In a now-infamous wardrobe malfunction in the course of the half-time entertainment for Super Bowl XXXVIII (2004), during a duet between Janet Jackson and Justin Timberlake, Timberlake fleetingly exposed Jackson’s right breast, which was adorned with a large nipple shield (the pair are pictured left immediately after the incident). In an exciting game, the New England Patriots beat the Carolina Panthers 32-29, but Jackson got all of the post-game media exposure (sorry!). She insisted afterwards that Timberlake removed more clothing than he should have done and that it was not her intention that it go as far as it did; but, in the face of public outrage, the Federal Communications Commission condemned it as a stunt, and the matter has even – briefly – reached the US Supreme Court (pdf).

Other wardrobe malfunctions can be even more embarassing. 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 Nationalist newspaper of a photograph of Mr Sinnott involved in a football match in which his private parts were exposed constituted an invasion of his privacy. On the one hand, this is counter-intuitive, since this exposure occurred in a public place, and it may be argued that there can be no reasonable expectation of privacy in public, since the fact of being in public constitutes consent (express or implied) to disclosure of what happens in public. On the other hand, there is an equally strong intuition that, notwithstanding that it occured in public, the unintended and embarrassing display of an intimate matter does not amount to consensual disclosure.

The decision in Sinnott illustrates that in Irish law, no less that in England (Theakston v MGN [2002] EWHC 137 (QB) (14 February 2002); Campbell v MGN [2004] 2 AC 457, [2004] UKHL 22 (6 May 2004)) and under the European Convention on Human Rights (Peck v UK 44647/98, (2003) 36 EHRR 719, [2003] ECHR 44 (28 January 2003); von Hannover v Germany 59320/00, (2005) 40 EHRR 1, [2004] ECHR 294 (24 June 2004)), it is no longer an answer (if it ever was) simply to say that the disclosure concerned something which took place in public. In other words, the law is increasingly recognising and protecting some right of privacy in public places. In Kane v Governor of Mountjoy Prison [1988] IR 757, Finlay CJ accepted for the purposes of argument that a “right of privacy may exist in an individual, even when travelling in the public streets and roads”. The law has now sufficiently evolved for any doubts Finlay CJ had on that score to be scotched. Read the rest of this entry »

An article in today’s Daily Telegraph raises important issues relating to the retention of the DNA of innocent persons by the police in both the UK and Ireland. It also raises profound questions as to the effect of decisions of the European Court of Human Rights in domestic law.

According to the Telegraph:

The [UK's] Coalition Government has pledged to dramatically reduce the time period that police can retain samples of people who were not charged or convicted of offences. It follows a ruling by the European Court of Human Rights in 2008 that a blanket policy of retaining such profiles indefinitely was illegal.

However, no new laws have yet been introduced and the Supreme Court will today hear a test case that such samples should be deleted now. If the country’s top court agrees it could result in police forces having to remove the samples immediately regardless of when new legislation is introduced.

The case is R (on the application of C) (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent) (UKSC 2010/0186) Read the rest of this entry »

A cartoon for the week which saw both international data privacy day and the enactment of the Communications (Retention of Data) Act, 2011 (No 3 of 2011, not yet available on pdf, but see the Oireachtas site for the Bill; update: noted here by Rossa McMahon), via philosophyblog:

Woman behind shower curtain: Hey! What about my privacy?
Peeping eye: They say that people who worry about their privacy have something to hide …

Earlier posts of mine on this topic: The innocent have nothing to hide? | Traffic Data Retention, Irish-style, returns to the legislative agenda | Nothing to hide?

“Even the judges know who Naomi Campbell is”. At least Baroness Hale of Richmond does, since this is how she began her speech in Campbell v MGN [2004] AC 457, [2004] UKHL 22 (6 May 2004), in which she was a member of the majority which held that aspects of the Mirror’s coverage of Naomi Campbell’s fight against narcotics addiction – in particular, the publication of photographs which did not advance the public interest in the story – infringed her privacy. Today, in MGN v UK 39401/04 (18 January 2011) the Fourth Section of the European Court of Human Rights (ECHR) held that this holding did not infringe Article 10 of the European Convention on Human Rights. Campbell was awarded £3,500 for that invasion of privacy. For the appeal to the House of Lords, she had retained solicitors and counsel pursuant to a conditional fee agreement (”CFA”) which provided that if the appeal succeeded, solicitors and counsel should be entitled to success fees of 95% and 100% respectively. For the appeal to the House of Lords, legal fees were £288,468; and the success fees were £279,981.35; so the total fees were £594,470. Adding in the fees at first instance and before the Court of Appeal, Campbell’s costs amounted to a total of £1,086,295.47. In Campbell v MGN [2005] UKHL 61 (20 October 2005), the House of Lords approved an award of costs to her in this amount. In today’s judgment, (which I have noted here), the ECHR held that addition of the success fee infringed Article 10. As the Guardian’s headline put it: the European court deals [a] blow to no win, no fee deals in Naomi Campbell case.

This is a very signifcant decision for several reasons. Read the rest of this entry »

Drumbeats for privacy protection in the face of press intrusion are most often raised by politicians and celebrities. The Economist recently reported that the age at which celebrities become famous is dropping, at the expense of ultimately shorter spells in the limelight. Just Jack’s astringent Starz in the Eyes (above) reflects on the often immense price of fleeting fame: one reason certainly is a hungry media pandering to the public’s interest in celebrities and their lifestyles. For example, much of the coverage of the aftermath of the death of Irish tv and radio personality Gerry Ryan concentrated on his drug taking during his career and in the lead-up to his sudden and untimely death.

Referring to this in a wide-ranging interview featured on the cover of the current issue of Hot Press magazine (cover, right), rugby star Brian O’Driscoll said:

I thought some of the coverage relating to his death was absolutely disgusting … I don’t feel as if the toxicology report should be made public knowledge. But that’s tabloid sensationalism for you.

He accepted that he and his wife, actress and writer Amy Huberman, are a celebrity couple with little control over what people say about them, and whilst he finds much of the attention “flattering”, he said that “maintaining a private life is very difficult” in the face of media persistence.

It would not surprise me if O’Driscoll’s is not the only call for privacy legislation in the wake of Ryan’s death, much as, this time last year, politicians sought to use TV3’s revalations of Brian Lenihan’s illness as a reason to suggest privacy legislation – notwithstanding the Broadcasting Authority of Ireland rejected (pdf) a number of complaints about TV3’s coverage. The loudest calls for privacy legislation came from the Seanad (an institution whose days may very well be numbered):

Senator Rónán Mullen: here: … [I] raise the media treatment of the Minister for Finance over the Christmas period. I ask the Leader for a debate at the earliest opportunity on the media and how they operate. I am not talking about a session in which everybody comes in and vents their own personal spleen, vendettas or gripes against journalism. There is already too much of politicians giving out about the media. We do not need a culture in which people constantly give out about the media. We need a culture in which people hold the media to account. We will do so by identifying that the libel laws alone are not sufficient to protect people, whether in private life or in public life from the depredations of the media. We need a more thorough analysis of how the media operate. While we need to consider that under the heading of privacy, we also need to consider issues like taste and decency, and fairness and balance. We can all outline occasions and instances where the media have been unfair. However, we live at a time when all institutions are coming under scrutiny and there is very little support for self-regulation. While I commend the work being done by the press council, that does not cover broadcast matters. There is no sense that the broadcasting regulatory authorities have any teeth at all. We clearly need to reconsider how we can hold the media to account in a way that does not impact unnecessarily or inappropriately on media freedom.

I say this with great sympathy to individual journalists who are caught up in a web of bad practice because of the pressure they face from their editors and media bosses. This is not targeted against any individual journalist or media practitioner. However, we definitely need a debate on how we can get the media to observe better standards. It was simply not acceptable to hear a series of journalists in recent weeks defend, as they had to do, bad practice. The most that some would say was that they would not have done it that way themselves, as if there were no objective standards which all should uphold. Clearly the timing of telling that story was a matter that should have been negotiated with the Minister’s family. The idea that anybody was done a favour by being given merely two days over Christmas is an insult to our intelligence.

Senators: Hear, hear.

Senator Rónán Mullen: I am asking seriously for a debate on the media in which we will not be hearing just rants about the media, but also constructive thoughts about how we can get the right balance between media freedom on the one hand and the right of all members of the public, including people in public life, to good standards on the other.

Senator Niall Ó Brolcháin: here: I also support the call for a debate on media very strongly, given the way things are going in this country in relation to politics, since I believe the media are unhelpful at the moment in that regard. It would be quite something to have a live debate on RTE television and radio from the Seanad, so that we might get our points across unedited. Quite often, the difficulty with media is that we are talking about spin and the segmenting of the things we actually say. It would be important to get matters before the public, live and directly, rather than having debates edited all the time.

These calls died out last year, and politicians now have other things on their plates at the moment, but the next government might be tempted to unpack the deeply flawed Privacy Bill, 2006. It is a temptation they must resist.

Earlier this week, I appeared on the Todayfm radio programme The Last Word, with guest presenter Anton Savage and fellow contributor Patrick Kinsella of the School of Communications at DCU (you can listen back to the show here until next Thursday). Newspapers earlier in the week had reported that male employees at the Dublin office of an international accountancy firm had circulated an email rating newly arrived female trainees for a Top 10 list. The following day, several newspapers went further and published the photos and names of the women involved. On the radio programme, we discussed whether this later coverage crossed a line and invaded the women’s privacy.

Both Patrick and I argued that the later coverage did indeed cross that line. In my view, there was an invasion of the women’s privacy, and not once but twice. There was a wrongful intrusion into the women’s private activities, by the disclosure of information in which they had a reasonable expectation of privacy, first by other individuals within the company, and then by the media.

Within the company, the women had their photographs taken for human resources or personnel purposes, but these images were misused for prurience and titillation, first by people within the firm and then by the newspapers which published them. To provide an image or information for one purpose is not to provide it for all purposes. The employees who put the email together from human resources information misused that personnel information, and are therefore likely to be in very serious trouble within the firm. That misuse may even infringe data protection principles. Moreover, the email itself is likely to contribute to a hostile environment within the firm, which is capable of amounting to sexual harassment of the women named and pictured in the email. And the publication of that information in the email amounted to an invasion of the women’s privacy.

Beyond the firm, publication in the media made matters much worse. Patrick said that going from publication about the email to publication of its contents including the names and photographs of the women was “mistake of judgment” and “ugly”. I completely agree that this intrusion by the media into their private lives, by disclosing information in which they had a reasonable expectation of privacy, constituted a reprehensible error of judgment; worse, it was an invasion of the women’s privacy. In passing, it is also likely an infringement of the firm’s rights in it is internal data.

It is clear that even celebrities are entitled to a degree of privacy; and, if celebrities are, it goes more so for the rest of us. Indeed, since the action taken by Princess Caroline of Monaco, the case law of the European Court of Human Rights starts from the proposition that everyone has a strong zone of personal privacy. Moreover, since the action taken by Michael Douglas and Catherine Zeta Jones, English courts agree. The most interesting of the celebrity cases is the action taken by Naomi Campbell. Baroness Hale observed that “even the judges know who Naomi Campbell is” (even if they don’t know who the Beatles were). Here, the House of Lords held that it was not an invasion of Campbell’s privacy to publish an article that she was attending Narcotics Anonymous, but it was an invasion of her privacy to publish a photograph of her leaving a meeting. The information about her substance abuse was in the public interest, and justified any invasion of her privacy; but publication of the photographs added nothing of substance and crossed the line from what was in the public interest into the realm of what merely interested the public. Buttressed by the Constitution, Irish courts take a similar approach.

So, the question is whether there is a public interest in the publication of the women’s names and photographs. In my view, there is not. As Patrick said, it is important to disclose the fact of the email, given the importance of the firm; but he said that it was unnecessary – even hypocritical – to identify the women concerned. I entirely agree. Furthermore, he said that press are playing a dangerous game with these kinds of disclosures, which will lead inevitably either to losing a privacy action or to the introduction of restrictive legislation, or perhaps both. I agree: the media are playing a dangerous game with publications like this.

It is a harder question whether the media identification of the male employees who assembled and circulated the email amounts to an infringement of their privacy. On balance, I think it is probably not, though it is a close run thing. Whether it is the identities of the women or the men, the public is interested, and this sells newspapers. But at least so far as the women are concerned, there is little or no public interest here. Nevertheless, there are so many possible causes of action in this story that I suspect that we haven’t heard the last of this issue yet, not by a long shot.

Dr Johnson defined gallimaufry as

1. A hoch-poch …
2. Any inconsistent or ridiculous medley. …

Here’s another hoch-poch, or hotch-potch (though, of course, not a hotchpot) of links relevant to the themes of this blog that have caught my eye over the last while, including: unjust enrichment, research integrity, breach of contract, slavery, good samaritans, and privacy.
Read the rest of this entry »

Two recent cases in the European Court of Human Rights demonstrate that there are still large gaps in the protection of freedom of expression in Turkey.

Terrorist speech
In Gözel and Özer v Turkey (43453/04 and 31098/05; 6 July 2010 | judgment (in French); press release (in English)), a Turkish magazine published an article that contained a statement by the central committee of the banned Marxist-Leninist/Turkish Communist Party. Another published an article about the founder of the Marxist movement in Turkey which included a statement by eight people who were in custody for belonging to illegal organisations. The editors of both magazines were convicted of pubishing statements of illegal armed organisations.

The ECHR noted that the editors had been convicted for publishing texts that the domestic courts had characterised as “terrorist organisation statements” without taking into account their context or content, and held that to condemn a text simply on the basis of the identity of the author would entail the automatic exclusion of groups of individuals from the protection afforded by Article 10. It therefore concluded that since the opinions expressed did not constitute hate speech or stir up violence, the Respondent was not entitled to rely on national security to restrict the public’s right to receive information, and that Article 10 had therefore been breached.

In Ireland, the leading Supreme Court decision in this area is the deeply flawed The State (Lynch) v Cooney [1982] IR 337 upholding the infamous section 31(1) of the Broadcasting (Authority) Act, 1960 [(also here), as amended by section 16 of the Broadcasting Authority (Amendment) Act, 1976 (also here), ultimately repealed in 2001] (discussed on this blog here | here | here). On foot of the powers in that section, the Minister had proscribed the access of paramilitaries to the airwaves, and this extended to preventing an election broadcast by a candidate in a party associated with a paramilitary organisation. That association, effectively the mere identity of the candidate, was sufficient to allow the ban to be upheld. O’Higgins CJ held that the use of the media for the purpose of securing or advocating support for organisations which seek by violence to overthrow the State or its institutions is a use which is prohibited by the Constitution. This must now be questionable in the light of Gözel and Özer.

Academic Freedom
In Sapan v Turkey (44102/04; 6 July 2010 | judgment (in French); press release (in English) | h/t Strasbourg Observers), the applicant published a book on the emergence of stardom as a phenomenon in Turkey. It was based upon his doctoral thesis, and it focussed in part on a well-know pop singer. The Turkish courts held that, since the book addressed subjects related to the singer’s personal life rather than his public persona, it had infringed his personality rights. An interim order that the book be seized was eventually lifted after two years and eight months, but the singer’s damages claim was allowed to proceed.

The ECHR emphasised the importance of academic freedom, and it considered that the book was a serious academic analysis of the social phenomenon of stardom which could not be compared with the tabloid press or gossip columns. It therefore held that there were no relevant or sufficient and reasons to justify the seizure of the book, and that Article 10 had therefore been breached.

In an earlier post, I placed the terms of section 14(1) of the Universities Act, 1997 (also here) in the context of US and ECHR decisions on academic freedom, in particular the decision of the ECHR in Sorguc v Turkey 17089/03, [2009] ECHR 979 (23 June 2009). This is a very significant judgment in the development of this important right. In particular, it re-inforces the argument that, since academic freedom is protected under the ECHR as an aspect of Article 10, it should by analogy be protected under the Irish Constitution as an aspect of the right to freedom of expression in Article 40.6.1(i), or of the right to communicate protected by Article 40.3, or even as an unenumerated right located in Article 40.3.