Privacy – The development of Privacy Law in the United Kingdom and the press.
Privacy has been defined as the antithesis of what is public by the Calcutt Report 1990. The report is primarily concerned with the self regulation of the press. The press have regulated themselves more or less through the Press Complaints Commission and Ofcom. However, the main issue is that they hold no legal enforceability and fail to imply sanctions for lack of compliance. Phone hacking Scandals could be attributed to this laxed self regulation system, which led to the Leveson Enquiry. This enquiry suggested a number of recommendations, such as a system underpinned by legislation, a right to award financial penalties and independent regulation. These are all in the absence of adequate statutory law, which means although the legislature has been silent, society and the judiciary have continued to move forward.
The United Kingdom has no explicit right to privacy at law, which highlights a significant gap in UK legislation. Due to the lack of legislation, courts in the UK have used various tort’s to bridge the gap and ensure that blatant breaches of privacy are dealt with. However, in most cases it is obvious that the claimant is actually complaining about an invasion of their privacy, as identified by Bingham LJ in Kaye v Robertson 1991. Thus suggesting that a protection specifically for privacy is needed. In absence of a specific action for invasion of privacy, the courts have adopted Breach of Confidence, which the courts have developed in such a way that it has to some extent become an adequate replacement for legislation.
Prior to to the Human Rights Act 1998 coming into force in 2000, the primary action available for invasion of privacy was to use Breach of Confidence. Breach of Confidence is a tort that protects private information that is conveyed in confidence. This tort commonly arises in settings where there has been a relationship or transaction between parties – This can be through employment or marriage, as in the case of Argyll v Argyll. In this case the Duchess of Argyll was restrained from publishing marital secrets, which demonstrates a quality of confidence and a relationship that imports an obligation of confidence.
Breach of Confidence was developed less than a year after Argyll by Coco v AN Clarke 1968, this case outlined three criteria that must be satisfied for confidence to be breached:
- The information has the necessary quality of confidence
- The information has been imparted in circumstances importing an obligation of confidence (business transaction, doctor to patient etc …)
- The unauthorised use of the information is to the detriment of the original communicator of the information.
These criterion are not beneficial to the majority of claimants because they require that there is a relationship or transaction between the parties, which will not always the case. Where a newspaper publishes a story, Breach of Confidence would not have been any use because it was reserved for specific circumstances where there was a relationship or transaction. This would not plug the void to provide a remedy for invasion of privacy.
A duty of confidence can also arise independent of the cases above, where there is no a relationship of confidence, as proved by the case of Attorney General v Guardian Newspapers (No.2) 1990. Lord Geoff identified the conditions for using Breach of Confidence where there is no relationship between the parties: He stated that there should be confidential information which comes to the knowledge of the person in circumstances where he has notice, or is held to have agreed that the information is confidential, and it be just to preclude disclosure in all circumstances. The main point is that the circumstances must be those that import an obligation of confidence.There is one qualification relevant to all claims of confidence, which is the public interest element; the court must consider whether there is any countervailing public interest that outweighs protecting the claimants confidence.
An example of circumstances that import an obligation of confidence can be shown by looking at Hellewell v Chief Constable of Derbyshire 1995. In this case, the example of someone involved in a private act and being photographed with a telescopic lens, without authorisation would amount to a breach of confidence, if the photographer subsequently disclosed it. Laws J commented that the law would protect a right to privacy, but name of the action would be breach of confidence. This also means that if there is a public interest in the disclosure of the photograph, it could outweigh the duty of confidence. This could happen if the photographer caught an image of somebody murdering another, as a far fetched example to illustrate the public interest defence.
This case is also useful because it demonstrates that public interest is not necessarily what is in the interest of the public – A member of the public may find the information interesting as salacious gossip, but this does not mean it is within their interest. A public interest may be revealing the identities of prolific child abusers, as in the case of Baby P.
The Human Rights Act 1998 domesticated the European Convention of Human Rights in schedule 1. This act essentially introduced the courts to Article 8 and Article 10 of the ECHR. The HRA will only provide a statutory remedy against public bodies, meaning it has no horizontal effect. Instead of providing a statutory remedy to invasion of privacy between private individuals, the courts have had to develop breach of confidence. The HRA has developed breach of confidence by requiring the courts to conduct a balancing exercise between Art 8 and Art 10 because no article takes precedence. The fact that these articles have to be balanced means that no two cases will ever be decided the same, each case will be decided on the facts rather than the invasion of privacy. This would in many ways complicate legislation as one size clearly does not fit all, as well as increase the uncertainty of the outcome of a case.
The case of Wainwright v Home Office 2003 highlights considerations being made towards the jurisprudence of Strasbourg. The House of Lords held that there was no common law tort of the invasion of privacy, and noted that nothing in Strasbourg jurisprudence indicated that there needed to be in order to comply with Article 8 of the ECHR. The argument made is that there is a need to fill the gaps in existing remedies for invasion of privacy, however the HRA S6 and 7 are substantial gap fillers. If a person’s Art 8 rights are infringed by a public authority they have a statutory remedy available. This case is essentially the refusal to create a free-standing right of privacy, which means any judicial action must come through breach of confidence. The HRA S12(4) is a provision added to appease journalists, that a court will have particular regard to Art 10 where the material is journalistic or artistic.
Wainwright is concerned with actions against public authorities, but the Human Rights Act has also had an effect on cases where private individuals are involved. The leading case is that of Campbell v Mirror Group Newspapers 2002. The significance of this case is that it essentially aids the creation of a different kind of breach of confidence, where the issue is the disclosure of private information.
Campbell outlines a two stage test to balance Art 8 and Art 10 of the HRA. There must be a legitimate expectation of privacy, which is whether the reasonable person would expect that information to be private. The second part is whether the information is within the public’s interest to be know, but this is not the same as what the public would be interested in as confirmed in K v News Group Newspapers Ltd 2011. This was a case where a celebrity had an affair, which was deemed to not be in the public’s interest. Art 8 and Art 10 must be balanced with neither taking precedence, as identified in Re: S 2004. Lord Nicholls suggested that the tort of breach of confidence should be rechristened as the Misuse of Private information.
McKennit v Ash 2006 is the key case for balancing Art 8 and Art 10 rights, the court provides some guidance on how to balance the articles against one another. In this case legitimate public interest was raised that McKennit was a public figure. This meant that her actions were going to be under scrutiny if she portrayed one facade and acted the contrary – similar to Campbell, where she lied about her drug use, which meant that MGN had public interest to set the record straight. McKennit did not hold a position where higher standards of conduct were expected, which was the first class of individuals identified in A v B – nor did she meet the second of being an involuntary role model. This meant that there was no public interest in the disclosure of information.
Strasbourg jurisprudence seems to support the decision made in Campbell, which is identified in Von Hannover v Germany 2005. This case concerned Princess Caroline of Monaco being photographed in public. The Strasbourg court held that celebrities enjoy a zone of interaction, which is private. However, celebrites can be seen to court fame and entertain the attention. In the case of Murray v Express Newspaper PLC JK Rowling’s son was photographed and they sought an injunction. The court applied Hannover and said that children do not court fame and have a legitimate expectation of privacy. There was also no public interest, similar to Jaggar v Darling 2005.
Awarding damages or injunctions is also something the court must consider. In some instances an injunction will not be an appropriate response to the invasion of privacy. In the case of PJS it was arguable that the information was already published abroad, and easily accessible. The parties involved were common knowledge. The suitability of any remedy must be balanced.
Damages may be appropriate in some instances, however they are not huge amounts of money. In Max Mosley v News Group Newspapers 2008, Mosley was only awarded £60,000. In this case Mosley allegedly had a sadomasochistic orgy with five prostitutes, but they were dressed as nazi’s. This would have had a public interest to be disclosed. However, the key witness never appeared in court, which meant that the concerns were that of a man having sex, which were not in the public’s interest to be disclosed. Theakston was a Blue Peter presenter who essentially had sex with a prostitute at a Brothel, but he portrayed himself as a role model for children, which meant it was within the public’s interest to know about this in contrast to Mosely.
In summary there are now two versions of Breach of Confidence and significant influences from the ECHR. In my opinion the law would be far clearer if there was a statutory right to privacy, however comparing the UK to America i can see why this would be an issue. In the US the first Amendment essentially means the government cannot legislate to affect free speech and freedom of the press. The issue with this is that in america anything that is deemed newsworthy can be published without privacy claims, and it is the media and journalists that determine what is newsworthy. The UK is different because it is the judiciary that decides upon what is within the public interest. There is not right to privacy in the UK, which may actually be quite terrifying.