PRIVACY
Before the Human Rights Act 1998
During the second half of the twentieth century, the increasingly prurient nature of much of what passes for journalism in sections of the national press in the UK gave rise to repeated calls from concerned MPs and judges for some form of privacy legislation.
These were given added impetus when, in 1990, a journalist and a photographer from the Sunday Sport gained access to the hospital room of the seriously injured actor Gordon Kaye, and photographed and ‘interviewed’ him without his informed consent. This provoked widespread public revulsion, but, in the absence of any form of privacy legislation, the only legal option available to Kaye was an action for malicious falsehood. As Lord Justice Glidewell said in his judgment ‘[t]he facts of the present case are a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals’, whilst Lord Justice Bingham noted that the case ‘highlights, yet again, the failure of both the common law of England and statute to protect in an effective way the personal privacy of individual citizens’.
No legislation was forthcoming, however, nor did the government take up the recommendation by Sir David Calcutt in his 1993 Review of Press Self-Regulation that it give further consideration to introducing a tort of infringement of privacy. In 2003, the Department of Culture, Media and Sport select committee report, Privacy and Media Intrusion, recommended that the government
bring forward legislative proposals to clarify the protection that individuals can expect from unwarranted intrusion by anyone – not the press alone – into their private lives. This is necessary fully to satisfy the obligations upon the UK under the European Convention of Human Rights.
However, this recommendation was firmly rejected by the government, which expressed the view that ‘the weighing of competing rights in individual cases is the quintessential task of the courts, not of Government or Parliament’.
Article 8
Largely as a result of the Kaye case, the courts had already been fashioning a tort of privacy, mainly out of legislation relating to breach of confidence. However, the incorporation of the European Convention on Human Rights (ECHR) into UK law via the Human Rights Act (HRA) 1998 gave this process a considerable boost. The strong suspicion that successive governments had refused to countenance any form of privacy legislation for fear of incurring the wrath of the press was amply confirmed by newspapers’ relentless hostility not simply to those judges developing a right to privacy but to the ECHR and the HRA that made this possible.
Article 8 ECHR states that ‘everyone has the right to respect for his private and family life, his home and correspondence’. And while this right can be directly asserted only against public authorities, Strasbourg jurisprudence provides that public bodies have a positive obligation to take steps to secure privacy rights. Consequently, the courts have developed the law of confidence in such a way as to protect Article 8 rights in cases between two private parties – for example, between an individual and a media organisation that stands accused of infringing those rights. This inevitably has brought the media within its scope, particularly those newspapers which make a habit of prying into people’s private lives. However, contra the impression habitually given by such newspapers, this does not create an absolute right to privacy, but a right which must be balanced with other rights on a case by case basis. Particularly important in this respect is the right to freedom of expression enshrined in Article 10. However, this too is a qualified, not an absolute, right and may be restricted ‘for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence’, which clearly bring privacy and breach of confidence, as well as defamation, within its scope.
A balancing act
The need to balance competing rights is a crucial aspect of the HRA, and in cases involving privacy and freedom of expression this could not have been carried out before the passing of the Act as in the UK there was no statutory right to such freedom. The importance of carrying out this balancing act in cases involving privacy was made clear by Lord Steyn in an early judgment in 2004, In re S (FC) (a child) (Appellant), which involved an attempt to prevent newspapers publishing information which might lead to the identification of a child whose mother was accused of murdering her other child. In his judgment Lord Steyn made it clear that neither Article 8 nor 10 ‘has as such precedence over the other’, and thus ‘an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary’. Lord Steyn also explained that the justifications for interfering with or restricting each right must be taken into account, and a proportionality test must be applied to each. Undertaking such an ‘intense focus’ is now standard practice in cases involving Article 8, and indeed all rights which are not absolute.
‘A debate of general interest’
The case of Von Hannover v Germany (2004) has also had considerable impact on subsequent privacy judgments. This concerned pictures of Princess Caroline of Hannover and her family published in various German magazines, which the German courts had refused to block. She thus appealed to the European Court of Human Rights (ECtHR), which upheld her case, arguing that:
A fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of ‘watchdog’ in a democracy by contributing to imparting information and ideas on matters of public interest … it does not do so in the latter case.
It concluded that ‘the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published [work] make[s] to a debate of general interest’ – a notion that looms large in many subsequent privacy judgments.
One of these was delivered by Mr Justice Eady in Max Mosley v News Group Newspapers (2008), which resulted from the paper printing intimate details of a private party that Mosley had attended. This was important for two reasons. Firstly because as a result of the News of the World attempting repeatedly to run spurious ‘public interest’ defences of its actions, Eady produced a particularly clear distinction, based soundly on Strasbourg jurisprudence, of the distinct difference between material which is in the public interest and material which may simply interest sections of the public. Thus he stated:
In matters relating to striking a balance between protecting private life and the freedom of expression that the Court had had to rule upon, it has always emphasised … the requirement that the publication of information, documents or photographs in the press should serve the public interest and make a contribution to the debate of general interest … Whilst the right for the public to be informed, a fundamental right in a democratic society that under particular circumstances may even relate to aspects of the private life of public persons, particularly where political personalities are involved … publications whose sole aim is to satisfy the curiosity of a certain public as to the details of the private life of a person, whatever their fame, should not be regarded as contributing to any debate of general interest to society.
Sexual activity, privacy and Article 8
Second, he clearly established what has now become the dominant approach in most cases relating to sexual activity, namely that such activity is private. This contrasts very strongly with the pre-ECHR approach. To illustrate this one can do no better that cite Lord Denning in Woodward v Hutchins (1977), which concerns the attempts by a rock group (of whom Denning clearly disapproved) to suppress revelations by their press agent. In this they were unsuccessful because, in Denning’s view:
If a group of this kind seek publicity which is to their advantage, it seems to me that they cannot complain if [their servant or agent] afterwards discloses the truth about them. If the image which they fostered was not a true image, it is in the public interest that it should be corrected.
Thus referring back to Lord Steyn’s judgment quoted above, Eady described the ‘intense focus’ on the individual facts of the specific case required by the ECHR as a ‘new methodology which is
obviously incompatible with making broad generalisations of the kind which the media often resorted to in the past, such as, for example, ‘Public figures must expect to have less privacy’ or ‘People in positions of responsibility must be seen as ‘role models and set us all an example of how to live upstanding lives’. Sometimes factors of this kind may have a legitimate role to play when the ‘ultimate balancing exercise’ comes to be carried out, but generalisations can never be determinative. In every case ‘it all depends’ (i.e. upon what is revealed by the intense focus on the individual circumstances).
He also made it abundantly clear that in prying into Mosley’s sexual behaviour the News of the World had breached his right to privacy. As he put it:
There is now a considerable body of jurisprudence in Strasbourg and elsewhere which recognises that sexual activity engages the rights protected by Article 8 … People’s sex lives are to be regarded as essentially their own business – provided at least that the participants are genuinely consenting adults and there is no question of exploiting the young or vulnerable.
Given that this was indeed the case, he continued:
It is not for the state or for the media to expose sexual conduct which does not involve any significant breach of the criminal law. That is so whether the motive for such intrusion is merely prurience or a moral crusade. It is not for journalists to undermine human rights, or for judges to refuse to enforce them, merely on grounds of taste or moral disapproval.
Few statements made by judges could underline more strongly the contribution which the ECHR has made to protecting personal privacy. Entirely predictably, however, judgements such as these earned him the label of ‘Britain’s Muzzler-in-Chief’ in a Times editorial on 21 April 2011.
Misuse of private information
The ECtHR has also greatly aided the efforts of the national courts to protect people’s privacy by having recourse to the notion of breach of confidence. This development was usefully summed up by Lord Woolf in the case of A v B & C, 2002, which concerned the footballer Garry Flitcroft’s attempt to injunct the People from revealing the details of two extra-marital affairs, when he explained that:
In the great majority of situations, if not all situations, where the protection of privacy is justified, relating to events after the Human Rights Act came into force, an action for breach of confidence now will, where this is appropriate, provide the necessary protection.
He also made it clear that:
A duty of confidence will arise whenever the party subject to the duty is in a situation where he either knows or ought to know that the other person can reasonably expect his privacy to be protected … [In most cases] its existence will have to be inferred from the facts.
This key aspect of the right to privacy was also developed in the case arising from Naomi Campbell suing the Mirror in 2001 for publishing a story about her drug addiction, which included a photograph of her attending a Narcotics Anonymous meeting. The case eventually went to appeal in the House of Lords in 2004, with the majority agreeing that her attendance at the clinic was analogous to other forms of medical treatment whose privacy the law should be particularly ready to protect, and that Campbell’s right to privacy in this matter outweighed the newspaper’s right to report it. Regarding the matter of breach of confidence, Lord Nicholls argued in a key passage not simply that the law had ‘firmly shaken off the limiting constraint of the need for an initial confidential relationship’ but that:
The continuing use of the phrase ‘duty of confidence’ and the description of the information as ‘confidential’ is not altogether comfortable. Information about an individual's private life would not, in ordinary usage, be called 'confidential'. The more natural description today is that such information is private. The essence of the tort is better encapsulated now as misuse of private information.
Conclusion
That, thanks in large part to the ECHR and HRA, there now exists a right to privacy was made abundantly clear when, on 11 February 2021, Mr Justice Warby granted Summary Judgment in Meghan Markle’s caseagainst the Mail on Sunday for publishing a highly personal letter that she had written to her father. In his view, there was no need for a trial to establish the relevant facts, because:
Taken as a whole the disclosures were manifestly excessive and hence unlawful. There is no prospect that a different judgment would be reached after a trial. The interference with freedom of expression which those conclusions represent is a necessary and proportionate means of pursuing the legitimate aim of protecting the claimant’s privacy.
Although, utterly predictably, many newspapers raged against what they represented as yet another extension of privacy law, nothing could be further from the truth, as Warby’s judgment drew meticulously on key judgments in previous privacy cases, some of which are discussed above, making it a particularly valuable summary of the present legal situation regarding privacy. It was certainly a damning judgment (which may explain why the extent of press reporting of it was extremely limited), but hardly surprising, given the numerous legal precedents on which it drew. In fact, the only surprising aspect of the case is that the Mail on Sunday, which has considerable legal expertise at its disposal, should ever have thought for a moment that it stood the slightest chance of defending itself successfully.
What this demonstrates is that whilst the ECHR and HRA have played a key role in helping the courts to protect people’s privacy, the kinds of newspapers which have made such protection a necessity are still constantly probing the limits of the legally possible. In this, they are greatly emboldened by the fact that the vast majority of their victims of privacy invasion are simply not rich enough to be able to take them to court. Nonetheless their relentless demands for the UK to leave the ECHR and abolish the HRA continue apace, and they are clearly hoping that these will have the same success as their 30-year campaign for the UK to leave the EU.
Comments
Post a Comment