AS TO THE ADMISSIBILITY OF
Application No. 18670/91
by E.N.
against Ireland
The European Commission of Human Rights sitting in private on
1 December 1993, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 21 June 1991 by
E.N. against Ireland and registered on 14 August 1991 under file No.
18670/91;
Having regard to:
- the report provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 14 October 1992 to obtain
information from the applicant;
_ the information provided by the applicant on 27 November 1992;
- the Commission's decision of 10 February 1993 to communicate the
application to the respondent Government;
- the observations submitted by the respondent Government on 28 May
1993 and the observations in reply submitted by the applicant on
8 September 1993;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Irish citizen, born in 1961. She is a
housewife and resides in Cork. She is represented before the
Commission by Messrs. Ernest J. Cantillon & Co., Solicitors, Cork.
The facts of the present case, as submitted by the parties, may
be summarised as follows:
In 1985 the applicant sustained personal injuries whilst walking
on a public footpath, for which the Corporation of Cork were
responsible. Her claim for compensation arising out of the injuries
against Cork Corporation was heard by the High Court on 9 and 10 April
1991. During the course of the trial it emerged that the insurance
company handling the Corporation's defence to the claim had engaged the
services of a private investigator to photograph the applicant. These
photographs were to be used to dispute the extent of the injuries
claimed by the applicant. The photographs were mostly of the applicant
in the street with shopping bags, then entering her house. There was
also one or two of her inside her house closing a window. The
photographs were taken from outside the physical boundaries of her
home.
Before Mr. Justice Keane in the High Court the applicant's
counsel sought to object to the introduction of the photographic
evidence as being an unconstitutional invasion of the applicant's
privacy. The judge queried the objection, as it suggested that the
local authority would be in a weaker position than an insurance company
defending a similar kind of personal injury claim between private
individuals. Insurance companies often employ private investigators
to verify whether the complaints made by plaintiffs are in fact
consistent with their daily behaviour and the admissibility of this
evidence is not normally challenged before the courts.
The applicant's counsel conceded that the right to privacy should
yield in certain circumstances to intrusions so as to facilitate the
proper administration of justice, but such intrusions would have to be
justified in the particular circumstances, but not in the present case
where there was no allegation against the applicant of fraud or
criminality. This was particularly so when the intruder was a public
authority.
However, the High Court held that the photographic evidence was
admissible because the local authority, the defendant in the case, was
entitled to illustrate its submission that the applicant, the
plaintiff, was a lot better in health than she purported to be, as
could be seen from her various activities out and about in the city and
around her home. The court considered that the local authority was not
in a different position from anyone else resisting a civil claim.
Whilst Irish Law, through Article 40 of the Constitution, provides for
a right to privacy, albeit somewhat underdeveloped for the time being,
this was not the key issue in this case.
The key issue was one of the admissibility of evidence. Every
litigant who invokes the aid of the domestic courts against another
party necessarily subjects himself or herself to certain violations of
their privacy. No objection had been made to the applicant having to
reply to questions involving intimate details about herself during the
court hearing in the case, no matter how embarrassing or unpleasant,
because the questions were relevant to the inquiry which the court had
to conduct. To that extent the photographs were a far less intrusive
invasion of the applicant's privacy. To exclude such evidence would
have been to do an injustice to the other party and to prevent the
court from having material before it which it should have. The
photographs, which in the end were not all relied on by the local
authority, were held not to have significantly violated the applicant's
privacy.
The applicant's personal injury claim against the Corporation was
nevertheless upheld and she was awarded £27,500 in damages.
The applicant was advised that the High Court judgement was so
decisive and categorical that there was clearly no prospect of
succeeding with any further litigation, given the underdeveloped state
of the law of privacy in Ireland. Accordingly no other legal action
was taken.
COMPLAINTS
The applicant complains that she is the victim of violations of
Article 8 of the Convention and of Article 1 of Protocol No. 1.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 June 1991 and registered on
14 August 1991. On 14 October 1992 the Commission adjourned its
examination of the application in order to obtain certain information
from the applicant. Information was provided by the applicant's
representatives on 27 November 1992. On 10 February 1993 the Commission
decided to communicate the case to the respondent Government and to
invite the parties to submit their observations on its admissibility
and merits. The Government submitted their observations on 28 May 1993,
after an extension of the time limit fixed for this purpose. The
applicant replied on 8 September 1993 after a similar extension.
THE LAW
1. The applicant complains of the covert taking of photographs of
her from outside her house by a private investigator hired by an
insurance company. The photographs were taken in order to verify
aspects of a personal injuries claim she made against the company's
client, a local authority. As a result she claims to be the victim of
violations of Article 8 (Art. 8) of the Convention and of Article 1 of
Protocol No. 1 (P1-1).
Article 8 (Art. 8) of the Convention guarantees the right to
respect for private and family life, correspondence and the home, and
Article 1 of Protocol No. 1 (P1-1) guarantees the right to the peaceful
enjoyment of possessions. Both Articles envisage several exceptions
to the guarantees they offer.
2. The Government contend that the applicant cannot claim under
Article 25 (Art. 25) of the Convention to be a "victim" of a violation
of these provisions because she has not adduced any evidence that the
interference of which complaint is made caused her any prejudice. The
photographs in question were ultimately not all relied on by the local
authority in their unsuccessful defence to her personal injury claim,
from which she received £27,500 in damages.
The Government also submit that the applicant has not exhausted
domestic remedies because, if she had still been concerned about the
photographs in question, she could have commenced proceedings in the
High Court for damages for the alleged breach of her constitutional
right to privacy. In the event of such a claim being rejected, the
applicant could have appealed to the Supreme Court.
The Government outline the domestic case-law in which the right
to privacy has been recognised and which demonstrates the feasibility
of such proceedings. For example, in the case of Kennedy and Others v.
Ireland and the Attorney General, [1988] ILRM p.472, unjustified
telelephone tapping was held to be in breach of the right to privacy,
a fundamental personal right flowing "from the Christian and democratic
nature of the State" and protected by Article 40.3 of the Constitution.
In that case the plaintiffs were awarded a total of £50,000 in damages.
The constitutional right to privacy has also been recognised by the
Supreme Court. For example in the case of McGee v. the Attorney
General, [1974] IR p.284, concerning the constitutionality of a law
which in effect denied a married woman access to contraception, it was
held that "Whilst the 'personal rights' [in Article 40.3 of the
Constitution of Ireland] are not described specifically, it is scarcely
to be doubted that the right to privacy is universally recognised and
accepted with possibly the rarest of exceptions".
Although there is no reported or known decision dealing directly
with an alleged infringement of the right to privacy on account of the
taking of covert photographs, the Government consider that this is a
developing area of law which the applicant should have tested before
the domestic courts. There is no domestic case-law suggesting that such
a remedy would not provide redress for the applicant's complaint.
Alternatively, the Government submit that there has been no
interference with the applicant's right to respect for private life or
with her property rights by a public authority, the local authority not
being responsible for the acts of its insurer. The applicant had, or
reasonably should have had, a reduced expectation of privacy when
instituting a personal injury claim, in which her health and personal
integrity would be challenged in part.
If there has been an interference with the applicant's Convention
rights, it was in accordance with the law, the common law, and
necessary for and proportionate to the protection of the economic well-
being of the country and the rights of others, including the local
authority, with its right to defend itself and limited public resources
from possibly fraudulent or exaggerated claims. Other third party
interests to be protected include those of litigants in similar cases,
and the insurer with its policy holders, given the high cost of
insurance premiums. The taking of photographs of someone in public is
less intrusive than other methods of obtaining evidence, such as
compulsory medical examinations.
3. The applicant refutes the Government's contentions. As regards
the "victim" question under Article 25 (Art. 25) of the Convention, she
claims that the payment of damages in her personal injury claim is
irrelevant to her privacy claim. Concerning exhaustion of domestic
remedies, she considers that, if there is a constitutional right to
privacy, this would be a tortious issue to be brought before the
Circuit Court rather than the High Court, given the low level of
damages which could be expected. However, such a remedy would stand
little prospect of success in the light of the High Court's conclusions
in her personal injury case, and would be speculative in view of the
underdeveloped state of the law of privacy. Counsel advised her against
further litigation. In the circumstances, therefore, she claims to be
absolved from pursuing such a remedy and to have fulfilled the
requirements of Article 26 (Art. 26) of the Convention.
The applicant submits that the High Court recognised that there
had been a clear interference with her right to privacy, albeit
legitimate. The Government cannot hide behind their private insurer to
avoid their Convention liability for that interference. The applicant
considers that the interference was not sufficiently prescribed by law
because there are no specific statutory or common law provisions
regulating the activities of private investigators or clearly
protecting the right to privacy. Finally, she contends that the secret
surveillance of her by the private investigator was draconian,
unjustified and wholly disproportionate, as there were other methods
of obtaining evidence for the defence, such as rigorous medical tests.
4. The Commission has first to consider whether the applicant may
claim under Article 25 (Art. 25) of the Convention to be a victim of
a violation of the Convention and whether she has exhausted domestic
remedies, as required by Article 26 (Art. 26) of the Convention.
The Commission notes that the applicant failed to disclose in
her application that her personal injury claim against the local
authority was successful and that she received a considerable sum of
money in damages, namely £27,500. Apparently because of this
successful award she could not appeal to the Supreme Court on a point
of law as to the admissibility of the contested photographs as evidence
in her civil claim. The Commission also notes that in any event the
photographs were not all relied on by the defence after the applicant's
representatives objected to them.
The Commission further observes that the applicant did not seek
a separate remedy from the High Court for an alleged breach of a
constitutional right to privacy. She received legal advice that such
a remedy would have had little prospect of success, given the clarity
of the High Court's indications in her case and the allegedly
underdeveloped state of the law of privacy in Ireland. It is not clear
whether the applicant received this advice during the domestic
proceedings or only later during the Commission's proceedings.
Nevertheless, it would appear to the Commission that the applicant's
principal consideration in not pursuing further litigation was the
success of her first claim.
The Commission is of the opinion that, even assuming that the
applicant may theoretically claim to be a victim of a violation of
Article 8 (Art. 8) of the Convention or of Article 1 of Protocol No.
1 (P1-1), she has not exhausted domestic remedies, as required by
Article 26 (Art. 26) of the Convention, by reason of her failure to
pursue a separate claim for the alleged breach of her constitutional
right to privacy, if necessary up to the Supreme Court. An examination
of the case as it has been submitted does not disclose the existence
of any special circumstances which might have absolved her, according
to the generally recognised rules of international law, from exhausting
the domestic remedies at her disposal.
The Commission notes the nature of the applicant's arguments
before the High Court, that court's recognition of the constitutional
right to privacy and the power of the Supreme Court to interpret the
Constitution in order to ensure enforceable rather than theoretical
rights. In these circumstances, the Commission does not find that
doubts as to whether a potentially effective remedy will, in the event,
prove successful constitute special circumstances absolving the
applicant from pursuing a separate privacy claim (cf. No. 9559/81, Dec.
9.5.83, D.R. 33, p. 158). The Commission considers that, in a legal
system which provides constitutional protection for fundamental rights,
it is incumbent on the aggrieved individual to test the extent of that
protection and, in a common law system, to allow the domestic courts
to develop those rights by way of interpretation.
The Commission concludes that the applicant has not complied with
Article 26 (Art. 26) of the Convention and that her application must
be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy