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Privacy

The Right to Be Forgotten in Ireland

Privacy offers us the environment in which we can share confidences and intimacies, and engage in limited and protected communication.

The idea of privacy embraces the desire to be left alone, free to be ourselves – uninhibited and unconstrained by the prying of others.(1) As Audrey Hepburn said, sometimes we don’t want to be alone, we just want to be left alone.

Being left alone, or the desire for privacy, extends beyond snooping and unsolicited publicity to intrusions upon the ‘space’ we need to make intimate, personal decisions without the intrusion of others.(2) Privacy stakes out a sphere for creativity, psychological wellbeing—our ability to love—forge social relationships, promote trust, intimacy, and friendship.(3)

Privacy also gives individuals, from citizens to Teachta Dála, a chance to lay their masks aside for rest. To be always ‘on’ would destroy the human organism.(4) Throughout history, amnesties were sanctioned by States in order to ensure that certain events from the past, usually political crimes, were ‘forgotten’ and the slate was wiped clean.(5) Thus, it would seem, with this interests in being forgotten by others, we also have interests in forgetting things from our own past.(6)

Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016

In 2016, Ireland introduced legislation on spent convictions for adults, under the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016. The Act allows certain categories of convictions to become spent where the person was convicted seven or more years ago and has served the sentence or otherwise complied with a court order in respect of that conviction. §5(1)-(2).(7) Where the conviction is regarded as spent, the person shall not be required to reveal details of the conviction.§6.(8) On the other hand, a conviction will not be regarded as spent if the term of imprisonment is more than 12 months. With attention to prison terms, the Act does not apply to a person who has more than one conviction. § 5(3).

According to legal experts, the Act gives “expression to deeply rooted notions about the right to have a ‘second chance’ in life.” They point to the analysis of Justice O’Connor in Nolan v. Sunday Newspapers Ltd.(9):

“Most reasonable people take a view that convictions given in youthful years, at a time of stupidity and naivety or a decade ago should not engender any particular interest unless those convictions are relevant to a subsequently linked crime. That attitude arises from cultural, religious, historical and societal influences, which is manifested in the recent uncontroversial commencement of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016. (at [4]).”

Although Ireland was the last member of the European Union to put these protections in place, when Article 17 of the General Data Protection Regulation (GDPR) came into force, it introduced a ‘right to be forgotten’ into Irish law.(10)

Quianna Canada, privacy.

Right to Privacy in Ireland

It has been said that any attempt to classify information as ‘personal’, ‘sensitive’, or ‘intimate’ entails an assumption that such information warrants special treatment.(11) While the right of privacy is not expressly mentioned in Bunreacht na hÉireann (the Constitution of Ireland), it has been recognised as a constitutional right by the courts under the doctrine of unenumerated rights.(12) As the textual basis for this doctrine, it is important to consider the wording of Article 40.3 of the Constitution. It states:

  1. The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
  2. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

One should note here that the Supreme Court held that the word ‘in particular’ in Article 40.3.2 indicate that the personal rights of the citizen are not limited to life, person, good name and property rights.(13) See, Ryan v. Attorney General [1965] IR 294. The case of Kennedy v. Ireland [1987] IR 587 also recognized the right of privacy.

Right to Privacy Actions

Where a wrongdoer (whether a private party or the State) deliberately, consciously and unjustifiably invades the privacy of another, the injured party can take an action against the wrongdoer.(14) However, the injured party must show their privacy has been ‘deliberately, consciously and unjustifiably intruded upon.’ See Kennedy, 587, 593 (per Hamilton P). Legal practitioners contend that this is a ‘particularly strict’ test, at least when compared to alternatives such as the ‘reasonable expectation of privacy’ test associated with the English misuse of private information tort.(15)

But what if a past conviction or related information remains on Google? Is it possible to seek redress? The CJEU surveyed the ‘right to the left alone’ in Google Spain (2014) Case C-131/12:

“[A search engine] enables any internet user to obtain through the list of results a structured overview of the information relating to that individual that can be found on the internet — information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty — and thereby . . . establish a more or less detailed profile of him. (at [80])”

With this, it found a solution to the search engine problem in Google Spain by holding that search engines are data controllers.(16) Thus, as a result of Articles 12(b) and 14(a) of the DPD, individuals—like those with criminal convictions—can request search engines to rectify or erase search engine results that are inaccurate, incomplete, outdated, or no longer relevant.(17)

O’Callaghan asserts the right to be delisted survives the introduction of Article 17 GDPR because it is widely accepted now that search engines are data controllers.(18) The search engine will thus need to erase links where one of the grounds under Article 17(1) applies and where it cannot rely on any of the exemptions under Article 17(3). Again, Article 17(3)(a) requires a balancing of interests.(19)

Although prior Data Protection Commissioner chief, Billy Hawkes, was quoted as saying the decision was a ‘very difficult one,’ the commission has upheld complaints from previously incarcerated persons.(20) For instance, a complainant had a conviction for assault causing harm, for which the individual was sentenced to imprisonment for 6 months, receiving a suspended for 3 years.(21) However, several years after the conviction, the search engine continued to provide a link to the news story. While the complaint did concerned a crime, and the reporting of such information is generally in the public interest, an important factor in this case was that the conviction qualified as a ‘spent conviction’ within the meaning of the Act discussed above.(22) The Data Protection Authority determined ‘that the story was no longer relevant on this basis’ and the link was removed by the search engine.(23)

Remedies

Material and immaterial damages are in principle available for invasion of privacy in Irish law. See Conway v. INTO [1991] 2 IR 305, 317. The provision states that ‘[a]ny person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered.’(24) Where the conduct of the defendant is particularly ‘cavalier’ or ‘outrageous’ aggravated damages may also be awarded. Conway, 317.(25)

Despite disagreement over the meaning, scope, and limits of privacy, there is little uncertainty about its significance and the threats to its preservation when one is seeking a second chance in life. Few doubt that the erosion of this fundamental value must be checked.(26) At last, you have a right to be forgotten.

Give a shout out to Jeswin Thomas for the great Bench photo above!


Would You Like to Know What Other People Think About Privacy?

This House Believes Privacy is Dead
Courtesy of The Irish Times: Gabrielle Fullam

References

(1) Wack, R. (2010). An Enduring Value, Ch. 2. In Privacy: A Very Short Introduction. Oxford University Press. ISBN 978–0–19–955653–3. See, p. 30.

(2) Id.

(3) Id., p. 34.

(4) Id., p. 35.

(5) O’Callaghan, P. (202). The Right To Be Forgotten: A Comparative Study of the Emergent Right’s Evolution and Application in Europe, the Americas, and Asia. DC. Springer. Available at: https://doi.org/10.1007/978-3-030-33512-0. See, p. 143.

(6) Id., p. 142.

(7) Id., p. 143.

(8) Id.

(9) [2017] IEHC 367.

(10) Supra, note 7.

(11) Supra, note 1, p. 47.

(12) Supra, note 5, p. 146.

(13) Id.

(14) Id., p. 148.

(15) Id., p. 147.

(16) Id., p. 154.

(17) Id., As set out in the principles of data quality under Article 6 DPD.

(18) Supra, note 16.

(19) Id.

(20) Supra, note 5., at p. 155.

(21) Id.

(22) Id.

(23) Id.

(24) Id., p., 157.

(25) Id.

(26) Supra, note 1, p. 50

By Quianna Canada

Quianna Canada is a student of law, an anti-racism human rights activist, a human rights defender and, a country condition researcher.

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