Privacy Bill: Media organisations that publish intimate photographs or personal information about celebrities could face legal action under the new proposed Privacy Bill.
The Bill, published yesterday, makes it a tort (or civil wrong) for which damages can be sought to violate a person's privacy. It also states that this is actionable without proof of special damages; that is, financial loss.
In the explanatory material that accompanies the Bill it is stated that all persons are entitled to a personal sphere for privacy and non-intrusion. While for public figures that sphere was necessarily smaller than for private citizens, even an individual with a public persona had a right to a certain level of privacy.
The Bill is based on the lengthy report on Privacy drawn up by a working group under the chairmanship of Brian Murray SC, which was also published yesterday. It draws on the case-law from the European Court of Human Rights, particularly of a case concerning Princess Caroline of Monaco, whose privacy was found to have been violated by a German magazine that published photographs of her shopping.
The Bill applies to newspapers and magazines, broadcasting organisations, and to the extent it is technologically possible, the internet. For any of these organisations, it can be a defence against an action under the new privacy law that it was newsgathering in good faith and that this was for the purpose of discussing a subject of public importance, was for the public benefit and was fair and reasonable in all the circumstances.
Privacy is not defined in the legislation. However, it states that the privacy to which an individual is entitled is "that which is reasonable in all the circumstances having regard to the rights of others and to the requirements of public order, morality and the common good."
Actions that will be held to violate a person's privacy will include any form of surveillance, the disclosure of material obtained by surveillance, the use of a person's likeness for financial gain without consent, the disclosure of letters, diaries, medical records or other personal documents, and harassment as defined in the Non-Fatal Offences Against the Person Act.
The court will have regard to the place where the act was committed; the age of the individual complaining; the office or position he or she held, and the extent to which the act related to it; the purpose for which the material was being used; whether trespass was involved and whether any other offence was committed.
Even if the material was already contained in a register to which members of the public had access, or the material had been disclosed to the person's family or friends, or to another person without the consent of the complainant, the person or organisation publishing it could still be sued.
A number of defences against a privacy action are listed. These include an action, including legal action, undertaken to protect a person or property; an action authorised by law; one carried out by a public servant in pursuit of his or her duty; the use of CCTV for crime prevention; newsgathering under certain circumstances.
There will be no violation of privacy where the act is done by individuals in good faith, in order to discuss a matter of public importance. The action must be taken within a year of the act that is complained of or within two years in exceptional circumstances, if the court permits.
If the plaintiff succeeds, the court can make a variety of orders. These include prohibiting the defendant from doing any act that would violate the plaintiff's privacy; order him or her to pay damages; order him or her to pay over any financial gain they obtained from the violation; and order the return of any material obtained. There is provision for hearing the action in camera if hearing it in public would further violate the privacy of the complainant. Privacy actions will be heard by a judge alone, without a jury, and can be heard in the Circuit or the High Court.