The New Privacy Bill
In late September 2012, Minister for Justice, Alan Shatter, revealed his intention to revisit the provisions of the Privacy Bill 2006 (‘the Bill’) to prevent “flagrant violation” of the right to privacy by the press. Mr Shatter was speaking in the context of the publication by the Irish Daily Star newspaper of topless photographs of the Duchess of Cambridge.
The purpose of the Bill is to provide for a new tort of violation of privacy, taking into account the jurisprudence of Irish courts and the European Court of Human Rights. This article considers the proposed Bill in the context of the guarantees which currently exist to safeguard the right to privacy, and the practical implications of its proposed enactment.
Background to the right to privacy
The right to privacy in Ireland is guaran- teed both in Ireland’s Constitution as well as at a European level. Article 40.3 of the Irish Constitution states that: ‘The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.’
The right to privacy was first recognised in 1974 in the case of McGee v Attor- ney General, in which Walsh J. in the Supreme Court held that “Article 41of the Constitution guarantees the husband and wife against…invasion of their privacy by the State.” In the 1987 case of Kennedy and Arnold v Attorney General, Hamilton P held that the right to privacy was one of the unenumerat- ed rights recognised by Article 40.3 of the Constitution.
Fintan Lawlor, Partner with Lawlor Partners, discusses Ireland’s Privacy Bill, including the major criticisms of the Bill in its current form
Article 8 of the European Convention on Human Rights (‘the ECHR’) is enti- tled ‘Right to respect for personal and family life’ and states that: ‘Everyone has the right to respect for his private and family life, his home and his correspondence…There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic socie- ty in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’
The ECHR became part of Ireland’s domestic law on the commencement of the European Convention on Human Rights Act 2003. Section 2(1) of the Act provides:
‘in interpreting and applying any statu- tory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.’
Furthermore, Recital 2 of the Data Protection Directive (95/46/EC) sets out that the design of data processing systems ‘must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms, notably the right to privacy’. The Data Protection Acts 1988 and 2003 (‘the DPAs’) — which implement the Directive in Ireland — must be interpreted in a manner compatible with Article 8 of the ECHR.