In the final year of my PhD, I found myself teaching two modules which involved privacy law at Maynooth University. I was familiar with Dr Eoin Carolan and Professor Hilary Biehler’s excellent book on French and Irish privacy law from 2009 but struggled to find something more recent to assign my students. I knew colleagues in practice were often faced with a similar dilemma – searching for a text which could offer a way into a growing, and complex area of law. I had been studying and working on privacy law issues since 2014 so I decided to approach Bloomsbury and see whether they would be interested in a text which could fill the gap in the market.
The short answer is very challenging. Privacy law has developed in a very organic way – in the jurisprudence of the ECHR in particular, and it is often a matter of what rights to private life do not cover in EU and ECHR law. The development of privacy law in Ireland has been slightly more streamlined but privacy concerns still occur in such a wealth of criminal and civil contexts that it can be challenging to make decisions about what to exclude. My approach to this book was to view it very much as a first edition. It seeks to cover the basics comprehensively and accurately, and signposts the places readers can find more specific answers to niche queries.
The growth we have seen in privacy law in Ireland over the last fifteen to twenty years is not unique. For example, I touch in the opening chapters on the Canadian ‘boom’ in privacy torts. Much of the discourse surrounding the growth in privacy law in the twenty-first century focuses on new technologies and media models which have put personal privacy, and private spaces under increasing pressure and changed how many people view the public/private distinction. We certainly see those pressures reflected in recent decisions from the Irish appellate courts. I think it is also worth noting that membership of the ECHR and the EU have fed the development of a broader understanding of what privacy can mean. This has, in turn, been used by civil society organisations and private parties to litigate privacy claims with a frequency and a nuance which has fed the development of privacy law.
I think one of the consistent trends in privacy law is how difficult it is to police the public/private distinction – let alone pin it down. Academics working on privacy often talk about the right as ‘contextual’ and we certainly see that played out in leading cases like Von Hannover where the ECtHR found that a privacy interest may subsist for a public figure even in a public space. What this means in practice, of course, is that the answer to whether something is private or not is often more complex than in early cases involving personal choices about family planning or covert surveillance of personal phone calls.
I certainly hope so! My aim in the book was twofold. Firstly, I wanted to orient practitioners (and students) to the privacy landscape in Ireland and the overlapping ECHR, EU, Constitutional and statutory claims which can be at play in the area and to relate that to the conceptual work which has been undertaken by academics and practitioners on the function and limits of privacy as a right. My second aim was to illustrate how privacy has been defined by the Irish courts and to draw out the common themes in those decisions – as well as, perhaps, to highlight the lingering ambiguities which have yet to be resolved.
The Court of Appeal’s decisions in Corcoran v Garda Commissioner and Dwyer v Garda Commissioner and the Supreme Court’s decision in DPP v Quirke are perhaps the most recent. However, a range of other cases including those as diverse as Akram v Minister for Justice (dealing with the search of personal devices at the border), the decision of the Court of Appeal decision in DPP v Smyth and McAreavy all cast into high relief the centrality of privacy rights.
Mr Justice Hogan who, very kindly, wrote the foreword to the book has flagged these for readers, the book having already gone to print by the time they were released. Perhaps the most important is the Supreme Court decision in Corcoran v Garda Commissioner in which the Court quashed the grant of a search warrant for a search of a journalist’s private telephone. That case, like DPP v Quirke which is discussed in the book, offer real insights into how common law and statutory powers can, and must, adapt to new technologies and social contexts.
My focus in these updates will primarily be on explaining and analysing recent decisions of the Irish and European courts which concern privacy. I will also be writing about legislative developments and changes in EU secondary laws as they arise. It may be (as in 2023 with the series of decisions on damages under the GDPR) that certain themes emerge in particular periods and which would serve as a focus for updates, but my main concern with the service is to provide something which is useful for colleagues who are trying to remain up to date with developments in the area.
I was delighted when Ronan agreed to come on board as Consultant Editor and it was a pleasure to work with him. We had crossed paths several times in academia and, more recently, in practice and it was a huge benefit to me to be able to draw on his insights in writing the book.
I hope it will be very useful. The breadth of cases in the book – dealing with disputes in family law, criminal law and recently even environmental law shows just how many practice areas privacy law claims can arise in. I hope the book can offer a ‘way in’ to an area which is increasingly relevant for practitioners across the country while also acting as a useful source for colleagues like Ronan who know the area well.
Thank you! I was appointed as an Assistant Professor of EU and International law in Trinity from this September after spending three years as an Assistant Professor in the company of some wonderful colleagues at the School of Law and Government in DCU. I completed my LL.B. and my Ph.D. in Trinity, so it is a homecoming in many ways – and one which comes with the added bonus of the opportunity to teach privacy law to our LL.M. students as well as Torts and EU Law to our undergraduates.
