Privacy Law in Ireland

Author: Dr Róisín Á Costello, Barrister-at-Law and Assistant Professor at Dublin City University Róisín Á Costello is an Assistant Professor in the School of Law and Government. A graduate of Trinity College Dublin, the Institut d’études politiques de Paris and Georgetown Law Róisín is a qualified barrister and researches and works on EU law, fundamental rights (with a particular focus on privacy and property rights), media law, language rights, and law and literature. Her research has been supervised by and conducted alongside some of the leading privacy lawyers in Ireland, and internationally, including Professor Julie E Cohen, Professor Alvaro Bedoya and Professor Neil M Richards, Dr. Federico Fabbrini and Dr. Eoin O'Dell. Róisín has previously worked with the Georgetown Centre for Privacy and Technology Law and epic.org in Washington DC researching the interaction of privacy and consumer technologies and has published widely in leading peer-reviewed journals on the subjects of privacy and data protection. Róisín completed her PhD in Law at Trinity College Dublin where her doctoral research was funded by the Irish Research Council and examined private actors as norm setters in the digital environment. Prior to joining DCU, Róisín was an Assistant Lecturer in Media and IT Law at Maynooth University and taught at Trinity College Dublin. Consultant Editor Ronan Lupton, Senior Counsel Ronan Lupton is a Senior Counsel practising in the areas of Commercial, Chancery and Media Law and has a keen interest in privacy law. He has particular expertise in Defamation, Data Protection, eCommerce, Freedom of Expression, Intellectual Property, Privacy and Media Contempt, and has a special interest in Shareholder Oppression Disputes and Communications Regulatory Law. In addition to his legal practice, Ronan lectures on the Data Protection and Governance Law programme and is an Adjunct Associate Professor at the Sutherland School of Law at University College Dublin. He has taught Data Protection and Privacy Law at both undergraduate and post graduate level. Ronan is a media law adviser to a number of large media organisations and routinely advises on prepublication and post publication matters. He also advises on complex commercial and technology contracting matters in both the private and public law spheres. He appears as counsel in all forms of commercial, chancery and media law disputes. Ronan was called to the Bar in 2008 and became a Senior Counsel in 2021. He was called to the Bar of England and Wales in 2019. Ronan has acted as an adviser to the Government on media related matters and issues connected to online content, online harms and the welfare and safety of children online. In addition to a civil law practice, Ronan has an active interest in developments in communications regulation and competition law. He has very significant experience in both areas and held a number of senior management roles in the telecommunications and Internet sectors prior to commencing his legal practice at the bar in 2008. He currently acts as independent chair to the telecommunications industry association ALTO.

INTRODUCTION
Introduction
I. Origins of the Right to Privacy: A Nineteenth-Century Right?
a. The Emergence of Personality Rights in French Law
b. The North American “Discovery” of Privacy
c. Breach of Confidence in English Law
d. The Emergence of Privacy as a Human Right
II. Distinguishing Between Private and Public Law Conceptions of Privacy
a. Tortious Conceptions of Privacy
b. Constitutional Conceptions of Privacy
i. Inviolability of the Dwelling
ii. Privacy Rights under the Constitution
c. European Union Privacy Protections: Between Private and Public
III. Untangling the Sources of Privacy Rights and Privacy Law
IV. A Note for Practitioners

CHAPTER 1 THE RIGHT TO PRIVACY: CONTESTED DEFINITIONS

1.1 Introduction
1.2 Privacy: Attempts to Conceptualise an Elusive Right
1.2.1 Spatial and Social Conceptions of Privacy
1.3 Understanding the Functions of Privacy
1.3.1 Consequentialist and Deontological Views of Privacy
1.3.2 Autonomy Based Theories of Privacy
1.3.3 Dignitarian Theories of Privacy
1.4 Defining Privacy in Irish Law
1.4.1 Personal privacy
1.4.2 Spatial privacy
1.4.3 Informational privacy

PART I – SOURCES OF PRIVACY RIGHTS IN IRISH LAW


CHAPTER 2 THE RIGHT TO PRIVACY UNDER THE ECHR

2.1 Introduction
2.2 Locating the Limits of Privacy under Article 8 ECHR
2.2.1 The Scope of Article 8
2.2.1.1 Negative and Positive Obligations
2.2.1.2 Procedural Requirements of Article 8
2.2.2 Substantive Content of Article 8
2.2.2.1 Private Life
2.2.2.2 Family Life
2.2.2.3 Home
2.2.2.4 Correspondence
2.2.3 Justified Interferences with Article 8
2.2.3.1 In accordance with the Law
2.2.3.2 Legitimate Purpose
2.2.3.3 Necessary in a Democratic Society
2.4 Genres of Privacy in the Law of the ECtHR
2.4.1 Personal or Relational Privacy
2.4.1.1. Personal Identity
(a) Gender Identity
(b) Personal Appearance
(c) Names
(d) Biological, National, Ethnic and Religious Origins
2.4.1.2 Reputation
2.4.1.3 Moral, Physical and Psychological Integrity
2.4.1.4 Family and Personal Relationships
2.4.1.5 Sexuality and Sexual Activity
2.4.1.6 Parentage and Adoption
2.4.1.7 Childcare and Child custody
2.4.1.8 Immigration
2.4.1.9 Employment and Political Activities
2.4.2 Spatial Privacy
2.4.2.1 Protections of ‘Home’ from Entry and Search
2.4.2.2 The Expansion of ‘Home’
2.4.2.3 Protection of Environment
2.4.2.4 Protection of Personal Space
2.4.2.5 Privacy in Custodial Spaces
2.4.2.6 Privacy in Public Spaces
2.4.3 Informational Privacy
2.4.3.1 Data Protection
2.4.3.2 Rights to Access Data
2.4.3.3 Covert Surveillance
2.4.3.4 Choices Regarding Medical Treatment
2.4.3.5 Confidentiality in Lawyer-Client Relationships
2.4.3.6 Publication of Private Details
2.5 Remedies
2.6 Consideration of Article 8 ECHR by the Irish Courts


CHAPTER 3 THE RIGHT TO PRIVACY IN EU LAW

3.1 Introduction
3.2 Privacy Under the Charter of Fundamental Rights
3.2.1 Private Life
3.2.2 Family Life
3.2.3 Home
3.2.4 Communications
3.3 The Relationship Between Articles 7 and 8
3.4 Genres of Privacy in EU law
3.4.1 Relational Privacy
3.4.1.1 Name and Other Aspects of Personal Identity
3.4.1.2 Rights of Residence and Family Reunification
3.4.1.3 Protection of Victims of Crime
3.4.1.4 Gender Equality
3.4.2 Spatial Privacy
3.4.2.1 Search and Seizure
3.4.2.2 Privacy in Public
3.4.2.3 Environmental Protection
3.4.3 Informational Privacy
3.4.3.1 Data Retention
3.4.3.2 Data Protection
3.4.3.3 Covert Surveillance
3.4.3.4
3.5 Limitations and Derogations
3.6 Remedies


CHAPTER 4 THE RIGHT TO PRIVACY UNDER THE IRISH CONSTITUTION

4.1 Introduction
4.2 The Constitutional Elevation of a Common Law Right
4.3 The Emergence of a Right to Privacy in the Irish Constitution
4.3.1 The Recognition of a Privacy Right in McGee v Attorney General
4.3.2 An Expanded Right in Norris v Attorney General?
4.3.3 A Definitive Acknowledgement in Kennedy v Ireland
4.4 Contested Sources in the Constitutional Text
4.4.1 The Protection of Privacy Under Article 40.5
4.5 The Scope of a Constitutional Right to Privacy
4.5.1 A Bundle of Rights?
4.5.2 Genres of Privacy Recognise under the Constitution
4.5.3 Extension of a Right to Privacy to Private Parties
4.5.4 Constitutional Workarounds and the Third-Party Doctrine
4.6 Balancing Privacy and Competing Rights
4.7 The Test for Breach of Privacy in Irish Law
4.8 Remedies for Breach of Privacy
4.8.1 Declarative Relief
4.8.2 Injunctive Relief
4.8.3 Super-Injunctions
4.8.4 Damages
4.8.4.1 Damages for Breach of Rights by Unconstitutional Legislation
4.8.4.2 Exemplary Damages for Breach of Constitutional Rights
4.8.4.3 Quantum of Damages
4.8.5 New Remedial Approaches

CHAPTER 5 THE RIGHT TO PRIVACY IN IRISH TORT LAW

5.1 Introduction
5.2 The Development of Privacy Torts in Common Law
5.2.1 The Four US Privacy Torts
5.2.1.1 Intrusion upon seclusion
5.2.1.2 Public disclosure of private facts
5.2.2 Canadian Approaches to Privacy Torts
5.2.3 Misuse of Private Information in English Common Law
5.2.4 Australian Approaches to Privacy Torts
5.2.5 New Zealand’s Approach to Privacy Torts
5.3 A Privacy Tort in Irish Law?
5.3.1 Distinguishing Privacy Torts from Torts Related to Privacy Interests
5.3.2 Torts Protecting Privacy Interests
5.3.2.1 Breach of Confidence
5.3.2.2 Torts Affecting Land and Goods
5.3.2.3 Torts Affecting the Person
5.3.2.4 Negligence and Breach of Statutory Duty
5.3.2.5 Private Nuisance
5.3.2.6 Malicious Falsehood
5.4 Defences to Privacy Infringements in Tort Law
5.4.1 Consent
5.4.2 Waiver
5.4.3 Estoppel
5.4.4 Information Already Public
5.4.5 Public Interest
5.4.5.1 Matters of governmental and public importance
5.4.5.2 Illegality, wrongdoing or misconduct
5.4.5.3 Dangers to public safety
5.4.5.4 Correcting false or misleading information
5.4.5.5 Expressing views of vulnerable groups or persons
5.4.6 Iniquity
5.5 Tortious Remedies and Procedure in Cases for Breach of Privacy
5.5.1 Tortious Remedies in Privacy Cases
5.5.1.1 Compensatory and exemplary damages
5.5.1.2 Damages for mental distress
5.5.1.3 Gain-based relief
5.5.1.4 Apologies and corrections
5.5.2 Procedural Issues in Privacy Cases
5.5.2.1 Norwich Pharmacal Orders
5.5.2.2 Springboard Injunctions
5.5.3 Remedies Under the Data Protection Act 2018

PART II – THE GENRES OF PRIVACY IN IRISH LAW
CHAPTER 6 FAMILY AND RELATIONAL PRIVACY IN IRISH LAW

6.1 Introduction
6.2 Privacy and the Family in Irish Law
6.3 Privacy Beyond the Family
6.3.1 The Decision in I O’T v B: Relational Privacy at its Limit?
6.3.2 The Pattern of Relational Privacy Begun in Foy v An tArd Chláraitheoir
6.4 Statutory Recognitions of Relational Privacy
6.4.1 The Assisted Decision Making (Capacity) Act 2015
6.4.2 The Birth Information and Tracing Act 2022
6.4.2 The Harassment, Harmful Communications and Related Offences Act 2020

CHAPTER 7 PRIVACY OF THE HOME

7.1 Introduction
7.2 Common Law Protections of the Dwelling
7.3 Defining the Private and Home in European Law
7.4 Article 40.5 and the Right to Privacy
7.5 Household Exemptions from the GDPR

CHAPTER 8 PRIVACY IN PUBLIC SPACES

8.1 Introduction
8.2 Limiting Privacy in Public Places
8.2.1 The Right to Privacy for Public Figures
8.2.1.1 The Privacy of Public Figures in England and Wales
8.2.1.2 The Decisions of the ECtHR and the ‘Public Figure Doctrine’
8.2.1.3 The Privacy of Public Figures in Ireland
8.2.2 Modalities for Assessing Privacy for Public Persons and in Public Places
8.3 Peninsulas of Privacy in Public
8.3.1 Privacy for Employees in Otherwise Public Spaces
8.3.2 Shared Custodial and Care Settings
8.4 Mass Surveillance and Privacy in Public and Quasi-Public Spaces
8.5 The Garda Síochána (Digital Recording) Bill
8.6 The Right to Privacy and Open Justice


CHAPTER 9 INFORMATIONAL & COMMUNICATIONS PRIVACY

9.1 Introduction
9.2 Confidentiality, Privilege and Privacy
9.2.1 Privilege as a Privacy Protection
9.2.2 Confidentiality
9.3 Recognitions of Informational Privacy
9.3.1 Emergence of Informational Privacy
9.4 Constitutional Protections of Informational Privacy
9.5 Statutory Provisions in Respect of Informational Privacy in Irish Law
9.5.1 Offences of Harassment and Unauthorised Disclosure of Information
9.5.2 Regulatory Obligations to Respect Privacy
9.5.3 Restrictions on Disclosure or Publication of Information or Material
9.5.4 Surveillance, Searches and Investigations
9.5.5 The Data Protection Act 2018
9.5.6 Data Retention and Communications Surveillance in Irish Law
9.5.6.1 The Decision in Digital Rights Ireland
9.5.6.2 The Decisions in Dwyer v Commissioner of An Garda Síochána
9.5.6.3 Voluntary Retention and Disclosure of Communications