The interest in Richard Sinnott’s privates and privacy shows no signs of abating, either online (egs from both ends of the spectrum: Edward McGarr | Twenty Major) or offline (eg, I was on the Breakfast Show on Newstalk106 (podcast feed here) on Wednesday morning discussing this very case). The story so far: the Circuit Court (discussed here) and High Court (discussed here) have already held that the publication by the Carlow Nationalist of a photograph of Mr Sinnott involved in a football match in which his private parts were exposed constituted an invasion of his privacy. However, the High Court proceedings are still ongoing before Mr Justice Budd, and, on Monday, the Nationalist asked Budd J to refer the matter to the Supreme Court. According to newspaper reports on Tuesday (Irish Independent | Irish Times), he adjourned to February 12th next the issue of whether he will refer such issues to the Supreme Court for determination. He should. Although the amount of damages under appeal is relatively small (at only €6,500), the issues of principle involved are of the highest importance.

First, at least since Kennedy v Ireland [1987] IR 587, [1988] ILRM 472 (12 January 1987) (doc | pdf), it is clear that the constitutional right to privacy protects against intrusion upon the plaintiff’s private life (in that case, the invasion of privacy was by unauthorised phone tapping). Some procedural skirmishing apart, we have not yet had a fully argued and decided case in which the invasion of privacy was by publication of private facts; nor have we had one in which such publication was sought to be justified by reference to the constitutional protections of freedom of speech and of the press. Sinnott v The Carlow Nationalist is the first case to reach the High Court on these issues. Others that might have done may have settled, either because the plaintiffs didn’t want the increased scrutiny that a case would inevitably bring (for example, far more people know of the fact of Mr Sinnott’s wardrobe malfunction due to the publicity surrounding the High Court proceedings than were aware of the original photograph), or because media defendants did not want to provoke the kinds of judgments against them that the English press are suffering in the English courts. This litigation is the opportunity for these important issues to be decided.

Second, courts and commentators have so far been rather coy as to whether a plaintiff asserting a right of privacy can rely on the constitutional right or upon a common law cause of action of invasion of privacy. No Irish judge has yet ruled on whether or not Irish law recognises such a tort. This case is the opportunity for the judges to decide that question. The Supreme Court should not shirk it. Hence, for the sake of clarity, not only should the Supreme Court rule on the contours of the constitutional right to privacy and its relationship with freedom of speech, but it ought also to decide whether the standards that it sets are standards of constitutional law on which the parties can rely directly, or whether the role of the constitution is more indirect, simply influencing the common law tort. This might seem arcane, but it is crucial. If a plaintiff like Mr Sinnott can simply rely on the constitution, then the standard of liability set by the court is one that cannot be changed by legislation. On the other hand, if the plaintiff can only rely on a common law cause of action, then that standard is one that can be altered by statute. And with the Privacy Bill, 2006 still in the offing, the question of how much of the law of privacy it can affect is a significant one.

Third, it is not enough to say that an invasion of privacy ought to be actionable; the Supreme Court will have to explain the standard of liability for such an invasion of privacy. The English Courts (under the influence of other common law cases and commentary) have settled on the test of whether the plaintiff has a reasonable expectation of privacy in the circumstances (though it’s not clear whether they are going to settle on an objective or subjective approach to the question of that expectation); the New Zealand courts have included the requirement that publication would be considered highly offensive to an objective reasonable person; the European Court of Human Rights seems to have settled on an approach which treats everything as private that is not related to plaintiff’s public functions; the Irish courts test infringements of constitutional rights according to whether they were “deliberate, conscious, and unjustifiable”. The Supreme Court will have to choose which standard is appropriate to an Irish tort or constitutional action for invasion of privacy.

In Sinnott’s case, where Budd J has already held that the publication was not intentional but negligent, the choice amongst these standards will matter enormously. Some of these tests focus on the position and actions of the plaintiff; some on the defenant; and some on an objective analysis indepdenent of both. If the Supreme Court announces a test which focusses to some degree on the position and actions of the defendant, then they will have to decide whether liability should attach only if the defendant acted wilfully or intentionally in invading the plaintiff’s privacy, or whether whether negligence is sufficient. On the other hand, if the focus is to be on the plaintiff’s reasonable expectations or on objective considerations such as offence to a reasonable person, then this question of negligence will not arise.

This is not the only time that an Irish sportsman has had problems with his shorts. Nor is it the only time that a sportsman has been the subject of these kinds of photographs. In the US case of McNamara v Freedom Newspapers Inc 802 SW 2d 901 (Tex App, 1991), it was held that publishing photos similar to those at issue in Sinnott’s case did not amount to an invasion of privacy, since the plaintiff had been voluntarily participating in a spectator sport in a public place (I am grateful to Prof Gavin Phillipson for drawing this case to my attention).

Embarassing exposure raises difficult questions relating to privacy in a public place: reasonable people do private things in public places; limited exposure need not lead to widespread disclsoure. Budd J should therefore accede to the request to refer the matter to the Supreme Court, so that final answers can be given to these questions as a matter of Irish law.