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.