In a case which raises issues relating to the constitutional right to privacy, a newspaper is appealing against an award of damages to a GAA player arising from publication of a photograph in which his private parts were exposed.
Mr Justice Declan Budd is hearing final legal submissions in the appeal by the Carlow Nationalist against a Circuit Court judge's finding in favour of Richard Sinnott (23), Clonegal, Co Carlow.
Legal submissions by Simon Boyle on behalf of Mr Sinnott concluded yesterday and closing submissions on behalf of the newspaper will be heard next Friday. After that the judge is expected to reserve his decision.
The action arises from publication in June 2005 in the Carlow Nationalist of pictures of Mr Sinnott in a GAA match. His private parts were visible in one photograph. He was awarded €6,500 damages and costs against the Nationalist & Leinster Times, Carlow, at Carlow Circuit Court last June.
Mr Sinnott had given evidence of being very upset by the publication. He said his dream as an amateur footballer at the peak of his career, of playing at Croke Park for the first time on the Sunday after publication, was ruined.
He had taken special precautions for that match to ensure he did not become exposed again, which showed how tense he became, to which he attributed his sending off during that match.
In its appeal against the Circuit Court decision, the newspaper has argued that a claim by Mr Sinnott of damages for defamation was correctly abandoned in the Circuit Court.
It disputes that there is a cause of action in relation to the intentional infliction of emotional harm, negligence or breach of Mr Sinnott's right to privacy.
It has also been argued that the issues which arise in the case are of such importance that the High Court should certify certain points of law for clarification by the Supreme Court.
The newspaper claims that the court cannot find that the publication of the photograph was intentional. Even if the court found it was intentional, there was no evidence of "harm" in the case.
There was also no basis for a claim of negligence because there was no evidence of injury, it is argued.
The newspaper further argues there is no common law tort (legal wrong) of privacy recognised in either Ireland or Britain.
The publication of the photograph of Mr Sinnott was accidental, it submits. While conceding a constitutional right to privacy, the paper contends that the court must rule that any breach was deliberate, conscious and unjustifiable.
Mr Boyle said it was open to the court to show that publication was deliberate and conscious.
He said there was at least one opportunity before publication to view the photograph in full size and the newspaper had not called certain possible witnesses, including the photographer.
It was also submitted other people were involved in the production process who had not given evidence, who should have noticed the exposure but may have decided to keep the photograph in.
In this case, any reasonable person would find publication of a photograph of their private parts highly offensive and objectionable. Mr Boyle said this case involved an inherently private matter which should never have been disclosed. The fact that the photo was taken in a public place did not prevent its publication from being a breach of Mr Sinnott's right to privacy.
During the hearing, Mr Justice Budd remarked the court was "treading delicately" on ground where legislation was being prepared.
