Three unsuccessful privacy claims in three jurisdictions have been reported this weekeend. The first and most recent was an “out of hours” inunction claim in England on Saturday 9 October 2010 by former Guantanamo Bay detainee Binyam Mohamed against the “Mail on Sunday”. He made an unsuccessful attempt to obtain an injunction to prevent the newspaper from revealing that he has been granted permanent residency in Britain.
The Mail on Sunday reports the judge, Mr Justice Cooke, as saying
It is plainly a matter of public interest. The fact is the very identity of this applicant is of importance. The history of the circumstances in which he was taken to Guantanamo Bay, his immigration status, the alleged complicity of Her Majesty’s Government in what happened at Guantanamo Bay, all raise questions of public interest against which the decision to grant the applicant indefinite leave to remain has to be seen. I cannot say in the circumstances that the applicant is likely to succeed in preventing publication of that matter.’
Secondly, we have previously mentioned a privacy injunction obtained by the singer Van Morrison in the High Court in Northern Ireland against the “News of the World”. On Friday 9 October 2010 he tried and failed to obtain a similar injunction against the “Sunday Independent”. It reports that Mr Justice Gillen held that the terms of an earlier injunction was sufficient to safeguard the plaintiffs’ privacy. The Mail on Sunday has an article about Mr Morrison and his co-plaintiff Gigi Lee which does not appear to touch on the information covered by the News of the World injunction but does include a (pixellated) photograph of Ms Lee’s child.
The third privacy claim appears to be one of wider legal interest. On Friday 8 October 2010 in the High Court in Dublin, Mr Justice Nicholas Kearns gave judgment in the case of Hickey v Sunday World. This judgment was given after a full trial in July 2010. The plaintiff, Ruth Hickey, is the partner of David Agnew, the former husband of Adele King (better known as “Twink“), a popular Irish entertainer. Ms Hickey had sued over an article entitled “Twink’s Ex Shows Off Love Child”, which showed photographs of her and Mr Agnew leaving a registry after the couple had registered their son’s birth in 2006. Ms Hickey claimed that her privacy had been breached by the photographs and she also sued for defamation, claiming that the newspaper had portrayed her as a prostitute by repeating the words left on Mr Agnew’s phone by “Twink”.
In dismissing the claim, Mr Justice Nicholas Kearns commented that the “Sunday World” had engaged in “the lowest form of journalism imaginable”. He nevertheless concluded the publication of photos of the couple and child leaving the registry office were not a breach of privacy because they were taken in a public place when they were performing a routine public function. The photos did not disclose anything that could not have been seen by anyone else who turned up at the registry office at the relevant time. The baby was not recognisable from the photograph and had not suffered hurt or humiliation. The Judge said
The newspaper could have gone to the registry office and found and published the information and nothing in the publication exposed Ms Hickey and her family to any risk of physical harm from any person with ill-intent.
The Judge relied on the fact that Ms Hickey had spoken to a journalist with what he described as the specific intention of getting publicity for matters “in respect of which she now seeks to claim privacy”. The voicemail message in which Twink used offensive words about Ms Hickey and her child was already posted on the internet and in the public domain. He said that Ms Hickey had
“made public statements concerning her family life, had taken part in a photo shoot [and given] … interviews ‘for public consumption’“.
The Judge concluded that Ms Hickey had not pointed to any factor outweighing the right to freedom of expression which the paper was entitled to. He said that to hold otherwise would represent a
“radical ratcheting up of the right to privacy at the expense of the right to freedom of expression to a degree which, in my view, should more properly be the subject of legislation”.
The full judgment in this interesting case is not yet available. When it is we will comment further.