Court of Appeal upholds finding of defamation, makes declaration of breach of constitutional right to privacy

In Nolan v Sunday Newspapers Ltd [2019] IECA 141, Peart J. found for the court that the High Court (O'Connor J sitting without a jury) had been correct in holding that two publications by the defendant were defamatory, in that they had given the impression that the plaintiff was 'a principal organiser of orgies in the State with a lurking undertone of criminality'.

The Court of Appeal also rejected the defendant's argument that the plaintiff was a public figure and therefore found that his attendance at sex/'swinger' parties was not a matter of public interest.

The court upheld the plaintiff's cross-appeal, and made a declaration that his constitutional right to privacy had been breached. Peart J specifically found that the trial judge had fallen into error by subsuming the privacy element of the plaintiff's claim into the larger claim of defamation. 

He held that the false statements that constituted the tort of defamation were to the effect that the plaintiff had organised (rather than merely attended) the parties in question, and thus the publication of photos of him attending such parties was not part of what he was compensated for. Therefore his constitutional right to privacy could not be said to be vindicated by the award of general damages in the sum of €250,000.

Peart J. noted that the photographs had not been obtained illegally. and that the plaintiff had consented to having his photograph taken, but found that those considerations did not absolve the defendant from its obligations not to unlawfully breach his constitutional right to privacy. He was influenced by the fact that the defendant clearly knew that the publication of the photographs was an invasion of the plaintiff's privacy, given that it had pixelated the faces of other people in the images to conceal their identites.

He commented as follows:

"There is about every person, be they a public figure or not, a carapace of privacy, recognised and protected by law, which protects a private space within which a person's life may be lived without unwanted intrusion by others, including the media, and without fear that elements of that life that are within that private space will without their consent be exposed to public view for some commercial purpose such as the curiosity and gratification of a voyeuristic readership of other audience"

The Court of Appeal upheld the award of 30,000 for punitive damages, €30,000 for exemplary damages, and then recalibrated the remainder of the High Court award to €200,000 for general damages for defamation, and €50,000 for breach of the plaintiff's constitutional right to privacy.

If you would like more information or if you would like us to discuss the issue with you, please contact Kenan Furlong, Partner in A&L Goodbody's Litigation & Dispute Resolution team.

Date publised: 30 May 2019