Whilst none of us like the idea of intimate moments being invaded, worse publicised, and we would all hate for it to happen to us, there are two conflicting rights at play in any scenario like this, privacy versus freedom of the press.
A right to privacy does is found in Irish law although it is not documented as such, it exists as an ‘unenumerated’ right which Judges have “read into” the wording of the constitution although it is not specifically detailed there (or enumerated). This approach is common and encompasses many other rights which are felt to be left open by the constitutional text and Judges have ‘discovered’ their existence at different times, from which point they are law.
The Irish right to privacy was first argued by Senator Norris in his attempts to decriminalise homosexuality and later more successfully argued by Geraldine Kennedy when suing the state for the invasion of tapping her telephone. More recent cases such as Dillon v. DPP have veered to the other extreme where a Garda who answered a suspect’s mobile on a call which sought drugs was found to have violated privacy law and was inadmissible as evidence at trial.
Though a Privacy law has been mooted and got as far as draft legislation the potential “chilling effect” on freedom of expression and of the press may be too great to justify and such a law may foul fall of the European Convention on Human Rights.
In a recent landmark judgment the highly respected Justice Fennelly of the Supreme Court upheld the priority of free expression over rights to privacy stating there whilst there may be some cases where privacy would triumph they would be the exception and generally only where an illegality had been committed in obtaining the information.
Similarly the ECHR have repeatedly ruled that public figures in particular will not be protected by the court from media coverage and that domestic privacy laws in each state may not be sufficient to hamper free press reporting. The recent Axel Springer case where a TV celebrity had the press ‘gagged’ from reporting a minor drugs conviction in the German courts was overturned at the ECHR which found the public had a right to such information and the press a right to report it. The potentially contradictory case of Von Hanover found public figures did have a right to privacy when engaged in private activities (such as horse riding on own grounds) but the later Von Hanover case found no difficulty with publication of a photograph of the family out shopping.
Eoin O’Dell has written at length about the concept of privacy in a public place, and indeed whether any such right is possible. The unfortunate case of Sinnott v. Carlow Nationalist concerned a Gaelic player who was inadvertently photographed with private parts on display during a match resulted in a small payout by the paper though O’Dell argues convincingly that the game was a public spectacle and therefore reporting on it should be similarly unencumbered regardless of any such social embarrassment.
The argument could be summarised as a sort of ‘Amplification effect’ where if one person could see something in a public place then capture and reproduction of that image should be permitted also. In reality this means that if one person on a public road could see the Duchess of York sans bikini top then there should be no restriction on publishing that photograph to millions more around the world.
Another recent irish case concerned the love rival of ‘Twink’ who registered birth of her child at the normal registry and was photographed doing so in images reproduced by the Sunday World. When the woman took an action for breach of privacy the court found the act was in a public place and could have easily been witnessed by passersby and therefore no protection of privacy existed in such a situation.
The case of DPP v. Atherton again found that a video tape of a neighbour cutting a shared hedge was legal and admissible as evidence despite claims that it violated privacy, the reason being that the contents of the tape could be viewed from the public road as easily as from the recorded video and therefore no protection could be claimed.
Applying all the above to the royal ruckus the central question regards how private was the location and to what degree could it be considered a public place? It could be queried whether other guests or staff were present in the villa and also whether it was exclusively on royal reserve or whether other holidaymakers had access also (probably unlikely). Given the pool was evidently visible from the public road (and indeed other reporters had remarked of surprise at how open the access was) under Atherton or Twink it seems unlikely the Duchess could enjoy much, if any, protection under Irish law.
It does appear a form of privacy law does exist in France which the couple may seek recourse to. This appears to have criminal sanction also. Whilst this may represent the domestic law of France, as a signatory to the ECHR there is no guarantee any protection or award of damages would be upheld on appeal. In fact it is quite likely such a law may be felt to have a ‘chilling effect’ on freedom of press and be rejected by the ECHR if it came before it.
Finally there is the argument that those who seek equity must do equity – if one makes one’s name (or fame or fortune) by virtue of being in the public eye one must be prepared to suffer the occasional indignities arising from. The Royals are perhaps in an unusual place here by virtue of birth rather than seeking publicity as such however it is arguable their lifestyle and wealth is directly attributable to their being in the public spotlight and therefore arguments re privacy and actions/claims contrary to a free press are likely to carry less weight in this context.
That’s just a short summary of the arguments for and against privacy law in such contexts. It would seem that any ‘outrage’ is misplaced, at least legally, as one who is constantly in the public eye and benefits from such exposure, has little recourse in crying foul if one dislikes the images published later – certainly when the images have been gained with no greater intrusion than the glance of any passerby.
Considering all such grounds the decision by the part-owner of the Irish Star (former Porn baron and British ‘worthy’) to begin shutdown of the Star newspaper is legally unjustified and morally hypocritical. Costing jobs to real people for a standard-issue scandal is neither legally nor morally coherent.