The English Law of Privacy remains wholly adequate to protect an individual's right to a private life. Do you agree?

The English Law of Privacy remains wholly adequate to protect an individual’s right to a private life. Do you agree?

Before starting to analyse privacy law in Britain and its present condition, firstly it is useful to state what privacy is and how it originated:

“Privacy is 1a The state of being private and undisturbed b A person’s right to this. 2. Freedom from intrusion or public attention 3. Avoidance of publicity.

Private is 1. Belonging to an individual; one’s own; personal. 2. Confidential; not to be disclosed to others. 3. Kept or removed from public knowledge or observation.” (Tugendhat and Christie, 2002).

The development of personality rights and privacy law in the United States, for example, goes back to the 19th Century: “Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for security to the individual …the right “to be let alone”” (Warren and Brandeis, 1890).

The first formal declaration of fundamental rights to include a right of privacy was the Universal Declaration of Human Rights 1948 Article 12: “No one shall be subject to arbitrary interference with his privacy, family, home, or correspondence, nor to attacks on his honour or reputation. Everyone has the right to protection of the law against such interference.” (Tugendhat and Christie, 2002).

However, in the United Kingdom (UK), privacy law is still one of the “freshest” and most unestablished laws. Even though it has improved rapidly in the last fifteen years, it is still not completely adequate to protect an individual’s private life. In fact, nowadays the UK has fallen behind most Western countries in protecting individual privacy:

“British law is inadequate to protect privacy. Nothing has been done to implement the Younger Committee’s recommendation on the use of bugging devices - the creation of a criminal offence of surreptitious surveillance by means of a technical device, and a civil wrong of surveillance by means of a technical device, and a civil wrong of surveillance (whether surreptitious or not) by means of a device” (Hewitt, 1977).

The Kaye v Robertson case (1991) is one of the most obvious confirmations of Britain’s failure. Gordon Kaye was a well-known actor. He suffered severe head and brain injuries after a piece of wood had pierced the windshield of his car during a gale. He was treated in the Charing Cross hospital. Notices posted on walls restricted access to Mr. Kaye’s room to a close circle of relatives and friends. Too many visitors could have impeded his recovery. Ignoring these notices, two reporters of the tabloid newspaper, the Sunday Sport, who were acting on the orders of the editor, Robertson, entered Mr. Kaye’s private room. Whilst there, they took pictures of greeting cards, the room, and of Mr. Kaye himself. They asked him questions and recorded the answers for an interview. Medical evidence proved that Mr. Kaye was unable to give informed consent to this interview. Despite this, the newspaper intended to publish the story. ().

Although Gordon Kaye tried to defend himself with a help of court action, at that time there was no cause of action in law to prevent such a thing.

As a result of this case, Glidewell JL summed up the non-existence of protection of private affairs in England:

“It is well-known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person’s privacy. The facts of [Kaye v Robertson] are a graphic illusion of the desirability of Parliament considering whether and in what circumstances statutory provision ...

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Although Gordon Kaye tried to defend himself with a help of court action, at that time there was no cause of action in law to prevent such a thing.

As a result of this case, Glidewell JL summed up the non-existence of protection of private affairs in England:

While the Kaye v Robertson case is one of the most expository, Gordon Kaye is not the main victim. The person who suffered from such a legal position in Britain more than anybody else was Princess Diana.

Before her death in September 1997, Lady Diana, following continuous media intrusion into her private life, confronted the British press in wining back privacy for herself and her sons. After her friendship with Dodi Fayed was revealed, the press and photographers were anxious to photograph her on holiday in France with Dodi. Following her divorce from the Prince of Wales, it got even worse and the Princess appealed to the media several times to leave both them and their children alone so that they might get on with their lives. Unfortunately, nothing seemed to work. In July 1996, Princess Diana complained to the Press Complaints Commission about 'intrusive' pictures of her on holiday in France which were published in the Daily Mirror.

Anthony Julius, the Princess’ lawyer, stated that:

“My client has been compelled as a last resort to take legal action. She hopes that, as well as alleviating her own distress, this will highlight the destructive effect of persistent harassment on women's lives.” ().

Despite this, the death of the Princess Diana was the subject of more newspaper coverage than the most dramatic events of the Second World War and set a media record, according to Durrants Press Cuttings agency which monitors nearly 200,000 newspapers and magazines a year. No other subject in the agency’s archives, which go back to 1880, compared with the coverage devoted to Diana’s death, funeral and subsequent stories. In death, there was even more press interest than during her life. ()

Unfortunately, only Princess Diana's tragic death in a car crash in Paris and the presence of paparazzis at the crash scene raised concerns about privacy laws and press freedom in Britain.

During her funeral service in Westminster Abbey, Earl Spencer, her brother stated that Princess Diana talked to him endlessly of getting away from England, mainly because of the treatment that she received at the hands of the newspapers.

Lord Spencer also stated that:

“I would rather cherish the days I spent with her in March when she came to visit me and my children in our home in South Africa. I am proud of the fact that, apart from when she was on display meeting President Mandela, we managed to contrive to stop the ever-present paparazzi from getting a single picture of her - that meant a lot to her.

My own and only explanation is that genuine goodness is threatening to those at the opposite end of the moral spectrum. It is a point to remember that of all the ironies about Diana, perhaps the greatest was this - a girl given the name of the ancient goddess of hunting was, in the end, the most hunted person of the modern age. She would want us today to pledge ourselves to protecting her beloved boys William and Harry from a similar fate and I do this here Diana on your behalf. We will not allow them to suffer the anguish that used regularly to drive you to tearful despair.” (http://www.leeds.ac.uk/law/hamlyn/tribute.htm)

Princess Diana tragically died only about one year before the turning point in Privacy Law – acception of The European Convention on Human Rights Act 1998.

With the coming into force of the Human Rights Act (HRA) the boundaries have moved. The courts have used Section 12 of the HRA as a means by which to develop notions of privacy, but have done so by reference to the action of breach of confidence. It is not yet clear whether the courts will develop a free standing right of privacy or tort of invasion of privacy. However, it appears that in the 21st century attitude to privacy is changing in the UK and a law of ‘personality’ is developing.

One of the best examples of the success of the HRA is the Douglas v Hello case. The facts of this case are very well known. Michael Douglas and Catherine Zeta-Jones sold the exclusive right to cover their wedding to OK! Magazine. The contractual arrangements gave them the right to decide what pictures actually would be published. The couple set up a tight security system; neither cameras nor videos were permitted. Nevertheless, someone was able to take some pictures. Hello! Magazine intended to publish them. They were prevented from so doing by a High Court injunction. The Court of Appeal subsequently lifted that ban. In the trial on the merits the couple succeeded partially and was awarded damages ().

The Douglas v Hello case explores the status quo of UK privacy law concerning injunctions after the coming into force of the Human Rights Act 1998. The Court interprets the law of confidentiality in a way to respect the European Court of Human Rights (ECHR). The conflict within ECHR between Article 10(2) (“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”) and the right to privacy (Article 8(1): “Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There are shell be o interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”) and freedom of the press (Article 10(1): “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises”) is solved by reference to the 1977 Press Code of Practice: Privacy prevails where is can be reasonably expected. The Douglas v Hello case further shows how the standards apply to the grant of an injunction.

In general, privacy law in Britain seems to be improving. However, there have been only a few privacy claims in total. On of the main reasons for this is the low damages paid when a case is won. For example, Naomi Campbell in the Campbell v Mirror Group Newspapers case received only £2500 of damages. The Douglas’ in the Douglas v Hello case received only £3750 each in total.

If to summarise the current issues in privacy law in Britain, it would be the questions of whether there is an interest capable of being protected, and the extent to which the disclosure proposed is in the public interest.

Particular difficulties also arise when an invasive story is based on the testimony of a third party who wants to tell his or her story. That is what practically happened in Beckham v The News of The World (NOW) case. Beckham’s relied on a written and signed confidentiality agreement that they had with their nanny. But after nanny left the job, she wrote a story about the “real private life” of Beckham’s family and NOW was intend to publish it. (). Although Beckham’s applied to court against NOW to prevent it from publishing the story provided by their former nanny, and in British privacy law it is clarified that “Information must have been imparted in circumstances importing an obligation of confidence (employer v employee for example)”, the judge decided that the story could still be released. Most of the lawyers agree that this was the wrong decision to make, and an appeal of this case would more likely be in the Beckham’s favour. However, this would be more reactive rather than proactive action, after a breach of confidence already took place.

In conclusion, the privacy law in Britain has improved rapidly in recent years, but it is still far behind US privacy law and in many cases European law (von Hannover v Germany case for example). The British law needs improvements and far more attention than it presently has. Nevertheless, it has a good chance of improvement in the future.

Bibliography

Hewitt, P. (1977). Privacy Report, National Council for Civil Liberties, London UK.

http://news.bbc.co.uk/1/hi/uk/4486721.stm

http://www.4-5graysinnsquare.co.uk/news/index.cfm?id=1394

Tugendhat, M. and Christie, I. (ed.) (2002). The law of privacy and the media, Oxford University Press.

Warren, S. and Brandeis, L. (1890). The Harvard Law Review.