The Gazette 1975

MOOT POINTS ON PRIVACY

LAW STUDENTS DEBATE IN U.C.D.

unreported, Supreme Court. In the wake of McGee's case and in the light of some of the dicta in the case— particularly of Budd J. quoted hereafter—there is a logical inference that a general right of privacy exists from whence marital privacy was deduced by the Supreme Court. It is significant to note the following extrajudicial remarks made by Walsh J., who formed part of the majority Supreme Court decision in McGee's case, in Studies (Winter 1974, 336) where he offers some comments on an article in the same volume entitled "Anarchy and Utopia" by D. C. Bennett (Department of Social Science, UCD). He refers to "a recognition of the fact that in modern society economic rights and duties are no longer thought to be worthy of more attention than human needs and feelings and an ack- nowledgment that the basic economic wellbeing of people has achieved a level at which these people feel it is no longer endangered by the concentration of greater attention upon their human needs and feelings. This new awareness is most easily observable in the ever-increasing public concern for the protection of the environment and the protection of personal and family privacy". He goes on to refer to persons who, willing to abandon some of society's material benefits in return for a reduction in those demands, break away from the "super-tribe" and form communities of their own in which they can secure more control over the quality of their lives. "It is but an extension of the assertion, albeit an unconscious assertion in many cases, of the right to privacy—a right so aptly described by Justice Brandeis in his dissenting opinion in Olmstead v The US as 'the right to be let alone—the most compre- hensive of rights and the most valued by civilised man'." What if an article or a film or a broadcast were to contain statements injurious to some individual but nonetheless true? Might one claim as against the com- munications media, a constitutional right to be let alone, breach of which in this country would entitle one to damages, following Meskell v CIE [1973] I.R. 121. The answer is perhaps easier in a country where a written constitution exists to protect individuals against invasion of their rights but no answer is ever straight- forward. Considerations beforehand of changes in the law tend to be lacking in Ireland. In relation to this area of privacy against the communications media, some of the issues that could arise for discussion will now be outlined. The right to freedom from unwanted publicity may be classed with those rights which require a balancing of public and private interests. There are "two poten- tially conflicting but vital interests : the interest of the individual in the preservation of his privacy, and the interest of the community as a whole in freedom of speech, in particular the freedom of the press and other sections of the communications media to impart infor- .223

The following is a very summarised version of argu- ments which emerged in the course of a recent Moot Court held with law students in CCD. The educational value of a moot—a legal problem in the form of an imaginery case—might indeed profitably be discussed as a separate issue. The participants in the moot re- ferred to were: Ann Fitzgerald, Marc MacDonald, Brian Carroll and Brendan Twomey—2BCL; Muriel Lee and Brenda Scully and John Murran—3 BCL. Privacy as a right or a concept is at present receiving attention in many countries. The British Law Com- mission (No. 58 HMSO 1975) urged reform of the law on "the disclosure or use of information in breach of confidence". It is interesting to note their recommenda- tions that the duty of confidence should be given a statutory basis. Breach of the duty of confidence would be actionable where disclosure of information results in "pecuniary loss" in addition the Commission pro- poses that there should be redress where breach causes "distress" or even possibly "annoyance or embarrass- ment". In 1972 the Younger Committee rejected de- mands for a legal right to privacy and proposed that the protection of privacy as "breach of confidence" should be referred to the Law Commission. To a perhaps regrettable extent the Law Commission was influenced by the unconvincing arguments of the Younger Com- mittee and their proposals do not recognise an un- equivocal right to privacy in individuals. (There are indications however on the political front that a right to privacy may yet be recognised in Britain.) In the United States, a distinct right of privacy is recognised sui generis and not as a mere addition to some already existing area of law. There, a true state- ment publicly made may at the same time be a breach of privacy. At the same time, it can be said that United States laws confer less protection against de- famatory statements than does English law. One is naturally interested in Ireland in United States de- velopments and a look at the jurisprudence of some American cases is instructive. Internationally the pro- tection of privacy is growing in importance due to a number of factors, inter alia, to increasing technologi- cal development. In 1973 for instance, a Resolution was adopted by the Committee of Ministers of the Council of Europe on Protection of the Privacy of Individuals vis-a-vis Electronic Data Banks in the Private Sector. (See in general, Robertson : Privacy and Human Rights, 1968.) A general right of privacy would cover many aspects of life and of personal behaviour. For this reason recognition of the right in this country might not be universally welcome. Privacy has not escaped judicial mention here : most notably the right arose in McGee v. The Revenue Commissioners and the A-G (1973)