the Irish for rights

Privacy in a Public Place

It had to happen. After lots of dancing around the subject, a court finally has to face a submission that there is no common law cause of action for invasion of privacy at Irish law. Mary Carolan reports in today’s Irish Times that, in a case currently before Mr Justice Budd in the High Court, the Carlow Nationalist is appealing against an award of €6,500 to Richard Sinnott in the Circuit Court in Carlow last June. The Nationalist published photographs of him playing in a gaelic football match. Although in the ordinary run of things, this would be entirely unexceptionable, Mr Sinnott took exception this time because, in one of the photographs, his private parts were exposed.

The Circuit Court held that this infringed Mr Sinnott’s right to privacy. The Nationalist is appealing. On this ground at least, they should succeed. The fact that he was in a public place does not prevent him from enjoying his right to privacy. Princess Caroline of Monaco and Naomi Campbell both successfully maintained privacy actions in respect of photographs taken of them in public places. But, in each case, they were doing very private things: Princess Caroline was shopping with her children and in a restaurant with her then fiancé (and now husband); Naomi Campbell was attending a Narcotics Anonymous meeting. Mr Sinnott’s case, at least as it is reported today, is very different. He was not doing private things at all. In fact, what he was doing was very public. He was playing a game of football, in front of spectators, reporters and photographers – and not in a shop or restuarant minding his own business. Whether the matter is assessed objectively or subjectively, he cannot have had a reasonable expectation of privacy in the circumstances. Indeed, it seems that he has all but accepted that, by not objecting to other photographs taken and published relating to the match.

His claim for damages for invasion of privacy should therefore fail, on the simple ground that his privacy has not been invaded. But it should not fail on the ground that Irish law knows no such cause of action, as the newspaper submitted. This may have been a tactical submission on the part of the paper, but – like Mr Sinnott’s substantive claim – it too should fail. Cases like Naomi Campbell’s have tied the protection of privacy at English law into the cause of action for breach of confidence, but it seems to me to be straining to morph into a full blown tort (common law wrong) of invasion of privacy. Given the constitutional protections of privacy (as seen, for example, in the Leas Cross case), it should not be difficult for Budd J to skip out the ‘breach of confidence’ step and simply arrive at a tort protecting privacy. Carolan reports that “during the hearing, Mr Justice Budd remarked the court was ‘treading delicately’ on ground where legislation was being prepared”. But that is hardly a reason for the court not to explain what the law is and act accordingly.

At another time, in another place, the incident could simply have been a cause of mirth. A storyline in an episode of Friends (official site | wikipedia) turns on the fact that one of the characters wears shorts without underwear, occasionally revealing his manhood when he sits down. Most of the friends are in a quandary as to what to do about this, until Gunther, who works in the cafe (Central Perk), points it out to him with the immortal words “Hey buddy, this is a family place – put the mouse back in the house”. But on the football pitch, and, even more, on the printed page of the Carlow Nationalist, it was a matter of considerable and understanable upset for Mr Sinnott.

He was humiliated, certainly, but his privacy was not invaded; and the Nationalist’s appeal against that part of the Circuit Court’s decision should be upheld. This would not necessarily leave him without a remedy. He has also pleaded that the publication amounted to the intentional infliction of emotional harm or negligent breach of a duty of care. He might yet sustain the Circuit Court’s decision and win the appeal on one of these grounds. But he should not do so on the basis of invasion of privacy.

11 Responses to “Privacy in a Public Place”

  1. […] ending the title with a preposition, it poses a question which has been on my mind since I wrote here last week about the case in which a gaelic footballer from Carlow is suing his local newspaper, the […]

  2. […] Eoin O’Dell of the Trinity College Law Faculty has written about this case here, and the eventual judgement in favour of the Plaintiff here from the perspective of its […]

  3. […] on Wednesday morning discussing this very case). The story so far: the Circuit Court (discussed here) and High Court (discussed here) have already held that the publication by the Carlow Nationalist […]

  4. Eoin says:

    Before Sinnott, the leading case on privacy in a public place as a matter of Irish law was Atherton v DPP [2005] IEHC 429 (21 December 2005), incisively analysed by Eoin Carolan in “Stars of Citizen CCTV: Video Surveillance and the Right to Privacy in Public Places” (2006) 28 DULJ (ns) 326.

  5. […] in the third case (earlier aspects of which have already featured on this blog, here, here and here), Sinnott v Carlow Nationalist (High Court, unreported, 30 July 2008, Budd J) (see […]

  6. […] Nationalist (High Court, unreported, 30 July 2008, Budd J) (already discussed on this site: here, here, here and here), Budd J held that the publication of a photograph of the plaintiff playing Gaelic […]

  7. […] at Ski Resort) be actionable having regard to Sinnott v Carlow Nationalist (discussed here, here, here, here and here), and if so, should they […]

  8. […] In Sinnott v Carlow Nationalist (already discussed on this blog here, here, here, here, here, and here), the Circuit Court and the High Court held that the publication by the Carlow […]

  9. […] about the photograph of the GAA player, Sinnott v Carlow Nationalist, here, here, here, here, here, here, and […]

  10. […] to GAA player over photo” Irish Times 31 July 2008; much discussed on this blog: see especially here, here and here; see also here, here, here, here, and here]. It could plainly be relied upon in […]

  11. […] Budd J) “Court increases payout to GAA player over photo” Irish Times 31 July 2008; (discussed here, here and here; see also here, here, here, here, and here]. It could plainly be relied upon in […]

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Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

"Cearta" really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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