The Right to Privacy

The right to privacy in Ireland is guaranteed both in our constitution and on a European level.

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1. “The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”

2. The right to privacy was first recognised in this jurisdiction in McGee v Attorney General,
Walsh J. in the Supreme Court held that “Article 41 of the Constitution guarantees the husband and wife against……invasion of their privacy by the State.”

3. In Kennedy and Arnold v Attorney General , Hamilton P held that the right to privacy was one of the unenumerated rights recognised by Article 40.3 of the Constitution.

4. Article 8 of the European Convention on Human Rights (hereafter referred to as the ‘ECHR’) is entitled “Right to respect for personal and family life” and it states that:

a. ‘Everyone has the right to respect for his private and family life, his home and his correspondence.

b. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

5. Rights under the ECHR are used as a justification for the enactment of Directive 95/46. At recital 2, the Directive sets out that the design of data processing systems “must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms, notably the right to privacy”

6. The ECHR became part of Ireland’s domestic law on the commencement of the European Convention on Human Rights Act 2003. Section 2(1) of the Act provides :
‘in interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.

7. Privacy clearly exists as a right in both the Constitution and the ECHR.

8. This Act requires that the Data Protection Acts must be interpreted in a manner compatible with the ECHR.

9. The Oireachtas has yet to regulate for a general right to privacy, however, the Data Protection Acts is one of a variety of legislation which does create more specific privacy rights.
Despite the existence of all the above safeguards, in the pragmatic sense there is little protection afforded to us in the context of privacy rights.

In addition to these existing safeguards to the right to privacy there is also a proposed new Privacy Bill. The purpose of the Bill is to provide for a new tort of violation of privacy taking into account the jurisprudence of our courts and the European Court of Human Rights.

Section 2 provides that it is a tort for a person willfully and without lawful authority to violate the privacy of an individual. The tort is actionable without proof of special damages.

Section 5 provides for a number of defences to an allegation of violation of privacy. These essentially involve where the act was that of a public servant acting or reasonably believing themselves to be acting in the course of their duties, etc.

Section 7 provides a jurisdiction for actions taken in the Circuit Court where the claim does not exceed €50,000.

Article 40.3 of the Constitution
[1974] IR 284 at 313
[1987] IR 587 at 592