The publication in the Carlow Nationalistnewspaper of an embarrassing photograph of a GAA player was negligent, although accidental, and the player is entitled to damages, a High Court judge has ruled.
Earlier during yesterday's hearing, the judge remarked "roll on the press council".
Mr Justice Declan Budd said yesterday he proposed to award damages to Richard Sinnott on the basis of his finding that there was a negligent intrusion on the player's right to privacy arising from the publication of the photograph in which his private parts were accidentally exposed on the sportsfield.
He adjourned the matter to Monday when he is expected to give his final judgment, including the amount of damages, on the appeal by the newspaper against a Circuit Court judge's finding in favour of Mr Sinnott (23), of Clonegal, Co Carlow.
The Circuit Court had awarded Mr Sinnott €6,500 damages for breach of privacy, intentional infliction of emotional harm and negligence. The newspaper had appealed against all of those findings.
The case arose from publication in the newspaper in June 2005, on pages one and three of its sports section, of pictures of Mr Sinnott taken while he was playing in a GAA match. His private parts were visible in one photograph. He was awarded damages and costs against the Nationalist & Leinster Times, Carlow, in June last year.
Mr Sinnott, who is now in Australia, had given evidence of being very upset by the publication and said his dream as an amateur footballer at the peak of his career, of playing at Croke Park for the first time on the Sunday after publication, was ruined.
In submissions earlier yesterday, barrister Martin Nolan, for the newspaper, argued that even if the court was to hold that the conduct of the newspaper in publishing the photograph of Mr Sinnott was deliberate, there was no evidence of harm to Mr Sinnott and he was not entitled to damages from the newspaper for breach of his constitutional right to privacy.
Mr Nolan said previous decided legal cases alleging breach of a constitutional right to privacy had involved either the State or emanations of the State.
In such cases, particularly that brought by journalists Geraldine Kennedy and Bruce Arnold arising from the deliberate tapping of their phones by the State, there was a deliberate breach of the constitutional right to privacy, he argued.
There was no such deliberate breach in this case and it would be breaking new legal territory for the court to rule Mr Sinnott was entitled to damages for breach of his constitutional right to privacy from an entity other than the State or an emanation of the State, it was submitted.
Mr Nolan argued it was open to the court to find the problem with the photograph was not seen in Carlow before the pages of the paper were sent to Ballina for printing. No one looking at such photos would be looking for a penis and testicles, he said.
Some people did not see the problem until it was pointed out to them, Mr Nolan continued. The evidence on behalf of the paper was that the sports editor did not see the problem and the newspaper's editor took the view no other employee had seen it.
During yesterday's hearing, Mr Justice Budd noted the newspaper had published an apology to its readers for publishing the photograph of Mr Sinnott but had not published an apology to Mr Sinnott himself or his family.
When Mr Nolan said there were legal issues relating to liability arising from publication of apologies, the judge said "roll on the press council" if newspapers felt they could not apologise straight away for publishing photographs which many people would regard as invading human dignity.
Perhaps the media should inform itself of intrusions of privacy standards being set in Europe, he added.
The judge also remarked that the same problem in relation to publication of such a photograph had arisen in the Laois Nationalist seven years ago.
In its submissions, the newspaper argued there is no common law tort (legal wrong) of privacy recognised here. While conceding there was a constitutional right to privacy, it contended that before the court could find there was a breach of that right, the court must rule any such breach was deliberate, conscious and unjustifiable and denied a deliberate breach.
Simon Boyle SC, for Mr Sinnott, had argued that the cause of action in the case arose where there was a constitutional right to privacy on the one hand but no effective protection for that.
The court should rule that publication of the photograph was deliberate and conscious as there was at least one opportunity before publication to view the photograph in full size and the newspaper had not called certain possible witnesses, including the photographer, he said.
This case involved an inherently private matter which should never have been disclosed, he said.