Invasion of a person's privacy through secret filming, taping and eavesdropping should be illegal, as should the publication of information received from such surveillance, the Law Reform Commission has recommended.
The commission today publishes a report containing the heads of a Bill which it says would ensure the law keeps pace with developments in surveillance technology. Greater use of sophisticated listening and filming devices makes such legislation necessary, according to the commission.
The commission's reports are submitted to the Taoiseach and the Attorney General, but there is no obligation on the Government to act on them.
There are already criminal offences in the sphere of surveillance and the interception of communications, says the commission. However the commission is now proposing the creation of a number of new criminal offences in relation to surveillance that invades privacy. It also recommends that individuals be entitled to take civil actions for damages against those they believe have invaded their privacy through surveillance, have published the results of such surveillance or harassed them.
The wide-ranging measures proposed by the commission would apply to publications not only by the Irish media but to foreign newspapers and broadcasting outlets available in the State. Thus, for example, British tabloid newspapers publishing photographs or information which arose from invasion of individuals' privacy could be prosecuted and sued in the State.
The commission also proposes the creation of new torts - offences against civil law - along these lines. Thus individuals could take action against those they believe have used surveillance to infringe their privacy, or media who have published the results of such surveillance or those who have harassed them. Such action could be taken without proof of damage such as personal injury or monetary loss.
An important "public interest" defence against such an action is provided for in the proposed Bill. It would be a defence to show that the disclosure of information received through surveillance "was justified by overriding considerations of the public interest".
The Law Reform Commission report on Privacy, Surveillance and the Interception of Communications gives three reasons for reform:
New technology presents a constant and growing threat to privacy.
The law as it stands cannot keep up with these technological developments.
The right to privacy in Article 40.3.1. of the Constitution is ill-defined and must be developed in legislation.
Surveillance technology is rapidly becoming more sophisticated, says the report, and yet most people who have been under surveillance remain ignorant of that fact. The technology involved is unobtrusive and the Garda, for example, is not required to go through any due process before setting up surveillance cameras in public places.
The report recommends that the setting-up of such cameras by the Garda must first be authorised by a chief superintendent, and for a maximum period of 14 days. The District Court could then renew such authorisation for three-month periods.
Apart from this, the surveillance of public places with optical devices should not be allowed, except by the owners or occupiers of premises setting up security cameras to protect their property. In these cases a notice must be erected telling the public that such surveillance cameras are in operation. The report says that existing legal protection against privacy-invasive surveillance is inadequate. Ireland, in common with many countries, has "a web of laws that protect isolated aspects of privacy". However this is "an amalgam of common law doctrines" which cannot cope adequately with the privacy problems associated with "the threat to personal space posed by surveillance".
There is "some piecemeal protection for personal information" but no "tailor-made privacy tort with which to prevent the publication of private information".
"The Constitution as interpreted by the Supreme Court recognises a right of privacy [but] the content and boundaries of that right remain unclear and in the absence of legislation are dependent for their future development on the fortunes of case law."
However, the commission emphasises that it is not focusing on the issue of information privacy but on surveillance and the protection of individuals.