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.