 1978 (Saskatchewan), Privacy Act 1987 (Manitoba), Privacy
Act 1990 (Newfoundland and Labrador), An Act Respecting the Protection of
Personal Information in the Private Sector (Québec).
30 [2012] 108 OR 241.
31 ibid [21].
32 ibid [50]-[51].
33 ibid [65]-[69].
34 ibid [70].
35 ibid [73].
36 Patel v Seth [2016] ONSC 6964 (9 December 2016).
Some Irish cases that were not decided based on the
unenumerated right to privacy could well have engaged the tort of
intrusion, should they have been decided in other jurisdictions. The
Irish constitutional framework is sufficiently robust to provide
remedies for such breaches that are not entirely grounded in
privacy, such as the case of Sullivan v Boylan.37 Hogan J held that
there was no action in tort that could vindicate the rights of a lady
that was subjected to reprehensible stalking on the part of a debt
collector, and thus awarded damages for the breach of the
constitutional right to the person under Article 40.3.38 This right
has arisen in other cases,39 and seems to be, as Kenny has argued,
becoming fundamental to our contemporary constitutional
jurisprudence.40 There may well be no need to recognise Prosser’s
tort of intrusion in Ireland if the right to the person, in conjunction
with the privacy rights acknowledged in Cogley, provide parties
with an appropriate remedy.
Another constitutional provision relevant to the issue of
seclusion is Article 40.5, which protects the inviolability of the
dwelling. In Schrems v Data Protection Commissioner, 41 Hogan J
suggested that this article should not be confined to the criminal
law, and that ‘communications originating in the home’ might be
protected under this provision as well as through the
unenumerated right to privacy.42 It is difficult to agree with this
logic. Should communications ‘originating’ in the home be
protected, the question immediately arises of what might happen to
the protection of the communication once it appears on the device
that is owned and operated by an individual with no connection to
the dwelling it was sent from. If the right applies to the
information, it is difficult to see why it would be attached to the
home. If it applies to devices that are in the home, it is difficult to
see why this is any different from the existing physical protection
of the dwelling, as it only applies to communications on devices
that can be seen from inside the home. If the right applies to the
device, then the approach taken by the US Supreme Court in Riley
37
[2013] 1 IR 510.
ibid [44].
39 Kinsella v Governor of Mountjoy Prison [2012] 1 IR 467.
40 David Kenny ‘Recent Developments in the Right of the Person in Article 40.3:
Fleming v Ireland and the Spectre of Unenumerated Rights’ (2013) 36 DULJ 322.
41 Maximilian Schrems v Data Protection Commissioner [2014] 3 IR 75
42 ibid [48].
38
v California, where it was held that a warrant is required to search
a mobile phone, might be a better one.43 It would be better to apply
a more robust general privacy guarantee to protect intrusion into
information, rather than engaging rights that might in practice
actually limit privacy protections, because of the strained logic
involved.44
Instances of ‘intrusion’ in Ireland have strong protections,
interestingly, that are found more in the right of the person than in
the right to privacy. The reasonableness tests used in other
jurisdictions provide a very clear and predictable cause of action
for litigants. Some confusion exists at Irish law, due to a
conglomeration of actions through both of the above-mentioned
constitutional provisions, and through Article 40.5. It is submitted,
however that robust and eclectic forms of protection can be
provided to Irish citizens in this context, by effective use of these
multiple causes of action (provided some are not misused, such as
in the Schrems example). The value placed on personal autonomy
in Irish law means that, of the interests considered in this article,
constitutional rights-holders in this jurisdiction are protected the
most in respect of privacy violations in this particular area. Before
turning to privacy in the context of publication, privacy protections
relying on breach of confidence will be considered.
II. Breach of Confidence
This section will comparatively critique privacy protections
grounded in breach of confidence, and ultimately argue that the
use of breach of confidence in such contexts is fundamentally
misguided, and should be abandoned by the Irish courts insofar as
they have used it. Breach of confidence is an equitable cause of
action, grounded in a pre-existing relationship of confidence
between two parties. The doctrine has evolved in some
jurisdictions, however, to take on tortious characteristics in order
to protect privacy interests. Some forms of the doctrine have
become confused and over-stretched; the original and quite
43
[2014] 573 US.
See also Paul McDonagh-Forde ‘There’s no place like home: Does Schrems v Data
Protection Commissioner stretch Article 40.5 to breaking point?’ (2017) TCLR Online,
<http://trinitycollegelawreview.org/theres-no-place-like-home/> accessed on 15
January 2017.
44
separate interest of personal relationships that it once protected
was abandoned in some instances, in favour of protections focusing
on privacy. The tort of invasion of privacy will not be directly
addressed in this part, but will only address it insofar as tortious
qualities begin to appear in actions and rulings based on breach of
confidence. Developments in the rest of the common law world
will provide a useful prism with which to view recent Irish
developments on the matter, and are often indicators of avenues it
might be best to avoid. Irish cases have tentatively referred to
privacy-based developments on breach of confidence in other
jurisdictions. It is submitted that they should be reluctant to follow
this line of precedent, as it will be shown that these developments
were
fundamentally
misguided,
as
they
limit
the
comprehensiveness and clarity of the privacy protection while
simultaneously moving away from a separate protection of
relationships based on agreed confidence. The original law of
breach of confidence and breach of confidence subsequent to the
introduction of privacy concerns will be distinguished (although
the latter has happened in different ways), by allocating a letter to
each form.
- Breach of confidence (a): The requirements to make out an action
in its original form are that the information is confidential, that it
was originally imparted in circumstances importing an obligation
of confidence, and that there has been or is threatened an
unauthorised use of the information by the confidant to the
detriment of the confider.45
- Breach of confidence (b): The more recent conceptions of the
doctrine do not require a pre-existing relationship of confidence,
and a ‘duty’ is often implied based on the circumstances of the
case. This doctrine is often, in contrast to breach of confidence
(a), treated as a tort. The distinction relied on between (a) and (b)
in this article is a lack of a pre-existing relationship of
confidence.46
45 Coco
v AN Clark (Engineers) Ltd [1969] RPC 41, 47 (McGarry J); Australian
Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 [30] (Gleeson
CJ).
46 Douglas and Others v Hello! Ltd [2001] QB 967, 984, 998.
A. The Decline of Breach of Confidence (a)
The principle of equitable breach of confidence – i.e. breach of
confidence (a) – was, initially, based on the specifics of a
relationship between the relevant parties. Early case law deals with
confidence in the context of marriage.47 It was necessary for the
breaching party to be on ‘notice’ as to the confidentiality of the
information, and therefore an element of subjectivity was
significant.48 The treating of confidence as a ‘duty’, based on an
objective responsibility attached to a party by a court, began to
emerge in Attorney General v Guardian Newspapers Ltd (No 2) 49
(the Spycatcher case). In this case, the Attorney General of England
and Wales took an action against Mr Wright, a former MI5 agent
who published memoirs containing sensitive information on
national security. The case introduced the notion of a ‘duty’ of
silence, and declared the question of whether it was of legal or
equitable origin as solely academic interest.50 However, it is a long
established principle that an equitable obligation of confidence and
a contractual one have the same nature.51 The nature of these
obligations is either fiduciary or based on a freely made contract.
Spycatcher thus represented a pre-cursor to the confusion that
hindered modern-day privacy actions. Relying on an interest
grounded in personal relationships confuses actions based on duty,
and on the objective significance of particular information.
Specifically, Lord Donaldson MR held that, as in Schering
Chemicals,52 a confidant can still be considered a confidant if they
acquired the information from other sources, and the original
confider can be treated as the source.53 This reasoning is difficult to
accept. MI5 was only the source of the information insofar as they
provided Mr Wright with the source of employment that facilitated
discovering this information. This is fundamentally different from
information that is conveyed directly as part of a contract, or as
part of an equitable relationship. A hospital can obviously not be
treated as a source of information when a doctor discovers a
47
Duchess of Argyll v Duke of Argyll and Others [1967] Ch 302.
Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 140.
49 ibid.
50 ibid 145, 148.
51 Lamb v Evans [1893] 1 Ch 218.
52 Schering Chemicals Ltd v Falkman Ltd [1982] QB 1.
53 Guardian Newspapers (No 2) (n 48) 177.
48
patient’s illness; reasoning such as this in the context of Mr
Wright’s employment introduces artificiality, by attempting to
fashion a remedy using an unsuitable doctrine. The incorporation
of ‘duty’ for secret information introduces a responsibility
unconnected to an explicit relationship of ‘confidence’, and so
begins to change the action and thus neglect agreements of
confidence freely entered into. This is the first appearance of what
is termed breach of confidence (b), for the sake of convenience, and
facilitated incorporating the concept of ‘duty’ into an actual tort.
The Attorney General of England and Wales took actions in a
number of countries to attempt to stop the publication of the book
in question in the Spycatcher case. One such action was taken in
Ireland, in the case of The Attorney General for England and Wales v
Brandon Book Publishers Limited.54 In this case, similar arguments
to those in the House of Lords were made before the Irish High
Court. Carroll J found for the book publishers. She held that at Irish
law, breach of confidence applied in a private, commercial context,
and not between individuals and foreign governments.55 Given that
these questions tend to engage the Constitution, breach of
confidence as an equitable cause of action is not quite as developed
in this jurisdiction.
In the case of House of Spring Gardens Limited,56 a complex
dispute arose in relation to the construction of bullet-proof vests
based on information that the plaintiffs alleged was confidential.
The Supreme Court held that the decision of Costello J in the High
Court was correct, and so most of the relevant legal findings are in
Costello J’s judgment. The trial judge made clear that this doctrine
was fundamentally grounded in equity.57 The principles that he
elucidates at length consist of the traditional requirements under
breach of confidence (a), namely confidential information that
revealed, when the parties have a relationship of confidence, and
the disclosure is unauthorised and to the detriment of the
aggrieved party. In the Supreme Court, O’Higgins CJ quoted
Costello J’s declaration of the relevant principles in full, and held
that it correctly sets out ‘the principles which apply to this branch
of the law and I cannot think of anything that I would wish to
54
[1986] 1 IR 597.
ibid 601-602.
56 House of Spring Gardens Limited and Ors v Point Blank Ltd and Ors [1984] 1 IR 611.
57 ibid 659.
55
add’.58 McCarthy J held that he ‘would question’ whether breach of
confidence relates to a moral duty, and suggested that it amounted
more to a ‘commercial necessity’.59 This statement was supported
by Carroll J in Brandon Books. 60 Similarly, in Private Research
Limited v Brosnan,61 McCracken J held that breach of confidence
consists of the criteria for breach of confidence (a), but does not
mention the detriment requirement. The principles of breach of
confidence (a) outlined here helpfully present the distinction
between moral and rights-based protections of privacy, and
protections of confidence based on equitable protections of
personal agreements (and often, commercial contracts). When the
law fails to take account of this distinction, the protection of the
former is lost, and the protection of the latter is rendered unclear.
Similarly, the original Australian position was that breach of
confidence (a) was the law,62 and that no tort of invasion of privacy
exists there.63 But recent developments have moved away from this
position. The most significant authority for this discussion is
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,64
which concerned the unauthorised recording of footage of
controversial animal slaughter methods, and raised the issue of the
conflict between traditional breach of confidence (a), breach of
confidence (b), and a tort of invasion of privacy. In his judgment,
Gleeson CJ explicitly endorsed breach of confidence (b), by holding
that equity can impose obligations of confidence even when there
is ‘no imparting of information in trust and confidence’.65 When
addressing arguments made in relation to a tortious action for
breach of privacy, he held that provided the information is private,
the law of breach of confidence is ‘adequate to cover the case’, as
long as the discloser ‘knew, or ought to have known, the manner in
which they have been obtained’. 66 This is not an equitable
standard. Breach of confidence (b), when creating a fictional
58
ibid 696.
ibid 709.
60 Brandon Books (n 54) 601.
61 Private Research Limited v Paul Brosnan and Network Financial Services Limited
[1995] 1 IR 534.
62 Coco v AN Clark (n 45).
63 Victoria Park Racing and Recreation Grounds Ltd v Taylor [1937] 58 CLR 479.
64 [2001] HCA 63.
65 ibid [34].
66 ibid [39].
59
‘confidence’ based on privacy, and assessed objectively using
language normally associated with ‘reasonableness’, strays too far
from its origins and the interests equitable confidence exists to
protect. It simultaneously neglects the initial protection of
relationships of confidence freely entered into, and fails to
acknowledge that objective standards of privacy based on
‘reasonableness’ have the basic characteristics of a tort with no
relationship to the concept of ‘confidence’.
B. The Rise of Breach of Confidence (b)
The tort of privacy has been framed in terms akin to breach of
confidence. This is undesirable and two distinct protections should
be allowed to develop separately. Breach of confidence (b) has
sometimes been argued in Irish courts in a way that could move
the courts away from distinct protections of privacy interests, as
opposed to interests based on relationships of confidence. In
National Irish Bank v Radio Telefís Éireann,67 which concerned an
application by the bank in question to prevent RTÉ from
publicising information it had acquired about the bank that was not
in the public domain. In the High Court, Shanley J, citing no
authorities, squarely applied a tortious standard.68 This is the first
sign of language of ‘duty’ in Irish breach of confidence, based on an
objective assessment of reasonable expectation of ‘confidence’, as
opposed to an obligation arising from a confidential relationship.
Shanley J also introduced a defence of public interest.69 It is old
authority that there is ‘no confidence in iniquity’70 (i.e. that an
individual cannot be expected to be a confidant of a crime or fraud
or some other inequitable result) and therefore there is some basis
for a public interest defence in breach of confidence actions, even
outside of tort.71 The Irish Supreme Court has recognised this.72
The recent developments on this internationally have been
criticized for being ‘uncertain’ and for being treated with a
67
National Irish Bank Limited v Radio Telefís Éireann [1998] 2 IR 465.
ibid 474.
69 ibid.
70 Gartside v Outram (1856) 26 LJNS 113.
71 ibid 114.
72 NIB v RTE [1998] 2 IR 465.
68
‘piecemeal approach’. 73 The remedy in National Irish Bank,
however, was strongly based on traditional tort principles, and so
the public interest defence breaks new, and even more uncertain
ground, with no tortious authorities seemingly available. However,
even if the facts of this particular case could meet the threshold
required to establish breach of confidence (a), introducing this
tortious language risks neglecting the original purpose of breach of
confidence; protecting relationships of confidence entered by the
parties, rather than imposing privacy ‘duties’.
In the Supreme Court, Keane J referred to the public interest
‘balancing act’ engaged in by the English courts in Guardian
Newspapers.74 He also, once again, refers to confidence as a ‘duty’.75
However, as Keane J pointed out, the relationship of confidence at
issue is not that between the bank and RTÉ, but between the bank
and its customers, as RTÉ intended to publish the names of
customers engaging in questionable activity through the bank.76 A
minority of 2 held that there must be an injunction against RTÉ
divulging the names to any party, with the exception of the
Revenue Commissioners, with a majority of 3 holding that
publication was in the public interest by virtue of the offence’s
criminal nature. The case could easily have swung on equitable
breach of confidence (breach of confidence (a)) and a
countervailing public interest in the context of crime, in the form
of tax evasion. The use of the term ‘duty’ is unfortunate, as it
introduces tortious language. This issue has arisen in the UK and
Australia to a large extent.
The position in Australia on breach of confidence (b) is now
tentative and uncertain, as the Australian courts seem reluctant to
recognise a separate cause of action in privacy. Initially, a tort of
privacy was described as ‘developing’ in the jurisdiction,77 and
Kirby J (one of the main proponents of the tort in Lenah) described
it as the result of ‘legislative inaction’.78 The High Court in Lenah
was specifically asked to recognise a tort of invasion of privacy.79
73
Jason Pizer ‘The Public Interest Exception to the Breach of Confidence Action:
Are the Lights about to Change?’ (1991) 20 Monash LR 67, 68.
74 Guardian Newspapers (n 48) 483.
75 ibid 485.
76 ibid 481.
77 Church of Scientology v Woodward (1982) 154 CLR 25, 68.
78 Australian Consolidated Press Ltd v Ettingshausen [1993] NSWCA CA40079/93 15.
79 Lenah Game Meats (n 64) [38].
Gleeson CJ further questioned the lack of precision surrounding
privacy.80 The Victoria Park81 case pertained to a suit by a racing
ground, in an attempt to prevent a radio station and an individual
from broadcasting information on races displayed on a screen
twenty minutes before they actually took place. Gummow and
Hayne JJ held that this case did not preclude a tort of privacy, as
was submitted by Lenah Game Meats, but instead simply held that
there was no protection of privacy under the heading of nuisance.82
They further held that privacy protections, as in the USA, could not
apply to corporations.83 It is interesting that Lenah has become
such an important and leading authority not only in Australia, but
for also in other jurisdictions, when the very tentative tort that was
discussed was not even applicable to the litigant in the case itself.
Kirby J, who had been open to the tort in the past, refrained from
addressing it directly in the instant case for that very reason.84 It is
ironic that a case preventing the publication of material revealing
animal rights abuses, that did not make any decisions on the tort of
privacy, has been so significant in influencing developments in an
action so often associated with vindicating victims of stalking,
revenge porn, and identity appropriation. It instead gives fodder to
the artificial concept of ‘duty’ found in breach of confidence (b),
and to the instance in Australia and (for many years) in the UK that
privacy is not actionable at common law.
Breach of confidence (b) emerged as a tort in the UK in the
case of Douglas v Hello!85 in the English Court of Appeal. The case
was a claim by celebrity couple Michael Douglas and Catherine
Zeta Jones taken against Hello! Magazine, for publishing wedding
pictures without authorisation (a commercial deal for the
photographs was awarded to OK! Magazine). Brooke and Sedley LJJ
held that privacy considerations can be introduced to breach of
confidence when there is no existing relationship of trust.86 This is
significant, particularly as in the same case the defendants were
held to be ‘on notice’, a phrase traditionally reserved for existing
80
ibid [42].
Victoria Park (n 65).
82 Lenah Game Meats (n 63) [107]-[108].
83 ibid [116], [126], [129].
84 ibid [190]-[191].
85 [2005] EWCA Civ 595.
86 ibid 984, 998.
81
relationships of confidence.87 The Court of Appeal felt it necessary,
prompted by the European Court on Human Rights decision in Earl
Spencer v United Kingdom, 88 to incorporate privacy protections
enshrined in Article 8 ECHR into the action breach of confidence at
English law, through the Human Right Act 1998. Mac Síthigh has
also pointed out that the expansion of breach of confidence stems
from the ECHR.89 This, then, is the birth of breach of confidence (b)
in its pure, privacy-based form.
Sedley LJ explicitly referred to the cause of action as a tort,
where – as it has been pointed out – it was held that these preexisting relationships were not necessary. In particular, he referred
at length to the ‘tort of breach of confidence’, and correctly held
that a ‘right to privacy’ now existed at English law, and that
despite naming concerns, it had been applied as such for some
time.90 On the other hand, Brooke LJ held that no tort of invasion
of privacy was known to English law, following Kaye v Robertson.91
Keene LJ sought to split the difference on this issue; he held that
there is no ‘watertight division’ between privacy and breach of
confidence and, based on Article 8 ECHR, suggests that Kaye would
have been decided differently if it were heard at the same time as
Douglas.92 Keene LJ is right to point out the distinction between
these two areas of law. To move breach of confidence (b) so far
from its initial roots would be to neglect the interest of protecting
relationships based on confidence, rather than ones based on an
individual’s privacy. This case prompted further distortion of the
law in England and other jurisdictions, which remains today
somewhat in Ireland, and very much in Australia. Two distinct
interests arising out of two very different legal orders (equity and
the ECHR) being conflated led to confusion causes of action, and
confusing and conflicting judgments such as this one, without a
clear test even existing.
The contribution of Douglas and Lenah to the dilution of
breach of confidence, at the expense of both confidence interests
and privacy interests led to a series of confused actions, with very
87
ibid 984.
[1998] 25 EHRR CD 105.
89 Dáithí Mac Síthigh, ‘Beyond Breach of Confidence: an Irish eye on English and
Scottish privacy law’ (2014) 1 Jur Rev 27, 32.
90 Douglas (n 85) [1000-1].
91 [1991] FSR 62.
92 ibid 1012.
88
different initial objectives; one, being the protection of
relationships of confidence, the other being protections of privacy
rights and enforcement of privacy duties (such as under Article 8
ECHR). The courts in England did not recognise this danger in the
same way, and the distortion of breach of confidence continued in
the case of Campbell v MGN.
The case concerned media revelations about Naomi
Campbell’s addiction to drugs, and her attendance at ‘Narcotics
Anonymous’ meetings. The action was successful at first
instance, 93 was overturned in the Court of Appeal, 94 and was
overturned once again in the House of Lords.95 The ruling helped
movement towards a tort of invasion of privacy in the UK, but
contributed, yet again, to its slowing down through use of breach
of confidence (b). At first instance, Morland J held that the
obligation of confidence must be assessed objectively, and not
subjectively.96 This neglects the traditional idea that breach of
confidence protects relationships of confidence, whereby the
parties are aware of it and then breach it. Rather than applying a
test based on the nature of the relationship itself, the test morphs
into an objective one, asking whether they were ‘clothed in
conscience with the duty of confidentiality’.97 Confidence implies
that somebody has had the confidence in somebody else to impart
information, in confidence (my emphasis).98 Morris is right to argue
that the trial judge’s failure to call the objective duty what it is – a
tort of invasion of privacy – simultaneously neglects the worthy
interest of relationships of confidence, and the worthy interest of
privacy, and conflates them into a single cause of action when both
should be distinct.99 This is not a model that should be followed.
In the Court of Appeal, Lord Philips was receptive to the idea
that it was not possible to imply a relationship of confidence based
93
Campbell v MGN Ltd. [2002] EWHC 499.
v MGN Ltd. [2002] EWCA 1373.
95 Campbell v MGN Ltd. [2004] 2 AC 457.
96 Campbell (n 94) [42].
97 ibid.
98 See particularly the conclusion and footnote 32 of Hilary Delany ‘Breach of
Confidence of Breach of Privacy: The Way Forward’ (2005) 27(1) DULJ 151; See also
Oxford
English
Dictionary
‘definition
of
confidence’
<https://en.oxforddictionaries. com/definition/confidence> Accessed on
December 30th 2016.
99 Joanna Morris, ‘Towards a Modern Privacy Law in Ireland? Recent Developments
in Privacy Law’ (2006) 24(24) ILT 39.
94.Campbell
on photographs taken on the street, in the way breach of
confidence (b) was applied in the Douglas case, when a relationship
had been established.100 This, at least, acknowledges that a different
action would be required in order to vindicate Ms. Campbell’s
rights. The appeal eventually swung on an interpretation of
Gleeson CJ’s test in Lenah. When determining what is ‘private’ and
what is not, Gleeson CJ suggested that the revelation should be
‘highly offensive to a reasonable person of ordinary sensibilities’.101
Whereas Morland J applied this test to the publication of the
information itself at first instance, Lord Philips held that this test
was not met.102 We do not get clarity in this judgment as to
whether Lord Philips’s position was that the test applies to
determining whether information is private, or should be used to
determine whether the publication of information already
confirmed to be private was unreasonable.103
In the House of Lords, Lord Nicholls is clear that this action
is now a ‘tort’, and that the law has shaken off the requirement for
‘actual confidence’.104 Lord Hofmann agreed,105 in contrast to his
position in Wainwright v Home Office, where he held that Douglas
was merely an authority for removing the requirement of a
relationship of confidence.106 Despite dissenting from the majority,
their lordships showed no division as to the nature of the tort of
confidence; breach of confidence (b). Lord Hope clarified Gleeson
CJ’s test, and held that it should be applied when there is difficulty
in determining whether the information itself is ‘private’.107 He
went on to hold that because the information in Campbell was
obviously private, a duty of confidence was automatically engaged.
Most of Lord Hope’s analysis is based on academic commentary
and US case law, rather than an adapted form of breach of
confidence. It was not wise of the English courts to attempt to
follow the confused decision in Lenah, and thus abandon what was
a sound legal protection in order to introduce another, rather than
simply introducing another. The need to raise issues that were
100
Campbell (n 94) [33].
Leah Game Meats (n 66) [42].
102 Campbell (n 94) [55].
103 ibid [49].
104 Campbell (n 95) [14]-[15].
105 ibid [46]-[48].
106 [2004] 2 AC 406, 422.
107 ibid [94].
101
associated with both or either of breach of confidence (a) and
breach of confidence (b) in what is quite clearly a tortious case,
creates confusion. Applying a reasonableness test to engage a ‘duty
of confidence’ fits more with the specific determination Gleeson CJ
needed to make about animal welfare-based publication. The use of
breach of confidence is partially to blame for the misapplication of
tests in cases such as these. Academic commentary from the time
called for ECHR obligations to be met by recognising a general tort
of privacy, acknowledging the issues this approach could raise.108
Before returning to the Irish position on breach of confidence
(b), it is necessary to mention Mosley v Mirror Group Newspapers.109
The claimant sued the newspaper in question for breach of
confidence, arising from publication of articles alleging that he
took part in a Nazi-themed sadomasochistic sexual orgy. Not
insignificantly, the claimant is the son of Sir Oswald Mosley, the
former leader of the British Union of Fascists. Eady J restated the
fact that ‘old-fashioned’ breach of confidence (a) was well
established, and that breach of confidence (b) was based on a
‘reasonable expectation’, arising from the Human Rights Act
1998.110 The trial judge held that a proportional ‘balancing act’
must take place, in order to assess whether there is a public interest
in publication.111 He then engaged in a lengthy enquiry of fact in
an attempt to determine if there was a genuine Nazi theme to the
orgy, and held that there was not.112 He also engaged in a lengthy
analysis of various claims by the defendant that there was a public
interest in the publication, and eventually rejects them.113 Mosley,
which can be criticised for the same reasons as the above cases, and
its predecessors, had an unfortunate influence in the recent Irish
decision of Slattery v Friends First.114
When addressing Slattery, it is necessary to deal with both
the decision of the High Court115 and the decision of the Court of
Appeal,116 as the appeal swung on a nuanced aspect of Irish law on
108
Hector MacQueen, ‘Protecting Privacy’ (2004) Edin LR 249, 251.
Mosley v Mirror Group Newspapers [2008] EMLR 20.
110 ibid [7].
111 ibid [14].
112 ibid [44]-[72].
113 ibid [110]-[171].
114 [2013] IEHC 136 (HC); [2015] IECA 149 (CA).
115 [2013] IEHC 136.
116 [2015] IECA 149.
109
banking-related breach of confidence (commercial obligations
under breach of confidence (a)). The action pertained to a
disclosure made by the defendant to a client in relation to financial
dealings between the plaintiff and the defendant, the client being
an investor in the defendant company (the investment was crucial
to the client’s success). The initial authorities cited by McGovern J
in the High Court pertain to a duty of confidence specific to a
banker-client relationship.117 He goes on to refer to the ‘tort of
breach of confidence’ from National Irish Bank critiqued above,118
and soon afterwards refers to cases based on constitutional
balancing acts concerning privacy.119 McGovern J delved into the
law surrounding the application of a right to privacy in business
dealings, despite the fact the claim was grounded in breach of
confidence.120 The trial judge’s use of these authorities is extremely
ill-advised, since one of the strengths of Irish law’s approach to
breach of confidence is its reluctance to conflate breach of
confidence (a) and privacy actions. In a short series of paragraphs,
the trial judge manages to hold that 1. a duty of confidence can be
framed in equity,121 2. a tort of misuse of private information is
recognised in England (while citing Campbell, a case that is not an
authority for that proposition), 122 3. in England breach of
confidence (b) exists through the prism of the ECHR (using Mosely
as his authority of choice).123 It is unclear which of these, if any,
McGovern J was favourably disposed to. The plaintiffs were
successful, and we were left none the wiser. The summary of the
law on privacy and breach of confidence seems to amount to little
more than an acknowledgement that legal protections of privacy
and confidence are a good thing.
The High Court decision in Slattery is a perfect example of
what can arise if authorities relating to the relationship between
confidence and privacy are not treated with caution. On appeal, the
submissions by both sides were confined to issues of breach of
confidence in relation to the relationship between banker and
117
Slattery (n 114) [100]; see also Tournier v National Provincial & Union Bank of
England [1924] 1 KB 461.
118 ibid [102].
119 ibid [104].
120 ibid [105]-[108].
121 ibid [107].
122 ibid [109].
123 ibid [110].
client.124 Moreover, Ryan P overturned the decision of McGovern J
purely on this basis, and did not engage with the conflict between
constitutional privacy, privacy torts, tortious breach of confidence
(b), and equitable breach of confidence (a).125 Robbie Slattery BL
argued that prior to Slattery Irish law had turned its back on the
extended form of breach of confidence used in England to protect
privacy interests (breach of confidence (b).126 This is now not
entirely true. The aspects of the Slattery judgment in the High
Court that were not dealt with on appeal leave a shadow over Irish
law in this area. It is unfortunate that the appeal was not taken as
an opportunity to clarify the Irish situation. It could be argued that
McGovern J was not asserting that some of these doctrines were
persuasive in Ireland. It is difficult to see, however, why he would
refer to them at all if he did not deem this to be the case. We can
take some comfort from the fact that the banker-client relationship
focused on by Ryan P fits comfortably within breach of confidence
(a). Providing authority for this flawed strand of jurisprudence in
this jurisdiction makes for unclear causes of action and potentially
inconsistent remedies; the Irish courts should be further
discouraged by the very recent move away from breach of
confidence (b) in the UK.
In Google v Vidal-Hall,127 the Court of Appeal of England and
Wales finally held that equitable breach of confidence (or breach of
confidence (a)) was an entirely separate cause of action from claims
of ‘misuse of private information’ (or, breach of confidence (b)); the
latter, it was decided, is part of tort law. 128 This marks the
culmination of a line of common law authorities engaging in legal
gymnastics, with varying degrees of success. It affirmed the
decision of Tugendhat J (who as a barrister had argued so strongly
in Douglas in favour of a separate tortious action of breach of
privacy), recognising the tort. The case concerned an action against
Google for retaining personal search data for advertising purposes.
Lord Dyson MR and Sharp LJ held in a joint judgment that privacy
124
Slattery (n 114) [79], [80].
ibid [93].
126 Robbie Slattery, ‘The Law on Privacy’ (2009) 14(4) Bar Review 74.
127 [2016] QB 1003.
128 Carter-Ruck, ‘Vidal-Hall v Google goes to Supreme Court’ Update (1 July 2016),
<http://www.carter-ruck.com/blog/read/vidal-hall-v-google-goes-to-thesupreme-court> Accessed on 28 December 2016.
125
must be a separate cause of action, as it was a separate interest.129
The trial judges were keen to point out that they were inspired by
some previous cases, such as the speech of Lord Nicholls in
Campbell,130 which is presumably the reason for the use of the
phrase ‘misuse of private information’. The trial judges went on to
hold that they were not recognising a new cause of action, but
were affirming a tortious action that already existed in practice.131
This completely sidesteps previous authorities, which held in no
uncertain terms that there is no tort of invasion of privacy. The
judgment gives no indication of what legal test will be used, which
was one of the main causes of confusion during the ‘halfway
house’ stage between breach of confidence (a) and this new tort.
No reference is made to other jurisdictions recognising similar
causes of actions, and no attempt is made to distinguish the
publication of information and the acquiring of information.
Bennett is correct to argue that the UK’s development here, mostly
based on the protection of ‘public figures’, has been slow.132
In contrast to the approach of the UK Supreme Court, the
Supreme Court of Western Australia continues to insist that
privacy actions should be grounded in breach of confidence. The
case of Wilson v Ferguson133 concerned the online publication of
intimate photographs of the defendant by the plaintiff (her former
lover). Mitchell J held that the relationship between the parties was
sufficient in itself to constitute a breach of confidence.134 This
method provides a remedy for litigants, but the confusion that can
ensue if breach of confidence (b) is used to protect privacy interests
is still a concern. Moreover, it is unclear whether breach of privacy
(b) will continue to be a common law action in the UK, or whether
the equitable action will once again begin to look more like breach
of confidence (a). Mitchell J only refers to ‘privacy’ on two
occasions, when pointing out that the Australian High Court have
been open to it as a tort in Lenah.135 It appears that breach of
confidence is unlikely to disappear from these cases; particularly if
129
Vidal-Hall (n 127) 1021.
ibid 1022.
131 ibid 1031.
132 Thomas Bennet, ‘Emerging Privacy Torts in Canada and New Zealand: an
English perspective’ (2014) EIPR 298, 304-305.
133 Wilson v Ferguson [2015] WASC 15.
134 ibid [56].
135 ibid [54], [76].
130
the courts make decisions like the one in Wilson and provide
equitable damages for emotional distress and anxiety arising from
the publication of embarrassing material. The interest in such
circumstances, as will be seen more clearly later when directly
discussing the tort, is the invasion of the privacy of the victim by
publishing pictures. The interest is not the imparting of
information in confidence with a legal protection, with a view to
attaching significance to the relationship. Pauline Walley SC
argues that, normatively, Wilson is a step forward for victims of
revenge porn,136 and that a statutory solution in Ireland would be
preferable, to avoid complex and uncertain litigation for victims.137
This is all arguably true, but further clarity at common law could
also provide for a less confusing atmosphere for litigants. In any
case, it seems to be the intention of the Irish government to treat
revenge porn as a criminal matter.138 This approach is of little
comfort to those seeking private, financial redress, and so the issue
in that respect still very much stands.
The UK has finally given clarity on the distinction between
tortious actions for breach of privacy and the concept of breach of
confidence. We have not yet, unfortunately, seen such clarity from
the Australian High Court or from Western Australia. As far as
Ireland is concerned, we are at first glance not excessively
burdened by misuse of ‘breach of confidentiality’. The courts here
do, however, struggle to distinguish their approaches to various
forms of remedies, often as a result of the ‘catch-all’ constitutional
dimension. It is a very useful exercise to examine the fact that the
origins of tortious actions for breach of privacy in many
jurisdictions stem from breach of confidence, as we see the courts
in Ireland drawing on those lines of authorities. Ireland should not
blindly follow the errors of other jurisdictions in developing these
areas of the law; nor should we allow the courts to become
complacent and not elucidate clear standards. Otherwise confusion
surrounding the relationship between ‘pure’ constitutional
breaches of privacy, the constitutional tort of privacy, the common
136
Pauline Walley, ‘“In Memoriam Amore”: Revenge, Sex and Cyberspace’ (2015)
20(2) Bar Review 33, 35-36.
137 ibid 37.
138 Sarah Bardon, ‘Stalking and revenge porn to become criminal offences’ The Irish
Times (Dublin 31 December 2016).
law tort of privacy, and now, (mostly thanks to the High Court
judgment in Slattery) breach of confidence (b) is left behind.
III. Publication
The final interest that arises in Ireland in the context of privacy is
what will be termed ‘publication’; the sharing of information with
others in breach of an individual’s privacy rights. It is submitted
that the Irish constitutional test for cases such as these provides a
weaker protection than the torts that exist in other jurisdictions;
particularly in light of the broad range of countervailing
circumstances that the courts will accept, due to various public
interest considerations.
The case of Herrity v Associated Newspapers concerned
publication of information about the plaintiff’s extramarital
relationship with a Roman Catholic priest.139 Submissions were
accepted based on the non-existence of a common law tort of
invasion of privacy,140 and so recent developments could have had
implications for any trial on similar facts happening in a
contemporary context. It was made clear by Dunne J that
constitutional privacy actions were actionable horizontally as well
as vertically, as are all Irish constitutional rights.141 She eventually
held that at Irish law, there was a right to privacy, it was not
unqualified, it derives from the information in question (which
must be private in nature), and there are circumstances where
competing interests mean that there is a public interest in
publication. She referred to O’Hanlon J’s reluctance in MM v
Drury142 to interfere with what he saw as a legislative role, but held
that as there was a relevant legislative provision, this did not apply
in the case she was deciding.143 She also held that truth was not a
sufficient reason for there to be a competing interest,144 and that
there was no public interest in revealing the affairs of a priest
because the plaintiff was not the priest, but the woman who had an
139
[2009] 1 IR 316.
ibid [31].
141 ibid [54]; See also Meskell v Coras Iompar Éireann [1973] IR 121 and Conway v
Irish National Teachers Organisation [1991] 2 IR 305.
142 [1994] 2 IR 8.
143 ibid [61].
144 ibid [64].
140
affair with him.145 Although it was not dealt with in the substance
of the case, when awarding damages Dunne J once again referred
to the ‘deliberate and conscious’ requirement. 146 Irish law on
privacy is based fundamentally on a constitutional balancing act,
but many of the competing rights can be easily seen as analogous
to a ‘public interest’ defence in tort. Being inherently constitutional
in nature, this also makes it easier to fit our privacy regime into the
ECHR framework.
LK (a minor) v Independent Star Limited (and others) 147
restated the test in Herrity, and seems to place yet more emphasis
on the ‘deliberate and conscious’ requirement. The facts concerned
publication of a woman’s identity in connection with a rape that
she was a victim of. Hedigan J affirmed the fact that prohibition of
an activity by the legislature will have very strong weight in a
privacy claim.148 He held that the four necessary elements in a
privacy action were that the information ‘must be private’, that
‘the violation must be deliberate’, that ‘the violation must be
conscious’, and that ‘the violation must [sic] be justified’
(presumably this should read ‘must not’).149 The trial judge found
for the defendant on the grounds that the defendant did not know
that publicising certain information would make the plaintiff
identifiable.150 Three points arise out of this judgment. The trial
judge made a point of acknowledging that ‘deliberate’ and
‘conscious’ were two separate tests to be met, although he held that
they were not met in this case for the same reason. It is very
difficult to discern the difference between a ‘deliberate’ and
‘conscious’ violation is. It may be that one requires the act to be
deliberate, and the other requires a conscious awareness on the
part of the violating party that they are breaching somebody’s
constitutional right. This seems to be a very high bar to meet. The
more likely alternative is that these are so similar as to be
effectively the same requirement, and that it was an inaccuracy to
label them as separate hurdles for claimants to jump through. The
second point is that this seems to introduce quite an explicit mental
element to privacy breaches under the Constitution in Ireland.
145
ibid [66].
ibid [79].
147 [2010] IEHC 500 (3 November 2010).
148 ibid [62].
149 ibid [93].
150 ibid.
146
Torts in other jurisdictions merely apply a ‘reasonableness’
standard, not delving into the mental state of the breaching party
at all. This suggests that constitutional actions for breach of
privacy here are more difficult to make out. Finally, the first
requirement in the LK test is that the ‘information’ must be private.
This suggests that this test pertains specifically to the publication
aspect of this right (as opposed to other privacy interests that
might be raised in cases like Kennedy). Although our constitutional
framework probably makes adhering to Prosser’s torts
unnecessary, they do helpfully elucidate the different interests and
considerations that can arise in these claims.
As an example of a more objective standard, the position in
New Zealand (at least insofar as the publication tort is concerned)
is quite settled, and it is easily the jurisdiction most open to the tort
(with the exception of the USA). Since it began to move towards
recognising the tort of invasion of privacy in Tucker v News Media
Ownership,151 it has, as a jurisdiction, tended to follow the Prosser
model.152 In the Court of Appeal, Jeffries J held in Tucker that the
next logical step from liability for emotional distress is a general
tort of privacy, 153 in contrast once again to Lord Hoffmann’s
position in Wainwright. In the case of Hosking v Runting, an action
was taken by a celebrity couple to stop the publication of
unauthorised photographs taken of their young twins. At first
instance in the High Court, Randerson J opined that he saw no
reason why New Zealand could develop the English breach of
confidence model, i.e. breach of confidence (b).154 On appeal to the
Supreme Court, Gault P (Blanchard J concurring) held that
changing the meaning of ‘confidence’ would confuse the law, and
fail to protect the distinct interests of both confidence and
privacy.155 This lends yet more support to the arguments that the
actions should not be conflated.
As developments continued, Prosser’s test for ‘public
disclosure of private facts’ directly applied in Wingnut Films, when
famed director Peter Jackson was sued for involving a family
gravestone in a ‘splatter film’ (the headstone was shown during a
151
[1986] 2 NZLR 716.
ibid 31, 32.
153 Tucker v News Media Ownership Ltd [1986] NZCA 92 (23 October 1986) 30.
154 Hosking v Runting [2003] NZLR 285 [158].
155 Hosking v Runting [2004] NZCA 34 [49].
152
very violent incident involving a lot of blood).156 A public good
requirement was added in the later case of P v D157 (later clarified
in the Hosking case as a public interest defence).158 This amounts to
a defence that can dispense with a finding of unreasonableness if
there is a public interest in the publication. The tort now requires
public disclosure of private facts, a reasonable expectation of
privacy, and publicity that would be highly offensive to a
reasonable person. 159 Developments in New Zealand on the
publication of private material have remained true to this tort, and
are outlined further by Delany and Carolan. 160 It should be
acknowledged here that New Zealand is a useful example of a
jurisdiction that has adopted aspects of Prosser’s formulation with
little to no alterations. Given its size, it is a much more useful point
of reference than the United States for Irish purposes, as US
decisions vary hugely from state to state, and the doctrine is so
established there that it is a weaker aid in a discussion of how to
incorporate newer privacy protections into the law. This tort is
clear, is based on established objective reasonableness tests, and
provides a public interest defence that could easily fit with existing
Irish defences of that nature. The objective nature of the obligation
renders it a more comprehensive protection than one based on a
‘deliberate and conscious’ breach.
The main authority on publication in Australia, tentative as it
may be, is the Victoria County Court decision in Jane Doe v
Australian Broadcasting Corporation, 161 dealing with the
identification of a rape victim by a news broadcaster. Although
much of the case concerned the situation with respect to breach of
confidence at the time, mostly acknowledging the English position
dealt with above,162 Hempel J held that a tort of privacy did exist in
Victoria, based on the ‘invitation’ of the Lenah case, and that she
would not apply the English merging of equity and tort.163
156
Bradley v Wingnut Films [1993] 1 NZLR 415, 423.
P v D [2000] 2 NZLR 592, [34].
158 Hosking (n 155) [129].
159 ibid 32.
160 Hilary Delany and Eoin Carolan, The Right to Privacy (Thomson Round Hall
2008) 116-123.
161 Jane Doe v Australian Broadcasting Corporation [2007] VCC 281.
162 ibid [106].
163 ibid [157].
157
Giller v Procopets, in the Court of Appeal branch of Victoria’s
Supreme Court, concerned the publication of videos by the
defendant of the plaintiff and defendant engaging in sexual
activity.164 Ashley J held that no tort of invasion of privacy existed
in Australia, and that it might be better to pursue privacy interests
using existing causes of action.165 Neave J dealt with the situation
in Australia thus far, as well as in New Zealand, and did not
express an opinion on the matter, instead holding that it was not a
matter for that case.166 Other Australian authorities from that time
have also taken a tentative approach to recognising a tort of
privacy for similar reasons.167
More recently, the South Australian Supreme Court have
held that a further development would be required in order for this
tort to develop there, 168 and a local Queensland court has
acknowledged that there might be an unclear cause of action in
privacy.169 The Australian Law Reform Commission has argued for
the introduction of a tort of invasion of privacy based on both
intrusion on seclusion and misuse of private information.170 The
Australian experience provides a good lesson for this jurisdiction
on following vague and poorly constructed law from another
jurisdiction with its own constitutional quirks (as Australia did
with the UK). Using Lenah and its successors to make arguments in
this area is unwise, considering the dicta on privacy were not
binding, and in the end the High Court endorsed breach of
confidence (b). The original Australian authority has not only
provided unhelpful precedent for courts in the UK, (and, through
the UK, Ireland in Slattery) but can be clearly shown to have led to
a confused and inconclusive strand of jurisprudence in its
jurisdiction of origin as well. From the perspective of publication, it
164
[2008] VSCA 236.
ibid [167].
166 ibid [447]-[452].
167 Milne v Haynes [2005] NSWSC 1107; Moore-McQuillan v Work Cover Corporation
[2007] SASC 13; Kabala v Commonwealth of Australia [2004] FCA 763 (on appeal
from a Queensland court, which recognised a tort of invasion of privacy); Delany
and Carolan (n 160) 110-116.
168 Sands v State of South Australia [2013] SASC 44 [614].
169 Doe v Yahoo! Pty Ltd [2013] QDC 181 [310]-[311].
170 Australian Law Reform Commission Report 123 (Serious Invasions of Privacy in
the Digital Era), ch 4-12, 3 September 2014, <http://www.alrc.gov.au/publica
tions/serious-invasions-privacy-digital-era-alrc-report123/recommendations> accessed on 5 January 2017.
165
is clear that reliance on the breach of confidence model has slowed
any development in Australia, due to the reluctance in Lenah to
openly recognise tortious protections of privacy.
In one of many classic ‘revenge porn’ cases in this area, the
Superior Court of Ontario was asked to consider privacy in the
context of publication in Jane Doe (which is entirely different to the
Jane Doe case from Victoria).171 Confusingly, the trial judge also
refers to a tort of ‘breach of confidence’.172 In this case, however,
Stinson J also introduced Prosser’s tort of publication to the law of
Ontario.173 Moreover, the trial judge awarded not only general
damages against the plaintiff, but also punitive and aggravated
damages, amounting to $100,000.174 Use of the term ‘breach of
confidence’ is unfortunate, however it is difficult to associate this
with that remedy because of Stinson J’s explicit use of one of
Prosser’s torts of privacy, in a jurisdiction where another is already
recognised. For the most part, it is now clear that Ontario is open
to litigation based on breach of privacy rights under Prosser’s
headings. Adherence to them have benefitted Ontario, by
producing a reasonably consistent and sound approach to tortious
suits for breach of privacy, that has clear standards and remedies.
An Irish case that addresses publication/disclosure directly
through the prism of tort law is Gray v Minister for Justice, Equality
and Law Reform.175 The most striking aspect of the judgment is that
it is very difficult to discern whether it concerns a tortious breach
of privacy, a constitutional tort of privacy, some combination of the
above, or something else entirely. The facts relate to the disclosure
of information by Gardaí to journalists; namely that the applicants
allowed their relative, a convicted sex offender, to live with them.
On disclosure of confidential information, Quirke J held that
‘disclosure emanating from careless conduct on the part of one or
more gardaí would amount to negligence…’.176 This issue entirely
turned on case-law relating to tortious duties of public officials not
to negligently expose members of the public to foreseeable
171
Jane Doe 464533 v ND [2016] ONSC 541.
ibid [22]-[25].
173 ibid [41].
174 ibid [69].
175 [2007] 2 IR 654.
176 ibid [55].
172
damage.177 Quirke J appears to be suggesting that a tortious duty
exists for public officials in relation to the distribution of
confidential information. Applying case law based on pure
negligence to circumstances such as this is a strained exercise,
when privacy cases from other jurisdictions of a tortious nature
were easily available. This is to say nothing of constitutional
protections of privacy. It is difficult to see why Quirke J grounded
part of his ruling under a separate heading of ‘negligence’
pertaining specifically to the disclosure of private information.
When, however, the constitutional issue is addressed, Quirke J
returns to the consideration of negligence, holding that it had been
‘established…on the balance of probabilities that…members of An
Garda Síochána negligently disclosed confidential and sensitive
information…’.178 He held that the State was liable constitutionally
on that basis.179 It is well established, as will be considered later,
that horizontal constitutional torts exist in Ireland and are perfectly
acceptable legal remedies for breach of privacy.180 All the same, it
is unhelpful to mix approaches to a remedy focusing on negligence
by public officials, negligent disclosure of private information, and
a constitutional tort., particularly as Irish law dictates that
constitutional torts must only be considered if tort law is not
sufficient to vindicate the right in question.181 Delany and Carolan
add that this leaves the question of whether such liability can be
imposed on a non-state actor open to question.182 They are correct
to make this observation. It is unfortunate that Gray was not used
to clarify the tortious position in Ireland in relation to disclosure of
private facts.
The general recognition of a ‘deliberate and conscious’ test
means that the rights of others are dependent upon the intentions
and desires, however ill-informed and negligently arrived at, of the
breaching party. Such a test imposes no duty of substance, and
cannot possibly be as strong a protection as those in other
jurisdictions that are grounded on reasonableness. O’Hanlon J in
the Drury case, which concerned publications about a woman’s
177
ibid [73]; see also Anns v Merton London Borough [1978] AC 728; Ward v
McMaster [1988] IR 337; Hanahoe v Hussey [1998] 3 IR 69.
178 ibid [87].
179 ibid [89].
180 See n 143.
181 Meskell (n 141); Hanrahan v Merck Sharpe and Dohme [1988] ILRM 629.
182 Delany and Carolan (n 160) 213.
extra-marital affair, expressed reluctance to allow the courts to
protect privacy at the expense of other rights unless explicitly
authorised by the legislature.183 Although it is arguable that the
Herrity case has broadened this standard, such extreme difference
seems unnecessary when it is not practiced in relation to many
other constitutional rights, and in the context of generally
recognised common law torts. The courts seem even unable to
agree on the origins of a right to privacy, with one High Court
judge referring to the ‘Christian and democratic’ origins of the
right as ‘antiquated’, and inappropriate for a modern ‘laic
republic’.184 There are multiple defences based on countervailing
considerations, such as state security,185 the prevention of crime,186
the right to have justice administered in public,187 a right to know
who sex offenders are,188 and having ‘actively sought publicity’ in
relation to other public aspects of the private information.189 On
the State security ground, it should be noted that this only extends
to Ireland and not to foreign states, as held by Carroll J in Brandon
Book Publishers.190 All of these countervailing considerations are
not balanced by a consistent or robust privacy protection, and it is
unclear when tort law, constitutional torts, ‘pure’ constitutional
damages per Sullivan, or tests such as those in Herrity, are the
relevant cause of action. The unenumerated right to privacy
provides an opportunity to state that the right exists, and to state
that a balancing act is necessary, without providing a regular and
consistent position on how exactly this right should be applied. We
see reluctance on the part of the Court of Appeal in Slattery to
address which of the many domestic and common law causes of
action are relevant in the Irish context. Having said that, it is clear
from the recent LK v Minister for Justice decision that
proportionality tests must be applied when the right comes into
183
Drury (n 142) 17.
Max Barret J in Irish Cement Limited v The Competition and Consumer Protection
Commission [2016] IEHC 162 (5 April 2016) [58].
185 AP (Islamic Rep of Iran) v Minister for Justice [2016] IEHC 408 (16 July 2016).
186 EMI Records (Ireland) Limited v UPC [2012] IEHC 264 (27 June 2012).
187 Roe v Blood Transfusion Services Board [1996] 3 IR 67.
188 Murray v Newsgroup Newspapers Ltd [2011] 2 IR 156.
189 Hickey v Sunday Newspapers [2010] IEHC 249.
190 Brandon Book Publishers (n 54) 600.
184
force (and the Court of Appeal remitted a case to the District Court
for that reason).191
Conclusion
While it could be argued that we are better placed than other
jurisdictions to protect privacy by virtue of the Constitution, it
seems that the opposite is in fact dangerously close to the truth.
Providing a legal mechanism that sounds like a strong, general and
consistent guarantee is not the same as actually providing a strong,
general and consistent guarantee. There is probably no need to
adopt Prosser’s formula in Ireland. What we can learn from it,
however, is that our own constitutional protections in the context
of publication are much weaker than many common law
equivalents (although thankfully, the opposite seems to be the case
for intrusion). We should look to our neighbours, and to modern
technological developments. Our seemingly strong constitutional
privacy rights should not be a smokescreen, or an easy get-out
clause from delving deeply into issues that every other major
common law jurisdiction (The USA, Canada, The UK, Australia,
New Zealand and South Africa), with the exception of Ireland and
Hong Kong,192 has addressed directly. These traditional ‘private
law’ protections are sometimes stronger and clearer, and we would
do well do heed them. The courts should be conscious of the
underlying weaknesses surrounding privacy actions grounded in
the concept of confidence. Some comfort, however, can be taken
from developments in the right of the person that protect some
interests that are also connected to privacy.
191
LK v Minister for Justice and Equality (No 2) [2016] IECA 162 (30 November 2016).
Report of the Hong Kong Law Reform Commission on Civil Liability for Invasion
of Privacy, 9 December 2004 <http://www.hkreform.gov.hk/en/publications/r
privacy.htm> accessed on 2 January 2017.
192