The Irish Times reports on 20th January 2007 that the High Court is hearing an appeal from the Circuit Court where the Plaintiff was successful against a provincial newspaper for breach of privacy. Apparently the Plaintiff was photographed while playing gaelic football and his genitals were visible in the photograph, which the newspaper published.
The Plaintiff had also pleaded defamation but abandoned that claim in the Circuit court.
The appeal is current and final submissions from the newspaper are expected next Friday. In short, the matter is sub judice.
The Plaintiff does not think that the publication of the photograph lowered him in the judgment of right thinking members of society; otherwise he would have proceeded with the defamation claim.
That apart, what comment can we make on the case? More to the point, before any comment is made what issues has a commentator to consider before exercising the right of free speech, a right (contingently) guaranteed by the Constitution of Ireland and the European Convention on Human Rights. The purpose of this posting is to show how difficult it is to exercise this right. Readers may go directly to the end of the posting for the comment, if they are so minded.
A. Sub Judice
In this jurisdiction it is not usual to comment on matters that are awaiting judicial decision. The purpose of this convention is to avoid circumstances where the court process will be affected by such comment or affected by pressures generated by such comment, to the detriment of public justice. To breach the convention is potentially, if not actually, a contempt of court. “Contempt of court”? is a concept found in common law countries, and not unknown, it seems, on the continent. ((Freedom of Expression and the Criticism of Judges; Ed. Michael K. Addo (2000) Ashgate))
There is another feature of the convention: it can be very convenient for politicians, or others, to claim that they cannot answer questions while a matter is awaiting decision before a court. This was the scandal of the Thalidomide case. The Sunday Times declared its intention of publishing an article showing how the tragedy had developed and with the intent of influencing Distillers, the distributor of thalidomide, to pay more in settlement of the claims of the injured children. The Attorney General of England applied to court for an injunction restraining the publication on the grounds it was a sub judice contempt. The European Court of Human Rights condemned the granting of the injunction.
When does a matter become “sub judice”?? Is it when the trial starts? Is it when the proceedings are issued? What if the proceedings are issued by the person wishing to avoid questions? It is always available to a plaintiff to later discontinue proceedings, albeit on terms. Usually those terms are simply to pay the costs to date. To meet such circumstances the Law Reform Commission suggested; “Civil proceedings should only be regarded as imminent when a date for trial has been fixed”?
Only where the proceedings were “imminent”?, the Commission suggested, would the contempt jurisdiction arise. Even so, there are difficulties with this; it is possible for a date to be assigned for hearing where, to the knowledge of all parties and the court, that date is not the real hearing date. This happens in the “Non-jury list”?, for instance. Instead of being listed for trial in the date shown on the Notice of Trial, the matter will be entered in the Non-jury list, to be allocated a date in its turn in the list.
The sub judice rule is understandable where a jury is sitting in the issue, but the argument is not persuasive where the issue is before a judge sitting alone, as is the case of the footballer. The newspaper in the case has suggested seeking the opinion of the Supreme Court on the privacy issue. If that transpires, the argument would become fatuous. It is weak to suggest that three or more judges of the Supreme Court might be affected by extraneous comment on the case or the issues in the case. In 1994 the Law Reform Commission suggested; “The Commission, with the exception of the President, is satisfied that it would be unduly restrictive to extend the operation of the sub judice rule to appellate proceedings, which are invariably decided by non-jury courts.”?
On the issue of invoking the “sub judice”? contempt jurisdiction of the court the High court, in vindication of the right to free speech, had already proceeded further than the Law Reform Commission thought suitable. In Desmond and Another v. Glackin and Others  12 I.L.R.M. 490 the Applicant made an application to the High court for the attachment of the 2nd named Respondent for, inter alia, breach of the “sub judice”? rule. The Minister for Industry and Commerce was the 2nd named Respondent. He had appointed an Inspector to inquire into the actions of the Applicant in relation to some business transactions. He was interviewed on radio and commented at length on the conduct of the applicants in seeking judicial review [of the appointment]. He was also highly critical of the fact that [the] order had been made by the High Court without notice to him or the Inspector and described the judicial review proceedings and earlier proceedings initiated by the applicants as attempts to frustrate the Inspector in his enquiries. The Minister suggested that what had probably prompted the application for judicial review was that the Inspector was “getting hot”?. He also referred to the High Court order as “facilitating”? the blocking of the inquiry. The High court decided a judge would be perfectly capable of deciding the issues that would ultimately arise in the judicial review proceedings without being affected in any significant way by remarks made by the Minister for Industry and Commerce.
B. Trial by Jury
It is by no means certain that an alleged contemnor accused of having breached the sub judice rule would get a trial before a jury in Ireland. There is a difference between civil contempt and criminal contempt, [The Law of Contempt; Borrie & Lowe, 3rd Ed. p. 655], a distinction which is clearly recognized in Irish law. [The State (Commins) v McRann  IR 78; Keegan v de Burca  IR 223]. Speaking generally, criminal contempt is an offence of a public nature, civil contempt is one of a private nature, depriving a party to an action of a benefit inherent, at least in the proceedings. It is an established principle that the court, except in cases of “contempt in the face of the court”?, will not act in the absence of a motion or application from the “injured”? party.
Contempt of court, in court, is a crime, [Petty Sessions (Ir). Act, 1851, Section 9]. There exists two forms of procedure for dealing with contempt; the ordinary criminal procedure of summons or indictment and the summary jurisdiction of the High Court. Referring to the latter, contempt of court, in all its forms, is, according to O”Higgins CJ, [a former Chief Justice of Ireland], simply outside the mainstream of the substantive criminal law. [His view was so characterized by the Law Reform Commission Consultation Paper on “Contempt of Court”? at p. 208]. This view of O”Higgins CJ [The State (DPP) v Walsh  IR 412], was obiter and is to be contrasted with the opposing view of the majority of the Supreme court in that case. The summary jurisdiction referred to is one where, of its own motion or otherwise, the High Court may dispose summarily of an offence of contempt of court. In The State (DPP) v Walsh, the Supreme Court, not accepting, on the facts, the respondents” claim of entitlement to a trial by jury, accepted that the respondents had, prima facie, a right to a trial by jury. If this view is correct Article 30.3 of the Irish Constitution, which provides that all major criminal prosecutions must be prosecuted in the name of the people and at the suit of the Attorney General or some other authorized person (the Director of Public Prosecutions), indicates the correct procedure to adopt in all cases, with the possible exception of contempt in the face of the court. By contrast, if the view of O”Higgins CJ is correct, the High Court has a formidable power of investigation, adjudication and punishment based, apparently, on the Constitution, without reference to any other institution or element of the State.
A number of UK cases show the UK position in contrast with the Irish position.
In Dean v Dean,  1 FLR 517, Dillon LJ stated;
“I have no doubt”¦ that the procedure in contempt is of a criminal nature and that the case against the alleged contemnor must be proved to the criminal standard of proof. That was not a matter for decision in Khawaja”¦ the matter rests on long established practice, probably well before the Bramblevale case”¦ and certainly repeated many times since in this court”¦”?
In O”Connor J said in P A Thomas & Co. v Mould  2 QB 913,  1 AER 963 “where parties seek the power of the court to commit people to prison and deprive them of their liberty there has got to be quite clear certainty about it.”?
In Guildford Borough Council v Smith (1993) Times 18th May, Sedley J commented “I am unable to accept that committal on the motion of an antagonist in civil proceedings is today in any admissible sense the private law right of which older dicta suggest it was. To all intents and purposes it is a form of private prosecution”?.
Under the European Convention on Human Rights Act 2003 an alleged contemnor is entitled to have Irish law applied in a manner compatible with the State”s obligations under the provisions of the European Convention on Human Rights. In Harman v United Kingdom, [App. No. 10038/82; 38 D.R. 53], the European Commission on Human rights declared admissible a complaint that the applicant”s conviction for contempt was in breach of Article 7 of the European Convention on Human Rights. Under Article 6 (1) it is provided that “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”?
In order to conform to the Convention, will the Irish courts concede that only a jury will ensure the independent character of the trial court?
If the Irish Times is reliable, the report in this posting is fair and accurate. The Irish Times” report has the benefit of Section 18 of the Defamation Act 1961 which reads:
“18. “(1) A fair and accurate report published in any newspaper or broadcast by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station within the State or in Northern Ireland of proceedings publicly heard before any court established by law and exercising judicial authority within the State or in Northern Ireland shall, if published or broadcast contemporaneously with such proceedings, be privileged.”?
This does not seem to cover publication on the internet, which does not involve broadcasting. If so, this posting is not privileged by virtue of Section 18, fair and accurate or not.
What of the qualified privilege of fair comment? The Defamation Act 1961 provides:
“23. “In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved, if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.”?
This seems safe ground; the footballer’s genitals were exposed to the public and a photograph of that exposure was published.
COMMENT; The footballer’s implied boundary between public and private is inauthentic. Colloquially his genitals are his “privates” but if he failed to wear underpants under his shorts, that was, (to speak formally), negligent of him and his privates, as was foreseeable by him, could become public. The age of the great photo magazines has come and gone, but the title of one, “Life”, was appropriate. Why should we now seek to cramp what used to be seen as “life”, for someone who, partaking in a very public game, seeks to control a public aspect of it. If he was not negligent and the game was so rough that his shorts and his underpants were torn he would have been better occupied suing the person who tore them rather than the newspaper exercising its right of free expression and defending the commons.
UPDATE: Eoin O’Dell of the Trinity College Law Faculty has written about this case here, and the eventual judgement in favour of the Plaintiff here from the perspective of its significance to Privacy law.