Breach of Privacy and Other Causes of Action for Breach of Constitutional Rights Flashcards
In Meskell v. CIE [1973] IR 121
the Supreme Court held the plaintiff was entitled to damages in an action against a private party for violation of his constitutional rights (in this case the right of freedom of association) even though there was no right to action at common law.
W v. Ireland (No. 2) [1997] 2 IR 141
In most cases of alleged violation of constitutional rights, the general law will provide an adequate means of protecting constitutional rights. It is only where the general law is inadequate that the courts will ensure a plaintiff will have a remedy for breach of a constitutional right.
Costello P said if a person is injured in a road accident the general law of negligence provides an adequate vindication of the person’s constitutional right to bodily integrity.
Sullivan v. Boylan [2012] IEHC 389
The plaintiff was harassed by a debt collector within the vicinity of her dwelling, although this fell short of an actual trespass. Although the plaintiff had attended her doctor and was prescribed sleeping tablets, she had suffered no physical or psychological injuries as such. However, she was awarded compensation for the acute mental distress suffered as a result of the unlawful and “outrageous” actions of the defendant which infringed her constitutional rights to the integrity of the person and the inviolability of her dwelling which protects a person’s sense of “safety and security” within her own home.
Hogan J confirmed that the rule in Wilkinson v. Downton requires the plaintiff to suffer some personal injury, whether physical or psychiatric, and would not provide a rememdy for “acute mental distress”. However, the Court was prepared to find there had been a violation of the plaintiff’s constitutional rights in that case, and the plaintiff was entitled to obtain compensation for “acute mental distress” caused by the intentional actions of the defendant in an action in tort for breach of her constitutional right to the protection of her person as well as the inviolability of her dwelling.
The right to a cause of action for breach of the constitutional right to privacy was recognised in the well-known case of
Kennedy v. Ireland [1987] IR 587
In Kennedy, the plaintiffs were journalists whose phones had been unlawfully tapped. The plaintiffs were awarded damages in the High Court for breach of their right to privacy. Hamilton P (as he then was) said:
Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the State. It is not an unqualified right. Its exercise may be restricted by the constitutional rights of others, by the requirements of the common good and is subject to the requirements of public order and morality.
a deliberate, conscious and unjustifiable interference by the State through its executive organ with the telephonic communications of the plaintiffs and such interference constitutes an infringement of the constitutional rights to privacy of the three plaintiffs … Such interference constituted an infringement of the plaintiff’s constitutional right to privacy and … such interference was ‘unlawful as constituting a violation of the fundamental law of the State.
Herrity v. Associated Newspapers (Ireland) Ltd [2009]
This case set out that there is :
(1) there is a constitutional right to privacy;
(2) the right to privacy is not an unqualified right;
(3) the right to privacy may have to be balanced against other competing rights or interests;
(4) the right to privacy may be derived from the nature of the information at issue - that is, matters which are entirely private to an individual and which it may be validly contended that there is no proper basis for the disclosure either to third parties or to the public generally;
(5) there may be circumstances in which an individual may not be able to maintain that the information concerned must always be kept private, having regard to the competing interests which may be involved but may make complaint in relation to the manner in which the information was obtained;
(6) the right to sue for damages for breach of the constitutional right to privacy is not confined to actions against the State or State bodies or institutions.
the plaintiff was a married woman and had an extra-marital relationship with a priest. Telephone conversations between the plaintiff and the priest were unlawfully tapped and transcripts of those conversations were sent by the plaintiff’s husband to the defendant which published them in its publication. The plaintiff claimed the manner in which the transcripts were obtained and subsequently reported by the defendant amounted to a breach of her constitutional right to privacy. This was upheld by the High Court and the plaintiff was awarded damages. The defendant argued it had a constitutional right to freedom of expression and there was a public interest in exposing the hypocritical behaviour of the priest.
Dunne J also made a distinction between the public interest in knowing of the hypocritical behaviour of the priest with whom the plaintiff was having an affair, and the plaintiff’s right to privacy in her telephone conversations as provided for by legislation, and she held that the public interest “could not set at nought” the restrictions provided by the Postal and Telecommunications Services Act 1983.
Hanahoe v. Judge Hussey [1998] 3 IR 69
it was found that the Gardaí had leaked to the media that a search was to be conducted of the premises of the plaintiff solicitors. Kinlen J held there was been a “deliberate leaking to the media which caused considerable embarrassment … It was intended to embarrass and distress … It was an outrageous interference with their privacy and their constitutional rights”.
Gray v. Minister for Justice [2007] 2 IR 654
the plaintiffs sought damages arising out of the unlawful disclosure of information to journalists by members of An Garda Síochána. The Gardaí had disclosed that a convicted sex offender, a relative of the plaintiffs, was temporarily residing with them. The plaintiffs claimed such disclosure placed the information in the public domain and resulted in harassment and intimidation in violation of their constitutional rights to privacy. In addition, the second plaintiff claimed that she had suffered personal injury as a direct consequence of the actions of the defendants.
The plaintiffs succeeded in the High Court and Quirke J held that the disclosure of sensitive and confidential information by gardaí to journalists or other members of the media gave rise to a cause of action for damages for negligence if the disclosure resulted in reasonably foreseeable loss, damage or injury to a person affected by the disclosure. However, Quirke J also noted that the right to privacy was not an unqualified right but was subject to the constitutional rights of others and to the requirements of public order, public morality and the common good. He said the presence of a dangerous convicted rapist within any community was a genuine and legitimate source of concern for local members of An Garda Síochána.
When that occurred it was reasonable for gardaí to take appropriate steps to ensure that such persons did not pose a risk to the public and in particular to children. However, in this case the Gardaí “knew, or could upon inquiry have discovered” that the offender would be living with the plaintiffs for “a very short period, (estimated to be no more than a few weeks). It was a short-term problem which should have been resolved by the application of the correct and prescribed garda policies”.
These policies would have involved the gardaí acquainting themselves with the offender and placing him under “continuous surveillance, to monitor his movements and to make him aware of their presence” but did not involve disclosing his whereabouts to journalists.
Hickey v. Sunday Newspapers Ltd [2010] IEHC 349
the plaintiff’s claim for breach of privacy was successful where she was photographed in a public place having visited the registration office for births, marriages and deaths to register the birth of her child. The court held that the plaintiff did not have a legitimate expectation of privacy in the circumstances, having regard to the fact that she was in a public place performing a routine public function and her son could not be identified from the photograph.
Nolan v. Sunday Newspapers Ltd. (t/a Sunday World) [2019] IECA 141
the plaintiff claimed damages for defamation and breach of his right to privacy arising out of the publication by the defendant of articles which described the plaintiff as “Ireland’s unofficial King of the Swingers” and stated that not only did he attend “swinger” parties (which he did not deny) but he was an also an organiser of such events. The articles were accompanied by photographs of the plaintiff at swinger parties in the company of scantily clad women. In the High Court, the plaintiff was awarded damages for defamation.
On appeal, the Court of Appeal held that the plaintiff was entitled to separate compensation for breach of his right to privacy. It was held that the award for defamation related to the false statement by the newspaper that the plaintiff was the organiser of the parties, not that he had attended the parties. Thus, the photographs showing him in attendance at the parties were not part of what he had been compensated for and the award could not be said to have vindicated the plaintiff’s constitutional right to privacy in respect of the publication of the photographs. The Court also held that the plaintiff’s knowledge that the photos may be distributed among the people who were at the private party did not amount to a waiver of his right to privacy in respect of them. It was implicit that any photographs taken of the plaintiff at the party would remain private and would not be published in a newspaper without consent. The Court found that Mr. Nolan was not a public figure and there was no valid public interest in publishing the photographs.
Cogley v. RTE and Aherne v. RTE [2005]
RTE had investigated and produced a documentary into the standard of nursing home care provided at a nursing home managed by the plaintiff in the first action and owned by the plaintiff in the second action. The documentary included footage which had been secretly filmed at the nursing home. It was alleged the programme was defamatory of the plaintiff in the first set of proceedings and in breach of the rights to privacy of the plaintiffs in the second set of proceedings and also in breach of the privacy rights of the patients of the nursing home filmed in the course of the documentary. Clarke J considered the implications of restraining debate on matters of public importance. He considered the right to privacy and noted that it was not an unqualified right.
Several cases demonstrate the delicate balance that has to be struck between the plaintiff’s right to privacy and other competing rights and interests including freedom of expression and the public interest in alleged wrongdoing being brought to light. Some of these cases concerned applications by the plaintiff to restrain the publication of information allegedly obtained in breach of the right to privacy.
In this case, Clarke J said that the right to privacy contended for by the plaintiff fell into the second category as they could not contend they had a right to privacy which “would preclude information about the conduct of [their] business which tends to suggest that there were serious irregularities in the manner in which it was being conducted, from being broadcast”.
Callaghan v. Independent News and Media Ltd [2008] NIQB 15
where similar interlocutory relief was granted. However, Irvine J distinguished that case on a number of grounds, including the fact the plaintiff had not demonstrated he was no longer a threat to the public, for example because of supervision by the Probation Service of An Garda Síochána. She said the evidence advanced by the plaintiff was “totally insufficient to justify the wide-ranging interlocutory relief” sought. Irvine J also held there was a “public interest in his identity and whereabouts” being made known to the public and the degree of public interest depended on “the risk he may currently pose to the community”, which given the plaintiff’s previous convictions for violent sexual assault was “very considerable” in this case.
Irvine J held there was a public interest in the identity and whereabouts of a convicted rapist being made known to the public:
National Irish Bank Ltd v. RTE [1998] 2 IR 465,
Breach of Confidence
Where a person in whom confidential information reposes discloses that information to the detriment of the party who has confided in him, he commits the tort of breach of confidence. The law recognises that a duty of confidence will arise in circumstances where confidential information is so reposed and the courts will restrain any apprehended breach of such a duty of confidence or award damages for actual breach of that duty. To attract the duty of confidence, the information in issue must not be trivial information and must be information which is not already in the public domain. Finally, the public interest (for such it is) in the maintenance of confidences may in certain circumstances have to be balanced against the public interest favouring disclosure. While most claims for injunctions restraining disclosure of confidential information have related to commercial matters and relationships, nonetheless a range of other relationships have given rise to such claims and the law has been willing, if the circumstances of a relationship require it, to recognise the existence of an obligation of confidence and give redress for any apprehended or actual breach of confidence.
In that case it was held that even though there was a duty of confidence between a banker and a customer, the public interest in defeating wrongdoing (in this case tax evasion) justified the publication of the information and an interlocutory injunction would not be granted, although a person might be entitled to damages.
In Mahon Tribunal v. Post Publications Ltd [2007] 3 IR 338 Fennelly J summarised the requirements of the action for breach of confidence as follows:
- the information must in fact be confidential or secret: it must “have the necessary quality of confidence about it”;
- it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
- it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.
Mahon Tribunal v. Post Publications Ltd
he requirement for a relationship of confidence or circumstances which impose an obligation of confidence is not to be dispensed with from the three point test in Mahon Tribunal
W. v. Egdell [1990] 2 WLR 471,
Breach of confidence would arise were a professional to breach the confidentiality owed to a client. However, the duty owed to a client is not absolute.
The decided cases very clearly establish: (1) that the law recognises an important public interest in maintaining professional duties of confidence; but (2) that the law treats such duties not as absolute but as liable to be overridden where there is held to be a stronger public interest in disclosure. Thus the public interest in the administration of justice may require a clergyman, a banker, a medical man, a journalist or an accountant to breach his personal duty of confidence: . . .
In Parry-Jones v. Law Society [1969] 1 Ch. 1 a solicitor’s duty of confidence towards his clients was held to be over-ridden by his duty to comply with the law of the land, which required him to produce documents for inspection under the Solicitors’ Accountants Rules.
A doctor’s duty of confidence to his patient may be overridden by clear statutory language (as in Hunter v. Mann [1974] Q.S. 767).
A banker owes his customer an undoubted duty of confidence, but he may become subject to a duty to the public to disclose, as where danger to the state or public duty supersede the duty of agent to principal: Tournier v. National Provincial and Union Bank of England [1924] 1 K.S. 461, 473, 486.
An employee may justify breach of a duty of confidence towards his employer otherwise binding upon him when there is a public interest in the subject matter of his disclosure:.
