fe-1 constitutional question

mr.twist

After complaints form apartment dwellers about cold living conditions- the Irish sentinel newspaper sends in an undercover reporter to work in the builders firm- cowboy construction. Journalist records conversations with the manager in which he admits to using unsuitable low cost material. Conversation takes place after work in builders home.

Newspaper plans on running story to expose the dodgy dealings. Cowboy obtain injunction. They argue publication infringes owners right to privacy. They argue secret recording of individuals conversation is breach of privacy. Argument also made that journalist deception rendered him a trespasser in law on owners property (with newspaper concedes).

You are asked to advise the Irish Sentinel of their chances of successfully appealing the injunction at interlocutory hearing on basis of Irish constitutional law.

would anyone be kind enough to point out the issues in this one and outline how they would have answered it.

I went the freedom of expression route- and discussed recent defamation cases- hunter v duckworth - showing that court more willing to give media greater leeway if good practice follwed- and also if infirngement to privacy outweighed the common good.....

johnnyskeleton

Is constitutional law over for March? I'm not doing the FE1s but I might add my two cents if thats ok (and provided that there are no problems with discussing the paper).

Also, while I'm sure you did very well, do you really want a post mortem casting doubts on what is probably a very stressful exam (especially when shineboxes like myself are allowed to comment here)?:D

mr.twist

short answer- yes- constitutional is only Fe-1 i failed last time- and its one i thought i did the best on! - so kinda at wits end with the subject- it angers me very much-

TheVan

Reynolds v Malocco [1999] 1 ILRM 289.

Most suitable case that springs to mind (I haven't done constitutional since first year but I reckon this would have some good stuff!)

johnnyskeleton

Issues:
1) can an injunction inhibit freedom of speech?Yes, when it is to protect a competing constitutional right (SPUC v. Grogan [1989] I.R. 765), or in very exceptional circumstances the court has a discretion based on the balance of convenience (Foley v. Sunday Times [2005] 1 IR 88). Reyonds v. Malocco (above)- where the defendant in a defamation case has no real defence, an injunction can be granted.

2) Is the right to privacy generally sufficient to compete with the right to freedom of speech?Yes, Cogley v. RTE [2005] 4 IR 79 (very similar facts), but it varies greatly from case to case.

3) Is there a breach of the right to privacy in this case?Arguably, but privacy is a personal and family right, and it might be vindicated as strongly for a company, or for a person's business (my view, not based on any specific case, but Ansbacher [2002] 2 IR 517 could be authority to the contrary).

4) Are there any other rights that could balance against the right to freedom?
Probably not. This does not appear to be a defamation case (as there does not appear to be an untruth in it) and rights such as the right to a good name can only be vindicated against an untruth (Foley above). As for property rights or potential loss to business reputation, damages would be an adequate remedy (American Cyanamid test)

5) Does the breach of privacy outweigh the right to freedom of speech?Probably not. In Cogley (above) held with a New Zealand authority "the mere fact that information may, arguably, have been obtained in breach of an individual's rights is not, of itself, necessarily decisive. What also needs to be weighed in the balance is the importance of any public interest issues which arise and also the extent to which damages may be an adequate remedy." It is in the public interest to know about sub-standard buildings, and cowboy's rights are fairly weak by comparison

6) chances of defeating the injuction?
High. if they genuinely intend to pursue a justification defence (which they should) then cowboy can't get a defamation injunction (reynolds).Their right to privacy is IMO not enough to displace the right to freedom of speeh in this case & in any event the public interest in hearing the story puts paid to it. For their other rights they can be adequately compensated by damages.

7) anything else?
fill up the rest of the essay with a discussion about how the ECHR has a much stronger freedom of speech tradition than Bunreacht. The Irish courts have been very reluctant to grant an injunction, especially from 1937 to relatively recent times. ECHR recent jurisprudence and ECHR Act are giving more rights to freedom of speech. And I for one think that it is a good thing/a bad thing/too early to tell.

That's my take, and there are probably different ways of answering. It is open to debate. Hope you do well in the rest of the exams.

Tom Young

Build from Irish Jurisprudence:

Article 40.3 unenumerated rights. State only, don't labour it, or transcribe.

X v O'Flynn, Foy, Magee, Norris, Hanahoe v. Hussey, Reynolds v. Molocco.

Seminal Irish tapping cases are: Kennedy and Arnold v. Ireland and Haughey v. Dublin Corporation.

**Cogley and Foley are video recordings but were successfully upheld at injunctive stages.**

Check some ECHR Jurisprudence:

1. Von Hannover v. Germany
v. brief: http://www.echr.coe.int/Eng/Press/2004/June/AnnouncejudgmentvonHannovervGermany.htm
Longer: http://www.worldlii.org/eu/cases/ECHR/2004/294.html

2. Bladet Tromso v. Norway (tends towards FOI)

3. Keegan v. Ireland

4. Norris v. Ireland (National was Norris v. AG ...1984?)

5. Bergens v. Norway

6. Pretty v. UK (right to die, privately)

UK References that can be cited in Irish cases:

1. Campbell v. Mirror Group Newspapers (re: Cocaine)

2. Kaye v. Robertson (Pictures taken of Kaye and published as headline that he was dieing or had died).

3. Diane Pretty preliminary case.

Some others:

X. v. Flynn & Ors. (Unreported, High Court 1994 No. 2893P, Judgement delivered May 19th, 1994

Foy v. Registrar of Births, Deaths and Marriages [2002] IEHC 116 (9th July 2002)


Criminal aspects argued with FOI and also Privacy:

Laskey, Jaggard and Brown v. United Kingdom (1997) 24 EHRR 39

Goodwin v. UK, European Court of Human Rights, 11th July 2002.

Van Hannover v. Germany (2005) 40 E.H.R.R. 1


Freedom of expression:

Lingens v. Austria (1986) 8 EH RR 1 03

Tolstoy Milsoslavsky v. UK (1995) 20 EHRR 442

Bladet Tromso v. Norway (2000) 29 EHRR 125.


That would probably do it.

My points would be that the levels of sensitivity to Euro TORT at ECHR is much higher now. Recording is illiegal without consent if used to negative a situation, Data Protection 2004 (?) and telecommunications act 1983/1993 and 2002 cover this off. That would not be lectured in a constitutional class. Recent case of Windsor v. Mirror group Newspapers is a good example too, where voicemails were hacked and recordings used. If the consent was permitted and witnessed by the journalist, he could reply on contemperaneous notes to refresh his memory before the court on the permission of the employee to allow the interview be recorded.

I'd also chuck in Braddish and Dunne cases where the supreme court has ruled on recorded evidence, albeit CCTV. (Tapes were lost etc.)

My advice/answer to the Newspaper in the fictitious case would to contest at the hearing and cover the source (person) perhaps with an agreed court order. I'd make reference to the tribunal leaks of late: same Editor of Irish Times (Kennedy) is mentioned.

I'd not advise to contest/publish without copperfastened reviews of the consent given by the subject and also the protection, if required of the source.

(I have really dumped from my head above)

Tom

Ps: Johnny is on the money, in terms of structure, the above 'should be' pertinent cases.

mr.twist

jesus thanks lads- they are some serious answers- didnt get in the colgan v RTE which i see there and realise how pertinent it is now- yea got in hunter duckworth and reynolds - and suggested could freedom of expression be outweighed by privacy- nobody eluded to fact that info obtained in guys private home (inviolability) and so i stated that courts may not justify this breach of privacy enough to stike out injunction?? ah well just have to see what i get- oh yea mentioned that privicy bill that was propsed recently - giving more power to so-called 'investigative journalism' - thanks lads - it was my fifth question so detail was sparse - 50 will make my day

Tom Young

I don't get the relevance of the inviolability of dwelling aspect of the argument, can you explain your take?

The main application I see for that provision is really where a warrant is issued and fails due to incorrect addressing or some other aspect. The inviolability in the question you stated could only be an adjunct comment.

Did the manager not let the interview proceed? The Journo was not a declared trespasser but a contractual invitee.


Tom

mr.twist

just said in question that newspaper concedes that journalist was a trespasser- so thought it was relevant- side issue only

johnnyskeleton

mr.twist wrote:

nobody eluded to fact that info obtained in guys private home (inviolabilitye) and so i stated that courts may not justify this breach of privacy enough to stike out injunction??

Sorry, didn't realise that the journalist was in the owner's home. In the Douglas v. Hello case [2001] 1 QB 967, the court found that if a person was invited onto premises in false pretences they became a trespasser (the point in the case is more refined than I have stated it, and there are differences between the English and Irish approaches, e.g. I don't think Douglas has been fully accepted in Ireland).

There is a whole spiel on this issue, because in Cogley while the court was unwilling to grant an injunction on the publication, it had no problem granting an injunction against further trespass. So it could be said that the courts will take steps to safeguard your future property/privacy rights above the freedom of speech of another, but if your rights have already been breached then the tables are turned. You could contrast this with the criminal approach where once there is a breach of constitutional rights that will taint everything that follows from the breach.

My view would be that the courts would consider the trespass to be a separate issue and adequately compensated by damages. If it were, hypothetically, just a question of free speech v. inviobility of dwelling, I don't think the court would entertain it. I agree with Tom's point that the inviobility of the dwelling is mostly about encroachment by the state in criminal matters. I think there are two polar opposite concepts of the protection of rights – rights which the state must positively protect and vindicate (life, free speech etc) and rights which the state should not unlawfully or unfairly impose upon (fair trial, inviobility of dwelling etc). As between private citizens, the courts are (IMO) more concerned with the former than the latter. However, it might be used to strengthen cowboy’s case, because 2 breaches of constitutional rights sounds are obviously more persuasive than 1.

Above all, constitutional law is a very concept based exam, and if you know your basic principles (which you do), the case law is little more than a garnish.