THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

(LRC 57–1998)

REPORT ON

PRIVACY:

Surveillance and

the Interception of Communications

IRELAND

The Law Reform Commission

Ardilaun Centre, 111 St. Stephen's Green, Dublin 2

© Copyright The Law Reform Commission 1998

First Published June 1998

ISSN 1393-3132

THE LAW REFORM COMMISSION

The Law Reform Commission was established by section 3 of the Law Reform Commission Act, 1975 on 20th October, 1975. It is an independent body consisting of a President and four other members appointed by the Government.

The Commissioners at present are:

The Hon. Anthony J. Hederman, former Judge of the Supreme Court, President;

Ms Hilary A Delany, B.L., Lecturer in Law, Trinity College, Dublin;

The Right Honourable Dr Turlough O'Donnell, Q.C.;

Mr Arthur F Plunkett, Barrister-at-Law;

Ms Patricia T Rickard-Clarke, Solictior, Partner, McCann Fitzgerald Solicitors.

John Quirke is the Secretary to the Commission.

The Commission's programme of law reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas on 4th January, 1977. The Commission has formulated and submitted to the Taoiseach or the Attorney General fifty six Reports containing proposals for the reform of the law. It has also published eleven Working Papers, twelve Consultation Papers, a number of specialised Papers for limited circulation and eighteen Reports in accordance with Section 6 of the 1975 Act. Details may be found on pp.265–270.

Dr Gerard Quinn, B.A., LL.B., LL.M. (Harv.), S.J.D. (Harv.), Barrister-at-Law, is the Director of Research.

Mr Geoff Moore, B.C.L., Ms Lia O'Hegarty, B.C.L., LL.M. (Mich.), LL.M. (Harv.), Barrister-at-Law, and Ms Róisín Pillay, LL.B., LL.M (Cantab.), Barrister-at-Law, are Researchers.

Ms Mary Teresa Faherty, Ms Dympna Forde and Ms Deborah Parkes are the Administrative Staff.

Further information from:

The Secretary,

The Law Reform Commission,

Ardilaun Centre,

111 St. Stephen's Green,

Dublin 2.

Telephone: 475 1310.

Fax No: 475 1265.

Email: lrcsecretary@tinet.ie.

CHAPTER 1: OVERVIEW

A. THE BACKGROUND TO THIS REPORT

Introduction

1.1

This Report contains the Law Reform Commission's final recommendations with respect to privacy in the specific context of surveillance and the interception of communications. This Report does not cover the entire sweep of privacy but focuses on one discrete aspect, namely the invasion of privacy through surveillance and interception. While this Report covers in a general way the privacy problem posed by surveillance in all contexts it does not address the peculiarities that may arise in highly specific contexts such as employment, healthcare and the prison system. These areas pose additional and discrete problems best addressed /separately and later.

1.2

This Report should be read against the backdrop of the extensive comparative research and provisional recommendations contained in our Consultation Paper on the subject which was issued in September 1996². What that research revealed above all else was the growing nature of the problem of surveillance in contemporary society, the inadequacy of existing law and a trend toward the adoption of legislative solutions³.

1.3

Privacy is listed as one of the Commission's main areas of review in its Programme of Work⁴and this Report should therefore be seen as one element of work under that Programme on the general privacy issue.

1.4

In brief, our core recommendation is for the enactment of a civil tort directed against acts of privacy-invasive surveillance in circumstances where a “reasonable expectation” of privacy exists. We also make another recommendation for the enactment of a new but related civil tort of harassment. These torts would be directed to infringements of the privacy of natural (i.e. human) persons, not of bodies corporate, though (as pointed out by the European Court of Human Rights) this does not mean that infringements of the privacy of natural persons cannot occur in a corporate setting.

1.5

Our main ancillary recommendation is for the enactment of a related civil tort directed against the unjustified disclosure through publication or otherwise of information, images, etc., obtained as a result of the tort of unlawful surveillance or harassment. This does not amount to a full privacy law as conventionally understood – a prohibition on the publication of all manner of private material. Rather, the ambit of our ancillary recommendation builds on our main recommendation which is aimed at surveillance and interception. We make provision for a public interest defence to the tort of disclosure of information obtained as a result of unlawful surveillance.

1.6

With respect to criminal law we recommend that sanctions should be limited and confined to the most outrageous forms of intrusion in circumstances where the expectation of privacy is at its highest (in a dwelling) or where the activity in question is inherently private (e.g. private conversations), with supplementary prohibition of disclosure of information obtained by means of infringements of these provisions. Consistent with these recommendations we also propose an offence of trespass on private property effected for the purpose of obtaining personal information.

1.7

Lastly we make several specific recommendations with respect to regulatory safeguards in the context of certain types of surveillance of both public and private places conducted by the Gardaí and certain types of self-protective surveillance by owners or occupiers of premises, and other miscellaneous technical matters including the amendment of existing legislation.

1.8

To facilitate understanding of our recommendations we provide in Chapter 10 a detailed draft Heads of Bill setting out the new statutory torts and criminal sanctions we envisage together with explanatory notes for the Heads.

1. Why Privacy is Worthy of Legal Protection in a Democratic Society

1.9

Why is privacy so important? The distinctive feature of this Report is that it is animated throughout by a human rights approach to privacy. Privacy is not merely instrumental⁵ to the achievement of other goals but is a basic human right that applies to all persons in virtue of their status as human beings.

It is not possible to overstate just how fundamental privacy is in a developed and civilised legal system. A sense of its importance can be gleaned by rehearsing briefly some of the many important overlapping values that are served by it⁶.

1.10

First, privacy is closely connected to notions of inherent human dignity. The intimacies of private life go to the very core of what it means to be human. Privacy is therefore worthwhile in itself in protecting human personality or the inherent dignity of the person⁷. This is reflected in what the European Court of Human Rights refers to as the “physical and moral integrity”⁸ of the person.

1.11

Secondly, privacy is closely related to human freedom, autonomy and self-determination. Privacy provides vital space for personal growth and development and for the exercise of freedom. Human beings are not means to the ends of others but are ends in themselves and are free to choose their own goals in life. Self-determination means, in part, the freedom to select which aspects of one's personality should be shared with others and on what terms. Central to autonomy and the selection of personal life-choices is freedom from coercion and manipulation and the preservation of space for emotional release, self-evaluation and growth. This explains why privacy is so closely connected to the protection of human personality found in many constitutions including that of Germany. As the European Commission on Human Rights expressed this point:

1.12

The pursuit of private goals will often involve the formation of voluntary relations with others of varying degrees of intimacy. As the European Commission pointed out, privacy therefore entails the right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfilment of one's own personality¹⁰. Another way of looking at this is that privacy is necessary to give efficacy to the exercise of many different liberty interests including freedom of association.

1.13

Thirdly, privacy is much more than a tool for protecting the seclusion of the individual. It is an organising principle of civil society¹¹. Although man is a social animal and not a hermit, an orderly civil society is itself impossible without some sanctuaries away from everyday life. Privacy is at the heart of the implicit social contract in every society by which the terms of peaceful co-existence are set¹². In short, privacy entails much more than the protection of the person in seclusion; it is a way or organising society.

1.14

Fourthly, privacy is closely connected to the democratic life of the polity. This is so in at least two senses. First, democratic theory itself points strongly to the need for personal space. This is so because democracy rests on – and is bounded by – the dignity and equal inherent self-worth of all human beings. Democracy is not merely a process but also a value system. Secondly, an assurance of some secluded space away from public gaze is necessary to provide reassurance to those who have a contribution to make and who wish to enter public life.

1.15

Privacy is important for all these reasons and is therefore indispensable to the full flourishing of the human personality in a free society. We stress that while personal space is at its most visible in “private places” or on private property, it is not premised on, nor is it limited to, conceptions of property. Indeed, the chief deficiency of much existing law is that it tends to protect privacy – if at all – through property and through legal tools that protect property interests. Considering the values honoured by privacy, as set out above, one may have a “reasonable expectation” of privacy in many different contexts. It follows, in our view, that there may well be a residuum of privacy or a “reasonable expectation” of privacy even in a public place. This view accords with the overall approach being adopted by the European Commission and Court of Human Rights in interpreting Article 8 of the European Convention on Human Rights¹³.

1.16

Since privacy is so deeply connected to the inner sanctum of the person its violation can inflict deep and raw wounds and leave lasting damage. Intrusion into personal space can often be fairly characterised as a violation of the person. Furthermore – and due to the value and role of privacy in an orderly civil and democratic society – one person's loss of privacy is almost always of some broader social significance. In an important sense, one person's loss is every person's loss since it tears away at the terms of peaceful co-existence in society. Cumulatively such losses jeopardise every person's privacy and cannot be long ignored in democratic society.

2. The Dangers Posed by New Technology

1.17

Does surveillance pose a threat to privacy and, if so, how grave is the threat today? We believe that there is a privacy problem arising out of surveillance and that it is grave enough to warrant a legislative response. Two factors explain why there is a privacy problem in this regard today in Ireland:

1.18

Such an information-gathering interest may range from the perfectly legitimate (e.g., prevention and detection of crime by the Gardaí) to the utterly depraved (e.g., voyeurism) with many shades of grey in between.

1.19

The technological breakthroughs have been spectacular. It is surprising if not shocking to learn of the ease with which this technology can pry open personal space which may previously have been considered safe. Specific examples of listening and optical surveillance devices which are generally available were listed by the Australian Law Commission as long ago as 1983. The gravity of surveillance as a threat to personal privacy in today's world can be understood from considering the following list:

1.20

Indeed, the range and sophistication of technological devices which can be used for surveillance purposes have increased substantially since the Australian Law Reform Commission studied the topic of privacy, and technological innovation continues at an amazing rate. We pointed this out in our Consultation Paper and gave the following examples of recently developed surveillance devices:

1.21

More recently, surveillance technology is reportedly being developed using systems that can operate outside the visible light spectrum, such as:

1.22

The next development in the technology will reportedly involve the development of an interactive link between surveillance technology and computerised data banks (CCTV surveillance networks). This will potentially allow for automatic tracking of the movements of individuals.¹⁷ Technology is

already available to broadcast the footage generated by CCTV systems over the internet.¹⁸

1.23

An enormous range of devices with extraordinary potential for intrusiveness (including for example a video camera in the form of a shower head) is now available cheaply by mail order over the internet,¹⁹ and there is a corresponding market in anti-surveillance devices similarly available. We allude in this Report²⁰ to copious accounts in the newspapers that sophisticated surveillance technology is being used in Ireland.

1.24

At the same time that this technological revolution is taking place, Ireland is, in common with most other countries, making the transition to the Information Society. In such societies information is the key to wealth and power. Surveillance is nearly always (though not invariably) done for a purpose and that purpose is usually connected to the collection of information, images and other material. It is not relevant here whether the information, etc., is subject to automatic processing within the meaning of data protection legislation. What is at issue is the growing demand for information which in turn generates a demand for further and better methods of acquiring such information through, inter alia, surveillance. The subsequent use of the information (whether legitimate or otherwise) is separate from the phenomenon of a seemingly growing demand to pierce the veil of privacy to obtain that information in the first place.

3. The Inadequacy of Existing Irish Law

1.25

The issue of the inadequacy of existing Irish law is explored in detail in Chapter 3.

1.26

A growing public concern in most countries, including Ireland, at the lack of comprehensive or effective legal protection in this area was noted by us in our First Programme for law reform. Many countries, including Ireland, have a web of laws that protect isolated aspects of privacy. A few countries, mainly European, have tailor-made privacy laws that adequately protect privacy in the round and directly. The subject has already been looked at by a variety of law reform bodies throughout the world and continues to attract much attention.

1.27

Due to its very nature, surveillance is as unobtrusive as it is intrusive. Even where the victim happens to detect the use of surveillance there is often nothing he/she can do in law. Existing law provides little opportunity for full or effective redress. It is highly unlikely that most individuals would be able to

detect the occurrence of surveillance unless the fruit of the surveillance is used openly against them. Even where private information that has been obtained as a result of, or by means of, surveillance, is published the individual in question has little incentive to come forward and complain since to do so might compound his/her embarrassment at the revelation of true (but private) information.

1.28

Moreover, even where the purposes for using surveillance are perfectly legitimate (surveillance cameras mounted by the police in semi-public or public thoroughfares for the purposes of prevention and detection of crime) there exists no specific legislative or regulatory regime providing safeguards against abuse and assurances to the public at large.

1.29

Can existing Irish law cope adequately with the privacy problems associated with the threat to personal space posed by surveillance? We believe that it cannot.

1.30

To grasp the inadequacy of existing law it is necessary to keep in mind the high human values honoured by privacy. It is also necessary to realise that there are different – but intimately related – aspects of privacy which are the subject of protective measures in the legal system. This is quite apart from the authority of the protective norm in question, e.g., treaty law, Constitutional law, common law, statutory law. No overall or integrated doctrine has yet emerged to unify these three aspects. The human rights vision helps us identify the deficiencies of these fields both in isolation and as they relate to one another.

1.31

Although, as we indicate in Chapter 3 below, the Constitution as interpreted by the Supreme Court recognises a right of privacy, the content and boundaries of that right remain unclear and in the absence of legislation are dependent for their future development on the fortunes of case law. Among other things, case law depends to a considerable extent on the involvement of persons who can afford to bring (or defend) cases. This cannot meet the immediate need for a clear statement of the rights and obligations of citizens as a whole in circumstances where, in our view, the right of privacy is under an actual and present threat.

1.32

The amalgam of common law doctrines that constitute the privacy shield/s (e.g., trespass, nuisance) was historically constructed to protect privacy in the context of property and in the enjoyment of property. This was usefully labelled “territorial privacy” by a Canadian Task Force in the 1970s²¹. There are several problems connected with “territorial privacy”– problems or deficiencies that give rise to the need for comprehensive legislation. These along with other aspects of the law of tort which incidentally bear on the right of privacy are listed in Chapter 3 below. It is clear that they do not meet the present-day need for protection of privacy from surveillance and disclosure or publication of private information obtained thereby.

1.33

Current Irish law does offer some piecemeal protection for personal information. This chiefly occurs in the areas of data protection law²²; rights of anonymity in certain criminal proceedings²³, in family matters²⁴ and in matters connected with personal taxation²⁵; the legal or equitable doctrine of confidence²⁶; and freedom of information legislation²⁷. There is, however, no overall protection of private information under Irish law at present. There is, in short, no tailor-made privacy tort with which to prevent the publication of private information.

1.34

Information privacy is not, however, the core focus of this Report. Most acts of surveillance will be targeted at information. Sometimes that information will be of a private nature and sometimes not. Either way, surveillance carried out with a view to the accessing of that information prima facie entails a breach of the privacy shield and this is our core focus in this Report. Only to the extent that the information so extracted is private in its nature is there an overlap between information privacy and the focus of this Report.

1.35

The privacy shield which we propose to protect in this Report is essentially information-insensitive. What is important in the concept of a privacy “shield” is that a person has a right to be protected against intrusion into his/her private space whenever he/she has a reasonable expectation of privacy irrespective of whether such intrusion actually results in the obtaining of private information (or indeed any information) about the person intruded upon.

1.36

As the Law Reform Commission of New South Wales states in its Issues Paper on Surveillance:

Intrusion upon one's house is a prime example, but the unjustified and systematic surveillance or surreptitious watching of a person even in public would be another.

4. The Need for Law Reform

1.37

The issue of the need for law reform is explored in detail in Chapter 4.

1.38

After much comparative research and after the benefit of submissions²⁹ on our Consultation Paper on this subject as well as an extremely useful “listening exercise”³⁰ involving all those who made submissions and many other interested parties, we now recommend the introduction of legislative protections for privacy in Ireland in the specific context of surveillance and the interception of communications. The real question, in our view, is not whether privacy as a human right is deserving of protection through the legal system but how other competing rights and interests can be appropriately accommodated. We are confident that our specific recommendations will, if enacted, adequately respect the competing interests and rights at stake.

1.39

Our main concern is to craft recommendations aimed at perfecting the privacy shield and making it play a more visibly direct and effective role in protecting privacy in the context of the threats posed by surveillance.

1.40

We believe that we demonstrate in this Report that there are three general reasons why this is an area appropriate for law reform.

1.41

First, and not least, as already stated, privacy is under a constant and growing threat especially from new technology. The threat did not originate in technology but the introduction of high technology makes its resolution all the more urgent.

1.42

Second, established legal doctrine, which only indirectly protects privacy, can no longer cope or keep up with these developments. The legal regulation of telecommunications and the absence of comparable legal regulation governing other forms of surveillance creates an unjustifiable imbalance in the protective coverage of the law. Nor is it safe to simply assume that time-honoured boundaries will be respected and that this technology will not be used in a privacy-invasive manner or with privacy-invasive effects.

1.43

Third, the theoretical possibility of a constitutional action is no substitute, we feel, for adequate legislative provision. As stated in paragraph 3.25 of our Consultation Paper and further emphasised both above and in Chapter 3 below, although it is now established by case law that the personal rights of the citizen guaranteed by Article 40.3.1° of the Constitution include a right to privacy, the scope and content of this right are as yet ill-defined and require further and much more specific development if there is to be an effective and clear privacy law available to citizens.

1.44

Similarly, though the genius of the common law lies in its capacity for organic growth and renewal, reliance on the courts to reform the existing patchwork quilt constituted by the relevant common law is not, in our view, a satisfactory way to proceed.

1.45

It must also be remembered that privacy is qualitatively different from many other legitimate goals of State policy. It is not merely a desirable objective in any civilised society but is also a basic human right. It is protected in principle not merely under the Constitution but also under various international human rights treaties to which Ireland is a party including Article 8 of the European Convention on Human Rights. Ireland's primary obligation under that Convention is to “secure” the rights protected under that Convention for everyone (Article 1 ECHR). Taking rights seriously entails a comprehensive evaluation of the capacity of the legal system to provide practical protections and remedies. Such analysis reveals that privacy is inadequately protected in Ireland at the moment against the growing threat posed by surveillance and interception activities. Our view, which is outlined in chapter 5, is that the legislation we propose would be well within Ireland's margin of appreciation under that Convention.

1.46

We are not opposed in principle to effective schemes of self-regulation. Quite the reverse. We, of course, warmly welcome the introduction of voluntary codes of practice and the evolution of self-regulation in broadcasting and the mass media. The Broadcasting Complaints Commission was set up pursuant to the Broadcasting Authority (Amendment) Act, 1976 and RTÉ has its own Code of Practice adopted pursuant to the Broadcasting Acts. The latest example of this laudatory trend is the Code of Practice on Privacy adopted by the National News Papers of Ireland in 1997. Indeed, we strongly encourage more self-regulation particularly in the private investigators' industry where nationwide self-regulation has been lacking until now. Our view is that the enactment of appropriate legislation does not mean that private actors cannot or should not regulate their own activities. We do not view appropriate mechanisms of self-regulation and the enactment of legislation as mutually exclusive. Rather, we see self-regulation and legislation of the type we recommend as mutually reinforcing. Self-regulation could be made work best, in our view, if developed under and directed towards fulfilling the requirements of legislation that reassures the public by the provision of judicially enforceable protections.

1.47

In the last analysis, self-regulation – no matter how commendable and necessary – cannot be a substitute for legally enforceable rights which can only be provided for by legislation. The ultimate arbiters of issues concerning the infringement of the citizen's right of privacy must be, and can only be, the courts.

1.48

In our view the provision of civil remedies must be supplemented by the enactment of appropriate criminal sanctions. The criminal law provides the vital element of deterrence and ensures that the Gardai have a role in clearly defined circumstances. Naturally, different considerations of a qualitative kind arise in the context of the criminal law where a much sharper focus on particularly

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egregious acts of intrusion is required. We have taken great care in this regard to confine criminal sanctions to the minimum and to define the constituent elements of the proposed new offences with added particularity and clarity.

1.49

Different considerations again arise in the context of regulatory safeguards where it is safe to assume the legitimacy of some surveillance activities but necessary to consider the introduction of protections against abuse.

B. OVERVIEW OF REPORT

5. Objective – Protecting Reasonable Expectations of Privacy against Surveillance

1.50

Our understanding of a “reasonable expectation of privacy” is set out in detail in Chapter 2 below.

1.51

There are many different variables to be taken into account in determining whether an invasion of privacy has occurred through surveillance and what form the appropriate legal or regulatory response should take. The surveillance may be overt or covert. The place under surveillance may be private or public. The technique of surveillance may be aural or visual. The category of user varies greatly as does the degree of legitimacy of the interest in engaging in surveillance.

1.52

The law must acknowledge all these variables and allow in particular as much space for the pursuit of legitimate interests as is compatible with respect for the right of privacy. This requires flexibility of the law as well as adequate procedural safeguards. Apart from aural interception, privacy interests do not presently figure prominently in regulating the use and manner of use of the full range of surveillance techniques in Ireland. In introducing privacy into the overall equation we emphasise that what we seek to advance and protect is what the ordinary man on the street would consider to be a “reasonable expectation of privacy”. Naturally, everyday living exposes all of us to varying and generally acceptable levels of being observed. Such ordinary and natural incidences of everyday living including, for example, tourist or recreational photography, are not materially affected by our recommendations. We explain below and particularly in chapter 2 what we mean by a “reasonable expectation” of privacy and the kinds of indicators that we consider to be relevant in determining whether such expectation arises on the facts of any given case.

1.53

Our approach in protecting reasonable expectations of privacy navigates between more extreme approaches exemplified in the laws of other countries. On the one hand there is the stringent protection of privacy in a civil law country

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such as Germany, and on the other hand there is the more relaxed approach seen in U.S. law.³¹

6. Privacy and the Public Interest, Including Freedom of Expression

1.54

Our understanding of the public interest and the public interest defence is set out in detail in Chapter 2 below.

1.55

Bringing privacy to the fore of legal consciousness does not, of course, mean ignoring other human rights that may come into play. Privacy is a way of organising human co-existence; it does not deny such co-existence. It is a relational right whose boundaries depend in part on perceptions and judgments about the right relations between people.

1.56

The boundary to privacy is particularly problematic when it comes to the competing right of freedom of expression. In providing for the possibility of balancing privacy with other rights we are particularly aware that many of these rights can have a value both for the individual and for more generalisable social interests. Freedom of expression is obviously one such competing right.³² It enables the press to perform a vital watchdog role in democratic society. It honours what is commonly referred to nowadays as “the people's right to know” certain information. The public interest involved here is obviously and powerfully present in Article 10 of the European Convention on Human Rights which sets very demanding standards in the area of media liability. These standards are generally much higher than those set under Irish law.

1.57

A pattern is, however emerging whereby Irish statutory law and constitutional interpretation is moving towards an acknowledgement that the public has a right to information in some cases. For example, the Freedom of Information Act, 1997 protects against the disclosure of personal or private information. That protection can, however, be overridden if the public interest in disclosure outweighs the public interest in secrecy (Section 28(5)). It is of interest that the Irish law of confidence has been interpreted by the Supreme Court in the sensitive sphere of banking to yield where there is a clear public interest in the disclosure by the media of allegations of serious misconduct to the public at large.³³ Furthermore, the “people's right” to know certain information is evident in a recent decision of the Supreme Court which upheld media

publicity connected with an ongoing criminal trial and with the discretion of trial judges in controlling the same in the interests of the administration of justice.³⁴

1.58

The main question is not whether the public interest should be allowed as a reckonable factor in our Report but how. We believe that the tasks of protecting privacy and maintaining an open and vibrant marketplace of ideas are in fact mutually reinforcing although a clash between them is possible in some circumstances. We provide for this possibility by recommending a new “public interest” defence to disclosure through publication and otherwise when such results from privacy-invasive surveillance. We envisage a public interest arising in circumstances involving the detection or prevention of serious crime, the exposure of serious illegality or wrongdoing, the need to inform the public on a matter of public importance, and the need to prevent the public from being misled by public conduct (including statements) of a person having or seeking public office where the matter disclosed is relevant to the performance or capacity to perform the functions of that office. The sort of protection for privacy we envisage is not a haven for those who may seek to keep information from the public on matters where there is a clear public interest.

1.59

We insist, however, that the public interest secured by the people's right to know a particular piece of information is not synonymous with whatever happens to interest the public. Mere newsworthiness is not a reliable proxy for the public interest. As stated succinctly by the Royal Commission on the Press in its Report of 1977 (the “McGregor Report”)³⁵:

1.60

The exposure of true facts does not, in our view, have any absolute value.³⁷ We emphasise that respect for privacy and for the rule of law is as much in the public interest as is the “people's right to know”.

1.66

It must be remembered that, in so far as our recommendations go to publication, they go to the publication of truthful information (whether private

in its nature or otherwise) obtained by illegal means (i.e., contrary to the new statutory torts we propose) and not to the publication of truthful (but private) information simpliciter.

7. The Conformity of Our Recommendations with the European Convention on Human Rights

1.67

In our reflections and in our final Report we have taken great care to test our recommendations with Ireland's existing international obligations and especially those arising under the European Convention on Human Rights. Put simply, our view is that Article 8 of the European Convention which protects the right to respect for private life is at the very least permissive toward the kind of protective legislation we propose. Indeed it is plausible to read the case law under Article 8 as requiring Ireland to take positive measures to ensure that privacy is protected as between private parties. Furthermore we are confident that the legislation we propose, bearing in mind particularly the “public interest” defence we recommend with respect to wrongful publication, is quite compatible with Ireland's margin of appreciation under Article 10. This margin is expansive enough to allow contracting States to apprehend a pressing social problem with respect to privacy and to opt for legislation as an appropriate solution with the proviso that adequate space be left for a “public interest” defence. In short, we consider that our recommendations, suitably qualified by the “public interest” defence, would, if enacted, amount to an appropriate and proportionate response to the privacy problem thus apprehended and be fully compatible with the obligations of the State under the Convention.

8. Privacy in the Global Village – The International Dimension

1.68

In making our final recommendations we are painfully aware that Ireland is now firmly integrated within the Global Village. Our growing interdependence with the world – especially within the European Union but also beyond – is a complicating factor in the context of this Report.

1.69

For one thing, this interdependence is reflected in the fact that a worldwide market now exists for surveillance technology. Furthermore, the ongoing process of economic deregulation has dispersed this technology widely into private hands with the result that traditional legal protections that focus almost exclusively on the State as the sole potential abuser miss a large part of their target. Non-State actors pose just as much a threat as the State itself. The demand for such technology by private actors seems set to grow and not diminish. Restricting this market using traditional tools like import controls, a licensing regime for vendors, a licensing regime for users, etc., is unwieldy and likely to be piecemeal and ineffective.

1.70

Our interdependence is also reflected in the fact that a secondary worldwide market also exists for private information which is being treated more

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and more as a commodity. The demand for such information, whether obtained through surveillance or otherwise, is quite varied and is only likely to grow as Ireland becomes, in common with other countries, a knowledge-based Information Society and economy.

1.71

The Irish market is not therefore an isolated one. Solutions to the problems of privacy, especially since the market for surveillance devices and indeed the market for private information is global, should ideally take a multilateral form. Indeed the Parliamentary Assembly of the Council of Europe has itself recently called for the drafting of a detailed convention on privacy³⁸. The Motion for a Resolution calling for the drafting of a privacy convention was referred to the Parliamentary Assembly's Committee on Legal Affairs and Human Rights for a report. The rapporteur to that committee (Mr Schwimmer) convened an open hearing on the topic in December 1997 and issued his report in June 1998³⁹. The rapporteur rejected the argument for a new convention on the basis that Article 8 of the European Convention on Human Rights is satisfactory and on the assumption that national law either already is, or ought to become, sufficient in itself to handle the matter. He proposed instead that a draft resolution should be presented to the Parliamentary Assembly calling on those governments that have not yet done so to pass legislation guaranteeing the right to privacy.

172.

The Schwimmer report was debated in the Parliamentary Assembly on 26 June 1998 and a resolution on the Right to Privacy was duly adopted⁴⁰. The final resolution mirrors and indeed strengthens the draft put forward by Mr Schwimmers. It rejects the call for a privacy convention for the same reasons outlined by Mr Schwimmer (i.e., adequacy of Article 8 and the existence of effective national legislation)⁴¹. With respect to those Member States that do not yet have privacy-specific legislation the resolution calls the introduction by those states of such legislation along certain guidelines provided (see para. 1.74 below)⁴². This would include Ireland.

173.

Among the more notable features of the resolution are the following. First, the resolution acknowledges that personal privacy is often invaded even in countries with specific legislation to protect it since “people's private lives have

become a highly lucrative commodity for certain sectors of the media”⁴³. Secondly, the resolution notes that public figures must recognise that the role they play in public life automatically entails “increased pressure on their privacy”⁴⁴. This is not, however, the same as stating that the private lives of public figures are an open book. Thirdly, the resolution defines public figures generally to include “those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or any other domain”⁴⁵. Fourthly, the resolution asserts that “[i]t is in the name of a one-sided interpretation of the right of freedom of expression...[under Article 10]..that the media invade people's privacy, claiming that their readers are entitled to know everything about public figures⁴⁶. Fifthly, the resolution concedes that the public has a right to know certain things about the private lives of public figures which therefore calls for a careful balancing of privacy and freedom of expression⁴⁷. Sixthly, the resolution asserts that the two rights in question (privacy and freedom of expression) “are neither absolute nor in any hierarchical order, since they are of equal value”⁴⁸.

174.

The resolution calls for privacy-specific legislation where none exists (or the supplementation of existing legislation) along the following lines (para. 14);

1.75

Furthermore, the resolution calls on the Governments of the Member States to encourage professional bodies to draw up standards for entry into the profession as well as standards for self-regulation and a code of journalistic conduct, to foster the development of media education, and to facilitate access to the courts and simplify the legal procedures relating to press offences in order to ensure that the rights of victims are better protected (para 16).

1.76

While this resolution is not legally binding it does have significant moral authority since it was adopted under the authority of the Parliamentary Assembly of the Council of Europe which represents some 40 European countries. The approach taken in the resolution strongly reinforces our own analysis of the need for legislation and for the kind of legislation required. The full text of the resolution is reproduced in annex V.

1.77

We are strongly of the view that we cannot and should not wait for multilateral action to take place before taking steps in the right direction under domestic law. In recognition of the cross-border nature of the market for private information we do make a specific recommendation dealing with civil liability for disclosure through publication or otherwise in Ireland of private material obtained overseas by methods which, if employed in Ireland, would be contrary to our recommended tort of privacy-invasive surveillance.

9. Overview of Recommendations

1.78

Concerning terminology in this Report, we use the generic term “surveillance” to include aural and visual surveillance, irrespective of the means employed, and the interception of communication. The concept of surveillance implies in its ordinary usage some form of watching, spying, eavesdropping, besetting or following a person about for the purpose of invading that person's privacy, whether by means of technical devices or not, including listening to or recording a conversation or message to or from a person, otherwise than as a lawful party thereto.

1.79

In addition to this, we propose that two particular forms of privacy-intrusive behaviour which may not strictly speaking fall within the everyday meaning of surveillance should be included within the meaning of that term for the purposes of our recommendations on the civil side in this Report. These are the act known as “participant monitoring” in which one party to a message or conversation records the message or conversation in whole or in part without the knowledge of another party thereto; and “third party monitoring” in which a person not a party to a message or conversation records that message or conversation in whole or in part with the agreement of one party thereto but without the knowledge of another. Both of these acts are to be regarded in our view as involving privacy-invasive surveillance of the unknowing party.

1.80

Our main recommendations can be summarised as follows:

10. Outline of Report

1.81

The remainder of this Report is divided into three Parts as follows.

1.82

There are seven annexes to this Report:

PART I – GENERAL

CHAPTER 2: WHAT WE MEAN BY PRIVACY AND WHAT WE MEAN BY THE PUBLIC INTEREST

A. WHAT WE MEAN BY PRIVACY

1. General

2.1

As stated in our Consultation Paper, privacy as a concept includes a wide range of personal interests or claims which place limits on the right of society and of its members to acquire knowledge of, and to take action regarding, another person. At its core lies the desire of the individual to maintain control over information, possessions and conduct of a personal kind, and, as a corollary, to deny or control access thereto by others. As such, it is now universally recognized as a human right, and is to be distinguished from other interests such as secrecy and confidentiality.

2.2

Such definitions of privacy as have been attempted tend not to be all embracing; yet one such definition which refers to privacy as “the right to be left alone”¹ strikes a common chord with the particular aspects of privacy which we consider in this Report: freedom from privacy-invasive surveillance (including the interception of communication) and harassment, with the concomitant protection against the publication of material obtained by means or as a result of such surveillance or harassment.

2.3

The meaning and scope of privacy as a legal concept has received attention in other jurisdictions. In particular, in the early 1970s a Canadian Task Force identified three categories of claims to privacy:

2.4

Significantly, the Australian Law Reform Commission in its research on privacy added a fourth category:

2.5

This category of privacy however is not separate from those identified by the Canadian Task Force; it is connected with and is indeed a particular aspect or segment of all three of the latter. Thus, the category of privacy known as surveillance and communications privacy, which is the primary subject matter of this Report, is based on the idea of a legal shield or boundary, the penetration of which by outside persons is prohibited except under specific circumstances laid down by law, which protects the individual from privacy-invasive surveillance (and, as recommended in this report, harassment) in all of the spheres recognised by the Canadian Task Force. Moreover, an unlawful crossing of that boundary (e.g. by placing an electronic device in a person's home, by tapping his telephone or by systematically spying on his movements even in public places) may occur even though no private or intimate information is in fact obtained as a result.³

2.6

The right not to be harassed is more specific than the right of privacy and is more easily capable of statutory definition than the latter. Harassment and privacy-invasive surveillance can go hand in hand and accordingly, harassment, though conceptually distinct from surveillance, is covered by the recommendations in this Report. In the remainder of this Chapter, however, which is concerned with the meaning and scope of the concept of privacy, especially in the context of surveillance, harassment is not expressly mentioned, but references to surveillance may be taken to include harassment where appropriate.

2.7

The particular area of the law of privacy known as the law of confidences, or confidentiality, is not within the scope of this Report. The law of confidentiality applies to information imparted within a relationship of confidentiality, expressed or implicit between two or more parties, such that the

person in whom trust or confidence is placed will infringe the obligations imposed by that relationship if he or she discloses the information to another without authority.

2.8

The law of confidentiality is already covered to a considerable extent both at common law and in equity though it requires further clarification and development. The English law of confidence is showing signs of considerable development at the hands of the judiciary and there is even English authority to suggest that it may be extended so as to cover at least some cases of disclosure of information obtained by surreptitious surveillance without any prior relationship of confidence (see Chapter 3 below). However, it differs in principle from the law concerning surveillance in that confidentiality assumes a specific relationship of trust between persons leading to an obligation of confidentiality whereas under our proposals, unlawful surveillance assumes no such relationships and may occur without any private or confidential information being obtained or conveyed by or to anyone.

2.9

In this chapter we focus on what we mean by privacy and the circumstances under which a “reasonable expectation” of privacy against surveillance may arise. Later in this Report we outline the various factors that should be taken into account in determining whether surveillance that violates this “reasonable expectation” of privacy can be defended as legitimate.⁴

2. Factors Relevant to a “Reasonable Expectation” of Privacy

2.10

The existence and extent in the particular case of a right of privacy in the sense of freedom from privacy-invasive surveillance (for short, “surveillance privacy”) is an issue which is less cut-and-dried than is the case with some other human rights such as the right to private property or the right to vote. “Surveillance privacy” is one of those rights whose existence and extent will inevitably depend to a very high degree upon the circumstances of the case and will vary depending on these circumstances. A person's right to freedom from privacy-invasive surveillance may for the purposes of this Report be broadly defined as that freedom which a reasonable person in the circumstances of the case is entitled to expect.

2.11

Since we view privacy as a personal right and one that follows the personal space of the person it follows that a “reasonable expectation” of privacy may even exist in public places. The practical application of this concept is ultimately a matter for the courts in interpreting the legislation having regard to the relevant circumstances and to the accepted customs and mores of society at the relevant time. Nonetheless it is possible to identify a number of factors which in the view of the Law Reform Commission are, without being exhaustive, liable to be of particular relevance and assistance to citizens as well as to the courts in

deciding whether or not in the particular case a particular act is an illicit invasion of a person's right to such privacy.

2.12

The factors which, among such others as the courts may consider appropriate, should in our view be considered by the courts in deciding whether the privacy “shield” has been breached, are as follows:

(a) Place

2.13

The place of surveillance: the home or private premises as against public places

(b) Object

2.14

The object or occasion of the surveillance: intimate or private life as against the commonplace or banal

(c) Use

2.15

The use to which material obtained by surveillance is to be put: intended publication or other use which may be objectionable to the subject, as against innocuous use

(d) Means

2.16

The means of surveillance used: the naked eye or natural hearing as against high technology

(e) Status

2.17

The status or function of the person subjected to surveillance: “public” as compared to “private” persons

(f) Consent

2.18

Any previous conduct by the person subjected to surveillance indicating encouragement of interest by others in his or her private life, or amounting to a partial waiver of his or her right to privacy

(g) Relationships

2.19

The relationship(s) between the parties

3. The Non-Exhaustive Nature of the Indicators

2.20

Between the opposite ends of the various scales of circumstances and factors, some of which are indicated above, which are relevant to the existence and extent of the right to be free from privacy-invasive surveillance, there are a great number of possible cases and combinations of circumstances which in the last analysis require the assessment of the courts. This should, if our recommendations are enacted into law, result in the building up over time of a body of jurisprudence which, within the framework of the legislation, would define by reference to actual cases the limits and conditions of the right to be free from privacy-invasive surveillance. It would be neither possible nor desirable to attempt to lay down rigid or exhaustive legal rules for this purpose in the legislation itself.

2.21

The impossibility of a specific, fully defined, all-embracing statutory definition of the right of “surveillance privacy” (and of the factors which may override that right which are dealt with later in this Report), which would provide a slide rule for liability in every case, does not however constitute a flaw in our recommendations (it has not been considered a flaw other countries which have advanced and long-standing privacy laws, much of which is judge-made, such as Germany). The absence of a precise delineation of the borderline between what is and is not to be permitted would not in the vast majority of cases prevent the making in advance of reliable judgments by those concerned as to whether a particular act in the circumstances of the case would cross the borderline between lawful action and the tort of privacy-invasive surveillance.

2.22

Where doubts persisted our recommendations would provide a legislative framework for their resolution by the courts. For this purpose we suggest (see para. 2.10 above) the inclusion in the recommended privacy legislation of a series of non-exhaustive factors or considerations which the courts might take into account in assessing the existence and extent of the right to surveillance privacy in particular cases.

2.23

Our reliance on the good judgment of the courts is well-justified. The Constitution of Ireland itself has depended for its full development on what is now a very substantial corpus of judge-made law concerning the full range of fundamental constitutional rights which has been built up in the last 60 years. The legislation we propose would introduce much-needed specificity to the law concerning surveillance privacy while allowing the courts the necessary room to interpret and apply that law so as to deal satisfactorily with the myriad of situations, many of them unforeseeable in advance, which may arise.

B. WHAT WE MEAN BY THE PUBLIC INTEREST

2.24

We set out below the general movement toward the concept of the public interest in freedom of expression doctrine under the Constitution. We then add our own understanding of the kind of shape such a concept would take in the context of providing a defence to wrongful publication of material obtained as a result of privacy-invasive surveillance.

2.25

We consider that a public interest defence to wrongful publication as a result of surveillance is warranted both with respect to the case law under Article 10 of the European Convention on Human Rights (see chapter 5 and the detailed analysis in Annex I) as well as under the Constitution as presently interpreted by the Superior Courts.

2.26

As will be seen under the Heads of Bill, the public interest concept we propose can also operate as an argument to inhibit the issuance of an injunction and as an argument against a motion to hold relevant proceedings in camera.

1. The Emergence and Authority of the “Public Interest” Concept

2.27

Freedom of expression is protected under Article 40.6.1°i of the Constitution. It states

2.28

The nature of this guarantee was comprehensively explored in our previous Report on the Civil Law of Defamation⁵. Many interpretative possibilities were explored in that report on the question whether the media enjoyed less, the same or more rights than ordinary members of the public. On the basis of existing case law at that time it did not appear as if the courts were inclined to afford an expansive interpretation to the provision – one that might recognise the special role of the media in Irish democratic life and carve out appropriate or enhanced latitude to publish on matters relating to the public interest. However, since that Report and indeed since the publication of our Consultation Paper on privacy, the Supreme Court has produced a seminal judgment concerning press freedom: The Irish Times et al. v. Ireland, the Attorney General and His Honour Judge Anthony G Murphy⁶.

2.29

In that case the Supreme Court stood back from the text of Article 40.6.1°i and read it in light of democratic theory and the exigencies of accountability in democratic society. Specifically, a plurality of the judgments appear to accept that the press enjoy expansive freedom of expression rights under Article 40.6.1° and that this freedom (despite previous doubts to the contrary) includes a freedom to report facts as well as opinions and convictions⁷. The case itself involved a clash between the right to a fair trial (Articles 38.1 and 40.3) and the public right of access to (and publicity about) judicial proceedings (Article 34.1). The net issue posed concerned an order made by the trial judge in a drugs prosecution to drastically curtail media reportage of ongoing and contemporaneous court proceedings. Significantly, a plurality of judgments invoked Article 40.6.1° to further augment the public right of access and publicity under Article 34.1.

2.30

Lying at the heart of the plurality judgments was the view that the public had a right to know how judicial proceedings are being conducted and that the media performs an important function in democratic society in communicating that information. The media is, in essence, the vital bridging link between the demand for (i.e., the democratic right of the people to know the relevant information concerning the trial) and the supply of this information. This right to know and to receive the information and the corollary right to impart that information could be grounded on Article 34 or more generally on Article 40.6.1°.

2.31

In the instant case all judges were of the view – as had been established in previous precedents – that the right to a fair trial took precedence over the right to know. The relevant test was whether there was a real risk that the right to trial might be jeopardised. On the facts of the case the Supreme Court held that the trial judge could not reasonably have come to that conclusion. Implicit, however, in the ruling is the possibility that had the evidence been more persuasive the trial Judge might properly have imposed appropriate restrictions on publicity.

2.32

What is the significance of this case in the context of this Report? First of all, the acknowledgement by the Supreme Court that the press enjoy an expansive freedom of expression fits with our overall approach which fully acknowledges the value of the media in democratic society. That is precisely why, at the outset, we endeavoured to test our recommendations against the higher standards set under Article 10 of the European Convention on Human Rights. It may well be that the Irish Supreme Court is being progressively influenced by the values and spirit of Article 10 in its overall approach to interpreting Article 40.6.1°i. Indeed, at least one judge (Barrington J.) specifically mentions Article 10. Secondly, the expansive interpretation given to the right to include reportage on factual matters makes sense because the most important democratic function of the media is to impart information on which people can make up their own minds on matters of public concern.

2.33

The Irish Times case itself obviously focused on a matter of legitimate public concern. Indeed, it would be hard to find a matter more of public concern than the conduct of ongoing judicial proceedings concerning charges of a serious criminal offence. The Supreme Court did not put forward – because it did not have to – any coherent theory according to which one might determine what was and was not of legitimate public concern or in the public interest. The case does not in any way detract from the validity of the distinction which we make in this Report, and which is vital to the public interest defence we propose, between matters that are of legitimate public concern and matters which are not (such as items which are merely “newsworthy” in the sense that they are liable to arouse curiosity or whet the appetite of some for sensational or scandalous material for its own sake).

2.34

We do not make the unrealistic claim that all private matters are never of public concern or legitimate interest. We acknowledge that there may on occasion be a public right to know, and a corollary right of the media to impart, private information so long as there is sufficient and demonstrable connection between that matter and the public interest. That is exactly why we propound a public interest defence to the new tort of wrongful publication and that is why we empower a trial judge to take explicit account of the public interest in determining whether there is a good case for curtailing publicity connected with ongoing judicial proceedings connected to the kinds of civil and criminal actions we envisage.

2.35

There can, of course, be no doubting that some implicit principle of proportionality should be adhered to in any legislative proposals of the sort we make⁸. The overall obligation on the State under Article 40.3.2° of the Constitution is to protect and vindicate the right of privacy against “unjust attack” and “as best as it may”. We do not read into this a preference for self-regulation to the exclusion of statutory regulation. We are of the view that the “public interest” defence we recommend would, by allowing for a calibration of the people's right to know with the right to privacy, ensure ample compliance with any proportionality test in the context of this Report.

2.36

We note in passing the recommendation of the Constitution Review Group (which was mentioned in several submissions made to us) to the effect that Article 40.6.1°i should be replaced with a new provision modelled on Article 10 of the European Convention⁹. The adoption of that proposal would not in any way impinge upon our recommendations, because our recommendations take full account of the European Convention on Human Rights (see below Chapter 5 and Annex I). For the sake of completeness we also note that the Constitution Review Group recommended that a general right of privacy should be specifically mentioned in Article 40.3 of the Constitution.¹⁰

2. Our View as to the Public Interest in the Disclosure of Information Obtained by Surveillance

(a) Elements of the Public Interest

2.37

The issue raised here is what kinds of matter would count as being in the public interest for the purposes of the Heads of Bill notwithstanding that they are private in their nature and obtained as a result of privacy-invasive means ? The following, contained in our recommendations, is a non-exhaustive list.

Detection and Prevention of Crime

2.38

First of all, there is a potential “public interest” in the detection and prevention of crime [see Head 3(3)(a)]. There arises a civic responsibility to bring any well-grounded suspicion of criminal activity to the attention of the Gardaí. In our view, the fact that this could have been done but was not done may well be one factor that a court might take into account in determining whether this aspect of the “public interest” properly lies in any given case of publication. On the other hand a court might be swayed in the other direction if, for example, the view is taken that the detection and prevention of crime by the public authorities might benefit by publication or in the event, albeit unlikely, that the conduct of the public authorities themselves is at issue. It is to be noted

that one would not normally expect that, in such a case, the information in issue would be about a person's private life, but it may have been obtained by surveillance that intrudes into private space.

Exposure of Serious Illegality or Wrongdoing

2.39

Secondly, there is a potential public interest in the exposure of serious illegality or wrongdoing [see Head 3(3)(b)]. Such wrongdoing may involve fraud on the public purse or may point to shortcomings in legislation or in the regulatory system. The illegality or wrongdoing in question must be serious and not trivial. Furthermore, there must be actual “exposure” of illegality or wrongdoing and not merely the publication of a bare and insubstantial belief in the existence of illegality or wrongdoing.

Need to Inform Public on a Matter of Public Importance

2.40

Thirdly, there is a potential “public interest” involved in the need to inform the public on a matter of public importance [see Head 3(3)(c)]. This aspect of the “public interest” resonates with the latitude allowed by the European Court of Human Rights for publication of matter that is colourably political or on matters of genuine public interest. There is, in our view, no necessary or automatic link between aspects of a person's private life (or indeed their private history) and their fitness for office. Information about a public figure's private life might nonetheless well connect with, and thus have relevance to, his/her fitness for, or function in, public life. However, such a connection would need to be positively established before publication could take place under this defence. We see nothing in the case law under the European Convention on Human Rights that is at variance with this position. While this defence will in practice relate mostly to classic public figures such as politicians it might also potentially apply to others with a similarly high profile including leading corporate executives.

Need to Prevent Public from Being Misled

2.41

Fourthly, there is a potential public interest in publishing information concerned with a person's private life in order to prevent the public from being misled by the public utterances or positions taken by them [see Head 3(3)(d)]. In our view this defence should only be available where the public figure (or putative public figure) has by his/her own conduct or statements put an issue into the public domain. It is not the status of the person simpliciter that activates the public interest under this strand of the defence. It is some voluntary act or statement that helps to establish or maintain a position or profile that is at odds with the person's true convictions or actual private behaviour. Thus, an exposé on the private life of a silent backbencher would not be warranted under this heading. Furthermore, it is only that which shows the contradiction between a public stance and a private reality that is potentially exposable under this defence. The publication of unrelated aspects of a person's private life in order to corroborate a suspicion about a contradiction between a public utterance and private beliefs or behaviour to the contrary ought not normally to count.

(b) Qualifications to the Public Interest Defence

2.42

We envisage the following qualifications to the public interest defence as outlined above.

Public Interest Defeated where Harassment Involved

2.43

First of all, as already mentioned, it does not apply where the information, etc., has been obtained by way of harassment. The case for publication on the grounds of the public interest is less convincing where the information has been obtained by means of harassment, with its overtones of physical intimidation, than when it has been obtained by surveillance. The public interest in publication is overborne in our view by the immediate and direct public interest in preventing harassment which disturbs the public peace. No encouragement or comfort whatever should be provided whether directly or indirectly by the law to those who engage in harassment or to those who (innocently or otherwise) seek to gain by the results of such harassment.

Requirement of Proportionality

2.44

Secondly, the publication of details of a person's private life for the sake of salaciousness should be considered excessive and therefore unlawful [see proviso (b) to Head 3]. It is entirely right that some notion of proportionality should apply since the power to publish in the public interest is an exception to the right of privacy and must be read accordingly.

Defence not Available in Cases of Complicity

2.45

Thirdly, the entity engaged in the publication must not have been party to or privy to the act of privacy-invasive surveillance. It would be entirely unconscionable in our view to allow such an entity to gain a direct advantage through its own wrongdoing [see proviso (a) to Head 3].

Defence not Available Where Criminal Acts Occur

2.46

Fourthly, the defence should not be available where the acts of privacy-invasive surveillance in question involved, in the opinion of the court, the commission of any of the acts specified in the list contained in the Schedule to these Heads [see proviso (a) to Head 3]. Most of these already – or will be if our recommendations are acted on – constitute criminal offences. The list includes illegal interception, breaches of the Data Protection Act, 1988 and the Criminal Damage Act, 1991, spying on conversations by using aural or visual surveillance devices and unlawfully entering or remaining on private property in order to obtain personal information. We view it as axiomatic that no one should be allowed any benefit arising from the infraction of the criminal law even if they themselves were not party to the infraction.

Defence Only Goes to Publication – Not to Newsgathering Acts that Violate Civil or Criminal law

2.47

Fifthly, this defence applies only with respect to publication. We do not recommend that it be made available with respect to acts of privacy-invasive surveillance undertaken for the purpose of information-gathering. We have

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considered carefully whether the public interest defence should extend to such news-gathering acts preparatory to publication and we have decided that it should not.

2.48

The argument for so extending the public interest defence builds on the insight that the rationale behind the public interest defence in the context of publication concerns enhancing the quantity and quality of political ideas and information in the democratic marketplace. If so, the argument runs, then the defence should reach further back along the chain of activities that may start with surveillance and end with publication.

2.49

However logical that argument may appear to be,¹¹ sooner or later it clashes with one of the central tenets of the rule of law; namely, that the law should apply equally to all. To allow the defence to reach news-gathering activities would tend to make the individual news-gatherer a judge in his own case. Stories might be chased and information obtained in a privacy-invasive manner on a mere hope or expectation that the public interest defence would apply. Actions might be justified retrospectively if at all. We fear this gives too much scope for self-serving interpretations of the law.

2.50

Furthermore, the public interest defence is itself a creature of peculiar norms that explicitly protect expression. To be sure, the European Court of Human Rights in its recent decisions has begun to recognise that the formal act of expression cannot be completely separated from the environment within which journalists function. This entails an alertness against legal norms that unnecessarily impede those activities. However, that does not mean that every information-gathering act can or should be made immune to suit under a public interest theory.¹² We are reinforced in our view by what the U.S. Supreme Court described as

2.51

As the court explained in that case,

Therefore, both because of the imperatives of the rule of law and because the public interest theory is generally derived from legal protections that protect expression, the public interest defence should apply only in relation to disclosure.

CHAPTER 3: THE PRIVACY PROBLEM AND THE INADEQUACY OF EXISTING LAW IN IRELAND

3.1

In this chapter we review briefly the nature of the problem posed by surveillance and the inadequacy of domestic law to cope. We then proceed in the next chapter to build the case for reform in the shape of fresh legislation.

1. The Existence of a Privacy Problem

3.2

We distinguish between two levels where intrusion can occur. The primary level – the core focus of this Report – concerns particular acts of surveillance including, for example, the use of long-range telephoto cameras or listening devices. The secondary level – which is not our core focus but which is nevertheless implicated by our core focus – concerns the publication of information obtained as a result of privacy-invasive surveillance.

3.3

As already indicated in detail in section 3 of Chapter 1 of this Report our answer to the question whether there is a privacy problem with respect to the primary level– i.e., acts of privacy-invasive surveillance – is an unqualified yes.

3.4

Surveillance and interception activities are often unobtrusive and, for that very reason, difficult to notice and detect. Most people are (and remain) ignorant of the fact that they are – or have been – the subject of privacy-invasive surveillance. This is through no fault of their own but is a function of the nature of the technology in question which is as unobtrusive as it is highly intrusive. Easy assumptions about ease of mind in public places are no longer as well-founded today as in the past.

3.5

Furthermore, the very existence and widespread availability of sophisticated technology – technology designed to scrutinise private life – renders it highly implausible to think that it is not used (and, in the absence of legislation to control its use, abused on occasion) by a variety of actors. This problem is likely to get worse and not better given the free availability of the technology (including through mail order delivery) and in the context of a legal vacuum where the use of that technology is not comprehensively regulated. Moreover the list of monitoring devices contained in chapter 1 above makes it clear that many of the devices are capable of, or are even specifically adapted for, spying on people in private places.

3.6

As is natural in any process of rapid change, society has tended to passively acquiesce in the introduction and use of new technology without a full

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appraisal of its dangers as well as advantages. The result has been uncertainty about the reach of the existing legal regime and the creation of a legal vacuum. For example, there are no legal safeguards dealing specifically with the installation of surveillance devices in public places. The Gardaí are not required to undergo any form of due process requirements before resorting to surveillance. This is not to say that this power has been misused by the Gardaí– but it is to say that there is a privacy problem in as much as satisfactory assurances in law against misuse are not presently provided for.

3.7

It must be added that modern technology is not the only reason why protection under the law is required against privacy-invasive surveillance. Surveillance including privacy-invasive harassment by more traditional methods remains a continuing source of serious problems.

3.8

When the possibilities which flow from the use of highly sophisticated privacy-invasive technology are added to the use of such more traditional methods, the case for protection under the law becomes all the more imperative. This is a case of technology outpacing the capacity of the law to cope and is a classic case for law reform. The number of proven instances of abuse is not determinative. The crucial variable is the element of almost helpless exposure and insecurity introduced by new technology.

3.9

In response to the question whether there is a problem at the secondary level– i.e. publication as a result of privacy-invasive surveillance – our answer is a qualified yes.

3.10

There arises the temptation, so far generally resisted in the Irish media, to follow the example of sensationalist and privacy-insensitive foreign media imports in order to match circulation. This temptation is likely to grow and not diminish as the penetration of foreign media into Ireland increases. Ireland is already one of the most open markets in the world for foreign media penetration and is therefore more vulnerable than most to these kinds of market pressures. It is entirely prudent to seek to maintain high standards and, in so doing, to take full account of the growing threat posed by some elements of the foreign media.

3.11

A general law to which all media outlets are equally bound would deny any one actor a competitive advantage in succumbing to this temptation. Such a law would introduce a genuine level playing field where any deviation from high standards would not confer a commercial advantage.

3.12

Any process of self-regulation which merely administers a rebuke after the fact is not likely to prove robust enough to maintain standards in the face of increasing market temptation in our view. The enactment of a law forbidding privacy-invasive surveillance is, in our view, as much in the interests of the media as it is in the interests of the right of privacy.

3.13

It is doubtless true, as was pressed on the Commission in submissions, that there has been a low level of official complaints about invasions of privacy – and especially as a result of surveillance – in Ireland.¹

3.14

In view however of the availability in particular of the sophisticated surveillance technology already described, and of copious reports from the media that it is being used², we consider that it would be an error to draw the conclusion that there is no problem which requires to be addressed in this country. As stated in paragraph 2.4 of our Consultation Paper, the precise extent to which surveillance occurs in Ireland is unknown, but media reports suggest that surveillance by both public and private actors (including the media themselves) is not uncommon. When one takes also into account the established existence in Ireland of a substantial and so far unregulated private investigation and detective industry (which however is responsible for a part only of the surveillance which takes place) it seems to us that it would be extremely naive to conclude otherwise than that there is a real threat to the human right of privacy in this country.

3.15

There is no shortage of potential human subjects from all walks of and stations in life for privacy-invasive surveillance in today's Ireland. Some but by no means all of these are seen to belong to the rich, powerful and influential classes, both Irish and foreign. Surveillance of ordinary people is well capable of yielding highly profitable material. In the absence of privacy-protective legislation there are now many inviting targets for gratuitous surveillance by both national and international media and other interests.

3.16

While many, perhaps most, of the actors who use surveillance technology may have some legitimate reason for doing so, there is in our view a clear necessity to regulate surveillance and so provide adequate assurances to the public in the form of remedies, both civil and, where appropriate, criminal, which are likely to prove effective to prevent abuses before they occur or compensate adequately for or penalise intrusions after the fact.

3.17

If there is a problem regarding surveillance then there is, at least prima facie, a corresponding problem to be addressed regarding the disclosure or publication, where this occurs within the State, whether by the media or others, of the fruits of such surveillance. When one takes into account the openness of the Irish market to penetration by low-priced tabloid newspapers from the United Kingdom in particular it becomes difficult to escape this conclusion. The fact that there is no legislation in the United Kingdom in the area covered by the recommendations in this report does not alter the fact that British Governments over the past thirty years or more have commissioned reports from a number of expert committees as to the need for such legislation and have repeatedly been advised, having regard to experience in that country of privacy-invasive behaviour by the media in particular, that such legislation, covering both intrusions into personal privacy and the disclosure and publication of information thereby obtained, is called for. Although it is accepted that the standards observed by the media in Ireland have in general been considerably higher than those of some of their counterparts in the United Kingdom, it would to say the least be imprudent to ignore the potential influence on standards in Ireland of those of the media in the United Kingdom.

3.18

In short, Ireland can no longer be taken to be an “island” either in the surveillance sense or in the sense of disclosure and publication of information obtained by surveillance, but is part of a larger information market in which, for reasons which we make clear in this Report, it has already been widely (if not universally) accepted that legislation to protect the right of privacy is necessary. Unfortunately, the supply of the fruits of media intrusion into people's private lives tends to create its own demand and to offer a premium for further such intrusion and publication. We are firmly of the view that the time is now ripe for measures to control this situation in the interests of the general public. As far as these measures would affect the media we would seek to buttress high standards there while not taking away from the liberty of the media to champion the people's right to know in suitable cases.

3.19

In remainder of this Chapter we review briefly the constitutional template supporting a general right of privacy and the question whether it is sufficient without legislation.

2. The Constitutional Template

The Constitutional Right of Privacy

3.20

Irish constitutional law does place great emphasis on human dignity and strongly supports a right of privacy. But, as will be seen below, we are of the view that reliance on constitutional means of redress alone is insufficient. There is a palpable need to move beyond general constitutional protection to create effective means of redress in positive law. Irish positive law fails to deliver a comprehensive and effective means of protection at present. The glaring gap

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between high constitutional promise and practical legal provision needs to be closed.

3.21

The right of privacy is now well established in Irish constitutional law. Although it is nowhere specifically mentioned in the text of the Constitution, its existence has been implied by the courts from several textual sources including Article 41 (the Family) and Article 40.3.1. (unenumerated rights of the person).

3.22

There are at least two general anchorage points to privacy in Irish constitutional law – both of which offer strong and positive support for the recommendations of this Report.

3.23

The first anchorage point turns on the implication of a right of privacy from a variety of rights already protected explicitly in the text of the Constitution. These include textual rights dealing with

3.24

The courts typically imply privacy in or from these textual rights in order to give them a heightened measure of efficacy.

3.25

The family based on marriage is a special and highly valued kind of human association under Article 41. It was felt necessary by the Supreme Court in McGee v. Attorney General⁴ and its progeny to imply privacy into Article 41 in order to advance the interests of the family and its members and to more fully honour the social functions it serves. Some confusion seems to exist over whether privacy should be conceptualised exclusively as a “shield” that immunises decision-making capacity or autonomy over certain “matters” from outside intrusion or whether it attaches more to those “matters” themselves that lie behind the shield. If the latter approach is correct then the question naturally arises whether those “matters” should more properly be the subject of separately denominated constitutional rights (e.g., the right to beget children within the family). This confusion merely reflects the more general distinction alluded to earlier in this Report between viewing privacy as a shield and/or viewing it as

attaching to certain “matters” (and only those “matters”) that lie behind that shield.

3.26

Regardless of whichever approach one takes, it is clear that marital privacy receives quite strong protection under Article 41. This constitutional anchor is of relevance to this Report. It points strongly in favour of a presumption that, with respect to the intimacies of marital life, and absent a compelling and clearly established case, such intimacies ought to be immune from unwarranted intrusion through surveillance and any resulting publication.

3.27

The inviolability of the dwelling as protected by the Constitution (Article 40.5) is also of particular relevance to the subject of this Report. This may be conceptualised as a way of protecting privacy albeit in the limited context of a private dwelling. This, no doubt, reflects the value placed by the common law on property and on the associated right to enjoy the amenities of private property in privacy. It thus forms an added element of the overall privacy “shield”. However, it was not “constitutionalised” under the rubric of property but instead under Article 40 which deals more generally with the fundamental rights of the person. Hence, although the protection afforded by the right attaches to a dwelling, it primarily avails persons who inhabit or simply visit dwellings. Such persons need not have any property interest in a particular dwelling to benefit from this right. This points to a presumption of a very strong protection of privacy within the confines of a “private dwelling”. The right would seem to be equally capable of violation whether by physical intrusion or by using long-range audio or video devices.

3.28

The right of private property, which is protected under a combination of Articles 43 (property) and Article 40.3.1° (the guarantee to protect and vindicate rights against unjust attack), further bolsters the right of privacy. The legal concept of property relates primarily to relations between persons with respect to things. To denominate property as private means to establish a relationship of relative exclusivity between an owner of a thing and others in relation to that thing. The right or prerogative to exclude is bound up with the concept of property and is therefore, inter alia, one more way of protecting privacy. This points to, and further augments, the protection of the inviolability of the dwelling and arguably extends it to cover other real property including a garden, curtilage or office. Indeed Article 8 of the European Convention is now been interpreted to apply in an office and commercial setting (see chapter 5).

3.29

The second anchorage point for privacy in the Constitution turns on a consideration of human personhood – on what it means to be a human being and the need for some islands of withdrawal in which the person may flourish. Hence, some judges in McGee let privacy rest on the more general provisions dealing with the unenumerated rights of the person under Article 40.3.1°. In this vein one judge in a later case viewed privacy as necessary for the “expression of

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the individual personality”⁵ and as flowing “from the Christian and democratic nature of the State”.

3.30

This anchor rests on a much more plenary view of the person detached from any particular relationships he or she may have. Furthermore, it is not tied to property or a dwelling. It therefore presumptively creates personal space that can follow the person from context to context and stands to be calibrated (but not extinguished) as the person passes through different spaces (public and private or vice versa). This anchor is of relevance to this Report since it makes it plain that privacy may be violated outside the intimacies of personal relationships by, inter alia, intrusions into purely personal space.

3.31

In this context it is relevant to recall the words of Hamilton P. in Kennedy v. Ireland where he wrote that the

3.32

It is this connection to dignity that affords privacy such a potentially expansive character. This finds strong echoes in the jurisprudence of the European Court of Human Rights which premises the Article 8 conception of privacy on the “physical and moral integrity of the person” (see chapter 5).

3.33

This points to a personal right of privacy that exists no matter the context (albeit affected by the context) and regardless of whether privacy is already indirectly protected e.g. through property or the inviolability of a dwelling. It gives rise to a “reasonable expectation of privacy” even in public places.

3.34

From the above it can be fairly deduced that

Surveillance in Constitutional Litigation

3.35

The specific issue of surveillance has received some attention in the courts from the perspective of constitutional law.

3.36

For example, in Kane v. Governor of Mountjoy Prison the Supreme Court endorsed the police surveillance involved in that case provided adequate justification exists for it on the facts of the case and considering the importance of the duty being discharged by the police (apprehension of a person for whom the delivery of an extradition warrant was imminent) and the extent and nature of the surveillance. This was not a case of covert surveillance but involved overt surveillance where an added concern about personal liberty was in issue. That this issue could be aired before the superior courts is a good thing. However, it would be preferable, in our view, to provide a basis in positive law for such police action especially where it involves covert surveillance. The need for a positive legal basis for such official action is in fact required under Article 8 of the European Convention (see chapter 5).

3.37

In Kennedy v. Ireland⁷ the High Court established that a person enjoys a personal constitutional right of privacy in his/her telephone conversations and the right is breached by deliberate, conscious and unjustifiable interference with such communication. Interference might be justified where required on the grounds of the protection of the constitutional rights of others, the common good and public order and morality. No such grounds arose properly on the facts of the case. This case was one of the factors that led to the introduction of comprehensive legislation governing telephone interception in 1993⁸.

3.38

In DPP v. Kenny⁹ the High Court held that it was not a breach of privacy for those who have lawful custody of a person to observe him. Common sense alone would dictate that a person's right of privacy is drastically altered (though not eliminated) whilst under lawful incarceration. This case finds echoes

in the jurisprudence of the European Court of Human Rights. The limits of the privacy-intrusive prerogatives of those who are in lawful custody were not adumbrated but undoubtedly exist under Irish constitutional law.

3.39

More problematically, the High Court in Nason v. Cork Corporation¹⁰ the High Court ruled that photographic evidence that tended to show that the plaintiff in a personal accident case had not in fact suffered the injuries complained of was admissible. The Court rationalised the admissibility of the evidence on the ground that the plaintiff had a reduced expectation of privacy even when in her own home with the curtains undrawn and on a public street and furthermore that it would be anomalous to require answers to questions in court that opened up the plaintiff's private life and yet not to allow for far less intrusive photographic evidence. In a sense, the greater power of the court to compel answers was taken to include the lesser power of a photographer to take photographs in public or semi-private places. It might have been preferable to handle the privacy issue presented in this case in terms of the strength of the countervailing rights, powers and duties of the defendant (and its agent, the investigator-photographer) rather than simply assume that the greater power of the court always includes the lesser power of the private investigator. In its own way this case shows the need for detailed legislation governing the kinds of activities involved.

3.40

In Devoy v. The Right Honourable Lord Mayor, Aldermen & Burgesses of Dublin, Beattie, Heavey & Brooks¹¹ the High Court allowed the admission of a secret tape recording of a workman into disciplinary proceedings by analogising it to a photograph. This was a form of participant-monitoring. An issue of this kind could be handled under our present proposals by announcing (or rejecting) a “reasonable expectation” of privacy against such secret taping of a conversation, having balanced the intrusion against other individual rights and interests.

Conclusion

3.41

The existing caselaw of our Superior Courts contains clear statements of a constitutional right of privacy and of freedom from unjustified surveillance. Nonetheless, the content and limits of this right are unclear and do not permit the citizen, the media or others concerned to determine with even reasonable certainty their rights and obligations in this sphere. How can this uncertainty best be addressed? In our view, expansive judicial interpretation of the Constitution or judicial reform of the common law are likely to remain a poor substitute for legislative change in the sphere of privacy. To say this is neither to criticise the role of the courts nor to criticise the judiciary. Judge-made law is entirely dependent on the claims that happen to make it to court. Only those parties with sufficient resources are likely to have the wherewithal to test the

outer limits of the law. The fact that impecunious plaintiffs, in particular, can sometimes succeed in securing legal representation does not alter the general truth of this statement. The kinds of claims that make it to court will be narrowed down to a series of net points which may not adequately capture the full spread of concerns (and competing rights) at play in the field. This merely points to the weakness of the adversarial processes as a way of engaging in rational law reform. Furthermore, standing will be allowed only for those directly involved in the case at bar. In an area of such public importance as this, it is surely better for the law to evolve in a manner that allows maximum public debate and participation.

3.42

There is then, in our view, a need to translate constitutional guarantees into prescriptive detail and a need to go beyond the piecemeal evolution of the common law. This is a situation which calls for legislation to give specific content and effect to the constitutional principles concerning the constitutional and civil right to privacy which have been enunciated by the courts while providing for certain specific defences to any complaint of infringement of these rights and also providing that the proposed new statutory right to privacy would not purport to override any relevant constitutional rights of the defendant nor indeed that the limitations in the proposed legislation would not override any such rights in the plaintiff. The recommendations contained in this Report are intended to do this.

3. The Inadequacy of Domestic Law

3.43

In this section we review briefly

Fuller details are contained in our Consultation Paper.

3.44

We furthermore refer, for completeness, to

(a) Existing Civil Law Protections

3.45

Several common law torts play a part in protecting privacy or at least certain aspects of privacy. These are listed below. Commentary which appears

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in our Consultation Paper is not repeated here, but reference to the relevant paragraphs of that Paper is given below.

Trespass to Land

3.46

[See Par. 4.4–4.8 of our Consultation Paper]

Trespass to Chattels

3.47

[See Par. 4.17–4.18 of our Consultation Paper]

Trespass to the Person

3.48

[See Par. 4.13–4.16 of our Consultation Paper]

Private Nuisance

3.49

[See Par. 4.9–4.12 of our Consultation Paper]

Breach of Statutory Duty

3.50

[See Par. 4.29–4.32 of our Consultation Paper]

Defamation

3.51

[See Par. 4.19–4.21 of our Consultation Paper]

Malicious Falsehood

3.52

[See Par. 4.22–4.24 of our Consultation Paper]

Passing Off

3.53

[See Par. 4.25–4.28 of our Consultation Paper]

Breach of Confidence

3.54

[See Par. 4.33–4.63 of our Consultation Paper]

As we explained in our Consultation Paper, the three basic requirements for the application of the equitable doctrine of breach of confidence are (1) that the information is itself of a private nature, (2) that it is imparted in circumstances giving rise to a duty of confidentiality and (3) that its dissemination was unauthorised. There has been a considerable loosening of the second requirement over the past few years which allows the courts to effectively impose a duty of confidentiality in some circumstances in the absence of a specific relationship of confidentiality (indeed any relationship at all) between the parties. So much so that one English judge has stated, albeit obiter dicta, that

3.55

No one is quite sure as to the outer boundaries of the law of confidence nor as to the extent to which it might adequately supply for the place of a full privacy tort. As will be seen, the fact that there appears to be some movement in England toward a more creative judicial interpretation of the outer boundaries to the law of confidence was the main reason why the European Commission on Human Rights rejected the application of Earl Spencer as manifestly ill-founded for failing to exhaust domestic remedies¹³.

Conclusion

3.56

The civil law provides a fragmentary protection of the privacy “shield”. It does not add up to the comprehensive protection privacy deserves in the context of surveillance and interception.

3.57

The most obvious gap in the first three torts enumerated above has to do with the use of long-range sensing devices. Most of the other enumerated torts, which deal with informational privacy, do not protect privacy holistically by tackling the subsequent publication of private information. While confidence law has potential, its overall utility in the sphere of this Report is as yet unclear. It is preferable in our view to accelerate and crystallize this trend for organic growth in the common law – if indeed the trend is well founded – through appropriate legislation.

(b) Existing Criminal Law Protections

3.58

A web of common law crimes and statutory offences exist that is of considerable relevance in the context of surveillance and interception. These are listed below. Commentary which appears in our Consultation Paper is not repeated here, but references to the relevant paragraphs of that Paper are given below.

Breach of the Peace

3.59

[See Par. 5.2 – 5.8 of our Consultation Paper]

Harassment

3.60

Section 10 of the Non-Fatal Offences Against the Person Act, 1997 provides as follows:

3.61

Harassment is further defined as arising where

3.62

This combines both a subjective and an objective approach to the definition of harassment. Not only must the requisite mental state exist but a reasonable person must apprehend the acts, etc., as violative of peace and privacy, etc. The term “privacy” is also explicitly included but left undefined which allows courts to consider a reasonable view of what constitutes a violation of privacy through harassment.

3.63

Injunctive relief in various forms is available under Section 10 where an offence has been established. Penalties include a fine not exceeding £1,500 or imprisonment for up to 12 months on summary conviction and an indeterminate fine or imprisonment for up to 7 years for conviction on indictment.

3.64

The explanatory memorandum accompanying the Bill stated that the aim of section 10 is to get at the form of behaviour commonly known as “stalking”. Section 10 is however quite capable of having many different applications that are of relevance in the context of this Report. It could apply, for example, to persons who persistently follow others in pursuit of photographs. Harassment is defined explicitly to include invasions of privacy by any means including the use of the telephone.

3.65

Section 10 allows for the defence of “reasonable excuse” which is left undefined. It is only applicable where there has been an element of “persistence” involved in the acts in question – it does not therefore apply to once-off situations which can be most damaging to privacy.

3.66

In our Consultation Paper, we requested submissions with respect to the possibility of creating an offence of group harassment¹⁴. We are not convinced that group harassment should amount to a separate offence (i.e., in addition to that created by the 1997 Act) since the criminal law should only be used to penalise behaviour for which the person is individually culpable and section 10 of the 1997 Act in any event covers all forms of proven harassment. It could prove difficult, if not impossible, to determine exactly when an individual bears

criminal culpability for the actions of a group especially where that group forms spontaneously and without any collusion. We do, however, recommend the enactment of a civil tort directed against harassment.

3.67

Where the commission of the tort involved a group of two or more and the presence of the group itself brought added elements such as menace, intimidation and fear we believe that the court could under existing law take this into account in assessing damages.

Eavesdropping

3.68

[See Par. 5.9 – 5.12 of our Consultation Paper]

Statutory Offences to Protect the Mail and Telecommunications

3.69

[See Pars. 5.13 – 5.69 of our Consultation Paper]

Statutory Offences Connected with Computer-Based Information and Communication

3.70

[See Par. 3.92 – 3.95 of our Consultation Paper]

Conclusion

3.71

As with the civil law, the protection of privacy by the criminal law is piecemeal and does not meet the present-day need for protection from surveillance.

(c) Data Protection Legislation

Data Protection Legislation and the Transposition of Directive 95/46/EC

3.72

The Data Protection Act, 1988 advances the interest of the individual in “information privacy” in the context of automatically processed personal information. It was intended to give effect to Ireland's obligations under the Council of Europe Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (1981). An outline of the Act is given in our Consultation Paper, at Par. 5.70 – 5.73.

3.73

Directive 95/46/EC of the European Parliament and Council of 1995 must be transposed into the domestic law of the Member States by October 1998. This will apparently be done by amending the 1988 Act. The stated purpose of the Directive is to give further substance to, amplify and modernise the norms contained in the 1981 Council of Europe Convention. It is relevant in the context of this Report in the following respects.

3.74

The Directive applies to personal data which is wholly or partly processed by automatic means (Article 2 (b)). It breaks new ground by extending coverage to personal data processed in such a way as to form part of (or which is intended to form part of) a “filing system”. In other words, manual files containing personal data for manual processing are covered. This has implications for the media which has traditionally relied on manual files. Even

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without such an extension of coverage to embrace manual filing systems the media were likely to be within the embrace of the Directive in any event. This is so because of the growth in the introduction of new technology (e.g., document management and retrieval systems) into the media sector over the past few years which means that much more automatic processing of personal data is now taking place in that sector.

3.75

The directive itself is divided as follows. Chapter I is general (Articles 1–4). Chapter II relates to general rules as to the lawfulness of the processing of personal data (Article 5–21). Chapter III relates to judicial remedies, liabilities and sanctions (Articles 22–24). Chapter IV relates to the transfer of personal data to third countries. Chapter V relates to the elaboration of codes of conduct (Article 27) and Chapter VI relates to an obligation to establish a national supervisory authority at Member State level and the institution of a standing Working Party at Community level under the Convention (Articles 28–34). Such a Working Party with wide ranging advisory functions has already been established.

3.76

Significantly, the “processing” of personal data is stated by the Directive to include collection and recording of such data (Article 2 (b)). On its face, this would appear to apply to video, audio and photographic surveillance. This would be clearly so in the case of digital cameras whose images could later be uploaded into computerised systems (manually or by direct internet connection). It is also probably true of ordinary still cameras since the stills themselves can be scanned and otherwise used in both automatic and filing systems. This interpretation is fortified by reference to recital 16 which explicitly excludes sound and image data such as video surveillance carried out for the purposes of public security. Put the other way around, recital 16 gives the very clear impression that non-security uses of surveillance lie within the protective embrace of the Directive.

3.77

The substantive protections of the Directive are laid down in Chapter II thereof. Within that Chapter, Article 6 lays down certain principles with respect to data quality including the requirement that the data shall be processed (including obtained or captured) fairly and lawfully, collected for specified and legitimate purposes, that it is adequate for those purposes and not excessive and that it is accurate, etc.

3.78

Article 11 provides that, where data has been obtained without the consent of the data subject (as will nearly always be the case where surveillance has been used), a disclosure should be made as to its existence and related details (e.g., identify of the data controller, the purpose of the processing, recipients of the data, etc.) at the point where any disclosure of the data to third parties takes place. This would potentially include manual or automatically processed files used for journalistic purposes and subsequently published. Article 12 creates a right of access. Independent of disclosure to third parties (through, for example, publication) the data subject shall have the right to obtain from the controller confirmation as to whether or not data relating to him is being processed as well as communication to him in an intelligible form of the data

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undergoing processing and of any available information as to their source, etc. (Article 12(a) 2nd indent.). This potentially gives a person the right to demand from a newspaper or broadcaster an account of the information held about him. The data subject has a related right of rectification, erasure or blockage of the data the processing of which does not comply with the provisions of the Directive in particular because of the incomplete or inaccurate nature of the data (Article 12 (b)).

3.79

Quite obviously these provisions are geared toward enhancing the protection of “information privacy”. It was, however, realised that their strict application might have deleterious effects on legitimate journalistic activity carried out in the public interest. Particular apprehension seems to have been felt about the right of access to data where the data has not been obtained from the data subject and where it is subsequently published (Article 11). It is to be noted that Article 12 creates a much more general right of access (absent publication) and further provides that such a right includes the furnishing by the data controller to the data subject of “any available information as to their source” (Article 12(a), 2nd indent).

3.80

Article 9 was inserted with a view to tempering the full rigour of the data protection rules in the specific context of legitimate journalistic activity. It provides:

3.81

According to the Working Party established under Chapter VI of the Directive, the authority for the insertion of Article 9 was Article F paragraph 2 of the Treaty on European Union (TEU) which states that the Union shall respect fundamental rights as guaranteed by the European Convention on Human Rights¹⁶. At issue was the balance to be struck between Article 10 of the European Convention (freedom of expression) as applied in the context of journalistic activity and Article 8 (right to respect for “private life”).

3.82

The following points are noteworthy about the above formulation. First, Article 9 refers to journalistic activity which phrase includes – but sweeps broader than – the activities of the journalistic profession. So although Article 9 will be of benefit to the journalistic profession its full sweep is in fact broader. Secondly,

it requires appropriate exceptions to be be carved out under domestic law. No discretion is left as to whether such exceptions should be created. Thirdly, Member States may carve out appropriate exceptions “only if they are necessary”. The test of necessity qualifies considerably the scope for exceptions. Fourthly, Member States may carve out exceptions only if necessary in order to reconcile two particular rights- namely, privacy and freedom of expression. Fifthly, the exceptions can touch on matters covered under Chapters II, IV and VI. As such, an Article 9 exception might theoretically reach Article 6 governing the obligation to process (including obtaining or capturing) personal data fairly and lawfully.

3.83

We make no formal recommendation as to the extent of Ireland's margin of appreciation under Article 9 of the directive since “information privacy” is, strictly speaking, beyond the scope of this Report. We do, however, make the following observations which seem to us warranted by our own research and relevant to the subject matter of this Report.

3.84

It would appear that the main intent behind Article 9 is to immunise the internal processing of data within the media sector. As the Working Party established under the Directive has stated:

3.85

In particular Article 9 appears geared toward limiting individual rights of access to information held about them by the media. Despite the fact that an Article 9 exception can theoretically reach Article 6 issues concerning, for example, the obligation to process (including obtain and capture) data fairly and lawfully, it does not appear to have been explicitly designed to reach back into and immunise aspects of the information-gathering process as such. Or at least if it has a backward reach it can only do so to the extent necessary to reconcile privacy with freedom of expression as per Article 9. The question whether such a reconciliation requires the immunisation of information-gathering activities to advance freedom of expression can only be answered by referring outward to the balance already struck by the European Court of Human Rights between Articles 8 (right to respect for private life) and 10 of the European Convention on Human Rights. As will be seen in chapter 5 and Annex I, the European Court of Human Rights has not yet interpreted Article 10 of the European Convention on Human Rights as granting directly or by necessary implication any broad or plenary immunity from the ordinary rule of law as it applies to information-gathering activities. It is true that limited immunities relating to information-gathering (e.g., presumption of a right to refuse to disclose sources) have in fact been recognised by the Strasbourg Court (see analysis of Goodwin v. UK in

Annnex I) but the point remains that no broad immunity as such has yet been sanctioned as necessary to balance privacy with freedom of expression. That being so, Article 9 of the directive does not place any insurmountable obstacle in the way of surveillance legislation of the sort we recommend.

3.86

Issues also arise under Article 9 at the other end of the continuum (from information-gathering to data-proceesing to publication) concerning publication. Our main ancillary recommendation is to the effect that publication that results from acts of privacy-invasive surveillance should be made subject to civil sanction. Again, we see nothing in Article 9 that undermines this recommendation even though “processing” of data is defined, inter alia, to include disclosure. In any event, even if Article 9 were deemed to reach issues connected with publication we consider that the public interest defence we propose would adequately perform the task of reconciling privacy with freedom of expression and fully in line with the case law of the European Court of Human Rights.

3.87

In short, we do not view the Article 9 exception as going directly to the general law – both as it stands and as it may evolve – governing the legality of information-gathering acts. Even if it does it can only do so to the extent necessary to reconcile privacy with freedom of expression and the European Court of Human Rights has not so far carved out any general exception to the ordinary rule of law with respect to information gathering activities. In as much as Article 9 might reach publication we consider that the public interest defence we propose already adequately reconciles privacy with freedom of expression.

(d) Freedom of Information Legislation

3.88

Information privacy is also protected in the context of freedom of information law. The Freedom of Information Act, 1996 creates a statutory presumption that officially held information should be made available to the public and creates a mechanism and appeals system for obtain the same. Like most such legislation worldwide the Act exempts the disclosure to third parties of personal information held officially (section 38). Personal information is defined in section 2 as

3.89

Without prejudice to the generality of the above, such information is stated to include, inter alia, information relating to the educational, medical, psychiatric or psychological history of the individual, information relating to his

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financial affairs, information relating to his employment or employment history, information relating to a criminal record, etc. It is stated not to include the name of a person who holds office as a director or occupies a position as a member of staff of a public body, etc..

3.90

Section 28 of the Act directs that a request for access to officially held information shall be refused if, in the opinion of the responsible head, access to the record would involve disclosure of personal information (including personal information relating to a deceased individual). Subsection (3) of section 28 goes further to create a discretion to refuse access to certain medical information to a requester where that information concerns the requester and which might, in the opinion of the head concerned, be prejudicial to his or her mental health, well-being or emotional condition.

3.91

Sub-section 5 of section 28 creates a discretion to grant access to personal information if the head decides, on balance, that the public interest in disclosure outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld. The “public interest” concept is left undefined by the Act and no guidance or general statement of understanding on the notion has so far emenated from the newly established Office of the Information Commissioner. The notion will likely have to be adumbrated through specific appeals to the Office and perhaps in the High Court on points of law.

(e) Broadcasting Regulation

3.92

As outlined in our Consultation Paper the Broadcasting Authority Act 1960 was amended by the Broadcasting Authority (Amendment) Act 1976 to place RTÉ under a statutory duty not to encroach unreasonably on the privacy of an individual.¹⁸ RTÉ has issued its understanding of this statutory duty to its staff in its Broadcasting Guidelines for RTÉ Personnel.¹⁹ These Guidelines are quite commendable and compatible with our core recommendations. We go beyond them, however, to recommend harder remedies. A similar statutory duty is created for private broadcasters under the Radio and Television Act, 1988²⁰ and in fact forms part of the broadcast contract. Under that Act the Independent Radio and Television Commission (IRTC) is empowered to draw up a code of practice in relation, inter alia, to privacy²¹. As part of its work programme for 1998 the IRTC hopes to provide such a code by the end of this year²².

3.93

The Broadcast Complaints Commission is empowered to entertain complaints that the above privacy provisions have been breached. Decisions of the Commission receive some publicity. Apart from being reproduced in the Commission's Annual Reports they are forwarded to the Government Information Service for circulation to the national newspapers and, where relevant, are published in the RTÉ Guide. The IRTC has to power to terminate the contract of an independent broadcaster for serious or repeated breaches of its statutory obligations.

3.94

The first striking thing is that such statutory regulation exists, in contrast to the situation obtaining with respect to the print media. Secondly, the “remedies” take the form either of a “decision” that attract a degree of publicity or the discontinuance of a broadcasting contract. However, more publicity is not necessarily what the average complainant whose private life has been exposed may want. The suspension or termination of a contract is an extreme remedy that is not likely to be utilised except in the most outrageous of cases.

3.95

It is an open question whether a cause of action for breach of statutory duty might lie in respect of the Broadcasting Acts.²³ Regardless of this, however, it would not be appropriate to exclude any group such as broadcasters from the general privacy legislation which we propose.

(f) Non-Statutory Codes of Practice

3.96

In very recent times a variety of self-regulating actors have adopted voluntary codes of practice for themselves.

i. Garda Code of Practice Governing CCTVs, 1995

3.97

The Garda Síochána adopted a Code of Practice for the Use of Closed Circuit T.V. Monitoring Systems in Temple Bar in 1995. The Temple Bar system in Dublin was the first to be operated and under the control of the Garda Síochána. A series of fixed cameras are mounted at strategic points and are operated and controlled remotely by the Gardaí²⁴. Since then Garda CCTV systems have commenced on the O'Connell Street area of Dublin²⁵. An Advisory Committee has been established by the Garda Commissioner to help establish priorities in selecting applications for CCTV systems from different locations around the country At least twenty such applications have been made. Funding is on a shared partnership arrangement with local business community interests although the absence of such funding is not in itself the sole criterion in determining whether an application should be granted.

3.98

The Temple Bar Code applies, as the title suggests, to the Temple Bar CCTV project. It is, however, used as a template for projects in the rest of the country although it has not been formally generalised to serve in this way. Its primary function is to reassure the public that the system will be used only for the legitimate purposes of preventing and detecting crime and that basic rights of the citizen will be safeguarded. The Temple Bar system is operated exclusively by the Gardai and monitored from Store Street Garda Station²⁶. The cameras are stated to be in clear view of the public.²⁷ There is no requirement to notify the public that they are entering an area where they may be subjected to surveillance (although notices have in fact been put up).

3.99

Street activity is monitored and recorded²⁸. Video tapes are to be held in a secure environment within the Garda station and remain at all times under the control of the member in charge of the station²⁹.

3.100

Videos will be re-used after thirty one days unless required for crime investigation and evidential purposes³⁰. All requests to view video tapes or hard copies of tapes must be authorised by the Superintendent in charge of the District and will be confined to the investigation of “specific crimes, activities and evidential matters”. The grant of authority will be recorded in the record book of the member in charge of the station. The making of hard copies of video tapes is subject to the written authority of the Superintendent in charge of the District. All authorisations of this nature must be recorded in the record book of the member in charge of the station.

3.101

Video tapes may not be removed from the custody of the member in charge of the station without his authorisation. All authorisations as well as the purpose for which they are granted must be recorded and signed by the member in charge. This record will be made available for inspection by the Superintendent in charge of the District and other superior Officers of An Garda Síochána. Any inspection of the record must itself by recorded and signed.

3.102

A separate section in the Code requires individual Gardaí involved in operating the system to be conscious of the individual rights and freedoms of the person and to take all precautions and safeguards necessary to ensure that these rights and freedoms are protected³¹. Supervisors are mandated to ensure that all uses are appropriate and authorised in the public interest. The member in charge of the Station is affixed with overall responsibility for the orderly use of the system. Individual Gardaí who transgress the provisions of the Code may be

subjected to disciplinary proceedings³². The provisions of the Data Protection Act, 1989 are stated to apply to video recordings which relate to identified or identifiable individuals³³

3.103

The Code of Practice does not, because it cannot, confer legal rights of redress on those who may have been the victim of a misuse of the system in the event that such misuse is detected. A periodic review is required every three months which involves the Garda Commissioner. It is unclear whether this involves a close review of the appropriatenesss of the use of the system in the preceding period or whether it is a paper-based exercise preliminary to renewal.

3.104

A consideration of the application of data protection legislation to the use of CCTV systems is contained in Annex III of this Report.

ii. Code of Practice within the Private Investigators Industry, 1995

3.105

Private investigators are generally hired by a variety of actors including insurance companies, private businesses, retail outlets, wholesalers, factories and private litigants for a variety of reasons. The interests pursued on behalf of such clients are, in the main, perfectly legitimate. Indeed, we make explicit provision for such legitimate activities under Head 3(1)(ii) subject to a principle of proportionality as to the means used and the degree of privacy invaded.

3.106

There is no umbrella organisation covering private detectives in Ireland. Private detectives are not presently obliged by law to associate with or acquire accreditation from any professional body. We are aware that at least one body – the Confederation of Irish Detectives – has adopted a Code of Ethics which emphasises the responsibility of members to conduct all investigations within the bounds of legality, morality and professional ethics³⁴. The Code mentions privacy explicitly in the context of client's rights and in the operation of services³⁵. The Code of Ethics is incorporated into the By-Laws of the Confederation a breach of which may trigger disciplinary proceedings. Complaints may be made concerning alleged breaches from “whatever quarter” which presumably includes a member of the public who apprehends an invasion of his/her privacy³⁶.

3.107

The recommendations of the Report of the Consultative Group on the Private Security Industry will, if acted upon, make a significant difference in the organisation of the industry. The core recommendation of that Report concerns the establishment under statute of an Irish Security Authority whose primary

purpose would be to introduce, control and manage a comprehensive licensing system for the broad security industry. One of the functions of the Authority would be to set minimum standards for certain sectors which presumably includes the private investigators' industry. We do not view the setting of such standards as conflicting with our legislative proposals in any way. On the contrary, we view the elaboration of industry standards as usefully complementing the bedrock legislation we propose in this Report.

iii. Code of the National Newspapers of Ireland (NNI), 1996

3.108

Since our Consultation Paper the National Newspapers of Ireland (NNI) has adopted a Code of Practice on Privacy in July 1997. In essence, the new Code makes a serious and laudable effort at reconciling the human and constitutional right of privacy with matters that lie within the public interest and with respect to which the people have a right to know. We consider that this balance has now been appropriately struck in our own recommendations particularly with respect to the proposed “public interest” defence.

3.109

The major difference between our approach and that contained in the Code is that we provide for a right of recourse to the courts in order to obtain preventive relief or compensation for violations. The main qualification is that our recommendations do not go to all cases of media intrusion on privacy but only those intrusions that result from unlawful surveillance.

4. Summary

3.110

Our view, in short, is that – notwithstanding the existence of a substantial volume of domestic positive law which, in some cases by design but more often by default, addresses problems arising in the sphere of privacy – the law is at present inadequate to afford protection for privacy against unjustifiable acts of surveillance. Nor is it adequate or comprehensive enough to provide the needed ancillary protection against the dissemination or publication of any information that results from privacy-invasive surveillance.

3.111

Codes of Practice (including those outlined above), while valuable, do not give the citizen the protection of the Courts.

3.112

It is against this backdrop of haphazard and uncertain protection that we make our recommendations for a new law against privacy-invasive surveillance. This would encompass but not replace the protections already provided by the patchwork quilt of existing law. More importantly, by focusing on all methods of surveillance it would offer a closure of coverage that is not possible under the present law.

CHAPTER 4: IS LEGISLATION CALLED FOR?

1. General

4.1

In the previous chapters we looked at the nature of the privacy problem and the inadequacy of the existing domestic law to cope with the problems that result from surveillance. As asserted in Chapter 1, prima facie a legislative solution would appear to be called for. However, various arguments have been advanced against adopting a legislative solution. We now examine these.

2. The Arguments Against a Legislative Solution

4.2

We received written submissions from a wide variety of interests including media interests in response to our Consultation Paper. It appears to be accepted by all (and indeed it could not be disputed) that the privacy of the individual including the right of freedom from privacy-invasive surveillance is a constitutional right. This, of course, has to be balanced against other constitutional rights including freedom of expression. It also appears to be generally accepted or at least not disputed that the wealth of new technology now poses a significant threat to the privacy of the individual. It was however argued (both in written submissions and at our “listening exercise”) that the media in Ireland have a good record of respect for privacy of the individual and that the appropriate remedy, at least as far as their activities are concerned, is self-regulation by means of a code of conduct rather than legislation.

4.4

Our view is that legislation of the type we recommend is both necessary in principle and workable in practice.

4.5

We review below the main arguments put to us against legislation and our evaluation of them.

i. Should the Market – Not the Law – Determine Boundaries?

4.6

It was variously asserted in some submissions that social mores change through time and that these changes affect the boundaries of privacy. We have no difficulty in recognising the essential truth of that assertion. Whether there is a “reasonable expectation” of privacy depends on the particular context (see Chapter 2 above), but the right itself rests on autonomous ethical and legal principles.

4.7

However, the real thrust of the submissions on this point was to the effect that if the right of privacy is open-ended, then its outer boundaries should be determined by the market. Market forces are, it was asserted, sensitive and finely-tuned to public opinion. In sum, market judgments are preferable to legal judgments.

4.8

We reject this approach. It is of course theoretically possible that a “perfect” market will simply reflect and respect implicit boundaries in culture. However, it is just as likely, in our view, that the market itself will alter the boundaries. Furthermore, market mechanisms tend to respect no inherent limitations other than what the market might bear at any point in time. Every society must decide where to place principled limits on the market.

4.9

Moreover, to allow the boundaries of a human right to vacillate in accordance with the market of public opinion is to abandon the position that the right has an autonomous core of meaning. The recognition and policing of boundaries is, in our view, a task of the law and not a task of markets.¹

4.10

This is not to say that courts should not take due account of the way boundaries shift in response to changes in social mores. Indeed we create ample room in our draft Heads of Bill to allow for this. We do not provide an exhaustive definition of privacy but rather provide a list of indicative factors that a court will advert to in determining whether a “reasonable expectation” of privacy exists on the facts of any given case (Head 1(3)(i)). In short, we insist that human rights do have a core of meaning and that, while the inevitable task of adjusting the boundaries of rights is undoubtedly influenced by changing social mores, it should be a matter for the courts and should not be abandoned to market forces.

ii. Is Self-Regulation Sufficient?

4.11

It was also pressed on us that appropriate mechanisms of self-regulation, in particular by the media, are both necessary and sufficient.

4.12

In short, it was claimed that the rights of privacy which we now propose are liable to conflict with freedom of the press. Instead of legislating for these rights so that alleged infringements by the media would be adjudicated upon by the courts with appropriate remedies including injunctions and damages, it should be left to the media themselves, in the form of a voluntary body such as a Press Council, to deal with complaints under a voluntary code of press conduct and to determine thereunder what, if any, redress the aggrieved party should receive.

4.13

In opting for a legislative solution we do not intend in any way to decry the valuable role played, or potentially to be played, by the process of self

regulation in this field. Nor, indeed, must our views be taken as negative comment on the content of such voluntary codes as have already been adopted. We greatly welcome self-regulation and the further strengthening of such regulation where it already exists. It is a laudable and necessary effort to take civic responsibilities seriously.

4.14

However, while we view self-regulation as vitally necessary, we do not view it as sufficient, especially in the context of protecting and vindicating fundamental rights. Our reasons are as follows.

4.15

First of all, the self-regulatory process does not presently cover all actors who may potentially intrude on privacy. Private investigators are, for example, not presently subject to any compulsory licensing regime and need not belong to any self-regulating affiliation. We are aware of the recommendations of the Consultation Group on the Private Security Industry² (which body was established by the Department of Justice) in this regard and assume that its proposals with respect to mandatory licensing would apply to this sector.

4.16

Secondly, the self-regulatory process does not typically offer strong remedies in the form of compensation, fines or other preventative measures. The key remedy in our view is not compensatory but preventive. Only a court can provide for such a remedy.

4.17

Thirdly, the field to be regulated implicates very profound matters both of human rights and of their interaction with the public interest in publication. These may be in mutual conflict. We cannot agree that the interested parties who would normally be defendants to a court action should instead be allowed to judge for themselves what are a complainant's legitimate expectations of privacy, whether these have been infringed, and whether there is a countervailing justification for the infringement based on the “public interest”. In our view, these issues, concerning as they do the fundamental rights of the citizen as well as the freedom of the media, are so important in modern democratic culture that their definition – and policing – cannot be left in the hands of the very sectional interests they purport to regulate. We stress that this is in no way to slight the interested parties concerned but it is to say that the definition and policing of the relevant issues including the “public interest” is of such importance that it calls for a form of regulation that is, and is seen to be, neutral with respect to the various interests and rights that compete. Legislation that creates the possibility of legal redress in the courts is the only way to achieve this.

4.18

Fourthly, self-regulation, no matter how effective, normally takes place against the backdrop of market forces which, if unchecked by law, have the potential to undermine the whole process of self-regulation. Maverick elements within an industry can always circumvent the self-regulatory process and discredit the good intentions and laudable track record of the majority. We are of the

view that it is entirely plausible to assume that sooner or later, competition for marketable copy within the media tends to result in self-regulation breaking down, and that ultimately if the citizen cannot look to the courts (as opposed to voluntary self-regulation by the media) for protection then the citizen will have little or no effective protection. The courts cannot accord such protection unless it is provided for by the law.

4.19

Fifthly, it must always be remembered that law serves other purposes besides making redress available and practicable. The fact that a law exists protecting a particular right does much to symbolise the importance to society of that right. It also serves an educative function for society at large. From this perspective, the fact that infringements might be rare is beside the point. What matters is that the right is considered important enough to deserve both the symbolic imprimatur of the law and the provision of practicable means of redress.

4.20

Sixthly, and finally, we note the approach of the European Court of Human Rights which forbids States from absolving themselves of answering for their Convention responsibilities by delegating them (de jure or de facto) to subsidiary private bodies³. This is not a bar to delegation as such but it does preclude States from thereby absolving themselves of answerability under the Convention. The best way of doing this in our view is to enact a broad statutory framework with effective remedies attached.

4.21

At the end of the day, while we applaud and encourage the trend toward self-regulation, we do not consider it to be a sufficient answer with respect to the subject matter of this Report.

4.22

We have also considered but rejected the concept of “enforced self-regulation”. Such a concept entails delegating the drafting of regulations to the very bodies regulated by a framework statute. Such regulations become the legal benchmarks against which the regulated entities must conform their behaviour if approved by a statutory authority. Notwithstanding the undoubted utility of “enforced self-regulation” in other contexts, we do not think that the question of how a fundamental human right should be protected and balanced with other sensitive human rights is a matter that should be delegated to entities that will be affected by the rules eventually adopted.

iii. Is the Concept of Privacy Amenable to Legislative Expression?

4.23

It was also contended that, while there could be no doubting the status of privacy as a human right, its very generality made it unsuitable for expression in statutory language. We reject this argument for the following reasons.

4.24

First, the argument about vagueness is something that would go to the expression of privacy at a Constitutional level as well as in the context of legislation. If vagueness were a key determinant of whether a right exists – or deserves enhanced protection – then it might similarly be argued that the right should be withdrawn from the constitutional template, which no one seriously suggests.

4.25

Secondly, the very generality of the right at the constitutional level is itself, in our view, an argument for legislation. The abstract generality of the right (which is an unwritten right) is a very powerful argument indeed that the State should move beyond vague and somewhat unclear guarantees to set out in clear legislation where it thinks the parameters of the right lie and to provide guidance to courts in reaching conclusions in concrete cases.

4.26

Thirdly, and more on point, all principles deemed important enough to warrant legislation prove to be complex and difficult to pin down. The issue is not whether they are complex and difficult –that can be assumed – but whether sufficient certainty can be found to guide the actions of private parties. In this regard it is to be noted that the Calcutt Committee⁴ in the U.K. was satisfied that there were no insuperable problems of definition. The National Heritage Committee of the House of Commons proceeded to provide its own definition⁵ as did the Lord Chancellor in a Consultation Paper issued in 1993⁶. We believe that the indicators we provide in our draft Heads of Bill in determining whether a “reasonable expectation” of privacy arises on the facts of any given case will yield clear answers in most cases. The mere fact that there will be borderline disputes highlights the need for a court and not the inadvisability of legislation in the first place.

4.27

Fourthly, the existing vagueness in constitutional texts is in no one's interests least of all the interests of the person whose privacy is affected. Nor is it in the interests of the various actors who engage in various acts of surveillance that may be held violative of privacy. Indeed, it is not in the interests of the news media which require much greater clarity as to where lines are to be drawn. Private investigators and the media risk the ad hoc and unpredictable development of the law through constitutional litigation. Far better to clarify the law through legislation.

4.28

Our recommendations are not designed to deepen or broaden the constitutional protections of privacy. We do not attempt constitutional law reform through the back door. Indeed, our draft Heads of Bill explicitly preserve all constitutional rights to the contrary (if any or to whatever extent). Rather, we seek to give particularity to the bedrock constitutional right of privacy.

iv. Can the Law Provide an Adequate Balance between Privacy and other Competing Rights and Interests?

4.29

It was also asserted that the law is peculiarly incapable of handling with sufficient sensitivity the balancing of privacy with other reckonable rights and interests. This argument goes to a more general debate about the nature and appropriateness of balancing tests in both public and private law. It assumes particular importance in the context of the competition between privacy and freedom of expression. When this argument is reduced to its essentials it amounts to an assertion that no satisfactory formula can be found to reconcile privacy with freedom of expression. We reject this argument – both in general and as it applies in the context of freedom of expression – for the following reasons.

4.30

First, it must be acknowledged that legislation, by its nature, must not merely protect a right but also calibrate that primary right with other rights and interests. The mere fact that a right has boundaries and the consequential necessity for spelling out in legislative language how those boundaries are to be identified in individual cases is not in itself a good argument against legislation. If it were then the legislature should never legislate for the protection of important – yet undeniably complex – civil rights.

4.31

Secondly, it is conceded that difficult borderline cases will arise. But of all institutions the courts are well used to weighing up in a rational and principled manner the sensitivities involved in balancing competing rights and interests. Indeed this discipline of rationality and principle is one of the distinguishing features of the legal order. It does, of course, take time to develop a fully coherent jurisprudence. But if this factor were to be the deciding one then there would be precious little scope for the legislature to enact laws where the competing rights at stake were of comparable importance. That would not be in the public interest.

4.32

Thirdly, our recommendations aim to insert privacy into a balancing equation where no such possibility has effectively existed in the past. In the absence of such a balancing exercise, privacy might be consigned to a rhetorical side-stage and freedom of expression allowed to triumph without the discipline of a contest.

4.33

Fourthly, it must be emphasised that the defences we enunciate are broad enough in our view to embrace current legitimate uses of surveillance technology. The benefit in legislating is to reassure the public and to provide accessible remedies where there have been unjustifiable violations of privacy.

4.34

Fifthly, we fully realise that freedom of expression is different. It goes to the existence and quality of the marketplace of ideas that is so fundamental in a healthy democracy. That is why we now embrace a conception of the “public interest” defence. We see our conception of the public interest defence as expansive enough to cater for the people's legitimate “right to know” certain

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matters whist protecting against the impulse to intrude beyond that point for purely commercial or other reasons.

4.35

Sixthly, we envisage that, where appropriate, the courts may, in advance of the full trial of a claim in tort arising from our proposed legislation, issue interim or interlocutory injunctions to restrain the acts complained of including allegedly unlawful publication. We fully realise that in the context of publication this implies imposing a “prior restraint”. It is to be noted that the imposition of prior restraints on publication is not inherently contrary to the European Convention on Human Rights. We feel that the possibility of applying for and obtaining a prior restraint is entirely appropriate in trying to prevent damage before it happens rather than compensate for it after the fact. In our view, privacy is as much, if not more, a perishable commodity than news. Reliance on damages as an exclusive remedy is not appropriate in this context. The threat of prior restraint in narrow and carefully delineated circumstances is appropriate. In our recommendations, where the defendant makes out a good arguable case for the “public interest defence” which we propose, the court may refuse to grant an interim injunction where the justice of the case so requires. The restraint itself will be temporary pending a decision on the merits.

v. Is Privacy Legislation Futile?

4.36

Another objection takes the form that legislation in this area is futile. Put another way, privacy – while important – cannot be adequately protected. This, in our view, is a counsel of despair. It is a view which has been rejected by the vast majority of Member States of the European Union. It should not be beyond the ability of the legislature to find an appropriate formula to balance all the competing rights at stake. To give up the effort because of the difficulty of the task is not to take the effort seriously enough.

4.37

The thrust of this argument rests on the fact that the Irish media market is heavily penetrated by foreign outlets. This is undoubtedly true. We seek to counter this by inserting a provision in the Draft Heads (Head 2(iv)) that would subject media imports to the same standards as domestic media outlets subject to certain prudent defences. It would, of course, be preferable to see a multinational – or even regional – convention setting down baseline standards on the subject. Short of that, we see nothing wrong in principle with subjecting foreign outlets to the same law as domestic outlets provided the necessary protections are added for innocent publication.

vi. Will Privacy Legislation be Exploited by Powerful Parties?

4.38

The protective regime we recommend will inure to the benefit of all individuals. We do not subscribe to the view that “public figures” abandon their right to privacy merely by entering “public life”. We agree with the view

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expressed by the Royal Commission on the Press in 1977 (the McGregor Commission) a follows:

4.39

We consider that the “public interest” defence we envisage with respect to disclosure through publication will adequately deal with cases where aspects of a person's private life are directly relevant to matters lying squarely within the public domain. Even so, we still insist on a principle of proportionality and on adequate safeguards for the privacy rights of innocent third parties.

3. The Report of the Commission on the Newspaper Industry (the Finlay Report) Considered

4.40

We have had regard to the terms of the Report of the Commission on the Newspaper Industry which was issued in June 1996. That Report deals with a wide range of issues affecting the newspaper industry, most of which have nothing to do with the subject matter of our present Report. However, in one respect the terms of reference under which that Report was drawn up do touch in part upon the matters with which we deal in this Report. This is Term of Reference No. 7, appearing in Chapter 7 of the Report of the Commission on the Newspaper Industry, which reads as follows:

In paragraph 7.2 of its Report the Commission on the Newspaper Industry stated that it had reviewed the desirability of a mechanism for complaint and adjudication “within the general context of the maintenance of press standards and ethics.”

4.41

The Commission on the Newspaper Industry was not asked to consider the desirability or otherwise of legislation to clarify the legal rights of the citizen vis ... vis the newspapers in the matter either of privacy generally or of surveillance. Nor were they asked to consider the desirability of legislation to clarify the legal rights of the citizen in respect of surveillance generally, whether carried out by private persons, detective agencies, the State, the newspapers, the other news media or anyone else. It is with the latter, which goes far beyond the

subject of Chapter 7 of the Report of the Commission on the Newspaper Industry, that we are concerned in the present Report.

4.42

We believe that there is a convincing case for the necessity for legislation of a general kind, applicable to all persons, to control privacy-invasive surveillance including the disclosure of information obtained thereby. In recommending such legislation we would be abdicating from our function of objectively assessing the need for and proposing appropriate reforms of the law if we were to suggest that while the obligations to be imposed by such legislation should be applicable to the citizens as a whole, either the newspapers or the wider news media should be exempted from these obligations on the basis of some separate regime of self-regulation, or the creation of a newspaper or media ombudsman, or such like. To exempt the media from the legislation would not merely be unjustified; it might well be constitutionally vulnerable. In saying this we do not in any sense denigrate any proposal for self-regulation or even for a newspaper or media ombudsman; we consider that such regimes of self-regulation have a valuable part to play in securing compliance, without the need for litigation, with a privacy law conferring legal rights and creating legal obligations. Ultimately however, such legal rights and obligations can only be interpreted and enforced by the Courts.

4.43

It is true that in their Report the Commission on the Newspaper Industry found, as a result inter alia of a survey which they undertook, that the standards of Irish newspapers with regards to the proper respect for privacy are generally good, though there is a fear expressed in these findings that these standards may decline because of the perceived lower standards of imported tabloid newspapers. This is a danger to which we also refer in this Report. In our view there is nothing in the Report of the Commission on the Newspaper Industry which would warrant the exemption of the newspapers (or indeed any other news media) from the application of the privacy surveillance law which we propose or which in any way undermines the recommendations which we make in this Report.

4. Conclusions

4.44

The case for law reform in this area rests on the existence of a privacy problem with respect to surveillance, the inadequacy of existing positive law, the prevailing uncertainty as to the content and limits of the constitutional right of privacy and the need to alleviate such uncertainty and inadequacy by legislation. Legislation is the appropriate option for reform since it opens up a process that allows all potential parties to represent their interests and affords an opportunity for a rational and comprehensive framing of the public interest.

4.45

With respect to the arguments put in the context of publication, to leave market forces to their own devices is not an adequate response. Markets are not ends in themselves but serve as a means to certain ends. We value the end of privacy just as much as we do the means of the market and for that reason are

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willing to see principled limits on market forces. We acknowledge that the media is not simply a service providing a commodity in a marketplace. It is also a vital tool in keeping the public informed on matters of public interest. It is precisely because of this that we now respond positively to the various submissions made to us and recommend an appropriate “public interest” defence to what would otherwise be wrongful publication in our recommendations.

4.46

Nor are we convinced that self-regulation is a complete answer. The issue calls for hard remedies – and especially preventative remedies – which the self-regulatory process is not likely to provide. As a matter of principle we view the question of the public interest to be of such transcendent importance in this field that its application should be placed in the hands of the courts.

4.47

Like Calcutt and the National Heritage Committee in the United Kingdom we agree that the reduction of the privacy concept to a workable statutory formula is difficult but certainly not impossible. More particularly, we are of the view that the difficulty of finding an appropriate balancing formula between privacy and other rights (especially freedom of expression) is not a good answer against trying. We feel confident that our overall approach – including particularly the public interest defence – adequately reconciles all the principal rights at stake and gives the necessary breathing space for the media in a democratic society.

4.48

Lastly, we do not agree that legislation is futile. It is natural to expect that ways will be explored for circumventing the legislation. That reality is not a good argument against legislation but speaks powerfully to the need to anticipate these efforts and try to provide for them as far as possible. We seek to do this under draft Head 3(1)(iv) with respect (among other things) to publication in the State of information obtained by privacy-invasive surveillance abroad no less than such information obtained by such methods at home.

PART II – INTERNATIONAL BENCHMARKS FOR REFORM

CHAPTER 5: THE PROPOSED PRIVACY LEGISLATION AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS

5.1

Many reservations were expressed both in written submissions and orally at our listening exercise concerning the compatibility of privacy legislation in general – and particularly of the sort we provisionally recommended in our Consultation Paper – with the European Convention on Human Rights. Since these reservations raised issues of principle we decided to do some further research on the matter. Our Consultation Paper did not deal explicitly with the interplay between Article 8 (right to respect for private life) and Article 10 (freedom of expression) of the Convention. The impact of Article 10 was in fact the main point of concern expressed to us.

5.2

We summarise below the main conclusions of our extra research. These conclusions should be read in light of the detailed research paper on this topic contained in Annex I.

1. Article 8 – right to respect for “private life”

5.3

Article 8 reads as follows:

5.4

The Court has held that the term “private life” encompasses and protects the “physical and moral integrity” of the person¹. The Commission has explicitly interpreted the idea of “physical integrity” to encompass freedom from harassment.².

5.5

The term “private life” has been held to have a dynamic as well as a passive rendering. It is interpreted not merely to protect a person in his isolation or to protect matters pertaining to his “inner circle” but can also create space for the forging of personal relationships³. The Court has recognised that, since such relationships can be forged outside as well as inside the home, the right can potentially adhere to business premises⁴.

5.6

An “interference” will not readily be found with the right where surveillance merely entails the casual observance of people as part of the ordinary and natural incidences of everyday life⁵. This, however, begs the question whether the deliberate targeting of persons even in public places must be tolerated by society. As some learned authors have pointed out, the mere formal denomination of a place as either public or private is not necessarily the deciding factor⁶. In support of that view it can be pointed out that the Court has in fact begun to use the langauge of “reasonable expectation” of privacy. The use of this language implies a nuanced approach – one that does not presume in a conclusory manner that privacy cannot exist in public places⁷. One factor that might tip a case over the borderline (from an act that one has to tolerate to an “interference” requiring a justification) appears to be the use, or intended use of any information that may result⁸.

5.7

The Court has found positive obligations to arise on the part of states under Article 8. Significantly, it has stated that:

5.8

In determining the kind of measure needed a state enjoys a certain margin of appreciation. This margin is different to the one normally enjoyed by states under the Convention. The “normal” margin of appreciation grants space

to a state to intrude upon or regulate the exercise of right. On the other hand, the kind of margin of appreciation here affords a certain amount of leeway to Contracting States to take extra measures to advance or protect a right in the context or private behaviour.

5.9

Whether legislation is required or permissible to meet this positive obligation would appear to depend on a web of factors including the aspect of the right at stake, the nature of threat/s posed by third party behaviour, the adequacy of existing legal remedies considered cumulatively, the consequences for the individual of leaving the loss lie where it falls, the prevailing views and practices among the Contracting States, and the finding of an appropriate balance between private life and other competing rights and interests.

5.10

We consider that the kind of legislation we propose lies well within Ireland's margin of appreciation when considered as an aspect of a positive obligation of States under the Convention to take measures to advance the right of privacy against the threat posed by third party action. There can be little doubt that the right is fundamental as applied in the context of surveillance. The threats posed are real not least because of the insecurities felt in the complete absence of tailored regulation. Existing remedies capture some claims but not others. The European Commission, which once seemed to inveigh heavily against the law of confidence as substituting for the absence of more direct protections for privacy¹⁰, now seems to genuflect to the apparently expanding nature of this remedy under English law¹¹. This reliance on remedies by proxy merely postpones the day when the limits of such law are clearly reached and when the Commission (or the future unified Court) will have to address squarely the compatibility of the absence of a tailor-made privacy remedy with the positive obligations imposed by Article 8.

5.11

Moreover, the consequences in allowing the status quo to persist for the individual and indeed for society at large are severe. Prevailing views and practices (especially in Continental Europe) tend towards – and not away from – legislative responses. In our view, appropriate balances can be struck with other rights and interests. Simply put, our legislative proposals would allow an applicant to claim an “interference” with privacy which would require a justification to be pleaded and proved. Our legislative proposals do not preclude the possibility of such justifications and indeed widen the range of justifications by adding on a wholly novel one under Irish law; namely a “public interest” defence to publication under certain circumstances.

5.12

The case law under Article 8 also establishes a need for a legislative basis whenever an “interference” is perpetrated by the State or its agents. Again, this is not to preclude the possibility of pleading a successful defence justifying

an “interference”– but it is to say that the process whereby state “interference” takes place must be one that is clearly referable to (and subsumed under) a positive legal regime possessing certain attributes such as clarity, accessibility, etc.. State surveillance is only different in that the very fact that it takes place must in most cases (though not all cases) be kept secret in order to facilitate the detection and prevention of crime¹². This does not entail a carte blanche since the case law demands the effective presence of an independent element (usually a judge) in an ongoing supervisory process and the possibility of bringing applications before an independent body (usually a court or tribunal) for review on an ex post facto basis.

5.13

At present, all the essential requirements of the Convention, as interpreted in case law, are being met with respect to telephone interception carried out by the state in Ireland (Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993). The one significant area of state activity left wholly unprovided for is covert police surveillance. To say that such state action must be governed – permitted and regulated – by positive law is not the same as prescribing the level of due process protections which ought to obtain. The necessity for flexibility in this regard is frankly acknowledged and catered for in our recommendations.

2. Article 10 – Freedom of Expression and its Implications for Privacy Legislation

5.14

Article 10 reads as follows:

5.15

Freedom of expression is implicated by the enactment of privacy legislation of the sort we recommend. However, the clash, such as it is, between freedom of expression and the legislation we recommend occurs most obviously at a level once removed from the core focus of this Report. Our core focus concerns prior acts by which privacy is invaded through surveillance and interception. Our secondary focus is the subsequent misuse of the resulting information, images etc., through disclosure, dissemination or publication.

5.16

Even though the clash between privacy and expression occurs most obviously at a secondary level for the purposes of this Report it is still a clash that requires careful attention. This is so because the various concerns expressed regarding the compatibility of privacy law with freedom of expression raise very serious issues concerning the quality of democracy. Freedom of expression is not merely of importance in its own right but also because it is an essential precondition for effective political accountability. Political speech – and the vital role of the media in providing material information and ideas of relevance to the political arena – is normally afforded the strongest measure of protection under traditional protections of expression. The political function of free speech is, if anything, even more pronounced under the European Convention since that convention was drafted with a keen eye to establishing and maintaining open democratic systems of governance in the aftermath of World War II.

5.17

The European Court is fully alive to the political rationale¹³ of freedom of expression and has given quite expansive protection to such expression. In cases where the expression in question is colourably political or serves a public interest the Court is extremely slow to find any interference as being “necessary in a democratic society”. This is so regardless of the legitimate interest at play under Article 10.2. (e.g., maintaining the authority of the judiciary, protecting reputation or rights of others). Any interference is closely scrutinised to assess whether it responds to a pressing social need, whether it constitutes a proportionate response to that need, and whether it possesses clarity, accessibility and predictability.

5.18

The question naturally arises whether privacy legislation in general – or of the type we propose – is inherently violative of Article 10. The Court has never in fact ruled on a direct clash between Article 8 and freedom to publish under 10¹⁴. If a suitable case were to arise, it would be fair to surmise that neither right would be held to be absolute since to do so would effectively amount to negating one Convention right for the sake of another. It would be much more reasonable to expect the European Court to carefully evaluate whether an appropriately sensitive balance had been struck between the two rights concerned under national legislation. Precisely because of the vital role played by freedom of expression in making political accountability real it is likely that the Court would very closely scrutinise any privacy legislation. However, this

is not the same as concluding that freedom of expression must always prevail over the right to respect for private life.

5.19

The protection afforded to freedom of expression is at its strongest when connected to matters that are squarely political or colourably in the public interest¹⁵. It is entirely reasonable to assume that not all matters relating to a person's private life (even the private life of a prominent public figure) satisfy this criterion. It follows that it would be reasonable to demand some nexus between the matter disclosed and political life or issues that are squarely of public concern. Our view is that the “public interest” defence which we envisage is broad enough to allow for the flourishing of the “people's right” to know certain information while at the same time ensuring that private life is in all other respects fully protected. The “public interest” concept therefore provides a bridging link between private information which, by definition, should normally remain private and the legitimate demands of the democratic marketplace of ideas.

5.20

It also follows in our view that, even with respect to those matters that are of political relevance or relate to matters of genuine public concern, a principle of proportionality would apply as to the degree of intrusion into private life through disclosure. We detect nothing in the case law of the Commission or Court that dictates otherwise.

5.21

Out of deference to the role played by the media in democratic society, the European Court will very closely scrutinise any prior restraints on expression such as a preventive injunction¹⁶. This is not, however, the same as saying that such injunctions are inherently violative of Article 10. In defence of such remedies it could surely be forcefully argued that preventive remedies are preferable to ex post facto remedies since privacy is just as much, if not more, a perishable commodity than is news. Such preventive remedies are without prejudice to the right to publish and ought to be handled expeditiously to enable publication to take place if no satisfactory claim of privacy can be made out or if the “public interest” in publication is clearly stated. Furthermore, preventive remedies in general are preferable to damages.

5.22

Of course, publication is but the end-point in a chain of events that commences with information-gathering and that involve much processing and editorialising. Obviously, success at one end of the continuum (publication) depends in no small measure on success lower down the ladder of activities that precede publication. The preconditions for this success are many and varied and include ensuring that legal impediments are imposed only where strictly required to meet the just claims of competing rights. In logic, at least, any solicitude

toward publication entails at least some solicitude toward the milieu in which news is gathered and processed.

5.23

Under the rubric of Article 10 and guided strongly by its democratic philosophy, the European Court of Human Rights is now beginning to reach issues that pertain more to the preconditions for successful publication than to publication itself. The net issue posed in the leading case in this regard, Goodwin v. The United Kingdom¹⁷, was whether a court order for disclosure of the identity of a journalist's sources was compatible with Article 10 in circumstances where the necessity for such disclosure had not been convincingly established to the satisfaction of the European Court.

5.24

The Court took the opportunity to enunciate a strong presumption leaning against such disclosure in general in order to better facilitate the functioning of legitimate journalistic activity. It then proceeded to let its ruling against the UK rest on an application of its traditional doctrine on proportionality.

5.25

Goodwin is not therefore authority for the proposition that journalists enjoy an absolute right to refuse to disclose. The Court merely found that the justifications proffered in that case were insufficiently compelling. It greatly increased the weight to be ascribed to expression where it is to be balanced with other rights but does not preclude that there may be occasions where those other rights take precedence. More to the point for our purposes, Goodwin does not stand as authority for the proposition that journalists have a right, or implicit liberty, or special privilege to violate existing law as it relates to the legality of particular news-gathering acts (e.g., telephone interception or trespass). Indeed the advocates for Goodwin were themselves at pains to point out that their client was “claiming no special privilege by virtue of his profession because journalists are not above the law”¹⁸. Put another way, there is nothing in Goodwin that requires a Contracting State to make exceptions to any new legislation dealing with news-gathering acts such as the tort of privacy-invasive surveillance we propose.

5.26

An important point to bear in mind is that the secondary torts we recommend which relate to publication apply to all information whether private or otherwise obtained as a result of privacy-invasive surveillance. There is a clash not merely between “information privacy” and expression but also between personal space (as protected by the privacy shield) and expression.

5.27

If States choose to delegate the exercise of their responsibilities – or allow traditional mechanisms of self-regulation to continue through acquiescence – they cannot thereby avoid answering for their obligations under the Convention. Ultimately the state is responsible and answerable under the Convention for

securing respect for privacy for all persons and for all mechanisms that purport to do so.

3. Conclusions

5.28

We are satisfied that the right to respect for private life under the European Convention is broad enough to permit the enactment of domestic legislation providing for an enforceable right of privacy. We are also satisfied that such legislation can safely proceed on the assumption that privacy – or a residuum of privacy – may exist in even public places provided a “reasonable expectation” of privacy can be found to subsist therein. The indicators determining whether such a “reasonable expectation” arises are necessarily loose.

5.29

We are further satisfied that harassment can be brought into the overall equation since it implicates both the physical and moral integrity of the person which is central to the concept of private life.

5.30

States do have a positive obligation under Article 8 to secure the right to respect for private life to persons with respect to the actions of third parties. In discharging this obligation states enjoy a certain margin of appreciation in determining which measures are appropriate to achieve this. This is not the same kind of margin of appreciation normally enjoyed and is limited where the measures in question bump up against other convention rights. In our view, privacy legislation of the sort we recommend is permissible in principle under the European Convention as lying within Ireland's margin of appreciation in discharging this positive obligation.

5.31

Any interference with private life by the State must be regulated under positive law. There is a persuasive case to be made, in our view, that Irish law and practice currently fall short of this requirement in the context of covert state surveillance.

5.32

Furthermore, we are of the view that Ireland would be acting within its margin of appreciation under Article 10 in enacting a prohibition against the publication of material obtained as a result of privacy-invasive surveillance. Freedom of expression does not invariably cancel out other rights. The legislative response we envisage would be an acceptable and principled way of reconciling the people's right to know with the imperative of protecting privacy. This is not least because of the 'public interest' defence which we endorse.

5.33

The case law shows that injunctions against publication or prior restraints are not inherently violative of Article 10 and we are confident that the limited prior restraint we propose is justifiable under the Convention.

5.34

Lastly, the solicitude shown by the European Court toward publication is beginning to make its presence felt in activities that are connected to publication. However, there is nothing in the case law to suggest any special

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privilege with respect to the extant law (e.g., interception, harassment, trespass) where there is a connection with news-gathering. Still less is there any requirement that fresh (and general) legislation designed to enhance the protection of privacy with respect to surveillance must necessarily make exceptions for journalistic activity.

5.35

In short, we are of the view that the legislation we propose would be compatible with Ireland's obligations under the Convention. We are fortified in our analysis of the need for legislation, and of the kind of legislation required, by the terms of the Resolution on Privacy recently adopted by the Parliamentary Assembly of the Council of Europe which is analysed in Chaper 1 above (full text reporduced in Annex V below).

CHAPTER 6: THE PROTECTION OF PRIVACY IN COMPARATIVE LAW

6.1

In the previous chapter we looked at whether legislation of the sort we recommend is permissible in principle with particular reference to the European Convention on Human Rights. In this chapter we briefly highlight the salient features of the relevant legislative and regulatory measures enacted in other countries.

This chapter should be read against the backdrop of the extensive comparative research carried out and published in our Consultation Paper¹.

6.2

This overview is broken down as follows:

6.3

While some of the legislation surveyed is general in its nature many laws were in fact tailored to meet the privacy problem posed by surveillance. In most cases (with the exception of the UK) the relevant privacy clause in the domestic constitution either animates or supports the legislative measures adopted.

6.4

Most of the British legislation relates only to interception and covert police surveillance. Additional information on the evolution and current state of the British debate on whether civil and criminal remedies should be enacted is contained in Annex II.

1. Civil Liability for Surveillance

6.5

In many of the countries surveyed the civil law has been used to enhance the protection of privacy in the context of surveillance conducted by private parties.

Germany

6.6

In Germany an invasion of privacy is actionable under section 823(1) of the German Civil Code. Case law has broadened the scope of the protection and the courts are now prepared to award damages for non-pecuniary loss. Damages for non-pecuniary loss caused by unlawful surveillance may be awarded where the infringement of the right is serious and where there is no other means of satisfaction for the plaintiff². Further remedies include an order for the seizure of the surveillance equipment used and an injunction. The scope of the protection now extends to a person's name or likeness.

6.7

Under German law privacy may be protected in public places under certain circumstances³.

France

6.8

In France Article 1382 of the Civil Code imposes civil liability for breach of the right of privacy. In 1970 a right to privacy, modelled on Article 8 of the European Convention on Human Rights, was specifically incorporated into the Civil Code. Paragraph 1 of Article 9 of the Code provides that everyone has the right to respect for her or his private life. Paragraph 2 of Article 9 of the French Civil Code states that judges may, without prejudice to reparation for any damage suffered, prescribe any appropriate measure, including sequestration and seizure, to prevent or bring to an end an attack on the intimacy of private life.

6.9

French law also protects against the exploitation of the human personality, that is, unauthorised use for gain of elements of personality such as a name, image or voice⁴. Protection in the case of one's image covers not only exploitation for gain but also the unauthorised taking of one's picture and publication generally⁵. False light presentation is also prohibited.

United States

6.10

In the United States the Federal Courts have developed the common law to the point that a tort protecting privacy is now recognised⁶. This tort is generally refracted into four separate but related torts:

6.11

Intrusion upon the seclusion of another has been interpreted by the courts to cover activities such as eavesdropping on private conversations by wire-tapping and microphones, the conduct of “peeping Toms”, and the use of telescopic lenses⁷. The taking of photographs of a person in a public place does not constitute intrusion for the purposes of the tort⁸. Filming a person who is in a private place from a public vantage point does not amount to an intrusion so long as the general public would be presented with an identical view⁹. What this aspect of the tort protects against is, in essence, invasions of territorial privacy.

Canada

6.12

In Canada a number of Canadian provinces have enacted a tort of breach of privacy (British Columbia, 1968; Manitoba, 1970; Saskatchewan, 1974; Newfoundland, 1990; Quebec, Civil Code, 1994). The Manitoba Privacy Act of 1970 provides:

6.13

The various Canadian Acts do not contain a definition of privacy, but they do stipulate that certain actions are prima facie breaches of privacy and among the list given are invariably instances of visual and aural surveillance¹⁰. Saskatchewan, British Columbia and Newfoundland use a “reasonable expectation” of privacy type of test in determining whether a claim properly arises.

6.14

The cause of action does not generally require proof of damages. In British Columbia, Saskatchewan and Newfoundland it must be established that the invasion was intentional and without any claim of right.

6.15

In provinces that do not have privacy legislation the courts appear more willing than hitherto to accept the notion of a common law tort of privacy¹¹.

New Zealand

6.16

Several courts have recently taken steps toward the full recognition of a common law tort of privacy in New Zealand¹².

2. Civil Liability for “Intrusion” on Privacy through Publication

6.17

Many countries also impose civil sanction against the unjustified publication of private information, images or other material¹³. We do not, of course, propose such a tort in this Report. We merely recommend the enactment of an ancillary tort prohibiting the disclosure, dissemination or publication of any information (whether private in its nature or otherwise), etc., that results from privacy-invasive surveillance.

Germany

6.18

Illegally obtained information can be published in Germany only under very limited circumstances. In general terms the German courts take into account the interrelationship of a variety of indicators under three different headings¹⁴:

6.19

The public interest element which is closely tied to the functioning of democratic institutions depends on the level at which the first two elements interact.

6.20

The realm of personal privacy is conceptualised by the courts as divided into three parts; (1) the intimate sphere which relates to, e.g., health status, sexual habits, confidential letters and personal diaries; (2) the private sphere which relates to family, home or friendships; and (3) the individual sphere which relates to a person's public or economic life.

6.21

Status is evaluated by the courts on a three-point scale; (1) “absolute persons of contemporary history” including a person holding a public office or function¹⁵, (2) “relative persons of contemporary history” including someone in the public eye for a specific reason or event usually situated within a definite time-frame (3) a private person who is neither of the above.

6.22

The general rule is straightforward. Even absolute public persons have a right to privacy and their intimate sphere is considered beyond scrutiny. Matters connected to their private sphere (as understood above) are potentially publishable if the information relates to their public function and contributes to public debate in society. Matters relating to the individual sphere of an absolute private person can be reported. Pictures or recordings of public persons taken secretly may only be published if this is absolutely necessary in the public interest.

6.23

The publication of private information relating to “relative persons of contemporary history” must be confined to the context of that which places them in the public eye. It follows that only those aspects of the person's private life directly relating to an aspect of his/her character that affects public life can be covered.

6.24

Pictures – as distinct from information – can generally be shown or published only with the permission of the subject (Kunsturhebergetesetz,§22). Permission is not required in the following cases:

6.25

Injunctive relief is available to prohibit publication or continuing publication. Other remedies include, compensation for actual damage and/or an account of profits.

6.26

From an Anglo-American perspective the German situation may appear overly rigid and too easily capable of inhibiting publication in the public interest. However, Professor Markesinis argues that the contrary is the case.¹⁶ In his summary of the relevant caselaw, Professor Markesinis points out that the total number of cases is small and that freedom of expression will, on the whole, prevail over the right of privacy where the publication, broadcast, etc. aims at educating and informing the public rather than pursuing mere sensationalism or trying to satisfy the public's taste for gossip. He points out that the chances of success in a privacy claim tend to decrease as the public profile of the plaintiff increases, that the size of monetary awards is modest, that injunctive proceedings can be quick and that such relief is as often refused as granted, and that investigative journalism nevertheless continues to prosper in Germany.

France

6.27

In French Law persons have generally been regarded as having given tacit consent to the making of enquiries about their public activities and to publication thereof whereas express consent is needed if inquiries and publication relate to private life.

6.28

The taking and publication of a person's photograph in a public place is unlawful except when the photograph is incidental to the overall context of the

picture (e.g., being photographed in a crowd at a football match or at a place of natural beauty).

6.29

French law, like German law, makes distinctions between different aspects of privacy and different categories of persons. Persons in the public eye are entitled to respect for their private lives as are ordinary citizens but the scope of this respect will be somewhat less in their case since the public is regarded as having a legitimate interest in greater information about them.

Canada

6.30

Canadian law likewise protects against unjustified publication of private information. Canadian law is also sensitive to the public interest defence to publication.

6.31

A number of interesting features arise from the Canadian caselaw generally, as two academic commentators have recently pointed out¹⁷. First of all, the Canadian courts have rejected the notion of a hierarchy of rights according to which one rights (e.g., freedom of expression) must always be deemed superior to another. Rather, as under German law, the relevant judicial task is one of harmonising competing rights in such a way as to ensure that the values underlying both sets are optimised. Secondly, and reminiscent of the approach of the European Court of Human Rights (see Annex I), the Canadian courts predicate the notion of privacy on an expansive theory of the “physical and moral integrity” of the person. Thirdly, the publication of private matter which is in the public interest and which also is newsworthy is publishable because it is in the public interest and not merely on account of its newsworthiness. Fourthly, both the Canadian Courts and the German Courts (as explained above) are at pains to balance in a rational manner the various factors that may arise on either side of the equation as follows:

United States

6.32

As stated above the second component tort in the privacy matrix in the U.S. concerns the publication of truthful private information about an individual. Several factors explain why this remedy is not as strong as it appears.

6.33

First of all, the tort must be operationalised against the backdrop of the First Amendment guaranteeing freedom of expression. For this reason some individual states do not recognise this tort. Indeed, for this reason wherever a redeeming news value can be found in the information the claim will generally be defeated¹⁹.

6.34

Secondly, the tort is actionable only where the disclosure relates to, or is in its nature, highly offensive from an objective standpoint. This means that truthful (but private) information falling short of offensiveness is not covered.

6.35

Thirdly, true (but private) information or images obtained from a public place or which is placed on (and obtainable) from a public record (e.g., judicial records) is not considered private.

3. Criminal Liability for Invasions of Privacy

6.36

The protection of privacy at the constitutional level and through civil law is supplemented in many countries by appropriate criminal liability. The imposition of criminal liability is generally confined to surveillance that is targeted on places where the expectation of privacy is at its highest (i.e. private places) or where the nature of the activity is inherently private (e.g. conversations).

Germany

6.37

In Germany Article 201 of the Criminal Code penalises the recording or using of listening devices for words not spoken in, or for, the public (“non-publicly spoken words”). For example, a private conversation in a public space cannot be recorded by a third person without the consent of all participants. Liability only accrues where a legal interest of the person is invaded. For example, overhearing a conversation about the weather does not attract liability but overhearing a conversation about marital difficulties might.

6.38

It is also an offence to use such a recording including making a recording available to a third person or letting the content of the recording be known to the public at large (subject to a “public interest” defence).

6.39

The offences are punishable with a term of penal servitude or a fine, the maximum term of imprisonment being higher where the convicted person is an office holder or someone engaged in the public service. In case of conviction,

any sound recorder or eavesdropping device used in connection with the offence may be confiscated.

France

6.40

In France from 1970 to 1994 it was an offence under Article 368 of the French Penal Code for anyone deliberately to interfere with the intimacy of the private life of another person by, inter alia, taking by means of any device, or communicating, the picture of a person in a private place without the consent of that person. Anyone found guilty of this offence was liable to a term of imprisonment, a fine or both. In case of conviction the court could order the confiscation of the device by which the picture was taken and of any associated recording or document.

6.41

The protection afforded by the provisions of the old French Penal Code of 1970 only apply if the person whose picture had been taken was at the time in a private place. The meaning of “a private place” had been elucidated by case law. A photograph taken of a person in the street fell outside the protection since a street is, by its nature, a public place²⁰ (civil liability may, however, lie). Also, a place to which everyone has access, without any special authorization, whether or not access was subject to certain conditions, was not deemed to be a private place.²¹ The photograph does not have to be taken from a private place. It was sufficient if the person photographed was in such a place. Thus taking the picture of a person in a flat without the person's consent from outside the window of the flat may be an offence.²²

6.42

Article 368 has been replaced by a comparable, but not identical, provision in the New Penal Code,²³ which came into force in 1994. This provides that it is an offence, by means of any conduct deliberately to infringe the intimacy of the private life of another person, inter alia, by taking, recording or communicating the image of a person who is in a private place without the consent of that person. The penalties have been increased. The significant changes are that the offence has been extended to include the recording of a picture and the means has been changed from that of any device (“appareil”) to that of any conduct (“procédé”). It is sufficient if they are spoken privately or confidentially (à titre privé ou confidentiel). The new penalties also apply to the keeping, disclosure or permitting the disclosure to the public or a third person.²⁴ Earlier case law on the interpretation of Article 368 will continue to be relevant in so far as the new provisions overlap with the old.

6.43

In Article 368 of New French Penal Code the presumption of consent has been tightened compared to the Penal Code from 1970. It has been uncoupled from the situation of a meeting and only applies whenever pictures are taken with

the knowledge of all the persons concerned, without them objecting thereto when they are in a position to do so. When private information is disclosed to the public by members of the press or broadcasting, liability is determined by the law particularly relating to these media.²⁵

6.44

Article 368 also forbade the deliberate invasion of the intimate private life of another person by listening, recording or communicating by means of any device words spoken by that person in a private place without that person's consent. As in the case with visual surveillance, consent was presumed when the listening, recording or communicating occurred at a meeting with the knowledge of all the participants. The sanctions were the same as applied to unlawful visual surveillance. These penalties applied also to anyone who knowingly kept, brought, or deliberately let be brought to the knowledge of the public or a third person, or used publicly or otherwise, any recording or document obtained in a manner contrary to Article 368.

6.45

The replacement provisions in the New Penal Code (Article 226–1) now provides that it is an offence, by means of any conduct, deliberately to infringe the intimate private life of another person, inter alia, by overhearing, recording or communicating words spoken privately or confidentially without the consent of the other person. The word “listening” was replaced by the word “overhearing” and, as is the case with visual surveillance, the offence need no longer be committed by means of a device but through “conduct”. Importantly, it is not now necessary that the words be spoken in a private place. It is sufficient that they are spoken privately or confidentially. Implicit in this is the assumption that a private conversation can occur in a public place and still attract the protections of the Code. Many of the incidental changes made under the New Penal Code (e.g, consent, liability for disseminating, etc.,) also apply in the case of aural surveillance.

Denmark

6.46

In Denmark the Penal Code penalises the unauthorised photography of persons on private property. The following are offences;

Australia

6.47

Many Australian states subject the use of surveillance devices to criminal sanction. Interception is governed by Commonwealth legislation. Criminal sanctions are roughly the same in each state. It is an offence to use a device to

listen in on a private conversation. Conversation, if protected, is protected irrespective of content and regardless of whether it occurs in a public or private place. Private conversation is defined, for example, in the Listening Devices Act (1969) of Victoria to mean

6.48

In general, a conversation addressed to another person or to a limited circle of persons is protected but not if it is reasonable to expect that it would be overheard. It is not invariably assumed that a conversation would be overheard in a public place, e.g., where the speakers had deliberately placed themselves beyond earshot. Defences include consent, authorised use under warrant issued by a court to a police officer for purposes of national security or for the investigation of narcotics offences. The consent of only one party to a conversation is generally sufficient.

6.49

In New South Wales, South Australia and ACT the recording of a conversation to which one is a party can be done without the permission of the other party. The Australian Law Reform Commission was divided on the issue of the regulation of participant monitoring, that is, that a person records a conversation to which the person is party. At first the Commission adopted the view that monitoring should not be permitted. But the majority ultimately recommended that participant monitoring should be allowed without the knowledge or consent of any other party and that a third party should be entitled to listen to and record a conversation if at least one of the parties to the conversation agrees to this.²⁶

Norway

6.50

In Norway the use of listening devices to overhear conversations is a criminal offence. Since July 1991 it is an offence punishable by fine to engage in video surveillance in public places without having clearly indicated by way of a notice that the place is under such surveillance²⁷. Video surveillance is defined in the relevant provision of the Criminal Code as constant surveillance of persons effected in a regular manner by means of automatic television cameras, photographic devices or any other similar device. Similar liabilities apply in Sweden.

4. Regulatory Safeguards

6.51

Regulatory safeguards are used in many countries to supplement civil and criminal provisions. The imposition of such safeguards means, by definition, a recognition that the surveillance in question has some legitimate rationale but that its use needs to be confined to that rationale and proper assurances given to the public. The options are many but include in the main –

6.52

The first three options – which go the nature of the market for the supply of surveillance devices – are not commonly used. The last option is the one most commonly used.

Denmark

6.53

Denmark was one of the first countries to subject video surveillance to legislative regulation. An Act dating back to 1982 deals with surveillance by private persons. Video surveillance is defined as constant or regular surveillance of the person using a remote-controlled or automatic video camera, photographic camera or similar equipment. There is a general prohibition on the surveillance of streets, roads, squares and similar areas use by ordinary traffic. The general prohibition does not apply to video surveillance of business premises provided it is carried out by the person in charge of the area and does not apply with respect to real-time video surveillance which is not connected to a recording device and which is carried out as part of the surveillance of a private entrance or cordoned-off area.

6.54

Moreover, any private person in Denmark who undertakes video surveillance of places or rooms to which the public has free entry must explicitly publicise on signs that surveillance is taking place. Under the legislation, the Minister for Justice is empowered to make regulations in relation to those signs but as of November 1997 has not done so. The requirement as to signs does not apply where the camera in question is not connected to recording equipment and where it is carried out as part of the surveillance of a private entrance or cordoned-off area. Implicit in the Danish law is the assumption that surveillance should generally be carried out only by the public authorities.

Sweden

6.55

In Sweden legislation came into force on 1 July 1990 to regulate the use of video cameras: Act on Surveillance Cameras²⁸. It applies to remote controlled cameras and other optical electronic devices. The law is targeted at installed cameras and requires a degree of permanency in the location of the camera for its application.²⁹

6.56

Under the legislation a licence is required for surveillance of a place to which the public has access.³⁰ It is sufficient if there is general access even though members of the public do not usually frequent the place. Indoor areas are covered as well as outdoor areas. Thus, shops and banks are covered by the requirement as are common areas in an apartment block such as a communal laundry. Also covered are forestry areas, rivers and lakes. A separate licence is required for the retention or editing of any recording of still pictures or video film.³¹ This kind of licence will only be granted where this is necessary to prevent crime or there is some other special need to preserve the pictures or film as, for example, for security purposes.

6.57

A licence to use surveillance equipment may be granted only if the applicant has a legitimate interest in the use of a surveillance camera and that interest cannot be met in any other way.³² In deciding whether or not to grant a licence, the county administrative board must have regard to the implications for individuals' personal integrity. Surveillance in such places as shops, banks, and post offices are regarded as fulfilling a legitimate interest. Where the risk to personal integrity is more than minimal, the board must balance the individual interest in personal integrity against the interest in surveillance and may grant a licence only where the latter completely outweighs the former. Licences may be granted subject to conditions and for a limited period of time³³, for example, a licence may specify where a camera is to be mounted. A licence may also specify rules to be observed in the use of the camera and may, for example, specify who is entitled to use the camera.

6.58

Easily visible signs alerting persons to the (licensed) surveillance must be displayed.³⁴ Dispensations from the notice requirement may be granted only where there are special reasons.

6.59

The county administrative boards monitor compliance with the conditions of a licence.³⁵ They have a right of access to camera installations and a licence may be withdrawn or modified in appropriate cases. Where the conditions justifying the camera installation no longer apply, a licence must be withdrawn.

A person who deliberately or by negligence fails to notify the public of surveillance or breaches the conditions of a licence commits an offence and is liable to a fine or term of imprisonment.³⁶

6.60

The Act on Surveillance Cameras is supplemented by the Secrecy Act³⁷. The Secrecy Act applies to the use of cameras by safeguarding from unauthorised disclosure personal information obtained by such surveillance.³⁸

6.61

Under Swedish law licences and dispensations from the notice requirement are granted by the relevant county administrative board.³⁹ Applications must be in writing, and copies of the board's decisions are given to the office of the Chancellor of Justice which monitors the local authorities⁴⁰ In making its decision, the county administrative board must consult with the municipality concerned and take account of its view.⁴¹ In the event a licence is refused, appeal may be made to the district administrative court.⁴²

Norway

6.62

Norway subjects the use of information, images, etc. obtained through recorded video surveillance to detailed regulation.

6.63

The Norwegian Personal Data Registers Act of 1978 was amended in 1993 to include two new provisions specifically dealing with the use of video cameras for the purpose of surveillance in both the private and the public sectors⁴³. This Act, as its title suggests, concerns the keeping of personal data registers. Personal data is defined as information and opinions which directly or indirectly can be linked to identifiable persons, to groups or to institutions.⁴⁴ A personal register is understood to be a register where information is systematically stored in such a way that information on a given person can be retrieved therefrom.⁴⁵

6.64

Section 37a of the Data Act allows video surveillance and picture recordings if there are reasonable grounds for them. In the case of surveillance of an area which is regularly used by only a limited number of people, exceptional grounds must be shown. Video surveillance is defined as continual or regular repeated surveillance of persons by means of a distantly operated or automatically functioning television camera, picture camera or similar apparatus. Any recording must be erased when there is no longer any reasonable ground for keeping it.

6.65

Section 37b of the Data Act regulates the release, storage and use of recorded pictures and film. The pictures and film may only be handed over to others if this is provided for by law or if those who have been filmed agree. Also, subject to any statutory duty of professional secrecy, they may be handed over to the police in connection with criminal offences or accidents. In the event that a recording is not erased in accordance with s.37a, the Data Commission may order its erasure. The King is also empowered by the section to make regulations for the securing, use, release or erasing of recorded film or pictures and for a right of a person to view those parts of a film or picture in which she or he appears.

6.66

A regulation based on s.37b came into force on 15 October 1994. The main provisions of this regulation are that the recordings may only be used for the purpose for which they were obtained; the police may however use recordings in their possession in the prevention or investigation of crime, as evidence in criminal cases, or to verify the facts of an accident. The recordings may only be handed over to others if this is in accordance with the Constitution or if those who have been filmed consent thereto. They may not be kept for more than 7 days, but there are a number of exceptions to this time-limit in the case of the security of banks, post offices, the police and institutions of national defence. Recordings should however always be erased when there are no reasonable grounds for keeping them and if they are kept for more than 7 days, those who have been filmed may see the parts of a recording where they themselves appear. Contravention of the regulation is punishable with imprisonment or a fine.

France

6.67

France regulates the trade in surveillance devices. This regulation is backed up by criminal sanctions.

6.68

Under Article 371 of the former Penal Code, provision was made for a list of devices to be drawn up in accordance with conditions laid down by decree after consultation with the Conseil d'État. These devices were those intended to pick up conversations at a distance and which would allow the commission of an offence contrary, inter alia, to Article 368 of the Code. The manufacture, importation, possession, display, offering, rental or sale of devices on the list was subject to ministerial authorization, the granting of which was also to be subject to conditions laid down in the same decree. However, as of 1 January 1995, no list of devices has been drawn up.

6.69

Manufacture etc. without such authorization or not in compliance with any conditions attaching to authorization was an offence punishable with a term of imprisonment and/or a fine. In case of conviction for an offence involving lack of authorization, the court was to order the confiscation of the devices concerned.⁴⁶ Provisions similar to Article 371 on the regulation of trade in aural devices have been retained in the New Penal Code.⁴⁷

5. Due process protections of covert police surveillance

6.70

Most states grant wider powers to law enforcement agencies to engage in covert surveillance than they give to private individuals. Nonetheless, since the interference with privacy is effectuated by state agencies such agencies are generally obliged to follow the strictures of due process while conducting surveillance. Due allowance is generally made in the relevant legislation for the peculiar constraints (including those of time and the general – though not invariable – need for secrecy) under which such operations are often conducted.

Norway

6.71

In Norway the police may engage in covert video surveillance subject to a number of conditions set out in the Code on Criminal Procedure as follows:

6.72

A tribunal may decide to authorise such surveillance without the person who is to be the subject of the surveillance or any person affected by the decision having the possibility to be heard or the decision being communicated to such persons.

6.73

As seen above under section 37b of the Norwegian Personal Data Registers Act pictures and film taken by private individuals may be handed over to the police in connection with criminal offences or accidents without the consent of the person recorded. Nonetheless this is subject to a statutory duty of professional secrecy. A regulation based on s.37b of the Act sets out that recordings may only be used for the purpose for which they were obtained, but the police may however use recordings in their possession for the prevention or investigation of crime, as evidence in criminal cases, or to verify the facts of an accident. Also the recordings may not be kept for more than 7 days, but there are exceptions to this time-limit in the case of the police and institutions of national defence.

Sweden

6.74

One of the basic principles of Swedish surveillance law is that the individual in question should know that he/she is subject to surveillance. But under the Swedish surveillance laws there are exceptions for police cameras used only for

monitoring the speed of traffic and cameras used to monitor an area classed as a defence area. Additional dispensations from the notice requirement may be granted where there are special reasons.

6.75

In exceptional circumstances the Swedish police may also install a camera without a licence and seek a licence for it within the next 14 days.⁴⁹

Australia

6.76

Australian law enforcement agencies may conduct covert optical surveillance under warrants issued in accordance with Commonwealth legislation. Otherwise there is no specific regulation by law of the use of optical devices in Australia and therefore no specific legal safeguards in relation to their use.⁵⁰

6.77

Some safeguards of a formal kind do exist however in the context of the operation of the office of the Privacy Commissioner. This office was established by the Privacy Act 1988 which deals mainly with information privacy.⁵¹ In 1992 the Commissioner drew up Guidelines on the application of the information privacy principles where Commonwealth agencies conduct covert optical surveillance, the results of which are recorded in some form.⁵² The Guidelines are advisory rather than mandatory, but adherence or otherwise by the agencies to the standards set forth therein is taken into account by the Commissioner in the event of a complaint or audit relating to their compliance with the Information Privacy Principles.

6.78

The Guidelines are applicable to all Commonwealth agencies other than national security organisations and agencies using covert surveillance for law enforcement purposes. They are intended to provide a framework for the agencies to develop their own detailed guidelines. In situations where covert surveillance does not lead to the creation of a record, agencies are encouraged to adopt the Guidelines where relevant.

6.79

With respect to the decision to undertake covert surveillance, the main Guidelines provide that:

6.80

As regards the actual conduct of the surveillance, the Guidelines provide that the agencies should be mindful of the following:

6.81

In addition to these general Guidelines, the Privacy Commissioner has also produced Specific Guidelines for agencies investigating compensation claims, this being an area in which covert surveillance is most used in Commonwealth administration.

United Kingdom

6.82

In Britain the powers of state agencies to intercept communications or to conduct surveillance of private properties are regulated by different statutes.

6.83

The Interception of Communications Act 1985 allows for the police to apply to the Home Secretary to tap telephones or to open mail without requiring a warrant to be granted by a judge. In a similar way the Security Service Act 1996 under section 2 extends the Secretary of State's power in section 5 of the Intelligence Services Act 1994 to issue warrants to a security service authorising entry or interference with property to facilitate, for example, the bugging or surveillance of it.

6.84

Part III of the Police Act 1997 allows the police the same interference with private property as under the Security Service Act 1996 if this is necessary to prevent or detect a serious crime and if it cannot reasonably be undertaken by other means (section 93). The authorising police officer has to balance such an interference against the right to personal privacy. In contrast to the other two British Acts authorisation requires the approval of an appointed Commissioner, who is a senior judge of High Court status or above. Under section 97 of the Act an approval by a Commissioner has to be given in cases of interference with property which is used (wholly or mainly) as a dwelling, a bedroom in a hotel, office premises, or actions that are likely to result in the knowledge of matters subject to legal privilege, confidential personal information, or confidential journalistic material. The safeguards in the 1997 Act were added to the draft Bill after controversial discussions in the legal profession and in both Houses of

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Parliament. Section 101 of the 1997 Act empowers the Secretary of State to issue a code of practice relating to the performance of functions under Part III of the Act. A draft code of practice was issued in 1997 for consultation purposes. As of March 1998 it had not yet been finalised for presentation to Parliament.

6. Conclusions

The following conclusions are warranted from the above.

6.85

First of all, the mere existence of legislation in the countries surveyed displays an awareness of a privacy problem associated with surveillance and of the need to reassure the public that the benefits of modern technology will not be outweighed by any possible abuses.

6.87

Secondly, most of the countries surveyed have either general or specific provisions in their respective civil laws to afford private remedies against unjustified surveillance. The range of remedies encompasses damages (for pecuniary and even for non-pecuniary loss), sequestration or seizure of equipment and injunctions. French civil law in this regard is directly inspired by Article 8 of the European Convention on Human Rights.

6.88

Thirdly, many countries prohibit (through civil law) the publication of private information or of information obtained through privacy-invasive surveillance. All such countries provide, in their own way, for a public interest defence to publication. German law insists that the intimate life of even the most public of persons is off-limits to publication.

6.89

Fourthly, criminal sanctions are generally confined to covert surveillance under two sets of circumstances: (1) visual surveillance of persons in private places where, by definition the expectation of privacy is at its highest and (2) aural surveillance with respect to activities which are generally (through not invariably) essentially private in their nature such as personal conversations. German, French and Australian law goes so far as to protect private conversations in public places so long as it is clear that the conversation in question was in its nature private.

6.90

Fifthly, regulatory safeguards have been enacted or introduced in many countries to supplement civil and criminal remedies. Such safeguards implicitly concede the legitimacy of surveillance but seek to regularise its use by either curtailing the trade in surveillance devices or by imposing appropriate time, place and manner restrictions on use. The requirement of publicly accessible signs (with some exceptions) is one general common denominator. Sweden goes so far as to require the licensing of users. France is somewhat unique in regulating the very trade in surveillance devices.

6.91

Lastly, covert police surveillance is generally brought under the requirements of due process. Several models for achieving this appear from the

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countries examined. British law requires prior authorisation from a Commissioner who is a sitting judge; Norwegian law requires prior authorisation from a tribunal; Australian law requires authorisation “at a senior level” within the police; and Swedish law requires a license but grants an exception in emergency cases provided an application for a license is brought within 14 days.

6.92

In short, all the countries surveyed have deployed a web of legal tools – civil, criminal and regulatory – to tackle the privacy problem posed by surveillance.

PART III – RECOMMENDATIONS

CHAPTER 7: CORE RECOMMENDATION – THE CREATION OF CIVIL LIABILITY FOR PRIVACY-INVASIVE SURVEILLANCE AND HARASSMENT

7.01

Chapters 7, 8 and 9 should be read together with our draft Heads of Bill which, together with detailed Explanatory Notes, are contained in Chapter 10 of this Report.

7.02

In this chapter we set out our core recommendations with respect to the enactment of civil liability governing acts of privacy-invasive surveillance. We also outline a related recommendation for the enactment of a tort of harassment.

7.03

In the next chapter we outline our main ancillary recommendation with respect to the enactment of civil liability governing the disclosure or publication of material obtained by or as a result of privacy-invasive surveillance or harassment. We also set out our recommendations with respect to a related tort concerning the publication in Ireland of material, etc., obtained oversees by methods which, if they had been employed in this jurisdiction, would have amounted to the tort of privacy-invasive surveillance or the tort of harassment.

A: Core Recommendation – The Enactment of a Tort of Privacy-Invasive Surveillance

7.04

We recommend the enactment of a new tort of Privacy-Invasive Surveillance. [Head 2(i) of the Heads of Bill]

7.05

We are not here recommending the enactment of a general privacy tort. Such a tort is generally assumed to be directed at “information privacy” in the main and would embrace the publication of private information no matter how obtained.

7.06

Rather, we recommend the enactment of a tort that protects the right of privacy against the threat posed by surveillance. We therefore aim to enhance the protection provided by the privacy shield against intrusion.

7.07

We recommend that the new tort should protect a “reasonable expectation” of privacy. [Head 1(3)(i)(a)-(g)]

7.08

This means that a court will have to weigh up a mix of indicators in any given case. The ordinary and natural incidences of everyday life including, for example, being photographed by a passing tourist, must be tolerated. Among the many indicative factors are the following [see Head 1(3)(i), (a)-(g)]:

These factors are discussed in detail in Chapter 2 as well as in the Explanatory Notes to the Heads of Bill.

7.09

We recommend that Surveillance should be defined broadly to include acts of aural or visual surveillance irrespective of the means used and should also include acts of interception as well as third party monitoring and participant-monitoring. [Head 1(1)]

7.10

Surveillance is likely to take many shapes and forms and it is preferable to leave the definition open-ended to enable it to cover new technological developments as they evolve.

7.11

We define surveillance to include aural and visual surveillance irrespective of the means employed. This, of course, excludes casual overhearing of a conversation which is part of the natural and ordinary incidences of everyday life. Normally, some artificial means of aural or visual surveillance will be involved. However, there may well be cases of deliberate spying on people using only the normal human senses that can be considered invasive of privacy.

7.12

We include the interception of communication (whether by electronic means or otherwise) within the definition of surveillance. We also include participant monitoring and third-party monitoring within the definition of surveillance. We define participant monitoring to mean the secret recording of a conversation to which one is a party (i.e., without the consent of the other party or parties to the conversation). We define third party monitoring to mean the recording by the third party of a conversation with the consent of one of the parties thereto but without the consent of another party or parties.

7.13

The terms “hearing devices” or “optical devices” as used in our recommendations do not include such devices where they are used solely to restore or maintain the normal range of human vision of hearing. [Head 1(1)]

7.14

This qualification goes to the criminal offences as well as the torts proposed under our Heads of Bill as well as to the regulatory matters specified therein.

B: Subsidiary Recommendation – The Enactment of a Tort of Harassment

7.15

We recommend the enactment of a related tort of Harassment. [Head 2(ii)]

7.16

In our view the enactment of such a tort is necessary in order to protect privacy in the round. Acts of surveillance may well be accompanied by acts of harassment. Harassment may, of course, occur for other reasons. But it is chiefly because of the relationship between harassment and surveillance that we recommend the enactment of such a tort. The relationship between harassment and private life has already been alluded to by the European Commission on Human Rights (see chapter 5).

7.17

In our Consultation Paper we asked for submissions on whether there should be a “group” offence of collective besetting (para. 8.29). We are now of the view that there should not. Nor, for that matter, should there be expressed individual liability for participating in the harassing activities of a group. Rather, we recommend that there should be an analogue in tort law to the criminal offence of harassment established under Section 10 of the Non-Fatal Offences Against the Person Act, 1997.

7.18

We recommend that the tort of harassment should be modelled on the definition of harassment provided under Section 10 of the Non-Fatal Offences against the Person Act, 1997. [Head 1(2)]

C: Defences

7.19

We recommend that consent, whether express or implied, should be a defence to an act of surveillance or harassment that might otherwise be found to be invasive of a reasonable expectation of privacy. [Head 3(1)(i)]

7.20

It is conventional to include consent as a defence to privacy-invasive surveillance or harassment although as a matter of strict logic where consent has been proven no tort has been committed and thus no defence is required.

7.21

It is rare for consent to be given expressly and indeed there may well be a point where the law will – and should – deem the person incapable of consenting to the erosion of the entirety of his/her right to privacy or freedom from surveillance and harassment. It is more usual for consent to be implied. Such consent is usually implied by a prior pattern of behaviour that, properly interpreted, gives rise to a fair presumption that the person has waived an aspect

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of their right to privacy. A court might well be slow to arrive at this conclusion unless the weight of the evidence points almost ineluctably to an effective waiver.

7.22

It is, in our view, highly unlikely that consent – whether express or implied – will be found by a court with respect to harassment.

7.23

We recommend that the exercise of a legal duty, power or right of the defendant should constitute a defence to an act of privacy-invasive surveillance. [Head 3(1)(ii)]

7.24

The law must recognise, and make space for, the exercise of countervailing duties, powers or rights. For example, a person has a right to defend himself in court proceedings and on occasion – though not invariably – this may require surveillance in order to get at material information. This is usually done through private detectives who act merely as the agents of their clients. Having a countervailing duty, power or right does not, however, confer carte blanche. The principle of proportionality attaches to, and qualifies, this defence [see Head 3(1)(ii)(b)].

7.25

Nothing in this defence gives the right to engage in means of surveillance that violate any other statute or that justify ignoring procedural or other requirements established under other statutes (e.g., warrant requirements under interception legislation).

7.26

Note that we do not extend this general defence to cover acts of harassment [see Head 3(1)(ii)] given the definition of harassment both in the existing criminal law (Non-Fatal Offences Against the Person Act, 1997, section 10) and in our recommendation for a new civil tort.

D: Remedies

7.27

It is important in our view to place a range of remedies at the disposal of the courts. The emphasis in our view should be more on prevention than on ex post facto remedies. In this way the law can play its part in fostering a climate of respect for privacy.

7.28

We recommend that the new tort should be actionable without proof of damage. [Head 2]

7.29

We recommend that damages may be awarded for privacy-invasive surveillance and harassment. [Head 4(a)]

7.30

We recommend that if damages are awarded with respect to privacy-invasive surveillance or harassment under this Act, such awards may be taken into account in any other proceedings arising out of the same set of circumstances. [Head 8(2)]

7.31

We recommend that a plaintiff should be able to seek a preventive injunction or “privacy order” directed against impending acts of privacy-invasive surveillance or harassment. [Heads 4(c) and 5]

Preventive injunctions are, we believe, a key feature in any strategy to enhance the protection of privacy, as privacy is a highly perishable commodity.

E. Technical Aspects of the New Torts

7.32

We recommend that the new torts should enure for the benefit of natural persons only. [Head 2]

7.33

Corporate bodies do not have personal space in the same way as ordinary individuals. No valid human rights objective (protecting dignity, making space for autonomy, setting the terms of co-existence in civil society, or facilitating democracy) impel us to apply the protections afforded by the legislation we propose to corporate bodies. That is not to say that aspects of a person's private life cannot take place in corporate settings and therefore enjoy a degree of protection (see para. 1.4 of this Report).

7.34

We recommend that the right of action should accrue to the person whose privacy is in issue or to any other person who is legally entitled to act on behalf of that person. [Head 6(1)]

7.35

We recommend that an action for relief under our recommendations, other than one for damages or an account of profits, should survive the death of the victim and be available to the personal representative of the deceased or a member of the family of the deceased within the meaning of the Civil Liability Act, 1961. [Head 6(2)]

7.36

In such cases we envisage under our legislative proposals the full range of remedies including specifically “privacy orders” or preventive injunctions being available with the important exception of damages. Privacy orders in this context will be relevant only with respect to disclosure or publication.

7.37

We recommend that an action shall be time-barred after a three year period commencing from the date on which the plaintiff became aware or ought reasonably to have become aware of the tort and of the identity of the defendant ( – see the relevant provisions of the Statute of Limitations (Amendment) Act, 1991). [Head 7]

7.38

We recommend that the rights of action and remedies available under our proposals are in addition to, and not in derogation from, any other right of action or remedy available under the law. [Head 8(1)]

7.39

We recommend that the rights and remedies afforded by our proposals should be declared to be without prejudice to the constitutional rights of the plaintiff or defendant. [Head 14]

CHAPTER 8: MAIN ANCILLARY RECOMMENDATION – THE CREATION OF CIVIL LIABILITY FOR THE DISCLOSURE, DISSEMINATION OR PUBLICATION OF INFORMATION OR MATERIAL OBTAINED AS A RESULT OF PRIVACY-INVASIVE SURVEILLANCE OR HARASSMENT

A: Proposed New Torts of Disclosure of Material Obtained by Surveillance or Harassment

8.01

We recommend the enactment of civil liability governing the unjustified disclosure or publication of any information or material (which includes images) obtained by or as a result of privacy-invasive surveillance or harassment. [Head 2(iii) of the Heads of Bill]

8.02

In conventional terms a privacy law is often taken to mean a law against any unjustified disclosure or publication of information pertaining to a person's private life. As indicated in the last chapter and indeed throughout this Report we do not recommend such a law on this occasion. However, we judge it necessary to take the vital step in prohibiting the unjustified disclosure of publication of any information, material or images obtained by or as a result of privacy-invasive surveillance and/or harassment.

8.03

We recommend liability for publication in Ireland of information, etc., obtained overseas by methods which, if used to obtain that information in Ireland, would have amounted to privacy-invasive surveillance. [Head 2(iv)]

8.04

As already explained at Chapter 1, Part 8, this recommendation is intended to address the international dimension of the privacy problem dealt with in this Report.

8.05

The liability we recommend under Head 2 (iii)–(iv) would cover all transactions on a continuum ranging from disclosure following immediately upon the act of privacy-invasive surveillance or harassment to intermediate dissemination and ending in eventual publication (and any possible re-publication) to the world at large.

B: Defences

8.06

We recommend that no liability should attach to publication that might

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otherwise be unlawful under our recommendations if the defendant can show that he/she did not believe nor had reasonable grounds to believe that the information, etc., in question had been obtained by or as a result of privacy-invasive surveillance or harassment. [Head 3(1)(iii)]

8.07

If the person or entity doing the surveillance is in fact the same (or effectively the same) as the person or entity doing the publishing then this defence will be of no avail [see 2nd proviso (sub-para (b)) to Head 3]. The defence is of potential relevance only where the person/entity doing the surveillance is different to the person/entity doing the publishing.

8.08

We recommend that consent, whether express or implied, should be a defence. [Head 3(1)(i)]

8.09

We recommend that the exercise of a legal duty or power or the maintenance of a legal right should be defences. [Head 3(1)(ii)]

8.10

We recommend that no liability should attach to publication that would otherwise be unlawful under our recommendations by reason of having been obtained by privacy-invasive surveillance if such publication is justified by overriding considerations of the “public interest”. [Head 3(1)(iv)]

8.11

We endorse four specific – but non-exhaustive – strands to the “public interest” defence for the purposes of our recommendations [see Head 3(3)]:

8.12

Our approach to the “public interest” defence is discussed in further detail in Chapter 2 and in the Explanatory Memorandum to the Heads of Bill.

C: Remedies

8.13

We recommend that preventive injunctions or “privacy orders” should be available as a remedy for wrongful publication. [Head 4(c) and Head 5]

8.14

Preventive injunctions, as we have pointed out in para. 7.26, might be serviceable in the context of preventing acts of privacy-invasive surveilance or harassment or preventing the continuation of same. In reality, such preventive injunctions will be most often sought to forestall the publication of information or

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images, etc., obtained as a result of, or by means of, privacy-invasive surveillance or harassment.

8.15

Genuinely newsworthy items should not be inhibited for any longer than is absolutely necessary to ensure that privacy is not unjustifiably intruded upon. When it comes to a balance between two perishables – privacy or news – we come down on the side of privacy but in a way that allows the newsworthiness of the material in question to be evaluated rapidly and fully.

8.16

We outline several important features to the award of a privacy order under Head 5. For example, such orders should become effective immediately upon notification and may be subsequently varied, stayed or discharged. If an appeal is brought against the award of an order it may be stayed pending the outcome of the appeal.

8.17

In particular, we recommend that on an application for a privacy order, the court shall take into account the public interest, if any, in disclosure or publication [Head 5(12)]. Furthermore, we recommend that on an interlocutory application for a privacy order, if the defendant makes out a good arguable case for the public interest defence (under Head 3), the court may refuse to grant the order where the justice of the case so requires [Head 5(13)].

8.18

We recommend that damages should be available as a remedy for wrongful publication. [Head 4(a)]

8.19

We recommend that an account of profits should be available as a remedy for wrongful publication. [Head 4(b)]

8.20

We recommend that a delivery up of all material that has come into the defendant's possession by reason of or in consequence of the tort of privacy-invasive surveillance should be available as a remedy. [Head 4(d)]

CHAPTER 9: PROPOSED CRIMINAL, REGULATORY AND SUPPLEMENTARY PROVISIONS

Introduction

9.01

In this chapter we state our recommendations with respect to

9.02

All these matters, with the exception of (F), are dealt with in our proposed Heads of Bill (Chapter 10 below).

A: Proposed New Offences

9.03

We are proposing the creation of a number of further criminal offences because, on the basis of the principles and values arising from privacy as a human right which provide the basis for this Report, we are of the view that certain forms of privacy-invasive surveillance are particularly offensive and socially unacceptable and ought to be visited with the sanctions of the criminal law. We so recommend in order to add a deterrent element which can only be added by the criminal law to the mainly preventative and compensatory role of civil law.

9.04

We have listened with great care to the many submissions made to the effect that since the imposition of criminal liability is so drastic a step, care should be taken to ensure that it is tailored narrowly to meet only the most pressing of concerns. That is why we have moved away from the open-ended formula contained in our Consultation Paper concerning criminal liability (proposed offence of infringing the integrity of another through surveillance) to one that targets invasions of privacy in well-defined circumstances where the

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expectation of privacy is at its highest (i.e., on a private dwelling) or where the activity in question (i.e., conversations) is inherently private.

9.05

As such, the new offences we recommend would round out the panoply of existing criminal offences that already deal with various aspects of surveillance as set out in our Consultation Paper (Chapter 5, pages 88–120) and would do so in such a way as to target only those kinds of violations that all or most would agree require the sanction and intervention of the criminal law.

9.06

Specifically, we recommend the enactment of three new substantive offences as follows. Ancillary offences dealing with disclosure of the yield of the surveillance are also provided for.

New Offence of Installing Surveillance Device in a Private Dwelling or Engaging in Surveillance of a Private Dwelling [Head 9(1)(a)]

9.07

We recommend the enactment an offence of infringing the privacy of a (natural) person by installing a surveillance device inside a dwelling with a view to surveillance, or using such device from outside a dwelling but with a view to spying on the dwelling.

9.08

We have bundled together two phenomena under this head – namely (1) the installation of a surveillance device in a private dwelling and (2) engaging in the surveillance of activities taking place in a private dwelling but from outside or afar. The common denominator in both instances is the sanctity of the private dwelling.

9.09

The Legislature may well take the view that these two phenomena should be unbundled and handled by two separate offences. This is so because not every act of surveillance from outside or afar onto a private dwelling may violate a “reasonable expectation” of privacy arising within. For the moment, however, we keep these phenomena together to bring out our concern for the sanctity of the privacy of the dwelling.

(ii) New Offence of Trespass Done for the Purpose of Surveillance [Head 9(1)(b)]

9.10

We recommend a new offence of trespass on private property (either by unlawfully entering thereon or by unlawfully remaining therein) effectuated for the purpose of obtaining information thereon concerning any (natural) person.

9.11

This new offence governs the type of case which involves a particular kind of trespass on private property. This is the type of trespass which is directed at infringing the information privacy of a person. Unlike the offence outlined at (i) above, no surveillance device need be installed for this offence to apply. Like the offence above, the imposition of criminal liability for such

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behaviour is justified since such behaviour aims at the heart of a place which is preeminently private.

(iii) New Offence of Using Devices to Spy on Private Conversations [Head 9(1)(c)]

9.12

We recommend the enactment of an offence of infringing the privacy of a (natural) person by using aural or optical devices to spy on people's conversations in circumstances where a “reasonable expectation of privacy” arises and where the consent of no party to the conversation has been obtained.

(This offence would not affect the existing criminal law on the interception of telephonic and electronic communications.)

(iv) New Ancillary Offences aimed at the Disclosure of Information obtained as a result of the new criminal offences [Heads 9(1)(d), 9(1)(e) and 9(1)(f)]

9.13

The prohibitions which we envisage as outlined above would be deprived of much of their value if those who came into possession, directly or indirectly, of information as a result of the criminal surveillance concerned were free to communicate or use the information with impunity.

9.14

As was seen in Head 1, “disclose” includes communicating, conveying and publishing.

Schedule to the Proposed Heads

9.15

The Schedule which appears at the end of the Heads concerns the proviso to Head 3 (defences in respect of civil liability for privacy-invasive surveillance and disclosure or publication of the yield thereof). The acts referred to in the list contained in the Schedule are consistent with the provisions for criminal offences discussed above.

9.16

Their effect would be to disallow the “public interest” defence provided for in Head 3 in relation to the tort(s) of publication of material or information obtained by privacy-invasive surveillance insofar as such surveillance had involved the commission of any of the acts contained in the Schedule. We believe that it is appropriate to impose such restrictions on the public interest defence because considerations of the public interest involve not only the public interest in publication of information but also the public interest in supporting the enforcement of the criminal law. The enactment, even in the sphere of civil liability, of provisions which might tend to undermine or prejudice such enforcement, should be avoided.

B: Defences

9.17

We recommend a broad range of defences to the above offences including consent, the necessary protection of one's rights and, with some limitations, the necessary protection of third persons. [Head 10]

9.18

In many respects the proposed defences mirror those recommended for the civil torts outlined under Head 2 of the Heads. However, it should be emphasised that the existence of a defence in respect of a criminal offence does not necessarily mean that there is a defence in respect of any corresponding civil tort.

9.19

We recommend that the proposed defences should be:

C: Regulatory Provisions Directed at Particular Forms of Surveillance by State Authorities and Others

(i) Police Surveillance of Private Places

9.20

We recommend that, notwithstanding the criminal offences contained in Head 9 (and notwithstanding the provisions for civil liability in the earlier Heads), surveillance by a member of An Garda Síochána of any private place using any optical or hearing device, without the consent of the occupier, may be authorised either for an initial period (non-renewable) of fourteen days by a Chief Superintendent of An Garda Síochána or for any period of up to three months (renewable) by a Judge of the District Court. [Head 11(2)]

9.21

For this purpose we recommend that:–