Ireland: Photographs And Privacy – When Does An Expectation Of Privacy Arise?

Last Updated: 20 August 2019
Article by David Kavanagh

Brian Nolan and Sunday Newspapers Limited Trading As The Sunday World [2019] IECA 141

A recent Court of Appeal decision provided some interesting comments on the right to privacy in the context of photographs published by media organisations, where those photographs, obtained through legal means, are of a private individual at a private party.


The plaintiff issued proceedings claiming defamation and a breach of his constitutional right to privacy arising out of two articles published by the defendant.

The articles, viewed by the Court of Appeal Judge as being "salacious in nature", were accompanied by photographs of the plaintiff attending what were described as sex parties or "swingers' parties" in the company of females who were "scantily clad". The photographs had been provided to the defendant by the plaintiff's then partner, following the break-up of the relationship. The plaintiff gave evidence that some of the photographs were not even taken at the "swingers' parties" but were in fact taken at a private Halloween party.

In the High Court, the trial judge, Mr Justice Tony O'Connor, sitting without a jury, found that the plaintiff's right to privacy had not been engaged because:-

  • The plaintiff only had a loose understanding or agreement with unidentified individuals that the photographs taken at the parties would not be disclosed to anyone outside the group who attended the parties without the consent of those attending; and
  • that the plaintiff had consented to the taking of photographs by a stranger who attended the party; and
  • it was clear that those photographs were freely available among up to 26 people of whom he might have only known four at most.

In any event, he felt that the plaintiff would be adequately compensated by the damages awarded in respect of the defamation claim.

The defendant appealed the decision of Mr Justice O'Connor and the plaintiff cross-appealed in relation to the decision by Mr Justice O'Connor that his right to privacy had not been engaged.


In the Court of Appeal, Mr Justice Peart, in finding that the plaintiff's right to privacy had in fact been engaged and that there had been a breach of that right to privacy, made the following points:-

  • It was not known who owned the photographs;
  • It was implicit that the photographs would never be published in a newspaper without the consent of the other attendees who could be identified;
  • The photographs were not taken in the public arena;
  • The plaintiff's consent to the photographs being taken did not amount to a waiver of his right of privacy in respect of those photographs.

Mr Justice Peart concluded that they were private photographs taken for a private purpose which were never intended to be made public. He also found that the defendant was aware that the publication of the photographs was an invasion of the plaintiff's privacy as it had pixelated the faces of the other persons in the photographs and knew that he did not consent to the publication of the photographs.

Mr Justice Peart was satisfied that there was no overriding public interest to be served by the publication of the photographs. The plaintiff is not a public figure. He was a private person despite the fact there had been some limited publicity surrounding his conviction some ten years previously and his even earlier status as an inter-county footballer with some success. The defendant's argument that its right to freedom of expression outweighed the plaintiff's right to privacy was therefore rejected.

Mr Justice Peart found that the breach was "deliberate, conscious and premeditated".

Mr Justice Peart noted that the trial judge had distinguished this case from cases where the breach of privacy had emanated from an illegal act. In this case, the photographs had not been obtained illegally.

He awarded the plaintiff €50,000 for the breach of privacy aspect of the claim.


In overturning the finding of the trial judge that the plaintiff's privacy had not been engaged, Mr Justice Peart acknowledged that where a plaintiff has pleaded that his right to privacy has been breached in addition to pleading that he has been defamed, the plaintiff is entitled to be compensated under both heads of claim. Had the decision of the High Court trial judge been upheld, it may have led to a situation where a plaintiff's claim for a breach of privacy could not be fully ventilated if that claim was included in proceedings where a claim under a separate head of loss would provide a greater award of damages than the claim for breach of privacy. Mr Justice Peart's decision on that point was delivered with significant clarity.

Another interesting point relates to Mr Justice Peart's finding that the photographs were not taken in the public arena. The judgment of Kearns P in Hickey and Another –v- Sunday Newspapers Limited [2010] IEHC 349 noted that it was :-

"far from easy to determine where the parameters to the right of privacy may lie when placed in balance with the right of freedom of expression. One intuitively feels that a right of privacy is less easily established in public places where a person, in the words of T.S. Eliot, has had time "to prepare a face to meet the facers that you meet".

In Hickey the plaintiff was photographed with her son coming out of the Registry of Births, Deaths and Marriages on Lombard Street in Dublin. The photographs were taken when the photographer and plaintiffs were in a public place and performing a routine public function. There could be no expectation of privacy in that instance.

In Nolan, it was found that the photographs of the plaintiff were private, taken for a private purpose and were never intended to be made public despite being freely available among up to 26 people.

Those two cases, Nolan and Hickey, are probably located at either end of a spectrum of cases that consider what a public arena is. It will be interesting to watch over the coming years how courts will deal with cases on that spectrum. It is relatively easy to see how disputes may arise over what precisely is a public arena, particularly where people might attend an event with different expectations of privacy. The Nolan decision may also have implications where images are published which were initially shared via social media to closed groups of people. How the courts will balance the right to privacy with the right to freedom of expression in those circumstances will undoubtedly provide challenges for those in media organisations when considering what photographs can be safely published.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions