The Gazette 1975

He was of the view that the majority of the Court when

discussing rights such as freedom of the press had failed

to duly consider "great and important values in our

society . . . which are also fundamental and entitled to

this Court's careful respect and protection". Among

these was the right to Privacy. Freedom of the Press in

his view should not be upheld where Privacy is assaulted

"for no purpose except dramatic interest and com-

mercial appeal".

Freedom to speak one's mind, although not always

with perfect good taste, on all public matters was

described in another United States case as a "prized

American privilege" :

Bridges

California

314 US 252

(1941). Again it was said that "The protection of the

public requires not merely discussion but information" :

Sweeney

Patterson

128 F 2d 4 5 7 /8 (1942). Other

cases that would deserve discussion if consideration of

this right arose in Ireland include

Elmhuist

Pearson

153 F 2d 467 (1946) and

Sidis

F-R

Publishing

Corporation

113 F 2d 806 (1940).

It was remarked earlier that a further extension of

the right to privacy might not be acclaimed by all in

this country. United States experience provides the

main grounds for hostility towards the right. There the

right has been successfully pleaded in cases which

struck down as

ultra vires

anti-obscenity laws in Geor-

gia and anti-abortion laws in California. The most

familiar "triumph" came in 1973 when the Supreme

Court held that a foetus has no right to life and that a

mother has a right to privacy which is "broad enough

to encompass her decision whether or not to terminate

her pregnancy". (

The Jurist

1973, second issue, is de-

voted entirely to United States developments in this

field between 1965 and 1973.) Fears that Irish judges

would so apply the right in appropriate circumstances

may be unrealistic although this view would be disputed

by some. (For example, Dooley :

Contraception

and the

Irish Constitution : Social Studies

1974, 286). Possible

applications of the right are however distinct from exis-

tence of the right itself.

That the right exists in Ireland would seem to be

beyond dispute : "While the 'personal rights' are not set

out specifically nevertheless in our society the right to

privacy including that of marital relationship is uni-

versally accepted".

(Per

Budd J. in

McGee's

case,

ante.)

It is likely that a right to freedom from un-

wanted publicity could be found as one of the "personal

rights" in Article 40.3.1 of the Constitution. Much of

the

dicta

in Kenny J.'s judgment in

Ryan

A-G

[1965] I.R. 294 could be cited in favour of this right

together with the

dicta

of various Supreme Court judges

McGeé

case.

Freedom of the press as recognised in Article 40.6.

l(i) must also be considered. Investigative journalism

performs a useful democratic service: many recent

examples can be drawn to illustrate the point from the

United States and Britain. It was recognised by Warren

and Brandeis at the end of the last century that a right

to privacy would be subordinate to the right to investi-

gate and comment on matters of proper public interest

and concern. Freedom of the press does not however

confer unlimited freedom. (If it did, it would be Roy

Jenkins' "garden without weeds, desirable but un-

natural" as he recently described such freedom in

The

Listener.)

Possibly it would be unwise to attempt to de-

termine what are matters of proper public interest and

concern. There is a general assumption that for example,

government ministers, elected representatives of one

sort or another, forfeit their claim to privacy. Even in

such cases however forfeiture of privacy need not be

complete: again it would be unwise to try to draw the

boundaries of forfeiture for these categories. Restric-

tions already exist under Statute and at Common Law

in Ireland in relation to the Press. The case of

A-G

(TKelly

(1974) 108 I.L.T.R. 97 is evidence of the fact

that journalists do not enjoy privilege and cannot hin-

der the course of justice by refusing to disclose their

sources of information if requested to do so by an

appropriate court. Journalists are treated as other

human beings for purposes of the law and if, say,

policemen are constitutionally restrained from intruding

upon one's privacy (Article 40.5) there is no reason why

journalists might not likewise be constitutionally fet-

tered.

This is yet another area where the Constitution could

affect the civil law in Ireland. Recognition of a right

in relation to non-disclosure of private and personal

information, where disclosure would not be in the

public interest, would alter the law of defamation. It

would no longer necessarily be a defence to argue that

a published statement, though defamatory, was true.

For this to be so in any significant way, it would be

essential for Irish judges to interpret in a restrictive

way the meaning of matters within the public interest.

The result would render more convincing the declara-

tion in Article 40.3.2 that "The State shall, in parti-

cular, by its laws protect as best it may from unjust

attack and, in the case of injustice done, vindicate the

life, person,

good name,

and property rights of every

citizen".

Obituary

Mr. Rowland Healy, solicitor, formerly of the

Indian Civil Service, and a former High Court

Judge in Burma, died on 2 June, 1975, at

his residence, Ballymorris, Bray, Co. Wick-

low. Mr. Healy was admitted in Easter Term,

1948. He practised under the style of L. J.

O'Neill & Co. at 21, Molesworth Street, Dub-

lin, until 1965 when he retired.

Mr. John F. CMahony, solicitor, Deputy Supreme

Knight of the Knights of St. Oolumbanus,

died in St- Stephen's Hospital, Glanmire,

Cork, on 2 September, 1975. Mr. O'Mahony

was admitted in Hilary Term, 1942, and

practised at 70, South Mall, Cork; he also

acquired the firm of J. Hodnett & Son in

Youghal.

.226