It is a matter of record there is no such thing as a right to privacy recognised by English law[1] Privacy is a fundamental right of all human beings. It promotes human dignity and other values such as freedom of association
It is a matter of record there is no such thing as a right to privacy recognised by English law1
Privacy is a fundamental right of all human beings. It promotes human dignity and other values such as freedom of association and freedom of speech.
The concept of privacy is recognised in one form or another in all legal systems. However the protection and the development of this concept vary from society to society. The need for privacy has long extended beyond the commercial context, and now applies to a wide range of circumstance, including the family and home.
The desire for privacy and protection from invasion by the state, institutions as well as other individuals has long been a problem within the UK legal system. As British society is getting more and more complex, our privacy needs are growing. This means that the scope of our laws is stretching to accommodate this growth.
Privacy is the fine line between a person's rights to lead his own life without intrusion, and the right for the surrounding public to be made aware of facts and circumstances which may have an effect on them, whether it is good or bad. This line is constantly moving and its boundaries are constantly stretched, not least by the difficulty that the courts have had in handling this issue2.
The issue of privacy is in every part of law. Therefore I have chosen to narrow it down and trace the development of privacy law with regards to role models, and the press. I will analyse the development prior to the Human Rights Act 19983, discuss the impact of the HRA 1998, and also assess the implications of the Press Complaints Commission4.
PRE HUMAN RIGHTS ACT 1998
Before going any further, it should be noted that there is no such thing as a "right to privacy" within the English legal system. This is clear from the speech of Glidewell LJ in Kaye v Robinson. It has never been defined by parliament. What we seem to have rather is protection where privacy has been breached, via other doctrines, namely breach of confidence and trespass. We have seen the courts using various instruments to accommodate the right to privacy. Prior to the Human Rights Act 1998, the courts used the tort of 'breach of confidence' to give remedy and protect privacy. Since the HRA 1998, this doctrine has been extended to accommodate the requirements of Article 8 and Article 10. However the roots of the development of a 'right to privacy' still lie in this.
Looking at various statutes and case laws, it can be seen that the UK has long sought to protect individual privacy from being invaded. For example The Justices of Peace Act 1361 in England provided for the arrest of peeping toms and eavesdroppers5. However the best historical evidence comes from the writing of parliamentarian William Pitt6 who says;
"The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow though it; the storms may enter; the rain may enter - but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement".
This clearly demonstrates that the UK does recognise such a thing as privacy.
In its simplest form, a breach of confidence arises when sensitive information comes to the knowledge of a person; in circumstances where it would be unfair where that information to be disclosed to others7
The law of confidence has attracted judicial intervention over the years, but in particular the development of confidence outside of commercial information has been slow.
The early case of Prince Albert v Strange8 was one of the first to see the application of breach of confidence. In this case, private etchings were made for Prince Albert and Queen Victoria, which were copied without authorisation with the intention of publishing. The courts held that this was a situation where the parties were in a position of trust and granted an injunction, as the etchings were obtained in breach of confidence. This in essence marks the beginning of the development of the breach of confidence. The court's intervention in this case extended the application of breach of confidence to all situations where a breach of trust, confidence or contract has led to the misuse of private information, outside of the commercial context and even where there was no financial detriment to the confider.
However a century later, in Argyll v Argyll9 the court intervened again to grant an injunction to prevent the revelation of a legal marital confidence, thus demonstrating that personal information is covered. This case has very recently been developed in light of case of A v B & C (which will be discussed later).
The later case of Coco v Clark10 identified three necessary elements which were needed for a successful claim in breach of confidence. The first was that the information for which protection is sought must have the necessary quality of confidence. This means that the information cannot be something that is already public property and public knowledge. Secondly, it must have been obtained in circumstances that imported an obligation of confidence, and thirdly it must be used in an unauthorised way to the detriment of the person who communicated the information. The elements of Coco v Clark were used in subsequent cases to identify breaches of confidence.
In Stephans v Avery11, a case concerning information communicated within a close friendship, it was held that it was not necessary to identify a formal relationship between the parties. This suggested that that the confidential nature of the information was the most important factor. This case also demonstrated that a newspaper, which was not party to an original relationship, but was directly involved, i.e. approached by one of the parties, could have obligations associated with a relationship of trust imposed upon it.
The 'Spycatcher' case12 took this a step further and made it clear that if the editor had merely acquired the information, they can be held to be under the same duty of confidence if they are aware that the information is confidential.
However the case of Stephans v Avery also provided a defence to breach of confidence. It was held in this case that, where the disclosure of information included matters "in the public interest", the courts should not apply the principle of breach of confidence. Therefore the press as it stands can trump the duty of ...
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The 'Spycatcher' case12 took this a step further and made it clear that if the editor had merely acquired the information, they can be held to be under the same duty of confidence if they are aware that the information is confidential.
However the case of Stephans v Avery also provided a defence to breach of confidence. It was held in this case that, where the disclosure of information included matters "in the public interest", the courts should not apply the principle of breach of confidence. Therefore the press as it stands can trump the duty of confidence if it can show that the publication was in the 'public interest' (again this will be discussed in detail later)
From 1988 we have seen the courts in a struggle, trying to balance privacy against other prevailing rights, in particular the right to freedom of expression (which is now dealt with in the HRA 1998). In essence the courts have been stretching, and juggling the principle breach of confidence to fit circumstances which seem fit. Examples of courts defining public interest in different aspects of society can be seen in various cases. For example the case of X v Y13, dealt with issues relating to confidence within health authorities.
The issue of privacy has always been extensively attached to celebrities and role models, and courts have constantly been in a battle trying to draw a line between privacy and freedom of expression. In essence they have been trying to define the goal posts. How far can we interpret the freedom of expression, before it infringes privacy?
Elwood14 argues that celebrities may be seen to have waived their right to privacy; thus he claims the defence to any privacy actions they bring is implied consent. However, it has been argued that in a typical privacy case, and particularly where the information has been obtained surreptitiously, it would be absurd for a newspaper to claim that the plaintiff would have given actual consent to publication if asked. As Feldman15 remarked;
'It is in principle, unacceptable that merely because an individual seeks favourable publicity... his entire life might be laid bare with impunity'
HUMAN RIGHTS ACT
The HRA 1998 introduced Article 8 and Article 10 of the European Convention of Human Rights16 into UK law. The incorporation of ECHR saw for the first time, recognition and a right to respect for family life (Article 8). Although this was a triumph for role models, strictly speaking this should not be confused with a 'right to privacy', but merely a right to 'respect', which is a lesser measure.
However, it is no surprise that of all the human rights, privacy is the most difficult to define17. It maybe perhaps, for this reason that the UK parliament has refused to recognise and define it as a separate and independent, freestanding doctrine within the legal framework.
Since the incorporation of the ECHR there has been an increase in the number of injunctions sought against the media to prevent publications of materials, which would cause an infringement of privacy. Such applications for injunctions are now considered in the context of the above articles. The convention provides boundaries within which the court has to decide between the competing rights. The act also places limitations in the manner in which the courts can act, as under s.6 of the HRA 1998, the court cannot act "in a way which is incompatible with the convention".
The courts seek to overcome this by incorporating the rights into the long-standing action of breach of confidence, so that it accommodates the requirements of the rights.
Therefore in essence the incorporation of the Convention cannot be seen as providing a new direction, but rather extending old doctrines, namely breach of confidence, so as to be able to cultivate newer areas, and thus extend the range of issues where this can operate.
Interpreting the articles it can be seen that these rights are competing rights therefore they appear on either side of the spectrum. This means that whilst Article 8 is seeking to extend and protect private life, in the same instance Article 10 is operating to protect freedom of expression and freedom to receive information, therefore it is necessary for Article 10 to give way so that remedies are available for breach of confidence.
This leads to the concern that the development of confidence as a remedy for privacy will pose a risk to the freedom of the press, and therefore may place Article 10 into abeyance. However cases after the HRA 1998 and even directions from Strasburg, demonstrate that this will not be the case and that considerable weight will still be give to the freedom of the press not only under the guarantees of Article 10 but also the exceptions listed in Article 8(2), for measures taken in the interests of the rights and freedoms of other.
In essence the impact of the HRA 1998 has been that whilst the areas of privacy have been extended under the convention, the courts are still faced with the balancing the two articles bearing in mind s.6 of the Act.
It may be for this reason i.e. the balancing act by the courts, that the incorporation of Article 8 will not bring about a revolution in the determination of privacy claims where the press is concerned.
The HRA 1998 came into effect in October 2000. Almost immediately the case of Douglas v Hello18 came in front of the courts. This legal battle was largely fought on privacy and confidence issues.
This case was also one of the first to consider privacy under the HRA 1998. The case concerned the wedding of Michael Douglas and Catherine Zeta-Jones and, like Hellewell, was concerned with unauthorised photographs. The couple had sold exclusive photo rights to OK magazine and also took precautions to make sure no other photos were taken. Nevertheless a rival magazine Hello! obtained nine unauthorised photos which it sought to publish. OK magazine obtained an injunction in the first instance stopping publication, which led to Hello! appealing, and the injunction being overturned. The claimants were thus forced to proceed to the Court of Appeal in order to obtain relief.
The issue in front of the judges was to which extent confidentiality could be taken. The Attorney General v Guardian Newspapers Ltd (No.2)19 dictates that it only applied to those situations where the parties knew that they were dealing with confidential material, even if they had not been placed under a specific obligation of confidence. In an ice breaking statement Sedley LJ stated that;
'We have reached a point at which it can be said with confidence that the law recognises and will appropriately protect a personal right to privacy'.
He later acknowledged that this would be 'grounded in the equitable doctrine of breach of confidence'. This demonstrates the courts willingness to expand existing doctrines to cover new areas, rather then develop a whole new freestanding doctrine. He also suggested that kaye v Robertson might have decided differently if it reoccurred and expressed the view that;
'English law would now protect all those who find themselves subjected to unwanted intrusion into their private lives'.
The other members of the Court of Appeal did not go quite so far, but accepted that the claimants had an arguable case for breach of confidence.
The Douglas succeeded in their claim for breach of confidence and were awarded damages. In a 92 page long judgment, Lindsay J revisited the criteria set out in Coco v Clark. Overall his judgment pretty much summed up the law with regards to breach of confidence in relation to role models.
In the case of Douglas v Hello, the courts recognised that individuals had a right to privacy, not as a freestanding part of law, but which was entrenched in the doctrine of breach of confidence, However the courts also recognised that in order to grant relief the courts have to take into account the relevant rights under the HRA 1998.
His judgement did not indicate whether the right to privacy outweighs the right to freedom of expression. Therefore in this respect there is no presumption that the freedom of expression under the convention will be greater than the law of confidence.
In essence his judgement states that there can be no clear balance between freedom of expression and the breach of confidence, but rather this is decided on a case-by-case basis when such cases come in front of the courts.
Brook LJ stated that by virtue of the s.12 (4) of the HRA 1998 the courts have to pay particular regard to the Code of Practice of the PCC. He also said that where a newspaper breached the Code of Practice, then the court is likely to find in favour of the claimant.
In the same case Keene LJ addressed whether therefore s12 of the HRA 1998 tipped the balance in favour of freedom of expression. In para 150 he said that
"The subsection does not seek to give priority to one convention right over another...it is merely requiring the court to apply its mind to how one right is to balanced, on the merits against another".
The decision of this case clearly pointed the way for the development of privacy rights via the concept of breach of confidence. The decision was subsequently relied on in Venables v New News Group Newspapers20 to impose an injunction preventing the publication of the new identities of two men convicted when they were children of murdering a toddler, Jamie Bulger.
After this case the HRA 1998 has been seen as possible providing the catalyst for further development in this area.
The Code of Practice is by no means conclusive as to whether there is a case for breach of confidence, nor does it carry any legal weight.
However this was a further development in the field of confidence, as it now made it clear that in determining whether there has been breach of confidence the courts are able to use the Code of Practice as a guiding factor.
THE PRESS COMPLAINTS COMMISSION
The PCC claims to be by an independent self regulated body, which was set up in order to regulate the publishing sector of the media and to deal with public complaints, although the independence is somewhat questionable, since the body is made up of various magazine and newspaper editors. It works to a Code of Practice, which again is drawn up by newspaper and magazine editors. Its aim is to investigate and deal with complaints from the general public.
In 2003 the body received 3,649 complaints of which 1 in 3 where related to intrusion of privacy21.
As mentioned earlier the media can override the remedy of breach of confidence, and can acquire a defence where it can be demonstrated that the publication was in the public interest. In woodward v Hutchings22 intimate facts were revealed to the Daily Mirror by a former agent. The plaintiff sought an injunction for breach of confidence. The Court of Appeal dismissed the plaintiff's claim and held that the plaintiff sought to publicise themselves in a certain manner and therefore were barred from complaining if the truth were later revealed.
The Code of Practice details a firm set of regulations, which provide a framework for the commission when dealing with complaints. It is also a guideline of ethical standards, which have to be maintained by the industry. Within the Code of Practice clause 3 regulates privacy, and clause 4 provides guidelines relating to harassment. However these are not absolute, as these clauses are marked, as "subject to exception", where the exception can be demonstrated to be in the public interest23.
The essence of the whole PCC can be argued either way; does it provide a protection for privacy, by means of providing guidelines to which the press has to adhere to, or does it provide the press the power to intrude privacy using "public interest" as a defence?
An example of this can be drawn from a recent complaint, which was forwarded, to the commission from Ms Kimberly Fortier24. She was involved in a non-marital affair with the previous Home Secretary David Blunkett. She complained to the commission that an article and picture published by Sunday Mirror (29th August 2004; "Blunkett lover; It's all over") invaded her privacy and was in breach of clause 3 (privacy) and clause 4 (harassment).
The initial matter to determine was, was Ms Fortier a public figure? And secondly was there a breach of the code of practice? And if there was can it be justified by public interest?
Ms Fortier maintained that she was not a public figure, as she had no public function of any kind, and the publication was therefore not in the public interest. This means that she had an entitlement to privacy.
The newspaper argued that she was a public figure by virtue of her work in the media industry, and that the fact that she was involved in an affair with the Home secretary, she put herself in the public domain, and therefore there was a legitimate public interest.
The complaint was rejected by the commission, and accepted the newspaper's argument. It highlighted that at the time the picture and article were published, there was considerable public speculation going on, and therefore there was genuine public interest, and also the fact that she courted public attention gave her a less ground to object to the intrusion which followed.
This example highlights the working of the PCC, and how the media attempts to maintain individual privacy, in balance with the freedom of the press.
The public figure defence was also discussed in the Court of Appeal in Reynolds v Times newspapers25. Here the court sought to limit the defence of 'public figure' and highlighted that the content of the publication was more important.
"(Such a defence) would mean, in effect, that newspapers could publish more or less what they liked, provided they were honest, if their subject happened to be within the definition of a "public figure". We (the court) think this would lead to a great injustice. Furthermore it would be quite contrary to the tradition of our common law that citizens are not divided into different classes. What matters is the subject-matter of the publication and how it is treated, rather than who happens to be the subject of the allegations".
Lord Justice Buxton observes the development of breach of privacy in the case of Wainwright v The Home Office26. In this case he commented that in such cases the
"Court is being invited to make the law, and not merely apply it".
This case failed as Mummery LJ held, there was "no tort of privacy", instead there are torts protecting a person's interest in the privacy. He also added that he foresees serious problems in defining the concept and the development of privacy.
Buxton LJ also said that had the events occurred after the introduction of the Human Rights Act 1998 the claimant would have a strong claim for relief under Section (1)(a) of the Act, by the reason of a public authorities breach of Article 8. However he emphasised that this did not engage a private law of tort.
The fact that the development was left to the courts is also evident in the case of Peck v UK27. In this case it was commented that the privacy was an area of law, which was heavily dependent upon policy, and it was an area that had been and would continue to be developed by the courts.
RECENT DEVELOPMENT
Another high profile case to reach the Court of Appeal was the case of A v B & C28. In this case A was a premiership footballer, married with children, who was involved in an sexual affair with C. C decided to go to the press B, and reveal explicit details of the affair. In the first instance A applied for an injunction to stop the publication, as it would have been detrimental to his marriage, and in particular have damaging consequences upon his children.
This case developed the principle of Argyll v Argyll, by recognising and giving appropriate weight to the extensive range of relationships, which now exist outside of marriage. Obviously the more stable the relationship the greater will be the significance which is attached to it.
This case is another example of the courts trying to balance privacy and the freedom of the press. The conflict here was whether one party's wish to exercise Article 10 rights, breaches the other person's right to privacy.
In the judgement, the case lays out guidelines with regards to public figures, privacy and the freedom of the press.
The guideline referred to the judgement of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd29, when deciding between a pubic interest and privacy. It also identified that between the two there remains a grey area. These situations arise (such as in this case) where the alleged intrusion is a result of the reporting on the information to a third party by a party to the relationship, which creates the privacy. In such cases the public interest, if it exists, is unlikely to be decisive.
The guidelines in the case state that a public figure is entitled to have privacy and respect in appropriate circumstances, but the individual should recognise and accept that his actions will be more closely scrutinised by the media. It was also held that where the individual has courted public attention, then he would have less ground to the intrusion which follows.
The most recent application and development of the breach of confidence comes from the case of Campbell v Mirror Newspaper Group30. Naomi Campbell was a drug addict receiving treatment at Narcotics Anonymous (NA). A member of NA communicated this information to the Daily Mirror in breach of confidence. The Mirror was fully aware that this information was in breach of confidence but decided to publish as it claimed that it was in the public interest to correct the public pronouncements, which Naomi Campbell had made in the press that she did not take drugs. Naomi claimed for breach of Data Protection Act 1998. At first instance Morland J awarded a total of £3500 for breach of confidence and for breach of DPA. The Mirror appealed on both findings and by the time the case got to the Court of Appeal, Naomi was no longer complaining for the disclosure that she was an addict, nor was she claiming for the pictures taken. This was due to the fact that she recognised that by stating untruthfully that she did not take drugs she rendered it legitimate for the media to correct this. By this point her only complaint was the disclosure of the details of the treatment.
The issue faced by the court then was whether the details of her treatment were so trivial that they warranted protection by the court. In essence the courts had to assess to what degree was protection warrantable? In this instance the court held that that the detailed information of the treatment was confidential and obtained by a person who clearly had a duty not to disclose it.
The Court of Appeal in the case of Naomi Campbell recognised that an action of right to privacy was developing in the wake of the HRA 1998. However the court reiterated that there was no freestanding tort of infringement of privacy, but only an action, which can be bought under a breach of confidence. Again the court affirmed the pre Human Rights Act of a successful claim in breach of confidence: (a) that the information is confidential (b) there was an obligation of confidence (c) that the publication of the information was detriment to the claimant.
As a result, some of the sections of the press concluded that the two cases are crucial to whether we will have a privacy law by stealth, although some further suggested that a law of privacy has been introduced by stealth already and it is here to stay, and that the two recent cases will merely assist in the definition of privacy.
FUTURE DEVELOPMENT/CONCLUSION
Although it can be argued that despite the development of the law of confidence through the incorporation of the ECHR, there are still gaps offered to privacy by the common law. It does not follow that statutory measures to protect it should be adopted. On the one hand, it could be argued that rather than an uncontrolled development of confidence, coupled with vague public interest defence, a tort of invasion of privacy would be preferable as possibly providing clearer protection for freedom of speech.
The statutory tort of invasion of privacy, which was reported under the 1993 Green Paper, would fill some of the gaps, which may be still left by the law of confidence. The Law Commission explained that a 'tort of privacy' would be based on the principle that certain kinds of information are categorised as private and for that reason alone ought not to be disclosed. The new tort would cover the publication of personal information without authorisation, which causes substantial distress (such as the Naomi case). Such information has been defined as those aspects of an individual's personal life, which a reasonable person would assume should remain private. The tort would not be subject to a general defence of a public interest.
It would be a defence, under the proposal to show that the act was done for the purpose of preventing, detecting or exposing the commission of a crime; or for the purpose of preventing the public from being misled by some public statement; or action of the individual concerned; or for the purpose of informing the public about some matters directly affecting the discharge of any public function of the individual concerned; or for the protection of the public health or safety; or under any lawful authority.
Clearly, these defences are more tightly drawn than the broad public interest under the law of confidence. It should be noted that the tort would operate alongside confidence to provide a further restraint on freedom of speech.
Word Count 4705
Glidewell LJ in Kaye v Robertson [1991] FSR 62
2 http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/Privacy.htm
3 Will be referred to as HRA 1998 from here on
4 Will be referred to as PCC from here on
5 Infra James Michael, p. 15. Justices of the Peace Act, 1361 (Eng.), 34 Edw. 3, c. 1
6 Speech on the Excise Bill, 1763.
7 http://www.hse.gov.uk/enforce/enforcementguide/court/reporting/breach.htm
8 [1849] 1 Mac & G.25
9 [1967]] 1 Ch 302
0[1969] RPC 41
1 [1988] 2 ALL ER 477
2 AG v Guardian Newspaper Ltd [1988] Ch 33
3 [1988] 2 All ER 646
4 'Outing, Privacy and the First Amendment' [1992] Yale LJ 747
5 'Secrecy, Dignity & Autonomy? Views of Privacy as a Civil Liberty' 47 (2) CLP
6 Will be referred to as ECHR from here on
7 James Michael, Privacy and Human Rights (UNESCO 1994) p.1
8 [2001] 2 All ER 289
9 [1988] 3 All ER 545
20 [2001] ICHRL 3
21 http://www.pcc.org/about /whatis.html
22 [1977] 1 WLR 760
23 http://www.pcc.org/cop/cop.asp
24 http://www.pcc.org.uk/reports/latestdetails.asp?id=392
25 [1999] ICHRL 148
26 [2001] EWCA 2018
27 [2003] ECHR
28 [2002] 2 All ER 545 CA
29 [2001] HCA 63
30 [2004] UKHL 22