Hickey Anor -v- Sunday Newspapers LtdNeutral citation IEHC 349.
High Court
Judgment was delivered on October 8th, 2010, by Mr Justice Nicholas Kearns, president of the High Court.
Judgment
The publication of a photograph of the plaintiff, Ruth Hickey, and her partner leaving the Registry of Births with their son, along with an accompanying article quoting an abusive phone call from her partner Mr Agnew’s estranged wife, Adele King, did not infringe Ms Hickey’s right to privacy and was not defamatory.
Background
Ms Hickey is a former classical musician and PR consultant. On February 15th, 2006, she gave birth to a baby boy, Jesse Isaac, fathered by Mr Agnew, a professional musician and husband of Ms King, known as Twink, whom he had left to move into Ms Hickey’s home in 2004. The events attracted considerable publicity and Ms King spoke publicly on more than one occasion about her outrage.
Ms Hickey wrote an article in August 2005 for Social and Personalmagazine about a stay in Powerscourt Springs with her "partner" David Agnew, in which they appeared photographed together. She became pregnant that year, and in September gave details of the impending birth to journalist P J Gibbons, which was published in the Irish Examiner on September 17th.
Following the announcement by the couple of the birth of their son in February 2006, Ms King left a “torrent of abuse” on Mr Agnew’s voicemail, which ended up on the internet. This referred to Ms Hickey as a “whore” and her son as a “bastard”.
On May 10th, 2006, the couple were photographed emerging from the Registry of Births, Marriages and Deaths with their son in a carry-cot. His features were not shown.
Ms Hickey's solicitor wrote to the Sunday Worldprotesting at the photographer's behaviour. The picture was published in the Sunday World on May 14th, accompanied by an article describing the baby as the couple's "love child". It also quoted Ms King describing the plaintiff as a "whore".
Ms Hickey’s solicitors wrote again to the newspaper, complaining about the invasion of their client’s privacy, alleging defamation and seeking undertakings that the paper would cease surveillance of her, refrain from publishing photographs and refrain from defaming her. In reply, solicitors for the newspaper denied there was any surveillance, undertook not to publish photographs of “private activities” and denied defamation.
A subsequent letter on behalf of Ms Hickey sought an apology and compensation.
In August the newspaper published a second article, describing in detail the contents of Ms King’s phone message and accompanied by another photograph taken outside the Registry of Births office. Ms Hickey sued on her own behalf and that of her son for breach of privacy and defamation.
Her counsel claimed that although the photographs were taken in a public place, the context and accompanying articles amounted to an unacceptable intrusion into her private life. She cited the UK case of Campbell -v- MGN Limitedand the ECtHR case of Von Hannover -v- Germany. She said ascribing the word "whore" to her was defamatory in suggesting she engaged in sexual acts other than in furtherance of a loving relationship.
The defendants referred to the constitutional right to freedom of expression and the finding in Herrity -v- Associated Newspapersthat the right to privacy will only outweigh it in exceptional circumstances.
They pointed out that the existence of the child was already a matter of public record and the plaintiff had spoken to a journalist with the specific intention of publicity for the matters on which she now sought privacy. In relation to the defamation claim, they said the word objected to was reported speech on the part of Ms King and no ordinary reasonable reader could believe it was being seriously suggested Ms Hickey was a prostitute.
Decision
Mr Justice Kearns said the jurisprudence in this jurisdiction as to where the line was to be drawn between the right to freedom of expression and the right to privacy was an evolving one and neither right was unqualified. Restricting freedom of expression for privacy considerations required circumstances which can be very clearly identified.
This was examined in detail by Ms Justice Elizabeth Dunne in Herrity, but there the breach of privacy entailed a breach of the Postal and Telecommunications Services Act. A right of privacy was less easily established in public places, especially where one was performing a function of a public nature.
"This was not a private celebration or event in the plaintiff's own home or at some other location to which a legitimate expectation of privacy attached," Mr Justice Kearns said, adding that the cases of Campbelland Von Hannoverwere not of much assistance to the plaintiff's case, because of their different individual circumstances.
Instead he considered the New Zealand case of Hosking -v- Runting(2005) where a television presenter sought to prevent the publication of a photograph of his infant twin daughters on a pavement. He failed, on the grounds that the publication showed no more than would have been seen by any member of the public on that day and would not lead to a risk of real physical harm to the children.
Overall, Mr Justice Kearns said he was not satisfied that the publication of the photographs amounted to a breach of privacy. They were taken when the plaintiffs were in a public place, carrying out a public function; they did not disclose anything not on the public record; nothing in the publication exposed the plaintiffs to any risk of physical harm; the features of the child were not recognisable; the couple had elected themselves to bring the child with them to the Registry of Births; Ms Hickey had already spoken to a journalist about the impending birth, and the voicemail message was already in the public domain.
“I am satisfied that the first-named plaintiff has herself actively sought publicity from the press and media concerning her partnership with Mr Agnew and the birth of their child . . . “I cannot therefore see anything in this case which has been placed in the balance by or on behalf of the first-named plaintiff to outweigh the right of freedom of expression to which the defendant is entitled,” he said.
On the question of defamation, he said that any reasonable reader would see Ms King’s comments as vulgar abuse expressed in strong and offensive terms.
However, he added: “The exercise in which the defendant newspaper engaged in respect of these two publications represented the lowest standards of journalism imaginable.”
The full judgment is on courts.ie
Turlough O’Donnell SC, Declan Doyle SC and Alan Doherty BL, instructed by McCann FitzGerald, for the plaintiff; Eoin McCullough SC and Brendan Kirwan BL instructed by Fanning & Kelly, for the defendant.