Protection of privacy of the mail??

DeVore

I've always been curious about this.... suppose I send a mail to a person, an abuseive nasty letter say.... and the person shows it to their family and friends and takes it to the cops and shows it to them too.

Can I take an action on the basis that my privacy has been violated by the publication of my private correspondance? or does some other law take precedence (is there even the idea of "priority" of laws?)


DeV.

hada

DeVore wrote: »

I've always been curious about this.... suppose I send a mail to a person, an abuseive nasty letter say.... and the person shows it to their family and friends and takes it to the cops and shows it to them too.

Can I take an action on the basis that my privacy has been violated by the publication of my private correspondance? or does some other law take precedence (is there even the idea of "priority" of laws?)


DeV.

There is an unenumerated constitutional right to privacy contained in the Constitution. Because it is unenumerated, the courts have developed a test for setting what actually is private, and what is not. Although, there isn't exactly a consensus on this (in Ireland), it is generally meant to be 'reasonable expectation of privacy'.

I'm not entirely sure how you would *your* reasonable expectation of privacy has been breached, because a letter which (from what I gather) didn't contain any private information about you, would be breached. Even, then, the person went to the appropriate authorities, and not say, the Daily Mail. So it would probably be a non-starter in privacy terms.

Also, there is a hierachy of rights (Dunne J. talked about it in a recent case regarding privacy). So, freedom of expression (incorrectly in my opinion) can be deemed to be more important than the right to privacy, in some cases.

Tom Young

There are a couple of matters at play here. The first is that there are interception rules in relation post and packets under Section 98 of the 1983 P&T Act as amended.

In the example you use, the letter would have been received and thereby published to the recipient. The case in point is that the letter is marked confidential. In relation to onward publication, this is merely a breach of confidence and is not legislated for in Ireland. That is not to say that any allegations that were made or torts committed following on from the further publication in breach of confidence would not be actionable under defamation law. That Act being the 2009 Act.

This law is more developed in the UK. Thought the UK rules have been adopted here from time to time.

The jurisdiction ought to be exercised only in the clearest of cases. (Coulson v Coulson (1887) 3 TLR 846 (Coulson's case) and Bonnard v Perryman (1891) 2 Ch 269 CA (Bonnard's case). The reluctance to grant peremptory injunctions is rooted in the importance attached to the right of free speech. Lord Coleridge in Bonnard at p284 said

"The right of free speech is one which it is for the public interest that individuals should possess and, indeed, that they should exercise without impediment, so long as no wrongful act is done: and, unless an alleged libel is untrue, there is no wrong committed: but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed . . ."

That statement of the law has been endorsed and applied consistently since 1891.

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/2448.html&query=tugendhat+and+2009+and+perryman&method=boolean

Highlights a breach of confidence in circumstances where a defamation may have followed.

In McKennit v. Ash Buxton LJ said that
"if it could be shown that a claim in breach of confidence was brought where the nub of the case was a complaint of the falsity of the allegation and that was done to avoid the rules of the tort of defamation, then objection could be raised in terms of abuse of process. That might be so at the interlocutory stage in an attempt to avoid the rule in Bonnard v Perryman …"

The facts as alleged by the applicant can be briefly summarised as follows. About ten years ago, he had two or three sexual encounters for payment. These took place at his home. The applicant has some public reputation.
Some two years after these encounters, the lady took an opportunity to remind him of their previous meeting. As a result the agreement was reached for consideration. The agreement includes the sentence that:
"This arrangement is made in confidence and neither this letter nor its terms should be disclosed by you to anybody else".

The applicant states that that agreement was made against a background in which the lady threatened to publish information about their previous encounters unless he paid her money.

Mr Caldecott submits that the circumstances of the sexual encounters between the applicant and the lady were private and that they are matters in respect of which the applicant has a reasonable expectation of privacy. He submits that the information described as confidential in the order is also private and personal information.

Some three weeks or so ago, on 14th August 2009 , an email was received by someone acting on the applicant's behalf ("the agent"), from a person giving a name which neither the agent nor the applicant recognise. The applicant's case is that it may be the genuine name of the writer of the email, but it may not be a genuine name. The response from the agent to the suggestion that the writer had a story about the applicant was that he should get in touch with the agent about it. The writer then sent another email, indicating that the gist of the story was the sexual encounters and the agreement.

The response from the agent was that there were legal issues arising out of that. The writer of the email wrote back, apparently undiscouraged. He expressed himself in terms which seem to me to be capable of being understood as a threat to publish in any event. It is on that basis that I am satisfied that there is the need for the injunction to be issued without notice.

Tom

PS: I see Hada has piped in there with the old constitutional chestnutt. If that is Herrity you refer to, the Judge decided on the basis of Interception under the act I cite. I don't disagree with you on the privacy element, it's just grounding it that would be difficult at best. Also, the publication might well be limited and may not attract much in the way of a defamation action.