For their privacy. This essay addresses this apparent

For popular newspapers, there is a public interest in the
sex lives of celebrities. For the judges, and for a minority of editors, such
matters may be interesting to the public but are of no genuine public interest
(or public benefit). On that differing interpretation also hangs a central
debate about society’s right to freedom of the press as against an individual’s
right to a private life. Roy Greenslade, Guardian 20th May 2016.

Critically
examine how privacy is protected and to what extent a law of privacy has been
developed in English law.

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Neither in common law, nor in statute, does a tort of
privacy exist in England, yet people can still safeguard their privacy. This
essay addresses this apparent paradox by exploring how privacy is protected and
to what extent a law of privacy has been developed in English law. Although a
better protection of privacy might seem like a good idea, it can nevertheless infringe
the right to freedom of expression. This brings us to the vexed question of
which right, the right to privacy or the right to freedom of expression, should
prevail with recent cases and developments only adding to the discussion. As
Tomlinson said, we are ”gradually moving from a position where anything could be published unless
it was forbidden to the opposite – nothing can be published unless it can be
justified.” 1

Living in a democracy means that you have rights and
freedoms. Difficulties arise, however, when certain rights collide. This is
particularly true in the case of the right to privacy and the right to freedom
of expression. Finding a balance between these conflicting rights is difficult
and establishing a comprehensive legal framework has proven to be tricky, due
to the number of possible scenarios that could give rise to privacy issues. However,
that does not justify Paul Dacre’s assertion that one judge ”is given a
virtual monopoly.”2 As Sir David Eady points out, the responsibility to weigh up
and balance those two human rights has thus been bestowed on the courts, and judges
must make a value judgement based upon the law.
3

Although there is still no free-standing law of
privacy, other legal sources have been used to protect privacy in the absence
of a tort of privacy. 4  Which is why the media are in a worse
position than they have ever been when it comes to defending their right to
freedom of expression. Kaye v Robertson & Sports Newspapers 19915  illustrates this point clearly. Because if
what happened to Kaye in 1991 were to happen today, the ruling would
undoubtedly be different, indicating that a fundamental shift has taken place
in the last 27 years.

One of the driving forces behind this shift is the
passing of the 1998 Human Rights Act, which incorporated the European
Convention on Human Rights (ECtHR) into English law. Amongst others, this means
that the law now considers the competing rights under Article 8, the right to
privacy, and Article 10, the right to freedom of expression. The most notable
case illustrating the Act’s influence is Campbell
v MGN 2004. 6 Naomi Campbell had always denied having a drugs problem, but
in 2001 the Daily Mirror exposed her
as a drug addict by publishing photographs of her leaving a Narcotics Anonymous
meeting accompanied by an article revealing details about her treatment. Campbell
sued the Mirror Group Newspapers and,
at the first trial, Morland J. upheld Campbell’s claim saying that discussing
the details about Campbell’s treatment was a step too far. The Court of Appeal
reversed this decision stating that those details were part of a legitimate
story. Campbell, in turn, appealed on the basis that a breach of confidence had
occurred because the photographs and the article revealed too much information.
The House of Lords allowed the appeal by a 3-2 majority, saying the Campbell’s
Article 8 rights prevailed over The Daily
Mirror’s Article 10 rights and restored the order of Morland J.7 So, the Human Rights Act became a major catalyst in the
development of privacy protection, as it led to the creation of a new tort: the
tort of misuse of private information, which fuses the Human Rights Act into
the law of breach of confidence.8 Had it not been for the Act, it becomes questionable whether
Campbell would have won and, consequently, whether the tort of misuse of
private information would have existed.9

Since Campbell v
MGN 2004, the court will apply the two-stage Campbell test in privacy cases, some of these post-Campbell cases pushing the law even
further. The first stage involves the question of whether someone has a
reasonable expectation of privacy in the given context. If he/she does, then
the individual’s Article 8 rights are engaged.10 In order to decide whether a person has a reasonable
expectation of privacy, the court will ”look at the nature of the information,
the form in which it is conveyed as well as the relationship between the person
disclosing and the person making the claim.”11 Peck v UK 2003
illustrates you can have a right to privacy in a public space, besides
demonstrating that the Human Rights Act has made it easier to argue that your
privacy has been breached.12 Unlike Peck, Campbell, for example, did not need to go to
Strasbourg. A case related to Peck v UK
2003 is Von Hannover v Germany 2004.
Princess Caroline of Monaco claimed that the German laws infringed her right to
privacy. The judgement was that people, including public figures, have the right
to a reasonable expectation of privacy even in public spaces.13 This judgement was not adopted by this country, as Elton
John found out when he tried to stop the publication of a photograph taken in a
public space.14 Von Hannover v Germany
2012 dealt with a similar situation as Von
Hannover v Germany 2004. Yet, in the former case the publication of the
pictures was justified, since they added to a debate of general interest.15 Besides the question of how private being in public is,
there is the discussion about the privacy of children. An increasing number of
celebrities, such as J.K. Rowling and Adele, are using the tort of misuse of
private information to protect their children’s privacy. For example, Muller v Big Pictures (UK) Ltd 2008 established
that a public figure’s child has as much right to privacy as any other child.16 Weller v Associated
Newspapers Limited 2014 has heightened the protection of privacy rights
of children in general. Because without parental consent, pictures including
children’s faces can now only be published if the faces are pixelated.17 Another issue is whether suspects in a police investigation
can be named. For example, the court granted an
injunction to ERY saying that his right to privacy prevailed in relation to the
interview under caution as well as the fact that an investigation was taking
place. Media now fear that the next step will be that arrestees will try to
hide under the protective cloak of privacy rights.18

The second stage of the test emphasises that a reasonable
expectation of privacy must be balanced against whether there is a public
interest in publishing the information. In other words, does the right to
freedom of expression outweigh the right to privacy? If so, the publication is
allowed. 19 An editor’s approach and a judge’s approach to public
interest will presumably differ considerably. The controversy concerning the
publication of kiss-and-tell stories illustrates this point clearly. ”For
popular newspapers, there is a public interest in the sex lives of celebrities.
For the judges, and for a minority of editors, such matters may be interesting
for the public but are of no genuine public interest (or public benefit).”20 So, whilst extramarital affairs may be morally questionable,
it does not give tabloids the right to expose them. When a story is in the
public interest it means that journalists and newspapers can legally infringe
an individual’s right to, for example, privacy if this leads to a story that
clearly benefits society. 21 This is evident in the case of Toby Leigh who failed to stop
the broadcasting of a Channel 4 documentary. Channel 4 successfully argued that
his reasonable expectation of privacy was very low and that there was a strong
public interest in the sequences in which he featured, as they provided balance
to the overall programme.22 Editors must also be able to prove a public interest
justification, as demonstrated by Mosley
v NGN 2008. The News of the World
alleged that Mosley had been involved in Nazi-themed sadomasochistic sex activities.
Mosley admitted that the events occurred, but denied they had been Nazi-themed.23 Because The News of the World could
not prove its allegation, the public interest justification fell by the
wayside.24

The following part focusses on the long-standing law
of breach of confidence which was originally developed in common law to protect
commercially sensitive information. Later, it was also used to safeguard
personally private material, the first example of this being Prince Albert v Strange 1848.25 Regardless of its age, this law remains relevant. Not only
because it played a fundamental role in the creation of the tort of misuse of
private information, as noted earlier, but also because it is still
operational. A breach of confidence has taken place if a case meets the three
requirements identified by Megarry J
in Coco v A. N. Clark (Engineers) Ltd (1968). However, even if all the tests apply, the media can still run
a story if, firstly, they can prove the material exposes iniquity or did
not have the required quality of confidence; secondly, the owner of the
material had consented; or thirdly, the publication was in the public interest.26 One of the cases that further developed the law of breach of
confidence was the Douglas case.
Using this law, Douglas and Zeta-Jones and OK!
sued Hello! after the publication of
wedding photos that were taken surreptitiously by an uninvited photographer and
which spoilt OK!’s exclusive. Hello! lost the case, but only because
the court adopted a more relaxed approach towards the second Megarry test,
saying that ‘the law
no longer needs to construct an artificial relationship of confidentiality between intruder and
victim’.27 Nowadays, using unethical means to obtain
confidential information is thus also seen as a breach of confidence.28

When it comes to the development of privacy protection
in the English law, the importance of both the Human Rights Act and the law of
breach of confidence cannot be overlooked. Be that as it may, some other laws
may also act as effective deterrents against privacy invasions. Take, for
example, the Protection from Harassment Act 1997 which originally was not aimed
at journalists specifically, but it has been used to prosecute or sue
journalists, especially paparazzi, who keep pursuing people.29 Harry Styles, for example, was granted a permanent
harassment injunction against four paparazzi which not only protects him from them
and their questionable methods, but also his privacy from being breached.30 Whilst this law is mainly used by celebrities, it can also,
for example, help family members of convicted criminals that seek to protect
their privacy.31 Secondly, if one’s privacy has been breached, it is
extremely likely that a breach of one’s data protection rights has also taken
place.32 This can be seen in the Campbell
case where the revelation of Campbell’s medical records not only breached
her data protection rights, but was also the main reason that MGN lost the case. The Data Protection Act
1998 is the main law that safeguards personal data and obliges data controllers
to abide by data protection principles. Section 32 of the Act, however, allows
journalists to publish someone’s personal data if that publication would be in
the public interest.33 Furthermore, the Regulation of Investigatory Powers 2000
(RIPA) shields people from having their privacy invaded, as it outlines a
series of offences that could give rise to a privacy lawsuit.34

The regulatory codes, IPSO and OFCOM, cannot be
overlooked when discussing privacy. Because whereas few people can afford to go
to court, many will complain to the regulators if they believe their privacy
has been breached, which is why journalists should have a good grasp of the law
as well as a decent knowledge of the regulatory codes. In addition, section 12
of the Human Rights Act compels the courts to consider the regulatory codes
when dealing with privacy cases and which thus can influence the eventual
outcome.35Now and then, the phrasing might differ slightly, but the
codes more or less correspond to each other and to the law’s view on privacy.
This becomes clear by taking a look at a discussion about how IPSO dealt with
two different privacy complaints against the Mail Online: one by Prince Harry and one by David and Victoria
Beckham. On the one hand, Prince Harry’s complaint that photographs of him and
his girlfriend on a private beach were a breach of his privacy was upheld. Not
only were they unaware that the photographs were being taken, Prince Harry was
also engaged in private activities, it was a private beach and there was no
genuine public interest. So, the Mail
Online could not justify the publication of the photographs. The Beckhams,
on the other hand, were unsuccessful, since the Mail Online did not publish any information that was not already in
the public domain and the Beckhams’ children have always lived in the public
eye.36

Be that as it may, the powers of the codes have been
questioned and in his article Tomlinson suggested that replacing the codes by a
statutory regulator would not only be more effective, but could also be one of
four ”ways forward”.37 This brings us to the final part of my discussion, namely
where should we go from here.

In his article, Tomlinson discusses four possible ways
to design a law of privacy, one of them being the introduction of a statutory
regulator.38 The three other possibilities are a return to a pre-Human
Rights Act position, the creation of a tort of invasion of privacy or leaving
everything the way it is. Doing nothing was not an option and he was also quick to
dismiss the possibility to return to a pre-Human Rights Act position, because he deemed it highly unlikely that the UK would exit the European
Union. However, Brexit might just have enabled the impossible. He favoured a
combination of the two remaining options, since a tort of invasion of privacy
would provide guidance on how to balance the two competing rights, whilst a
statutory regulator would have the power to deal with media who trample the
rules under foot. Be that as it may, before we can contemplate how to create a
privacy law, should we not ask ourselves whether there is any privacy left in
the age of the internet and social media? Take the example of CTB v News Group Newspapers Ltd & Anor 2011.
After the initial injunction a whole ”who-dun-it” ensued on the internet.39 Eventually, John Hemming MP named Ryan Giggs in Parliament.
The injunction, however, remained in place which shows that a newspaper is not
automatically free to publish information known to others.40 The case makes one wonder whether injunctions are still
useful in the age of the internet. ThisKD1  debate becomes only fiercer if we look at PJS v News Group Newspapers Ltd (SC) 2016 which shows that an injunction cannot stop the
publication of a story in other jurisdictions.41 This also explains why Weller could sue in the UK, but not
in California.42 Another landmark ruling in the current times of so-called ‘fake
news’ was the judgement in McKennitt v
Ash 2006 which demonstrates that the accuracy of the information no
longer matters and that a false story can be just as private as a true one.43 Rather than trying to create a law of privacy, we should
embrace our right to freedom of speech which, due to the rise of the internet
and social media, has been given a boost.

Thus, it becomes clear that a lack of a privacy law
does not mean that one cannot safeguard his/her right to privacy. Several legal
sources and the regulatory codes allow people to protect their privacy as never
before, the Human Rights Act being one of the biggest gamechangers. However, as we have seen,
that does not mean that the right to freedom of expression always plays second
fiddle to the right to privacy. Furthermore, the internet has confronted us
with the question of how anything can be protected and whether stories are
true, whilst creating new ways to express opinions. Rather than fearing the
consequences the right to privacy may suffer because of this, we should exploit
the new possibilities at our disposal.

 

 

1 Tomlinson, H. (2011). How to create a privacy law. The
Guardian online. Available at
https://www.theguardian.com/law/2011/may/05/privacy-privacy accessed 26
October 2017.

2 Society of Editors:
Paul Dacre’s speech in full (9 November 2008)

3 Eady,
Sir D. (2011). The New Methodology, Part
1 online. Available at
https://inforrm.org/2011/12/17/privacy-the-new-methodology-part-1-sir-david-eady/
accessed 21 October 2017.

4 ibid.

5 Kaye v Robertson & Sports
Newspapers 1991 FSR 62

6 Campbell
v MGN Ltd (HL) 2004 UKHL 22; 2004 2 AC 457;
2004 2 WLR 1232; 2004 EMLR 247

7 Campbell
v MGN Ltd (HL) 2004 UKHL 22; 2004 2 AC 457; 2004 2 WLR 1232; 2004
EMLR 247

8 Hanna, M. and Dodd, M. (2016). McNae’s Essential Law for Journalists. 23rd
edn. Oxford: OUP. 320.

9 Thomas, S. (2002).
Does Campbell make model law? New
Law Journal, 152(7031), 716-717.

10 Wragg, P. Re-evaluating Campbell v MGN: Great
Promise Unfulfilled online.  Available
at https://inforrm.org/2015/04/

28/re-evaluating-campbell-v-mgn-great-promise-unfulfilled-paul-wragg/ accessed 23 October 2017.

11
Tomlinson, H. and Tench, D. (2007). Privacy gets the OK. The Guardian online. Available at
https://www.theguardian.com/media/2007/may/07/mondaymediasection10 accessed 21
October 2017.

12 Peck v United Kingdom (2003) 36 EHRR 41; 2003 EMLR 287

13 Von
Hannover v Germany 2004 EMLR 379; (2005) 40 EHRR 1

14 Rolph, D. (2012). When is being in public,
private? online. Available at
https://inforrm.org/2012/02/29/when-is-being-in-public-private-david-rolph/
accessed 26 October 2017.

15 Von Hannover v Germany
(No. 2) (2012) 55 E.H.R.R. 15

16 Murray
(by litigation friends) v Big Pictures (UK) Ltd 2008 EWCA Civ 446, 2008 3 WLR 1360

17 Smith,
R. C. (2015). Freedom of UK media to publish
pictures of children curtailed after landmark ruling online Available at
https://theconversation.com/freedom-of-uk-media-to-publish-pictures-of-children-curtailed-after-landmark-ruling-51062
accessed 23 October 2017.

18
ERY v Associated Newspapers 2016
EWHC 2760 (QB)

19 Wragg, op. cit.

20 Greenslade, R. (2016). Editors
vs judges: which right is supreme – press freedom or privacy? The Guardian online. Available at
https://www.theguardian.com/media/greenslade/2016/may/20/editors-vs-judges-which-right-is-supreme-press-freedom-or-privacy
accessed 28 October 2017.

21 Hanna and Dodd, op. cit. 477.

22 Media Lawyer (2017). Man Who Agreed to
Filming loses bid to block broadcast
online. Available at https://inforrm.org/2017/06/22/news-privacy-injunction-claim-against-channel-4-dismissed-media-lawyer/ accessed 27 October 2017.

23 Mosley
v News Group Newspapers Ltd 2008 EWHC 1777 (QB)

24 Eady, Sir D. (2011). The New Methodology, Part 2 online. Available at
https://inforrm.org/2011/12/17/privacy-the-new-methodology-part-1-sir-david-eady/
accessed 21 October 2017.

25 Hanna and Dodd, op. cit. 320.

26 Hanna and Dodd, op. cit. 325-327.

27 Douglas v Hello! Ltd 2005 EWCA Civ 595

28 Hanna and Dodd, op. cit. 322.

29 ibid. 343-344.

30 Inforrm’s Blog (2014). News: Harry Styles harassment case, photographers consent to
permanent injunctions online.
Available at https://inforrm.org/2014/03/11/news-harry-styles-harassment-case-photographers-consent-to-permanent-injunctions/ accessed 26 October 2017.

31 Kerner
v WX and YZ 2015 EWHC 128 (QB)

32 Hanna and Dodd, op. cit. 360-36.

33 Hanna and Dodd, op. cit. 357, 362.

34 ibid. 440.

35 ibid. 342-343.

36 Lock, O. (2017). Prince Harry and David Beckham: a close look at IPSO’s approach to
privacy online. Available at https://inforrm.org/2017/08/14/prince-harry-and-david-beckham-a-close-look-at-ipsos-approach-to-privacy-oliver-lock/ accessed 25
October 2017.

37
Tomlinson, H.
(2011). How to create a privacy law. The Guardian online. Available at https://

www.theguardian.com/law/2011/may/05/privacy-privacy
accessed 26 October 2017.

38
ibid.

39 Harris,
C. (2016). Decline of the English Sex
Scandal – why you can never get a good sex scandal these days (with apologies
to George Orwell) online. Available at https://www.kingsleynapley.co.uk/insights/blogs/dispute-resolution-law-blog
accessed 19 October 2017.

40ibid.

41 ibid.

42
Smith, op. cit.

43
Tomlinson and Tench, op. cit.

 

 KD1This begs the question whether injunctions are still useful in the
age of the internet, a debate …