Privacy: the way ahead? Part 1 – Hugh Tomlinson QC

29 April 2011 by Guest Contributor

The Prime Minister has said that he is “uneasy” about the development of a privacy law by judges based on the European Convention when this should be a matter for parliament.  In our contribution to the continuing debate on this issue we are re-posting this [update – three part!] discussion on the history and future of privacy law from Inforrm’s Blog.

Introduction

The “law of privacy” has been developed by the English Courts over the past decade. It is a common law development based on case law going back to the mid nineteenth century. But the pace of development has accelerated over recent years. The decisive factor has been the Human Rights Act 1998. In this area the Act has had “horizontal effect” – it operates in cases between two private parties. The action for breach of confidence has been transformed – almost beyond recognition.

By a complex process – which has never been fully analysed in the cases – Articles 8 and 10 of the European Convention on Human Rights have been “absorbed” into the action for breach of confidence. This was confirmed by the House of Lords inCampbell v MGN [2004] 2 AC 457. What has been created is a new claim – for “misuse of private information” (ibid, paras 14 and 17). In the words of Lord Phillips, it is the “cause of action formerly known as confidence”. We now know that

“in order to find the rules of the English law of breach of confidence we now have to look in the jurisprudence of articles 8 and 10” (Douglas v Hello! (No.3) [2006] QB 125, para 11).

It is not clear whether repeal of the Human Rights Act would destroy the new law of privacy or whether it would live on as part of the common law. I will return to this point in Part 3.

The development of the law of privacy was not an unforeseen consequence of the Human Rights Act. The point was the subject of long debate in the media and in Parliament when the Human Rights Bill was being considered in 1997. The media suggested a number of strategies to avoid the development of a privacy law including “media immunity” and the removal of Article 8 from the Act. The then Chairman of the Press Complaints Commission, Lord Wakeham moved an amendment during debates in the House of Lords which aimed “to stop the development of a common law of privacy” (Hansard, HL 24 Nov 1997, col 772ff). This amendment was withdrawn.

The opponents of Lord Wakeham’s amendment made it clear that they believed that the Human Rights Bill, when it became law, was likely to lead to the development of a common law of privacy by the judges. For example, Lord Irvine LC on behalf of the government said:

“The experience of continental countries shows that their cautious development of privacy law has been based on domestic law, case by case, although they have also had regard to the convention. I repeat my view that any privacy law developed by the judges will be a better law after incorporation of the convention because the judges will have to balance and have regard to Articles 10 and 8, giving Article 10 its due high value”(ibid, col 785).

There can be no doubt that Parliament (and indeed the press) was fully aware that the Human Rights Act was likely to accelerate the development of a law of privacy. Parliament (although not the press) embraced and accepted that consequence. The charge that the new law of privacy has been developed by the Judges against the will of parliament and without its knowledge is a bad one.

Against this background I want to deal with the question “what is the way ahead for the domestic law?” I am not going to consider the arguments for or against the new law of privacy. I will begin by summarising the present state of that law. I will then look at some of the ways in which the “how do we deal with privacy” problem has been approached in the past. I will then map out a number of possibilities as to the way in which the law might be changed.

The Law of Privacy

The new law of privacy has been developed and refined in a series of cases in the Court of Appeal and the House of Lords: Douglas v Hello! ([2001] QB 967) Campbell v MGN ([2004] 2 AC 457), McKennitt v Ash ([2008] QB 73), Lord Browne of Madingley v Associated Newspapers ([2008] 1 QB 103), Murray v Express Newspapers ([2009] Ch 481), Donald v Ntuli ([2010] EWCA Civ 1276) and, most recently, JIH v News Group Newspapers ([2011] EWCA Civ 42).

It should be noted that Mr Justice Eady, sometimes said to be the “author” of the new law, was not party to any of these decisions (although his judgments were upheld inMcKennitt, Lord Browne and Ntuli).

As the law presently stands, when considering a claim for actual or threatened misuse of private information the Court must look at two questions:

“First, is the information private in the sense that it is in principle protected by article 8? If “no”, that is the end of the case. If “yes”, the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by article 10?” (McKennitt v Ash [2008] QB 73[11]).

The First Question

The first question is an objective one, that is:

“The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity” (Murray v Express Newspapers [2009] Ch 481, [35]).

The question whether there is a reasonable expectation of privacy is a broad one, taking into account all the circumstances of the case. They include (Ibid, [36]):

• the attributes of the claimant;
• the nature of the activity in which the claimant was engaged;
• the place at which it was happening;
• the nature and purpose of the intrusion;
• the absence of consent and whether it was known or could be inferred that consent was absent;
• the effect on the claimant;
• the circumstances in which and the purposes for which the information came into the hands of the publisher.

It is not possible to draw a distinction in principle between, on the one hand, engaging in activity which is clearly part of a person’s private recreation time intended to be enjoyed in the company of family and friends, and on the other, routine acts such as a walk down a street, a ride on a bus or a visit to the grocers to buy milk. It all depends on the circumstances (Ibid, [55] and [56]).

The Second Question

If the answer to the first question as to whether the individual has a reasonable expectation of privacy is “yes”, the second question is how the balance should be struck as between the individual’s right to privacy on the one hand and the publisher’s right to publish on the other (McKennitt v Ash [2008] QB 73, [40]) . The court must balance the competing Convention rights under Articles 8 and 10, applying the test of proportionality to each.

In performing this “parallel analysis” neither Article 8 nor Article 10 “has as such precedence over the other”. Where they come into conflict, “an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary” (In re S (A Child) ([2005] 1 AC 593, at [17]).  Although section 12(4) of the Human Rights Act provides that, when considering whether or not to grant an injunction which might affect the right to freedom of expression, the Court must “have particular regard to the importance” of this right, this does not mean that the right should be given precedence.

In appropriate circumstances this includes consideration of the Article 10 rights of anyone, party or not, who would be restrained from publishing the specified category of information (X v Persons Unknown [2009] EMLR 290).  This means that, the Article 10 rights of the public and the press should be taken into account in every case.  On the other side of the balance, the Court will also take into account the Article 8 rights of anyone else whose private lives will be affected by the publication: for example the partner and children of the claimant (see ETK v News Group Newspapers [2011] EWCA Civ 439 [14]).  Particular weight should be afforded to the rights of any children who might be affected by the publication (Ibid, [19]).

This balancing exercise involves wider “public interest” issues. In the well known decision in Von Hannover v Germany ((2005) 40 EHRR 1) the Court of Human Rights drew a fundamental distinction between reporting facts capable of contributing to a debate in a democratic society, relating to politicians and the exercise of their functions, and reporting details of the private life of an individual who exercises no official functions. The court considered that the photographs of Princess Caroline and accompanying commentaries did not come within the sphere of any political or public debate because they related exclusively to details of her private life. The court considered that the publication of the photos and articles in question, of which the sole purpose was to satisfy the curiosity of a particular readership regarding the details of the applicant’s private life, did not contribute to any debate of general interest to society despite Princess Caroline being known to the public. It recognised that the readers of popular newspapers are not entitled to know “everything” about public figures. The court concluded that “

the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest” [76].

This last point has been emphasised by the English Courts on a number of occasions.  As Baroness Hale put it in the Campbell case ([2004] 2 AC 457):

“The political and social life of the community, and the intellectual, artistic or personal development of individuals, are not obviously assisted by pouring over the intimate details of a fashion model’s private life.” [149]

In domestic law the public interest defence has grown out of the old defence of exposure of iniquity. The approach to the ‘public interest’ was considered by the Court of Appeal in HRH the Prince of Wales v. Associated Newspapers ([2008] Ch 57). In that case, the claimant’s private travel journals had been disclosed by one of his former employees. In those circumstances, where the information had been received in confidence, it was not enough that the information was “a matter of public interest” (Ibid, [67]); rather, the question was

“whether, in all the circumstances, it is in the public interest that the duty of confidence should be breached” (Ibid, [68]).

There is a “public interest” in exposing the truth and putting the record straight. This was conceded in Naomi Campbell and accepted as correct by the House of Lords (Campbell v MGN [2004] 2 AC 457 at [24], [58] and [151]). But where the justification put forward for publication of personal information is not that the person concerned has made false factual statements but has been guilty of hypocrisy in advocating a set of standards or aspirations and behaving differently, much will depend on the particular circumstances, including the person’s role (for example, whether s/he holds or is a candidate for public office) and to what extent their conduct is truly hypocritical.

If the ultimate balance is struck in favour of the individual, publication will be an infringement of their Article 8 rights. If the balance is struck in favour of the publisher, there would be no such infringement by reason of a combination of Articles 8(2) and 10 of the Convention. In each case the question is one of “balance”, of weighing the competing rights in the circumstances of the case.

This post originally appeared on Inforrm’s Blog and is reproduced with permission and thanks. Part 2 can be read here and Part 3 is coming on Tuesday. 

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Read more

• Privacy: the way ahead? Part 2 – Hugh Tomlinson QC
• A privacy injunction binding on the whole world
• Gagging on privacy