Do politicians have the same rights as other citizens when it comes to defamation and privacy?
Politicians have the same rights and legal entitlements as all other citizens. Reputation for a politician is crucial although, if that is impugned, they have several platforms to tackle that. The public nature of political office means, when a politician sues for defamation/breach of privacy, the position may be more nuanced than the ordinary citizen. It depends on the nature and context of the alleged defamation/breach of privacy and whether publication might be regarded as justifiable in the public interest or on grounds of freedom of expression. The publication of a politician’s health records, for example, is very likely to be regarded by a court in a different light than publication of financial information implying a politician accepted a bribe or obtained money from criminal or questionable sources.
What about the spouses of politicians?
Political spouses are citizens who enjoy the same rights but the fact of their marriage to a public figure can complicate the position when it comes to privacy. Akshata Murty, wife of new British prime minister Rishi Sunak, and heiress to a fortune worth billions, was put under the spotlight earlier this year when it emerged she held a tax status which meant she did not have to pay tax on her earnings from outside the UK. She later agreed to pay UK taxes on her worldwide income. Legal sources here have noted, when questions were raised about the source of former taoiseach Charles Haughey’s wealth after he bought the substantial Kinsealy estate, those focused on Mr Haughey and his wife did not come into the picture. Some legal sources consider that questions about the source of income or assets of a politician’s spouse can, depending on the circumstances, be subject of publication without any breach of privacy. Others say there should be a strong evidential basis to justify the publication of such questioning.
What’s the prospects for politicians who sue for defamation?
A defamation case by a politician can be a gamble. Such cases are heard by juries, who are generally regarded as fair, but there is always a concern one or more jurors might be affected by negative views of the politician or their party. The uncertainty, as well as high legal costs, is likely to have contributed to decisions to settle such cases with few proceeding to a full hearing and verdict. Some politicians are content to threaten proceedings via solicitors’ letters without following through with litigation. Some defamation lawyers say, while such letters can have a short-term chilling impact, a failure to follow through can risk further, and sometimes enhanced, publication of the material complained about.
What about privacy claims?
A claim for breach of privacy may be added to a defamation case, or may be pursued alone, but it is for a judge to decide privacy claims. There is no express right to privacy in the Constitution but it recognises an implied right to privacy in certain contexts.
In the landmark McGee case, the Supreme Court recognised the right to matrimonial privacy as a constitutionally protected unenumerated personal right. The court indicated that right inheres in the individual by reason of their human personality. The courts have also indicated the right to damages for breach of privacy rights may not be limited to claims against the State. Privacy rights are also protected under data protection law, with certain exemptions, including for data used for journalistic purposes with public interest considerations coming into play.
Because there are few decisions of the superior courts dealing expressly with the right to privacy, the extent of the right remains unclear. The case law to date shows the right is not unfettered and must be balanced against the right to freedom of expression with public interest considerations an important factor. The European Convention on Human Rights expressly provides that everyone has a right to respect for private and family life and might be relied on by plaintiffs in appropriate cases.