Data Protection and Privacy: European and US Perspectives — Balancing the rights of privacy and the freedom of expression (Part VII)

Identifying the scope of privacy in reference to the grounds on which it can be restricted.

Article 40.6.1

The Irish Constitution, supplemented by the provisions of Art 8 ECHR allow for a citizen’s right of privacy. The question therefore, in identifying the need for protection, is how such should be implemented, especially in coinciding with the freedom of expression provision inhibited in Art 40.6.1. In this regard, it can be held that privacy is not an absolute right in Irish legislation. Such exercise of privacy entitlements are deliberated with public order, public morality and the common good in mind, as depicted in Cogley Ors v. RTE. [83]

Article 40.3 of the Constitution acknowledges that; ‘[t]he State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.’ [84] Such guarantees may extend to the protection of interference of individuals protecting against the ‘[w]atching, besetting, and harassing of individuals’ as recognised in X. v. Flynn. [85]

Therefore the guarantees in the Irish Constitution will thereby inhibit the root of further protection sought by potential applicants. Difficulty arises however in attempting to extend this protection considering the existing lack of clarity on the applicability of privacy in Ireland. In exemplifying this point, it is not clear whether an applicant such as Von Hannover would have successfully sought relief within the Art 40.3 provisions.

The latter illustrates that, potentially, an Irish citizen may not avail of reliance on protection under the Article against photographs or CCTV footage captured in public places of them. Interestingly, as in the aforementioned case of Peck, the ECHR ruled against such footage, as it violated the terms set within Art 8.

Precedent would suggest that Irish law holds a preference for a broader scope in regard to the public’s interest, thereby delimiting privacy rights, as exemplified in Maguire v. Drury. [86] The latter case derives from the point of view that once an individual places their person in the public gaze, there is no set privacy right to provide protection. Such disparity contrasts with the decision held in Von Hannover. The latter therefore highlighting the restrictions to privacy as one of clarity lacking in Irish legislation. (Writing, 2015).

83 [2005] 2 ILRM 529, 539

84 Art 40.3.1° Constitution of Ireland.

85 Unreported High Court 19 May 1994.

86 [1994] 2 IR 8.