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

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

Art 34.1 Public administration and justice in Ireland

As articulated in Article 34.1 of the Constitution, ‘justice shall be administered in public’, allowing for the public to observe judicial proceedings from a viewing gallery. [11] Such public practice allows for our democratic society to have a first class seat to witness and scrutinise the provision of a fair trial. Difficulty with such publicity arises in circumstances where such details of a trial should, for the protection of the applicants, be reserved only for the judge and jury within the trial. In cases such as that of MD v Clinical Director of St Brendan’s Hospital, there must be acknowledgement of such a provision for those whose interests are necessary to protect. [12]

In the MD case, the courts urged the privacy of the applicant to reporters of the judgment in an effort to protect his identity on the basis that the individual was under a disability related to schizophrenia, and such publication would be inappropriate. However as depicted in Irish Times Ltd v Ireland, the courts, may encounter difficulty in attempting to acquire a balance between the public administration of justice in public and the defendant’s right to a fair trial. [13] Hamilton CJ in Irish Times Ltd cited that in keeping with Article 34.1 and the defendant’s rights, ‘these 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.’ [14]

Article 40.6.1° explicitly contains provision stating that the ‘publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.’ [15] Considering that the Defamation Act 2009 does not illustrate the offence of publishing indecent material, rather making the provision for blasphemous utterances under section 36, perhaps it was thought by legislators that such offence was satisfied under section 14 of the Censorship of Publications Act, 1929. [16] O’Flaherty J in Irish Times Ltd was also of the viewpoint that Article 40 made provision for freedom of the press and that such protection was not restricted to ‘mere expressions of convictions and opinions’. [17] However, it must be acknowledged such restrictions provided for under the s.14 of the 1929 Act were of a different nature than today’s use of reporting methods with regard to anonymity. O’Flaherty J depicted the latter point commenting that ‘while the press may attend, legislation requires that when they report, they must do so in a way that safeguards the anonymity of the parties,’ [18] referring to section 20(3) of the Criminal Justice Act 1951. [19] If circumstances prevail, the 1929 Act allows for a severity of the offence of publishing indecent matter under section 15. [20] The latter sections 14 and 15 of the 1929 Act therefore lend the suggestion that they cater for a protection of public morality rather than specifically that of privacy.

It is common practice for intermediaries such as Facebook or Google to request that an individual seeking identities of persons falsifying information relating to them, to first, obtain a court order to reveal these identities. However in obtaining such an order, due to the Article 34.1 provision that justice be administered in public, a wronged applicant may have to disclose their own identity as well as detailing the grounds for complaint. Such complaint may arise from a case of cyberbullying for example, therefore the applicant does not wish to publicise such distress. At this point, an applicant may make a request to the court to have the claim brought anonymously. In the caselaw to follow this point, it is not transparent whether a person would ultimately succeed in their claim for anonymity in Ireland.

In McKeogh v John Doe, ex parte interim orders were set prohibiting a YouTube video insinuating that a falsely identified student was guilty of running from a taxi without paying the fare, from being published. Recognising Article 34.1’s requirement that justice be administered in public, Peart J illustrated in McKeogh, that the claimant cannot request anonymity in court proceedings. Therefore such a request of privacy was refused, as Peart J commented that ‘there is something counterintuitive about the idea that a person who seeks reliefs from the Court aimed at vindicating his good name, by way of damages or otherwise, would seek to do so anonymously.’

Similarly in Re Ansbacher (Cayman), an order constituting that proceedings be conducted in camera was refused, [21] concerning the anonymity of inspector’s within an investigative report. The latter again relying on Article 34.1’s provision of the public administration of justice. [22] In Re R Limited, [23] which considered the provision of s.205(7) of the Companies Act 1963, as an exception to Article 34 [24] , Walsh J submitted that ‘The Constitution of 1937 removed any judicial discretion to have proceedings heard other than in public save where expressly conferred by statute. Indeed many matters which come under the heading ‘lunacy and minor matters’ probably do not constitute the administration of justice but simply the administration of the estates and affairs of the Wards of Court.’ [25]

Following Re R Limited, an application was made seeking proceedings under an assumed name in Roe v Blood Transfusion Board, as that the court did not have jurisdiction grant the plaintiff prosecution proceedings under a ‘fictitious name’. [26] The latter use of a fictitious name would therein impugn Article 34.1. As the latter cases purport a literal and somewhat strict interpretation of Article 34.1 in Ireland, it would suggest that an applicant’s request to the courts for anonymity would not succeed. It also worthy to note the in camera rule as a privacy protection mechanism, however as it stands, it is clear that it intends to anonymise that of children and their respective families in cases of cyberbullying. The latter suggests therefore that had the claimant in McKeogh for instance, been a child, he may have availed of a successful claim of action under this provision. [27]

Adversely, in the Canadian Supreme Court case of AB v Bragg Communications Inc., Abella J allowed an application for anonymity, as in her view, open justice was of critical importance, however held that it was ‘outweighed in this case by the need to protect children’s privacy and to protect them from cyberbullying.’ [28] In AB, Abella J illustrated the significance of open justice as a ‘hallmark of a democratic society’ which is ‘inextricably tied to freedom of expression’. [29] The question thereafter is in balancing the open court principle with the privacy rights of the applicant that ‘fully respects the importance of both rights’, as expressed in Dagenais v Canadian Broadcasting Corp. [30] Therefore in garnering the principles held by Abella J in AB, the claimant was, in essence permitted to confront her anonymous cyber-bully with anonymity herself.

The strict Article 34.1 interpretations held by the courts in McKeogh and Re Ansbacher have however been relaxed somewhat in certain instances. In the Irish case of DF v Commissioner of An Garda Síochána, an order requesting anonymity was granted by the Supreme Court as it held that identifying the individual would cause undue stress. [31] The DF case acknowledges a shift in balance towards privacy, especially in terms of vulnerable individuals underlining the limitations to the application of Article 34.1 in ‘such special and limited cases as may be prescribed by law’. [32] However, Hogan J recognised that, in some instances, ‘anonymity can be abused’. [33]

11 Supremecourt.ie, Jurisdiction Of The Court (2015)
12 [2007] IESC 37.
13 [1998] 1 IR 359.
14 Id. (Hamilton CJ)
15 Article 40.6.1°(i)
16 The 1929 Act, s.14(a) caters for Restrictions on publication of reports of judicial proceedings — regarding ‘any indecent matter the publication of which would be calculated to injure public morals…’
17 [1998] 1 IR 359. (O’Flaherty J)
18 Id.
19 The 1951 Act, s.20(3): Clearing of court and prohibition of reports of proceedings — ‘indecent or obscene nature’.
20 The 1929 Act, s.15(1); ‘If any person being the proprietor, editor or publisher of any book or periodical publication or being a master printer engaged in the printing of such book or publication prints … shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine…’
21 The then Minister for Justice, Equality and Defence, Alan Shatter TD, signed the Courts and Civil Law (Miscellaneous Provisions) Act 2013 (Part 2) (Commencement) Order 2014 commencing Part 2 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013 regarding the in camera rule. Intended to balance the public’s right of knowledge with the family’s right to privacy — prohibiting reporting of information that would identify the parties to the particular proceedings.
22 [2002] 2 I.R. 517.
23 [1989] IR 126
24 Companies Act 1963, s.205(7):’ If, in the opinion of the court, the hearing of proceedings under this section would involve the disclosure of information the publication of which would be seriously prejudicial to the legitimate interests of the company, the court may order that the hearing of the proceedings or any part thereof shall be in camera.’

25 [1989] IR 126 (Walsh J) at p.135
26 [1996] 3 IR 67 (Laffoy J)
27 In this scenario, had McKeogh been a child, he may rely on s.45(1)© of the Courts (Supplemental Provisions)
Act, 1961: ‘Justice may be administered otherwise than in public in any of the following cases — lunacy and minor matters’.
28 2010 NSSC 215; 2012 SCC 46 (Abella J) at 13. This case surrounded a teenager who was being cyber-bullied, and took action though her father, to sue for the identification of the user’s IP in order to take a further defamatory action against them — although initially refused anonymity by LeBlanc J, the claimant, on appeal to the Supreme Court, was allowed to pursue proceedings anonymously by Abella J (& Ors.)
29 2012 SCC 46 (Abella J) at 11.
30 [1994] 3 SCR 835, 1994 CanLII 39 (SCC) (Lamer C.J) at 839.
31 IESC 44 (Supreme Court, Charleton J, May 15th, 2015) at 22; 29.
32 Id. at 22.
33 Id. at 24. Hogan J: ‘The trial judge especially relied on the judgment of Laffoy J in Roe v Blood Transfusion Service Board [1996] 3 IR 67 at 71 and the decision of McCracken J in Re Ansbacher (Cayman) Ltd [2002] 2 IR 517 and ruling of Clarke J in Doe v Revenue Commissioners [2008] 3 IR 328. All of these decisions, in the absence of the express legislative exception prescribed in Article 38.1 of the Constitution, and in the particular circumstances of those cases in that context, held that anonymity could not be ordered for the litigants in those cases.’ — underlining the difference in the DF case.