E1 - Right to a good name and right to privacy Flashcards
Right to a good name
This right was famously litigated in the decision in Re Haughey where it was held that a person whose good name comes under attack is entitled to be allowed to cross-examine his accusers, to be
allowed to give rebutting evidence, to have a copy of all the evidence furnished against him, and to be allowed
to address a tribunal presiding at the hearing of matters which potentially impugn his good name
article 40.6 of the constitution
This Article protects right to freely express
convictions and opinions however it also states that the publication or utterance of blasphemous, seditious or
indecent material is an offence which shall be punishable in accordance with law.
The approach of the Irish
courts to the fraught relationship between the right to a good name and the right to freedom of expression is
well enunciated by the decision in Hunter v Duckworth. The case established that the courts will seek to engage in a balancing
exercise with regard to competing claims under both constitutional provisions.
The hunter decision
The Hunter decision is the most authoritative judgment in this jurisdiction on the competition between these
two constitutional rights. O’Caoimh J held thus ‘I believe that this right [freedom of expression] should not be
undermined by the provisions of the Constitution relating to the protection of one’s reputation’. The learned
Judge placed significant emphasis on the democratic nature of the State in the context of the publication of a
book which cast a negative light on a member of the infamous ‘Birmingham Six’.
Right to Privacy
Right to privacy is termed as an unenumerated right under Article 40.3 which has its foundations in the
marital right to privacy in the context of abortion law (McGee v AG). Budd J in the case adverted to the importance which the right to privacy has in the context of Article 40.3.
The right was also indirectly
recognised by Finlay CJ in Norris v AG in the context of marital privacy matters once again.
The ratio decidendi of this decision would appear to suggest that where private acts are immoral they will not
attract significant protection in the form of a right to privacy simplicitur for their justification.
In Kennedy v Ireland it was held by Hamilton P that the nature of the right to privacy must be such as to ensure the dignity and freedom of the individual which can be legitimately restricted in the interests of the
common good.
The right was again litigated in I O’T v B where it was held that a natural mother
has a right to privacy vis-à-vis her natural born children who were seeking to discover her true identity many
years after birth.
Herrity v Associated Newspapers
In the very recent decision in Herrity v Associated Newspapers the court concluded that a breach of the right to privacy had to be ‘deliberate, conscious and
unjustified’ for it to be actionable. The court also commented on the weak position of the constitutional right to privacy when compared with other constitutionally protected rights.
Right to respect for family life
right to respect for his family life under Articles 41 & 42 of the Constitution which is bolstered by Article 8 of the European Convention on Human Rights. The right to privacy and to the quiet enjoyment of his
family life must ultimately be juxtaposed with the ‘decisive factor’ (as stated in the Von Hannover judgement
of the ECtHR)
