Irish court dismisses privacy claim

Ruth Hickey (who is the former partner of David Agnew (according to recent Irish press reports), who in turn is the former husband of Adele King (also known as “Twink”), an Irish entertainer) brought a claim against The Sunday World newspaper in the Irish High Court for (1) breach of her (and her son’s) rights of privacy and (2) libel .

The full judgment can be accessed at Hickey & Anor v Sunday Newspapers Limited [2010] 1EHC 349.

The claim related to two separate articles that both contained photographs of Ms Hickey, Mr Agnew and their young son leaving a registry office in Dublin after having registered the baby’s birth.  Ms Hickey claimed that these photographs constituted a breach of her and her son’s rights of privacy.  The articles also referred to a voicemail message left by Ms King for Mr Agnew, which had somehow made its way onto the internet and had, as a result, become notorious in Ireland.  In particular, the first of the two articles repeated the reference made in the voicemail to Ms Hickey as a “whore” and it was this reference which formed the basis of the libel action.

Mr Justice Kearns dismissed the claim on the basis that he was not satisfied that the publication of the offending photographs amounted to a breach of privacy.   In relation to the defamation claim, Mr Justice Kearns considered that the words complained of amounted to “vulgar abuse” and, as such, were not actionable in defamation.

The decision relating to the libel action is fairly uncontroversial but Mr Justice Kearns’ decision as regards the privacy claim merits closer inspection.  It seems that there were a number of facts specific to this particular case that were critical to the judge’s determination:

1. The fact that the plaintiffs were leaving a registry office persuaded Mr Justice Kearns to conclude that the plaintiffs were “performing a public function”.  This point distinguished the case from Campbell v MGN Ltd [2004] 2 A.C. 457, where the plaintiff was leaving a meeting of Narcotics Anonymous, which meant there was an assurance of privacy, confidentiality and anonymity essential to the type of treatment that the plaintiff was undergoing.
2. The fact that nothing in the publication exposed the plaintiffs to any risk of physical harm from any person with ill-intent.  This point echoes the sentiment of the New Zealand Court of Appeal in Hosking v Runting [2004] NZCA 34.
3. The fact that there was no evidence of a campaign of surveillance against the plaintiffs.  This distinguished the case from Von Hannover v Germany [2004] E.C.H.R 294, where the court was “particularly impressed by the fact that the photographs in question were part of a campaign of harassment of a public figure”.
4. The fact that much of the information contained in the photographs and the articles were already matters of public record and, of even greater persuasion, the fact that the first plaintiff had herself sought and contributed to publicity concerning the matters complained of.  Here Mr Justice Kearns relied upon Woodward v Hutchins [1977] 1 W.L.R. 760.

Mr Justice Kearns went so far as to say that he would have taken a different view of the case had the plaintiff not herself courted publicity and had the disclosure of the voicemail referred to in the articles emanated in the first instance from the defendant newspaper.  He accepted that a right to privacy exists in Irish law but could not see anything on the facts of this case which tipped the scales in favour of the plaintiffs’ right to privacy over the defendant’s right to freedom of expression.

In his judgment, Mr Justice Kearns repeatedly emphasised that the right of freedom of expression applies irrespective of whether the particular publication is desirable in the public interest and commented that, in his opinion, the publications in this case “represented the lowest standards of journalism imaginable”.  However he believed that finding in favour of the plaintiffs, on the specific facts of this case, would “represent a radical ratcheting up of the right to privacy at the expense of the right of freedom of expression to a degree which….should more properly be the subject matter of legislation” and was therefore minded to find in favour of the defendant.