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

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

Conclusion

In closing, there indeed exists grounds in which privacy may be restricted in balancing the freedom of expression. Article 34.1 pronounces that justice must be administered in ‘public’, thereby intending a fair trial. However as depicted in the MD v Clinical Director of St Brendan’s Hospital case, it may be necessary in certain instances to withhold details and identities within a case to delimit detriment to victims.

Although it was held by Hamilton CJ in Irish Times v Ireland that Art 34.1 rights ‘must in certain circumstances be subordinated to the interests of justice and the rights of an accused person which are guaranteed by the Constitution’. Article 40.6.1° explicitly provides that the ‘publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.’ Article 34.1’s requirement that justice be administered in public was recognised by Peart J in McKeogh v John Doe, disabling the claimant’s request for anonymity in the court proceedings. In this instance, the request for privacy was denied.

As illustrated by Zhendong Ma, the concept of privacy is ‘multifaceted, subjective, and evolving’, giving rise to the necessity to clarify and strengthen privacy rights of citizens. Art 8 ECHR is applicable only if the law is pertaining to interfere with privacy rights by way of ‘secret’ measures. This interference was considered in Klass v Germany, in which it was cited that ‘this menace of surveillance can be claimed in itself to restrict free communication …thereby
constituting for all users or potential users, a direct interference with the right guaranteed by Article 8.’

However in considering the scope of such interference, a wide margin of appreciation is held to be permitted in ensuring Member States strike an appropriate balance between ‘competing public and private interests or convention rights’. National security and public order are catered for under Art 8 ECHR as a means of justification in State interference with privacy rights, as long as it is conducted ‘in accordance with the law.’

This interference is permitted integrating ‘legitimate aims’ deemed ‘necessary in a democratic society.’ In attaining ‘adequate and effective guarantees against abuse’ of this interference, it was held in Weber and Saravia v Germany, that regard be afforded under the ‘nature, scope and duration of the measures’ and ‘the grounds required for ordering them’. As was exemplified in Klass v Germany, certain surveillance measures are necessary to maintain the public’s interests regarding national security and public order.

Article 40.6.1 of the Constitution recognises the right of Irish citizens to ‘express freely their convictions and opinions’ within a manner that is not ‘blasphemous, seditious, or indecent’. Privacy is not an absolute right in Irish legislation, therefore practice of such are ascertained under public order, public morality and the common good, as illustrated in Cogley and others v. RTE. Prior caselaw would suggest that Irish courts favour a broader approach in regard to the public’s interest, thereby potentially denouncing privacy rights, as demonstrated in Maguire v. Drury. Therefore, the grounds on which privacy may be restricted, specifically in Ireland, may be as a result of a discrepancy in clearly defined legislation in need of prompt amendment. (Writing, 2015)