Is There a Constitutional Right Privacy in Ireland - Coursework Example

Is there a constitutional right privacy in Ireland? Article 40 of the Irish constitution enumerates personal rights of the citizens as part of fundamental rights. There is no express provision in regard to protection to privacy of a citizen. However the Supreme Court of Ireland had held that a citizen had an implied right to privacy by virtue Article 40.3.1 which says “the State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate personal rights of the citizen”1 It was in McGee v. Attorney General2 that the Supreme Court so held when dealing with right to marital privacy. This became a precedent for subsequent decisions in Norris v Attorney General 3 and Kennedy and Arnold v. Ireland4 The implied idea stems from the fact of “Christian and democratic nature of the State” 5 This interpretation of article 40.3.1 was given in the decision of Ryan v Attorney General6 This opened the flood gates or disclosed the “bottomless pit”7to accommodate diverse personal rights such as to earn a living, to litigate, and to communicate as decided in Murtagh Properties v Cleary 8,Macauley v Min for Posts and telegraphs9 AG v Paperlink 10 respectively. The decision in Ryan v AG took a cue of the unenumerated rights which the U.S. Constitution admits to exist through the IX Amendment which says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” 11As this express provision is not in Irish constitution Kenny J in Ryan v AG asserted existence of unenumerated rights is implicit in the constitution by virtue of being the Christian and democratic nature of the State.12 This discovery of unenumerated rights in the Irish constitution by Kenny J was lauded by Brian Doolan13 as highly inventive and innovative giving flexibility to interpretation of the constitution. J.M.Kelly14 has stated that Kenny J’s view that Article 40 is not exhaustive of citizens’ personal rights as “logically faultless”15. Casey Gerald 16 differs with Kenny J in that when article 40.3.empowers State to defend, vindicate citizens’ personal rights, the declaration of unenumerated rights is the responsibility of State and not the court, although State has legislative, executive and judicial organs to exercise respective powers. There is a blurring of distinction as to who can really interpret or legislate. However, Kenny J has hastened to add that although that this is function resting with the legislature, it was used to be done by the courts as well in the formative period of common law and therefore there is no reason why courts cannot do this at present when the State has failed to do so. 17 Kenny J has said after several years that through this exciting feature of power to recognise and enforce the implied rights not specified in the constitution, judges have been forced to become legislators but without the disadvantage of having to face an opposition.18 Casey Gerald’s argument is that it is squarely repugnant to Article 15.2.1 according to which law making is the sole and exclusive power of the State through Oireachtas. He, at the same time, states that when the right to found a family is permitted by the constitution, right to marry is implied if there is no express provision in the constitution. He also says that when the framers have not stated about the unenumerated rights even though the original U.S. IX amendment had already been there at the time, it would only mean that the framers did not intend to have the so called feature of unenumerated rights in Irish constitution.19 From the foregoing it would appear that the controversy is regarding the authority rather than the existence of the privacy right. This was put at rest when the State proposed “The Privacy Bill, 2006”. An overview of the bill says that courts have established the constitutional right to privacy in their various seminal decisions20. The delay in the tangential cause of action was perhaps due to the lacunae of privacy violations constituting a tort for a wrongful conduct rather than as matter of right of protection as observed by McMahon and Binchy. According to them there are also competing interests between the right of freedom of speech and the right of privacy in that the former cloaks the latter as less than an “incontrovertible desideratum21 The proposed bill was intended to change the above common law position so that a statute based cause of action would be available for people rather than through common law with some amount of uncertainty every time right to privacy comes up before the court. The courts of Ireland have only invoked the unenumerated constitutional rights to privacy and not as a tort of privacy though unintentionally though both will produce the same result. In case of Hanahoe v. Judge Hussey, 22 Gardai while invoking section 64 of Criminal Justice Act 1994 to search the plaintiff firm of solicitors, it leaked the news to the media prior to the search taking place due to which press members rushed to the plaintiff’s premises and gathered outside thus causing a claim to be brought. Kinlen J awarded damages of £ 100,000 holding that Gardai had been negligent in allowing the information to be leaked which resulted in the breach of plaintiffs’ right to privacy. In John Caldwell v. Judge Alan Mahon and Others, 23 the above Hanahoe decision was unsuccessfully cited by the plaintiffs for support as the action of Mahon Tribunal making enquiries into their business dealings as a disproportionate breach of their right to privacy as guaranteed under article 40.3 of Irish Constitution and Article 8 of European Convention on Human Rights. This is of particular interest in that right to privacy does not extend to business dealings. Though the Judge Smyth agreed that though there should be privacy in business dealings, such a right is some what a lesser right than an individual’s right to privacy so that the former’s right “can only exist at the outer reaches of and the furthest remove from the core personal right to privacy”24 Further, a tort claim was unsuccessfully made for right to privacy in Bernstein of Leigh v Skyview & General Limited 25 challenging the defendants’ act of taking aerial photographs of private houses and selling the photos to the residences of the houses photographed including that of the plaintiff Lord Bernstein of Leigh. The court held no tress pass or breach of privacy could be held to have been committed since the planes flew at a sufficiently high altitude. It could not have been a nuisance also though the act did make a breach of privacy in the extreme circumstances. Therefore the Privacy Bill 2006 sufficiently justified the enactment and provided for the following torts. Section 2 recognised violation of privacy as a tort if a person’s privacy is breached wilfully and without lawful authority. No proof of special damages was also required. Section 3 provided that the privacy an individual was entitled to, should be consistent with public order, morality and common good and with the rights of others. The privacy was not categorically defined in view of the public policy requirement of Surveillance and Interception of Communications”. The “right of others” is the freedom of speech right. Hence the provisions are consistent with earlier court decisions. The bill was also in tune with the Article of 8 of the European Convention on Human Rights and Fundamental Freedom. The article 8 in essence establishes the respect for an individual’s private life, his/her family life, home and correspondence and also ensures that the said right shall not be bar on a public authority to lawfully exercise the right to interfere in the interest of national security, public safety, economic well being of the country, protection of health, morality and for protection of rights and freedoms of others. Unfortunately the bill has not yet been enacted due to the continuing debate on various provisions. In view of the foregoing facts, the basis of unenumerated rights is the only provision available to an individual as a constitutional right to privacy, though actions could be brought in torts also but with the same result. The reason for the delay in the enactment of the Privacy Act 2006 is quite understandable because of interest of national security and public safety competing with the core privacy rights. As the enactment may never come or may not come in the near future, one has to argue for the existence of inbuilt and inherent provision for right to privacy implicit in the constitution as un unenumerated right in view if the Christian and Democratic nature of the State as propounded by Kenny J in Ryan v Attorney General.26. It would be safe to have ‘right to privacy’ retained as a constitutional right to safeguard some of the core principles of privacy touching the private lives of individuals. An enactment of Privacy Act would only dilute the privacy safeguard as it exists now rather than expand it. Therefore arguing in legal semantics whether courts have the right recognise a non-existent constitutional right will be beset dangerous consequences in the absence of an enactment. Whether it is the duty of the legislator or the judiciary, is beside the point and should not lead to denial of right of privacy altogether. Works Cited AG v Paperlink, 1984, ILRM 373 Article 40.03.1, Constitution of Ireland, 1937, p 54, 6 April 2009 < http://www.taoiseach.gov.ie/attached_files/Pdf%20files/Constitution%20of%20IrelandNov2004.pdf> Bernstein of Leigh v Skyview & General Limited., 1978 QB 479 Brian Doolan, Constitutional Law and Constitutional Rights in Ireland, 1994 p 156 cited in Casey Gerald, “Are there Unenumerated Rights in the Irish Constitution? “ 6 April 2009 < http://www.ucd.ie/philosophy/staff/casey/UnenRiIrCon.pdf> Casey Gerald, “Are there Unenumerated Rights in the Irish Constitution? “ 6 April 2009 < http://www.ucd.ie/philosophy/staff/casey/UnenRiIrCon.pdf> Hanahoe v. Judge Hussey, 1998, 3 IR 69 John Caldwell v. Judge Alan Mahon and Others, Unreported, High Court, 15th February 2006, Hanna J. J.M.Kelly, Fundamental Rights in the Irish Law and Constitution, 2nd ed Dublin 1967 p42 John Kenny, “The Advantages of a Written Constitution Incorporating a Bill of Rights.” 30 (16NS) The Northern Ireland Legal Quarterly (Autumn 1979) 189 at 196. Kennedy and Arnold v. Ireland, 1987 I.R. 587. Laurant Cedric, Electronic Privacy Information Center, Privacy and Human Rights 2003, An International Survey of Privacy Laws and Developments, Republic of Ireland, 6 April 2009 Murtagh Properties v Clear, 1972, IR 330 Macauley v Min for Posts and telegraphs, 1966 IR, 345 McGee v. Attorney General, 1974 I.R. 284. McMahon & Binchy - ‘Law of Torts’ - Butterworths Norris v Attorney General, 1984 I.R. 36. Privacy Bill 2006, An overview, 8 April 2009 Ryan v Attorney General, 1965 IR 294 Small Donal, Ryan V AG, “A Bottomles Pit of Rights? - A Proposal for reform”, 6 April 2009 Read More