Privacy 3 – 0 Press

Football, via Wiki Commons.Some own goals are comical; others are crucial; but rarely are they as wilfully self-inflicted as the three own goals which the press has recently conceded to privacy.

In the first case, Herrity v Associated Newspapers (High Court, unreported, 18 July 2008, Dunne J), the Irish High Court awarded damages of €90,000 (approx St£70,000), including €30,000 in punitive damages (approx St23,000), against Associated Newspapers (Ireland) Ltd which had published articles in Ireland on Sunday (now the Irish Mail on Sunday) containing telephone conversations unlawfully tapped by the plaintiff’s estranged husband and made available to the newspaper (see Burred Keys | The Irish Times here, here and here | The Irish Independent | RTÉ News). The articles concerned the plaintiff’s relationship with a Catholic priest which became intimate after the breakdown of her marriage, and Dunne J held that the most serious aspect of the case was the use by the newspaper of material obtained from an illegal phone tap and from a husband “motivated by revenge”. Applying the standard formulated in Kennedy v Ireland [1987] IR 587, [1988] ILRM 472 (12 January 1987) (doc | pdf), [compare this ECHR decision], she held that the phone taps constituted a “deliberate, conscious and unjustified breach” of the plaintiff’s right to privacy. Moreover, although she believed cases in which the right to privacy would outweigh the right to freedom of expression “may well be few and far between”, she could not see how the right to freedom of expression could be claimed when the information to be published was obtained unlawfully, even when that information is true and there may be a public interest. This was so notwithstanding Cogley v RTÉ [2005] IEHC 180 (8 June 2005), and it is not clear from the media reports whether she referred to it. Furthermore, she awarded punitive damages to the plaintiff because of the use of unlawfully obtained material and the distress caused to Ms Herrity over the “flagrant and unwarranted” breach of privacy.

In the second case, Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) (24 July 2008), the Queen’s Bench Division of the High Court in London held that the News of the World invaded the claimant’s privacy by publishing a story under the headline “F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS” and the sub-headline “Son of Hitler-loving fascist in sex shame” and by publishing follow up stories in the paper and on its website (see Andrew Scott‘s commentary here; and a round-up on Media Law Prof Blog here). Eady J could find insufficient public interest to justify the publication, and awarded damages of St£60,000 (approx €75,000) but declined to award punitive damages. Eady J held:

[134] In the light of the strict criteria I am required to apply, in the modern climate, I could not hold that any of the visual images, whether published in the newspaper or on the website, can be justified in the public interest. Nor can it be said in this case that even the information conveyed in the verbal descriptions would qualify. …

[171] The public interest is to be determined solely by the court ex post facto, as the authorities so far indicate. But even if it depended upon the reasonable judgment of the journalists concerned, the basis for a public interest defence would simply fall away.

The press has had a field day both with the scandal and the aftermath of the court judgment; and it has certainly completed a significant move away from the decision of the Court of Appeal in A v B & C [2002] EWCA Civ 337 (11 March 2002) [2003] QB 195, [2002] 2 All ER 545, [2002] 3 WLR 542 (CA) [concerning publication of the infidelities of a premiership footballer] to which Eady J does not seem to have referred. Moreover, and rather interestingly, whilst the damages in Herrity (€90,000; approx St£70,000) and Mosely (St£60,000, approx €75,000) were largely similar, nevertheless the former included an award of punitive damages, and the latter did not.

And 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 The Irish Independent here and here | The Irish Times | Press Gazette), the Irish High Court increased, from €6,500 to €11,000, damages payable because of the publication of a photograph of the plaintiff playing Gaelic football in which his private parts were clearly visible. Moreover, Budd J refused to certify, for determination by the Supreme Court, as the newspaper had sought, a point of law as to whether damages could be imposed for a negligent (as opposed to a “deliberate, conscious and unjustified”) breach of a constitutional right to privacy.

These three cases should never have seen the inside of a courtroom, in part because the articles in question should not – for prudential rather than legal reasons – have been published: in doing so, the newspapers in question invited these actions. As a consequence, the hot-headed newspapers have strengthened the right to privacy and weakened the right to freedom of expression, at a time when cooler heads are required to achieve the proper balance between these two important rights. But it is easy to overstate the effect of the three own goals. After all, teams have come back from three goals down at half time to win important games. And that is the situation here. The game is on, perhaps not even half-time, and whilst privacy is edging ahead, there is plenty of time for freedom of expression to draw level.

Finally, eagle-eyed readers might have noticed that the sources linked for the two Irish cases are media reports, while the source linked for the English case is the text of the judgment itself on Bailii. If English judges and the courts’ administration can ensure the rapid electronic publication of judgments, why oh why oh why oh why can Irish judges and the Courts’ Service not be able to do the same?