The Gazette 1975

MOOT POINTS ON PRIVACY

LAW STUDENTS DEBATE IN U.C.D.

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

The Revenue Commissioners

and the A-G

(1973)

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

The

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

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

speech, in particular the freedom of the press and other

sections of the communications media to impart infor-

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