During the Hellewell case, the judge noted that if one with a telephoto lens were to take a picture of someone engaged in a private act without his or her permission, any subsequent disclosure of the photograph would surely amount to a breach of confidentiality, and therefore may lead to a right to privacy. As prescribed in paragraph two, a public interest need may outweigh the right to privacy.
The foundation of privacy law post HRA was built by the case of Douglas v Hello. The Court of Appeal recognised the right of privacy in English law by developing and adapting the existing law of confidence, to allow them to protect the rights of aggrieved parties under Article 8.
This case was soon followed by Thompson & Venables v News Group Newspapers. Lady Justice Butler-Sloth said that the need to protect the defendants from death or serious injury, therefore invoking Article 8, overrides the need for freedom of expression under Article 10. The case of Tammer v Estonia confirmed by the ECHR that a decision to allows a private individual to invoke Art 8 would be compatible with Art 10.
In R v Peck, the court found the Council's disclosure of the relevant video footage was a serious interference with the applicant's right to respect for his private life, and therefore there was a violation of article 8 of the Human Rights Act. It was suspected that the claimant would have suicidal tendencies, but it was decided that this was not a strong enough reason.
The case of A v B plc soon followed, and the court recognised that a breach of confidence would be an appropriate head of claim where the protection of privacy was being sought. This is a development from Kaye. (Ibid)
In the circumstance we are faced with, it could be said that public figures are courting the attention of the media, and therefore their private life can be laid bare to the media, this was rejected by the court in Campbell v Mirror News Group .
Article 8(1) describes in what circumstances the act can be invoked to protect ones privacy. It could be argued that because the information is in possibly a public place. E.g. a hospital, then the information is already in the public arena, therefore not covered by privacy law. This argument was used by the Daily Mirror, as the Queen attempted to obtain an injunction against the paper to prevent revelations by a footman. It was argued that as Paul Burrell’s book had already revealed the information, it was already in the public domain. It was also raised that Article 10 should be invoked to promote freedom of expression.
In Z v Finland, the court made an important observation. ‘the protection of…medical data is fundamental importance to a persons enjoyment of his or her respect for private life”. This quote was cited in Campbell, and this also raised the point of ‘sensitive personal data’, which attracts special protection under the Data Protection Act.
So that the information, which has been surreptitiously procured, about ‘Tony Blair’ can be classed as private, it will need to fulfil the criterion as when protected by the law of confidence. In Douglas II, the judge commented, “to the extent that privacy consists of the inclusion only of the invited and the exclusion of all other.”
This quote surely includes the photographer taking pictures of Tony Blair without his permission or knowledge, as the photographer is not invited, therefore impliedly excluded. As described above, even if the pictures are taken in a semi-public place, this does not automatically mean they are in the public domain, as described in R v Peck. Under s8 Public Order Act, and from discussion in Ruckwire v DPP a hospital is a public place, therefore it could be argued by the journalist that it was in the public domain, although in this situation Peck would offer more sound reasoning.
As Tony Blair is a public figure, it could be argued that he has impliedly consented to interference into his private life, and in effect wavered his right to privacy. This concept was composed in Woodward v Hutchings. Although this case is twenty-five years prior to the HRA formulation, it still gives foundation to breaches of confidence, and therefore privacy. Two approaches are used to apply implied consent, the ‘blanket’ and ‘differentiated’ approaches. The blanket approach is heavily criticised. The former simply removes all rights to privacy. The alternative is the ‘differentiated’ approach, whereby protection for private life is lost only where the applicant has courted publicity in relation to the same area of private life as that covered by the complained-of publication.
It is difficult for the courts to decide which article has priority. In Thompson and Venables , Article 10 was compared to Article 8 and Article 2, of which Lady Justice Butler-Sloth rightly decided that Article 2 should prevail. But what of these two competing articles. Should one take priority, then the other is used to strike it down, using the reasons given in the second paragraphs, or should a decision be made proportionately, based on the facts.
Article 10(2) provides exceptions to the enforcement of this article. Especially as prescribed by the same, ‘for preventing disclosure of information received in confidence’. To justify such interference to the right, it must be accepted that a breach confidence is well founded, as in the situation it is.
A resolution to the conflict and competition of the two articles would be to analyse section 12(4) (a) (i). In the surrupticious nature of the acquisition of the photographs, the journalist has breached the implied confidence. In promotion of this view, we could consider Douglas v Hello, although it was accepted that the way in which the photographs were taken breached confidentiality. Due the public nature of the wedding and the fact that the couple did allow photographs to be taken, the court did not allow an injunction. This view can be transposed to Tony Blair’s circumstance, clearly he was in private, and he would not want photos taken of him.
As accepted in A v B, the weaker the argument for Article 8 to be invoked, the less likely it shall take priority over Article 10. A different view was taken by the EctHR in Sunday Times v UK,
‘The choice is not between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted’
Sedley LJ commented that s12 does not simply give Article 10 an automatic priority over Article 8. As Simon Brown LJ explained in Holdings Ltd v Bannerjee, we cannot rank Article 10 higher than Article 8, as the basic rights cannot be competing against one another. This again was emphasised by Lindsay J in Douglas II, ‘there is no presumptive priority’ given to freedom of expression when it is on conflict with another convention right.
As from the judgment in Venables, the dicta amounts to the most comprehensive endorsement of the presumptive priority of Article 10, not only over Article 8, but over other Convention rights. Butler-Sloss P stated in Venables:
‘The onus of proving the case that freedom of expression must be restricted is firmly upon the applicant seeking relief. The restrictions sought must…be shown to be…justifiable as necessary to satisfy a strong and pressing social need, convincingly demonstrated, to restrain the press…and proportionate to the legitimate aim pursued’
It was considered in the ‘useful guidance’ given by the Council of Europe Resolution 166 5 of 1998. These rights are neither absolute nor in any hierarchical order, since they are of equal value. This does not provide any satisfactory resolution, as no guidance is given to which, if any should take priority.
There is a clear public interest for the need to know the state of health of Tony Blair, but an important balancing and possible outweighing factor in this situation is the surrupticious nature of the photographs. As Brooke LJ remarked,
‘In the absence of any public interest the court is especially bound to pay particular regard to the PCC and a newspaper which flouts the code may have its claim to freedom of expression trumped by Article 10 (2) considerations of privacy.’
Although the clear commercial cynicism of Hello’s actions, the judge found that a clear breach of the PCC through the surrupticious photography was such to tip the balance against freedom of expression. As breach of confidence is only remedied by equitable principles, therefore the judgement given must be made taking into account all circumstances, and if either party has acted bona fida, if not must bare the consequences.
Bibliography
References Books
Human Rights in the UK (First Edition), David Hoffman & John Rowe. Pearson Education.
Tort Series 2001, Giliker & Beckwith. Sweet & Maxwell
Constitutional & Administrative Law Fourth Edition, Hilaire Barnett. Cavendish Publishing
Articles
Transforming Breach of Confidence, Gavin Phillipson. Sweet & Maxwell
A Right to Privacy? N.W Barber. Sweet & Maxwell
Human Rights Seminar; Privacy & Policing. Keir Starmer QC
Cases
Holdings Ltd v Bannerjee
Sunday Times v UK
Woodward v Hutchings
Ruckwire v DPP
Douglas II
Z v Finland
Campbell v Mirror News Group of A v B plc
R v Peck
Tammer v Estonia
Thompson & Venables v News Group Newspapers
Douglas v Hello
Perry v United Kingdom
Hellewell v Chief Constable of Derbyshire
Kaye v Robertson
Lord Irvine of Lairg, Hansard H.L cols 784-785, November 24, 1997.
AG v Guardian Newspapers [1990]
