The Gazette 1993

GAZETTE

L A W B R I E F

SEPTEMBER 1993

Telephone Privacy

Privacy is a matter for concern for all

of us. We may ask "what is privacy"?

The most useful dictionary definition

is that given by the current edition of

the

Concise Oxford Dictionary

which

defines privacy as

"the state of being private and

undisturbed, a person's right to

this freedom from intrusion or

public attention . . . avoidance of

publicity."

Another description that many

lawyers are familiar with was that

S used by Thomas Cooley, in

Torts,

I (second edition, 1888) and described

as "the right to be left alone". These

definitions are probably inadequate

for legal or statutory purposes, but

they express sentiments that most

people would regard as a basic human

need and right.

Edward J. Bloustein, in "Privacy as an

j Aspect of Human Dignity", (1964) 39

New York ULR.

962 at 971, noted that

privacy is an interest of the human

personality. It protects the inviolate

personality, the individual's

independence, dignity and integrity.

Ruth Gavison in "Privacy and the

Limits of Law", (1980) 89

Yale U

421, at 428 has noted that privacy

"is a limitation of others' access

to an individual . . . in perfect

privacy, no one has any

information about X, no one pays

any attention to X and no one has

physical access to X."

In this conceptual framework, there

are three elements of privacy: secrecy,

anonymity and solitude. We all agree

! that privacy is important. One aspect

of privacy is freedom from

; unwarranted interference by the State.

We all know that privacy is one of the

first victims of a totalitarian state.

Many aspects of privacy came up for

consideration in the context of the

Interception of Postal Packets and

Telecommunications

Messages

Regulation Act, 1993 (the Interception

Act, 1993

) which came into force on

June 6, 1993. The purpose of the Act

was to place on a statutory basis the

conditions under which the existing

power of the Minister for Justice to

issue warrants authorising the

interception of postal packets

(primarily letters) and

telecommunications messages

(primarily telephone calls) is to be

exercised and to regulate the

procedure for the issue of

authorisations. The Act provided that

the only purposes for which

interceptions may be authorised may

be those of criminal investigation or

the security of the State.

The Act sets out in detail the procedure

for applications for, and the issue of,

warrants authorising interceptions. The

procedure is similar to that followed at

present. The Act introduced two new

provisions for controlling the exercise

of the powers of the Minister for Justice

in respect of interceptions. The first was

for a designated judge of the High

| Court to keep the operation of the Act

Í under review, to ascertain whether its

provisions are being complied with and

to report to the Taoiseach. The other

new provision is that a person who

believes that his communications have

been improperly intercepted will be

able to have his/her complaint investi-

gated by a "Complaints Referee" who

will be a serving judge of the Circuit

Court or District Court, or a barrister or

: solicitor of ten years standing appointed

for the purpose and who will have

power in an appropriate case, if he/she

upholds the complaint, to quash the

authorisation and make a binding

recommendation for the payment of

j compensation to the complainant.

; The opportunity was also taken in the

Interception Act, 1993

to insert a new

subsection (2A) in section 98 of the

Postal and Telecommunications

Services Act, 1983 (the 1983 Act).

This new subsection relates to a

process whereby Telecom Eireann in

the normal course of its business

keeps records of the date, time and

duration of telephone calls. The new

section 98 (2A) makes it an offence

for a person employed by Telecom

Eireann to disclose to any person the

use made of telecommunications

services provided for any other person

unless the disclosure is made in the

circumstances specified in the

subsection: at the request or with the

consent of the subscriber; for the

prevention, detection of crime or for

the purpose of criminal proceedings;

in the interests of the security of the

State; in pursuance of an order of a

court; for the purpose of civil

proceedings in any court; or in the

course of the employee's duty as such

employee. The maximum penalties for

the offence are, under section 4(2) of

the 1983 Act, the same as those for

other offences under section 98 in

relation to intercepting telephone calls

by persons other than the State, i.e. a

fine of £800 or twelve months'

imprisonment or both, on summary

conviction, and a fine of £50,000 or

five years' imprisonment, or both, on

conviction on indictment.

A new section (2B) in section 98 of

the 1983 Act

provides that a request

by members of the Garda Síochána to

a person employed in Telecom

Eireann to make a disclosure of the

date, time and duration of a telephone

call in relation to the prevention or

detection of crime or for the purpose

of criminal proceedings, must be in

writing and signed by a member of the

Garda Síochána not below the rank of

| Chief Superintendent. There is also

provision that a request by an officer

of the Defence Forces to a person

employed in Telecom Eireann to make

a similar disclosure, for example, in

the interests of the security of the

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