Photographs and Privacy – when does an expectation of privacy arise?

Brian Nolan and Sunday Newspapers Limited Trading As The Sunday World [2019] IECA 141

A recent Court of Appeal decision provided some interesting comments on the right to privacy in the context of photographs published by media organisations, where those photographs, obtained through legal means, are of a private individual at a private party.

Facts

The plaintiff issued proceedings claiming defamation and a breach of his constitutional right to privacy arising out of two articles published by the defendant.

The articles, viewed by the Court of Appeal Judge as being “salacious in nature”, were accompanied by photographs of the plaintiff attending what were described as sex parties or “swingers’ parties” in the company of females who were “scantily clad”. The photographs had been provided to the defendant by the plaintiff’s then partner, following the break-up of the relationship. The plaintiff gave evidence that some of the photographs were not even taken at the “swingers’ parties” but were in fact taken at a private Halloween party.

In the High Court, the trial judge, Mr Justice Tony O’Connor, sitting without a jury, found that the plaintiff’s right to privacy had not been engaged because:-

• The plaintiff only had a loose understanding or agreement with unidentified individuals that the photographs taken at the parties would not be disclosed to anyone outside the group who attended the parties without the consent of those attending; and

• that the plaintiff had consented to the taking of photographs by a stranger who attended the party; and

• it was clear that those photographs were freely available among up to 26 people of whom he might have only known four at most.

In any event, he felt that the plaintiff would be adequately compensated by the damages awarded in respect of the defamation claim.

The defendant appealed the decision of Mr Justice O’Connor and the plaintiff cross-appealed in relation to the decision by Mr Justice O’Connor that his right to privacy had not been engaged.

Conclusions

In the Court of Appeal, Mr Justice Peart, in finding that the plaintiff’s right to privacy had in fact been engaged and that there had been a breach of that right to privacy, made the following points:-

• It was not known who owned the photographs;

• It was implicit that the photographs would never be published in a newspaper without the consent of the other attendees who could be identified;

• The photographs were not taken in the public arena;

• The plaintiff’s consent to the photographs being taken did not amount to a waiver of his right of privacy in respect of those photographs.

Mr Justice Peart concluded that they were private photographs taken for a private purpose which were never intended to be made public. He also found that the defendant was aware that the publication of the photographs was an invasion of the plaintiff’s privacy as it had pixelated the faces of the other persons in the photographs and knew that he did not consent to the publication of the photographs.

Mr Justice Peart was satisfied that there was no overriding public interest to be served by the publication of the photographs. The plaintiff is not a public figure. He was a private person despite the fact there had been some limited publicity surrounding his conviction some ten years previously and his even earlier status as an inter-county footballer with some success. The defendant’s argument that its right to freedom of expression outweighed the plaintiff’s right to privacy was therefore rejected.

Mr Justice Peart found that the breach was “deliberate, conscious and premeditated”.

Mr Justice Peart noted that the trial judge had distinguished this case from cases where the breach of privacy had emanated from an illegal act. In this case, the photographs had not been obtained illegally.

He awarded the plaintiff €50,000 for the breach of privacy aspect of the claim.

Comment

In overturning the finding of the trial judge that the plaintiff’s privacy had not been engaged, Mr Justice Peart acknowledged that where a plaintiff has pleaded that his right to privacy has been breached in addition to pleading that he has been defamed, the plaintiff is entitled to be compensated under both heads of claim. Had the decision of the High Court trial judge been upheld, it may have led to a situation where a plaintiff’s claim for a breach of privacy could not be fully ventilated if that claim was included in proceedings where a claim under a separate head of loss would provide a greater award of damages than the claim for breach of privacy. Mr Justice Peart’s decision on that point was delivered with significant clarity.

Another interesting point relates to Mr Justice Peart’s finding that the photographs were not taken in the public arena. The judgment of Kearns P in Hickey and Another –v- Sunday Newspapers Limited [2010] IEHC 349 noted that it was :-

“far from easy to determine where the parameters to the right of privacy may lie when placed in balance with the right of freedom of expression. One intuitively feels that a right of privacy is less easily established in public places where a person, in the words of T.S. Eliot, has had time “to prepare a face to meet the facers that you meet”.

In Hickey the plaintiff was photographed with her son coming out of the Registry of Births, Deaths and Marriages on Lombard Street in Dublin. The photographs were taken when the photographer and plaintiffs were in a public place and performing a routine public function. There could be no expectation of privacy in that instance.

In Nolan, it was found that the photographs of the plaintiff were private, taken for a private purpose and were never intended to be made public despite being freely available among up to 26 people.

Those two cases, Nolan and Hickey, are probably located at either end of a spectrum of cases that consider what a public arena is. It will be interesting to watch over the coming years how courts will deal with cases on that spectrum. It is relatively easy to see how disputes may arise over what precisely is a public arena, particularly where people might attend an event with different expectations of privacy. The Nolan decision may also have implications where images are published which were initially shared via social media to closed groups of people. How the courts will balance the right to privacy with the right to freedom of expression in those circumstances will undoubtedly provide challenges for those in media organisations when considering what photographs can be safely published.