We reported some weeks ago on an unsuccessful claim for misuse of private information and libel in the Irish High Court by Ms Ruth Hickey against the Sunday World newspaper. The full judgment is now available ( IEHC 349). 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 the registry office shortly 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”. Her recorded rant is a You Tube favourite in Ireland
In his judgment Kearns P accepts that it is “indisputable” that a right to privacy existed in Irish law but that this right had to be balanced against freedom of expression. After citing Mahon v Post Publications ( 3 IR 338) and Herrity v Associated Newspapers ( 1 IR 316) he expressed the view that
“It is … far from easy to determine where the parameters to the right of privacy may lie when placed in balance with the right to freedom of expression. One intuitively feels that a right of privacy is less easily established in public places where a person, in the words of T S Eliot, has had time ‘to prepare a face to meet the faces you meet'”
He referred to Von Hannover v Germany but accepted the defendant’s submission that the “most relevant decision” was that of the New Zealand Court of Appeal in Hosking v Runting ( 1 NZLR 1), in which it was held that there was no breach of privacy in publishing photographs of a child taken in the street.
He was not satisfied that the publication of the photographs amounted to breaches of privacy, for the following reasons:
(a) The photographs were taken when both the photographer and the plaintiffs were in a public place and performing a routine public function;
(b) The photographs do not disclose anything that could not have been seen by anyone else who turned up at the Registry Office at the relevant time;
(c) The existence of the second-named plaintiff, his age and the identity of his parents are already matters of public record. The defendant could have gone into the Registry Office, found the information, and published it;
(d) Nothing in the publication exposes the plaintiffs or either of them to any risk of physical harm from any person with ill–intent;
(e) No evidence was adduced to establish the contention that a campaign of surveillance had been carried out on the first-named plaintiff, her partner or child;
(f) The features of the second-named plaintiff were not recognisable from the photograph. Furthermore, the child himself could not have suffered any hurt or humiliation from any aspect of the two publications having regard to his age at the relevant time;
(g) The plaintiffs were at the relevant time performing, in my view, a public function which they were required to fulfil. No evidence was placed before the Court to suggest that is was necessary to bring the child to the Registry Office on the occasion in question;
(h) The first-named plaintiff and her partner themselves elected to bring the child to the Registry Office. Furthermore the first-named plaintiff had spoken to a journalist with the specific intention of publicity being accorded to the very matters in respect of which she now seeks to claim privacy.
(i) The voicemail message reproduced in the defendant’s newspaper was already posted on the internet and was in the public domain.
He regarded point (h) as important because the plaintiff had sought and contributed to the publicity herself. He relied on the English decision in Woodward v Hutchins ( 1 WLR 760).
He concluded that there was nothing to be placed in the balance to outweigh the defendant’s right to freedom of expression. His conclusion on the privacy issue was
“Were I to hold otherwise, it would represent a radical ratcheting up of the right to privacy at the expense of the right of freedom of expression to a degree which, in my view, should more properly be the subject matter of legislation. A finding in favour of the plaintiffs would also give rise to a situation where a newspaper might feel itself inhibited from publishing a photograph of any public person attending, for example a funeral, or leaving or entering a court building or polling station. In any of these situations it is not difficult to imagine circumstances where a claimant could invoke some consideration of privacy“.
The judge also found in favour of the defendant on the defamation issue. The last paragraph of the judgment is, however, worthy of note. After mentioning a number of “strange and unexplained features” of the case he said that he
“felt compelled to state that the exercise in which the defendant newspaper engaged in respect of these two publications represented the lowest standards of journalism imaginable. It is a regrettable fact of life that such material sells newspapers”
The question as to whether and to what extent the law should recognise a right to privacy in relation to photographs taken in the street is a difficult one. There are a number of questionable features about the reasoning in this case. The judge relied heavily on the Hosking case which relies on an approach which is not altogether consistent with the approach taken under the European Convention on Human Rights (the New Zealand Bill of Rights Act does not recognize a right to private life). There is, surprisingly, no mention of the leading English case on privacy and street photographs: Murray v Express Newspapers ( EWCA Civ 446). The judge does not analyse the Von Hannover case or consider the extent to which the photographs contributed to a debate of general interest.
The fact that the first plaintiff had talked about her pregnancy to the press was regarded by the judge as a matter of considerable importance – relying on the discredited case of Woodward v Hutchins. It is difficult to see how the press interview could be relevant to the question as to whether or not the taking of photographs was intrusive. Furthermore, the fact that the registration of births is a “public function” cannot justify the taking of photographs outside the Registry Office.
Overall it seems to us that this case is likely to have been decided differently in the Court of Human Rights and, after Murray, would probably be decided differently in England. It will be interesting to see whether Ms Hickey appeals to the Supreme Court.