The growing threats to privacy are put under the microscope

The Right to Privacy: A Doctrinal and Comparative Analysis , by Hilary Delaney and Eoin Carolan, Thomson Roundhall, 352pp, €…

The Right to Privacy: A Doctrinal and Comparative Analysis, by Hilary Delaney and Eoin Carolan, Thomson Roundhall, 352pp, €165

THIS IS a timely publication, coming as it does while proposed legislation on privacy is "parked" pending seeing how effectively the Press Ombudsman and Press Council protect members of the public from unjustified media intrusion.

If such legislation is ever revived, it would be very wise indeed for legislators and drafters to read this book carefully before proceeding with any legislation.

However, it deals with much more than the issue of media intrusion into the privacy of the individual, beginning with an examination of what privacy consists of, and how it is protected in other jurisdictions.

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"A legal model of privacy protection necessarily requires the articulation of a specific conceptual account of privacy," the authors write. "In the absence of a clearly identified analytical starting point, a legal privacy right would be incomplete, incoherent and liable to cause confusion."

The authors point out that privacy is a very contemporary value, and accompanies the development of a raft of new technologies permitting intrusion into the lives of individuals in ways undreamt of by previous generations.

It has its origins in the ideas of the Enlightenment, when the main threat to the autonomy of the individual came from the state, but now has to deal with possible intrusion from organisations as varied as insurance companies and internet spyware intent on codifying the behaviour of individual users for commercial purposes.

This extent of surveillance on the behaviour of individuals has implications for the whole of society, according to the authors, as it discourages individual experimentation and offends against human dignity.

They argue for protection of the right to privacy, not against any specific threat, but against the whole world, as a way of protecting individual freedom.

The authors distinguish between the Anglo-American approach, which emphasises the negative right to protection against specific threats, and the European model, which identifies a specific right to privacy which the state is required to protect.

This has been asserted in a number of judgments of the European Court of Human Rights.

Such an assertion sometimes causes media organisations to tremble, but Delaney and Carolan state that, in their view, privacy and freedom of expression are, in some situations, complementary rather than contradictory.

However, they stress that the right to freedom of expression and the freedom of the press are not necessarily the same thing.

Everyone has the right to express their opinions, but they do not have equal rights to express them in the media.

They point out that intrusion into an individual's privacy, for example by listening devices, may hamper that person's freedom of expression.

"This is especially so where the opinion held is an unorthodox one, which, if publicly exposed, would be likely to attract condemnation. . . The absence of an enforceable right to privacy can lead to the sort of individual self-censorship which has a profoundly chilling effect upon that person's freedom of speech.

This can feed into the freedom of the press.

The example they give is the case of Mahon -v- Keena, where the Mahon tribunal demanded access to the source of a story published by an Irish Timesjournalist.

Pointing out that the judgment upheld the protection of sources as a general principle for journalists, they state: "By protecting the privacy of the source, the law makes it more likely that they will speak about issues of public importance".

After defining privacy as a human right and as a legal right, the authors go on to examine comprehensively the case-law in both this and other jurisdictions, and how various jurisdictions have sought through legislation and the courts to vindicate that right.

They point out that even without a statutory right to privacy, the Irish courts have upheld this right in various contexts, on the basis of the constitutional right to privacy.

In fact, they conclude, "Analysis of the various possible methods of protecting and vindicating such rights has shown that a form of constitutional tort may be the most appropriate vehicle for achieving this aim in the absence of legislative intervention".

Legislators should take note.