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Topic 11- The Right to Privacy (Surveillance (Surveillance of another…
Topic 11- The Right to Privacy
Development
McGee v Attorney General
Facts: SC struck down ban on importation of contraception as it offended against marital privacy
Four judges in the majority each differed in the scope they afforded to privacy
WALSH J: rooted his understanding squarely within marital family
Relies on
A41
(Family rights)
Provides right of marital prvacy
Was a matter for a husband and wife to decide the number of children they have
The individual has natural and human rights over which the state has no authority; and the family, as the natural primary and fundamental unit group of society has rights as such which teh state cannot control
BUDD J: envisages a wider right to privacy
Did not limit it to marital privacy
-It was one of the 'personal rights' protected by the constitution
'right to privacy is universally recognised and accepted'
HENCHY J AND GRIFFIN: Fell somwhere in middle
describe right as a personal one but spoke in terms of marital privacy
Henchy J referred to a 'personal right to privacy in regard to her marital relations'
Griifin J referred to 'right to marital privacy' as a personal right
Note
: 3 of 4 judges rooted privacy as a personal right, rather than aspect of A41
Norris v Attorney General
Facts: Challenge to criminalization of buggery
Held: Majoirty of Court held that Norris (as a gay man) did not have locus standi to rely on marital privacy
O'Higgins CJ: didn't refer to any law in this decision
Homosexuality always condemned in Christian teaching as being morally wrong etc etc
Preamble affirms Ireland's adherence to the Christian faith
Moral considerations can limit right to privacy
Henchy J: Dissenting
Right to privacy is well recognised by the Courts
McGee was an example of marital privacy but many other aspects of privacy yet to be given judicial recognition
Commenting on the Christian and Democratic nature of the state:
*'What is deemed necessary to his dignity and freedom by one man may be abhorred by another as an exercise in immorality
the pluralism necessary for preservation of constitutional requirements in Christian, democratic state envisaged by Constitution means that the sanctions of the criminal law may be attached to immoral acts only when the common good requires their proscription as crimes'*
Kennedy v Ireland
HC- finally established existence of a general right privacy in the Constitution
Facts: Minister for Justice tapped phones of two journalists
Admitted this had been an error of judgement, but denied any constitutional right breached
Held: The right to privacy was constitutionally protected
phone tapping was '
deliberate, conscious and unjustificable
*Though not specifically guaranteed by Constitution, right of privacy is one of the fundamental personal rights of the citizen which flow from Christian and democratic nature of State
Not an unqualfied right
exercise may be restricted by constitutional rights of others, by the requirements of common good and is subject to requirement of public order and morality*
IOT v B:
Hamilton CJ expressed approached Kennedy passage
Sc enumerated another constitutional right: The right to know identity of one's natural mother
Held Right would have to be balanced on case-by-case basis with the mother's right to privacy
Factors relevant (non-exhaustive)
Circumstances of relinquishing custody
Present circumstances of mother
Impact on mother of disclosure of her identity
Attitude of mother to disclose her identity
Respective ages of mother and child
Reasons of child to want identification
Present circumstances of child
View of foster parents
Note- right to privacy can limit other constitutionally protected rights
Foy v An tArd-Cháraitheoir:
Male to female transsexual, identified herself as female
sought change in birth certificate
2002 Case: HC dismissed case
Birth certificate was only a snap shot in time
State had legitimate interest in recording births
No right to retrospectively change birth cert
Note
: Diff it would pose to status of existing marriage (at time same-sex marriage not permitted)
Goodwin
ECtHR: held such circumstances breached ECHR law
2007 Case: Foy appealed to SC which remitted matter to HC to consider the ECHR case
Followed Goodwin and held P's ECHR breached but he did not alter his position re constitutional finding
Noted ECHR applied at a subconstitutional level
DPP v Wilson:
Accused convicted of murder based on DPP evidence
Refused to give forensic sample
Gardai analysed his discarded cigarette butts
Held: Persons in custody have same privacy rights as others
Held: No breach of rights to analyse discarded material= proportionate interference as need to investigate serious crime
DPP v Harty
: Appeal against conviction for danagerous driving causing death
Blood sample taken after crash showed alcohol
Issue: Argued retention of sample breached privacy rights
Held: C of A- Agreed a person does haev a right to privacy over medical records BUT THAT THE RIGHT WAS NO ABSOLUTE
Outweighed by public interest in prosecuting crime
Note- accused signed consent form but for technical reasons didn't cover records in qu
suggested better justification for court decision would be to recognise privacy breach BUT evidence admissible per JC
Minister for Justice v Mangan:
Request by Spanish authorities for extradition on drug charges
Spanish ID'd D through phone tapping of another person in Spain
Issue: was the right to privacy engaged by tapping calls in spain
Held:Phone was tapped in Spain and therefore Irish right not engaged
Noted that order was not challenged in Spanish
Simpson v Governor of Mountjoy Prison:
Court held applicant's right to privacy breached but awarded no damages for that breach
Facts: Prisoner, shared cell w another prisoner for 23 hours a day w/o access to in-cell sanitation
Held: Breach of right to privacy
No damages- applicant had exaggerated the actual position and had given false evidence under oath
Surveillance
Surveillance of another person may amount to breach of their privacy
Kane v Governor of Mountjoy Prison:
Facts: Applicant placed under overt surveillance pending an extradition warrant
Held: Surveillance could be unlawful in absence of specific justification
on facts, court justified having regard to nature of the surveillance and important police duty being performed
Atheron v DPP
: Accused charged wih cutting neighbour's hedge without permission
Neighbour set up CCTV acrsos road to film hedge
Issue: Accused tried to have CCTV evidence excluded at trial on basis it infringed his right to privacy
Held: Rejected
Court noted CCTV only captured what was visible from the road
Therefore privacy not infringed
Implication: things could be different in CCTV had captured footage in an area not visible from public road e.g. back garden
Noted: Placing of CCTV invovled acts of trespass that may have involved breach of privacy
DPP v Idah
:
Facts: Undercover police posed as drug couriers where they obtained evidence against accused re drug offences
Issue: Accused appealed convictions on basis that such evidence should not have been admitted
Criminal Justice (Surveillance) Act 2009 drew distinction between 'surveillance' and use of a 'surveillance device'
Former not regulated by the Act, but latter is
Held: Terms of Act not followed
any footage from use of a 'surveillance device' inadmissible
Conviction quashed on that basis
Held: closer one gets to crimiality, the lesser the expectation of privacy
Investigation of crime weighs heavily
Cogley and Ahern v RTE
Facts: Secret filming in a nursing home by RTE
Issue: Nursing home sought an injunction restraining any further showing of footage
Held: Refused
Clark J made two important comments re right to privacy
Weight to be attached to right to privacy could vary significantly depending on facts
Stated that privacy could apply to the information itself or the manner by which it was obtained
-Latter point worth noting for PQ: e.g. if person placed under surveillance but no particularly private info obtained process of being placed under surveillance could still be unlawful
Schrems v Data Protection Commissioner
:
Hogan J obited
Privacy would be breached by mass surveillance by State authorities of conversations and communications within the home
In order to be lawful would require justification e.g. prevention of crime/national secuirty as well as verifiable safegaurds
Privacy in Business Dealings
Privacy re business or commercial activity is less protected than more personal aspects of privacy
Caldwell v Mahon Tribunal:
Tribunal investigating ownership of lands
P owned land through various companies and objected to the inquiry on the basis it would infringe the confidentiality of his business affairs
HC: Dismissed case
Held that business privacy was at the
outer reaches of privacy
As a result common good weighed more heavily against it
Approved-
Digital Rights Ireland v Minister for Communication
: Held- privacy on business transactions is less than personal privacy
Also noted storage of data 'might be' a breach of privacy under A8 of the ECHR
CRH Plc, Irish Cemen Limited v Competition and Consumer Protection Commission
Facts: challenge to actions of CCPC insofar as it entered P's premises and took material from it
Done pursuant to warrant which had been obtained on basis that it beleived P had info 'necessary for the exercise by CCPC and its functions'
Commission originally intended to review all material take, later said they would search the material by use of unspecified key words
Issue: P challenged search on basis it breached their right to privacy
Discussion; SC- robust approach to privacy
MacMenamin J- no. of occassions described it as an 'increasingly important right in the modern world
Privacy includes a 'core element' and also a 'penumbra'
Corporate entity entitled to assert right to privacy
Infringement: A careful proportionality analysis is necessary of this statutory measure
Tht is so as to ensure it does not encroach into constitutional right more than is rational, necessary, essential or proportionate to lawful objective which it is designed to achieve
Applying test: All facs point to an unnecessary, irrational, incursion which went well beyond what should haave been the objective sought to be achieved
lack of specificity in warrant
Anyone reviewing it would not know what material covered and what was not
-Material taken= too broad, included irrelevant material
court did recgonise strong protection on the rights of corporate bodies
noted some interests may be more core to right to privacy than others
Court distinguished between this case a search which may follow commission of serious crim- when Gardai are investigating crime, may be permissible to seize irrelevant material