What is the right of privacy for?

Privacy International logoWith apologies for 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 Carlow Nationalist, for invasion of privacy. They had published photographs of him playing a gaelic match, in one of which his private parts were exposed. In my earlier post, I argued that, whilst this humiliated him, it did not invade his privacy. Yesterday, the High Court disagreed. According to an article in today’s Irish Times:

Mr Justice Declan Budd said yesterday he proposed to award damages to Richard Sinnott on the basis of his finding that there was a negligent intrusion on the player’s right to privacy arising from the publication of the photograph in which his private parts were accidentally exposed on the sportsfield.

Either the High Court is wrong, or I am. I agree with Budd J that Mr Sinnott can indeed rely on the constituitonal right of privacy against the Nationalist (that is, at Irish law, right are exigible not merely vertically as between citizen and state, but also horizontally as between one citizen and another). I also agree that the mere fact that he was in a public place does not of itself deny him right to privacy. But I do not see how Mr Sinnott’s right of privacy can be said to have been invaded. He was not doing private things. Quite the contrary: he was playing in a very public game of football, and his exploits on the field would have featured in a match report and photos in the Nationalist, even without his unfortunate wardrobe malfunction. In the language of the European and English cases, he could have had no reasonable expectation of privacy in such circumstances. Since his privacy had not been invaded, his claim for damages for invasion of privacy should have failed.

The sad fact is that, once they were exposed, Mr Sinnott’s private parts were not private on the field of play. Embarassing though it was for him, the publication of a photograph to this effect did not invade his privacy. Nevertheless, the fact that the Nationalist published the photo seems to have been enough for Budd J. The real problem with the photo seems to have been the fact that it was a severe embarassment or humiliation for Mr Sinnott. It has always seemed to me that the right to privacy is there to provide a rememdy for the publication of private facts, and this publication is often embarassing and humiliating, but it is not there to provide a remedy for embarassment or humiliation per se. For that, Mr Sinnott should have had to look elsewhere. Indeed, the imminent Press Council may provide a more remedy in the future.

Not only did Budd J hold that the publication of the photo invaded Mr Sinnott’s privacy, but he also held that the newspaper’s negligence in pubishing it was sufficient for liability. Interestingly, section 2(1) of the much-maligned Privacy Bill, 2006 provides that

A person who, wilfully and without lawful authority,
violates the privacy of an individual commits a tort ….

This requires the invasion of privacy to be intentional (‘wilful’). But it seems that the Nationalist was unaware of Mr Sinnott’s exposure in the photo until after publication, and that its invasion of his privacy by publication of the photo could not therefore have been intentional or wilful. Rather, it was negligent, but – from the Irish Times summary of yesterday’s proceedings – that seems to have been enough for Budd J. If that is so, then the judge-made law on invasion privacy is now stricter than the proposals in the Privacy Bill, at least in this respect. Perhaps the press might now want the Bill to be enacted after all!

According to the Irish Times, Budd J adjourned the matter to Monday when he is expected to give his final judgment. I’m sure I shall return to this matter again on this blog if and when that judgment comes to hand. As for the question in the title, it now seems that the right of privacy is there to prevent embarassment rather than (or, perhaps, as well as) merely protect privacy.