Report on the Protection of the Privacy of the Individual from Intrusive Surveillance

By Órla Gillen, Thursday, 30th July 1998 | 0 comments
Filed under: 1998.



Law Reform Commission Report on the Protection of the Privacy of the Individual from Intrusive Surveillance

This Report concerns the dangers posed to the privacy of ordinary citizens by surveillance, and especially modern forms of surveillance. Such dangers have been growing in recent years according as technological developments have accelerated. This subject provides a classic example of where contemporary practice has outstripped the law's capacity to protect and vindicate a fundamental human right - the right of privacy. The status of privacy as a human right is universally acknowledged and provided for in particular not only by Article 8 of the European Convention on Human Rights but also by the Constitution as interpreted by our courts .

The Report itself is based on extensive comparative research which shows the kinds of solutions adopted or proposed elsewhere and has regard to written submissions made on the Law Reform Commission's earlier Consultation Paper on this subject and at a 'listening exercise' on the topic held in July 1997 at which most of those interested in the issue were in attendance.

Overview of Recommendations

The Law Reform Commission recommends the enactment of a coherent set of civil remedies, criminal sanctions and other regulatory and incidental safeguards in order to ensure that the law is adequate to the task of handling the privacy dangers inherent in modern forms of surveillance. Draft Heads of a Bill with full Explanatory Notes are provided in the Report which set out  with clarity the shape of the proposed reforms.

Civil Law Reform Recommendations

The Law Reform Commission recommends the enactment of a civil tort directed against any form of surveillance that violates a 'reasonable expectation' of privacy of the individual. Factors are set out according to which the existence or otherwise of a 'reasonable expectation' of privacy may be determined. Extensive defences are provided for, including consent and the defence of one's own rights within reason. The latter would cover most forms of legitimate surveillance engaged in by private investigators acting on behalf of others. Also provided is the creation of a new tort of harassment (which is already a statutory criminal offence). Emphasis is laid on preventive remedies. No exemptions from this law are envisaged for any group.

An important and sensitive ancillary recommendation is made on the civil side for the creation of a separate tort directed against the abuse through disclosure, dissemination or publication of any material obtained by way of privacy-invasive surveillance. Most and perhaps all of this information will be private in nature.

A 'Public Interest' Defence for the Media

While the Law Reform Commission views this ancillary recommendation concerning disclosure or publication as necessary in order to protect privacy in the round it is fully mindful of the need to protect the disclosure to the public of certain kinds of information where such disclosure is called for in the public interest.

The Law Reform Commission views the press as a vital bridging link between the legitimate demand of the public to receive information relating to matters of public concern or interest and the supply of such information. After the benefit of detailed submissions and on serious and sustained reflection the Law Reform Commission is now of the view that a substantive 'public interest' defence should be made available.   It is considered that this is right in principle; it fits with the case law of the European Convention of Human Rights; and it seems the logical entailment of  recent decisions in the Supreme Court. The Law Reform Commission fully sets out its own views as to what constitutes the 'public interest' in this regard.

A further important defence proposed is that where the defendant does not know and could not reasonably have known that the material published had been obtained in violation of the civil tort of surveillance or of harassment, no liability for publication will apply.

The Law Reform Commission does not believe that where surveillance or improper disclosure by the media are concerned, self-regulation by the media is an adequate answer. Moreover, in legislation which would apply to ordinary citizens, it would be wrong to exempt the media from the relevant legal obligations. The courts, not some self-regulatory body, must be able to interpret and enforce the legislation for all. The Commission considers that the balancing of the human right of privacy with the public interest is so important an issue that it is best dealt with by the constitutional arbiters of conflict, the courts, which are independent of and are seen to be independent of all interested parties.

However the Law Reform Commission is of the view that the court should have a discretion to refuse preventive injunction on publication in advance of a full trial of the case where the defendant can show a good arguable defence in the public interest. This would be of special relevance to the media.

It should be borne in mind that the recommendations of the Law Reform Commission would only apply where the material was obtained through privacy-invasive surveillance. The Commission is not in this Report proposing a general privacy law.

Criminal Law Recommendations

The Law Reform Commission recommends that three new main criminal offences should be enacted. It has decided to move away from the open-ended offence provisionally recommended in its Consultation Paper (a violation of the integrity of the person) to three narrowly tailored and highly specific main offences. Essentially, these offences cover situations where the expectation of privacy is at its very highest (i.e. in a dwelling) of where the activity in question is inherently private (i.e. a private conversation).

~ The first offence concerns planting a surveillance device in a private dwelling or using such a device to spy on a private dwelling.

~ The second offence concerns trespassing on a private dwelling with a view to obtaining personal information.

~ The third offence concerns using a surveillance device to spy on a private conversation. This offence may apply whether the conversation takes place in public or in private.

A number of defences in respect of these offences are provided for. These include the protection of one's own legitimate rights, the appropriate defence or protection of others, lawful authority, and the detection or prevention of crime by the Gardai.

New Safeguards Covering State Surveillance of Private  Places

State surveillance of private places is usually conducted covertly by the Gardai for the purposes of preventing or detecting crime. By way of exception from the recommended civil and criminal provisions, such surveillance by the Garda Siochana should be permitted. Unlike surveillance through the interception of telephonic conversations there is however no requirement under the present law for any prior authorisation. Nor are there any explicit legal safeguards. The Law Reform Commission recommends safeguards involving surveillance warrants from the District Court with respect to such surveillance undertaken by the Gardai, with due allowance made for the exigencies under which the Gardai are often constrained to operate.

New Safeguards Covering Public  Surveillance

Fixed Closed Circuit TV (CCTV) and other similar systems operated by the Garda Siochana for  filming including recording events are now a familiar part of Irish streetscapes and serve an important purpose in deterring crime and sometimes in detecting crime.  The Law Reform Commission recommends that such surveillance by the Gardai should require authorisation by a Chief Superintendent. Where street surveillance is undertaken by occupiers of premises for their own protection, it is recommended that the law should require that notices be placed to inform members of the public of the street surveillance.    Where occupiers of private premises which are open to the public undertake CCTV or similar protective surveillance of those premises, notice of the surveillance should be given at all public entrances.   Furthermore, the Law Reform Commission recommends     that certain safeguards apply directed particularly against the abuse of any footage obtained as a result of the operation of CCTV or similar systems.

Protection of Privacy in Relevant Judicial  Proceedings

The Law Reform Commission recommends that in order to protect, where necessary and appropriate, the privacy of individuals, a court should have the discretionary power to order that proceedings in cases arising under its recommendations (civil and criminal) should be held otherwise than in public and that appropriate restrictions should be placed on publicity and reportage.