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Punitive Damages Awarded for Breach of Privacy (September 2008)

The thorny question of whether privacy rights are actionable against a private entity has now been answered firmly by the Irish High Court in a decision which shows that the Irish courts have no hesitation in awarding punitive damages in respect of an egregious breach of privacy.

In Herrity -v- Associated Newspapers (Unreported, 18 July 2008) the High Court awarded €90,000 in damages against a newspaper following the publication of private material about a woman's marriage and her relationship with a Catholic priest. The newspaper had published family photographs and extracts from transcripts of the plaintiff's private conversations, which had been obtained after her home telephone was unlawfully 'tapped' by a private detective hired by her estranged husband. The newspaper had published the material in three successive editions.

The Irish courts have long recognised the right to privacy as protected right under the Irish Constitution and awards of damages against State entities for breach of privacy are not unusual and often exceed €50,000. In this case Associated Newspapers argued that damages for breach of privacy could not be awarded against a private entity.

Ms Justice Dunne's decision confirms that privacy rights are actionable against non-State entities, such as media organisations. The test developed by the Irish courts bears noticeable similarity to that adopted in the UK, as applied in the recent Mosley decision. The right to privacy is weighed in the balance as against competing rights, such as freedom of expression. The cause of action may derive from the private nature of the information or from how it was obtained.

In Herrity the court rejected the newspaper's argument that the publication was justified on grounds of freedom of expression, including that of the ex-husband, and on grounds of public interest in the priest's misconduct.

Concluding that the right to freedom of expression is important but not unqualified, the court found that privacy rights can trump freedom of expression, although such cases might be rare. The publication of family photographs and details of the plaintiff's family circumstances was unjustified and was a "conscious and deliberate and unjustified breach of the plaintiff's right to privacy", with much of the private information obtained by unlawful means. The newspaper might well have been justified in publishing the woman's identity but much of the material had no bearing on the public interest.

The court awarded €60,000 in general and aggravated damages, plus €30,000 in punitive damages to mark the court's disapproval of the "blatant use of unlawfully obtained transcripts of telephone conversations".

The case is another reminder to the press that in Ireland it is not only celebrities and public figures that will benefit from the increased recognition of privacy rights.