(6) Breach of confidence
English law does provide some protection against abuse and unauthorised use of confidential information. It is possible for a breach of confidence to give rise to a claim for an invasion of privacy, for example, the taking of unauthorized photographs or films of a person or his home. This is based on a ‘confidential relationship’ as stated by the court in the Spycatcher case. In this case it was held that a breach of an obligation not to take photographs may allow a claimant to bring action for breach of confidence. In Shelley Films v Rex Features, the defendant was prevented from using photographs taken on a film-set that had signs prohibiting photography. Furthermore, in Creation Records v News Group Newspapers Limited, a photographer from The Sun newspaper published photographs taken during a photo shoot for the cover of a new record by the rock group Oasis. Even though the photographer was lawfully at the scene, the court still found that the security measures at the shot made it arguable it was intended to be confidential. Therefore an injunction was granted preventing the publication of the photographs. In contrast, in other areas it has been a difficult task for the courts to balance the total protection of privacy with the public interest. In the recent past, authors of books containing confidential government material have faced litigation by the government in order to prevent publication of that material and there was also the ‘possibility of prosecution under the Official Secrets Act 1989’.
In its original decision in the Spycatcher case, the House of Lords upheld an injunction against several newspapers who wanted to publish serializations of Spycatcher immediately after its publication in the United States. In its subsequent decision the House of Lords decided not to grant a permanent injunction. It seems very unlikely that the House of Lords preferred to safeguard free speech over maintaining confidentiality, ‘since this decision was mainly based on the fact that the confidentiality had already been broken and no such duty was owed by the third parties’. Thus, the House of Lords adopted a more practical standpoint and found that a permanent injunction in the UK was depicted as being futile in view of the fact that the material had already been published. Nevertheless the court stated that: “…the right to personal privacy is clearly one which the law should in this field seek to protect”. They also noted that an injunction would have been granted in relation to the publication if it had first been made in the UK: “…there is no room for discrimination between secrets of greater or lesser importance, nor any room for close examination of the precise manner in which revelation of any particular matter may prejudice the national interest.”
In the case of A-G v Punch Ltd (2001), the court looked at confidentiality in relation to David Shayler. The Court of Appeal decided to grant the appeal of Punch and its editor, James Steen, against their convictions for contempt of court since, amongst other things, it could not be shown that the disclosure by them of information supplied by Shayler defeated, in whole or in part, the function of the court in granting the injunction. In contrast, during 2001 Dame Stella Rimington, who had been Director General for MI5 for four years, published her memoirs Open Secret, which contained confidential government material. Although the Home Office stated that the government ‘regretted’ Rimington’s decision to publish the book, it still said that for the most part it would not resist its publication. It seems that this was because the memoirs were edited to appease both MI5 and the Government itself.
The problem faced by the court of balancing the total protection of privacy with other public interests is expected to continue into the future following the incorporation of the conflicting rights to privacy in Article 8 and freedom of expression under Article 10. This could have been the case in September 2000 where the celebrity couple, David and Victoria Beckham, sued Andrew Morton in relation to his ‘unauthorised biography’. This biography revealed intimate details about their personal and professional lives. Furthermore, Andrew Morton had gathered the information from a former bodyguard who had already signed a confidentiality clause on commencing employment with the Beckhams. However, this matter was settled out of court on the basis that 200 offending words were deleted from the manuscript. On the other hand, if the case did proceed to trial, then the court would have had to weigh Andrew Morton’s right to express himself under Article 10 with the Beckham’s right to privacy under Article 8.
(7) Which types of activities or information constitute “Private Life”?
To determine the limits of a tort of invasion of privacy it is essential to define the limits of the “private life” which the law aims to protect. There has never been an attempt to create a thorough formal definition. In this sphere, as in many others, the common law proceeds with a “molecular” motion. Thus, new categories are being added by analogy and established ones on a case to case basis. However, it is still important to assist advisers and courts in assessing new and borderline cases. Useful assistance for creating a definition can be obtained through a number of sources. Firstly, there is Article 8 of the European Convention on Human Rights which states that: “(1) Everyone has the right to respect for his private and family life, his home and his correspondence”. By taking into consideration the meanings of these words the courts are, evidently, dealing with the ‘human rights to privacy’ rather than private law rights. Nonetheless, the convention case law does provide some guidance as to the meaning of ‘home’ and ‘private life’. A few of the areas it covers are: the business premises of a professional person; sexual activity, even where a number of people are present and the activity is video taped; and a photograph taken during an interview at an army centre (but not a photograph taken during a political demonstration).
Furthermore, there are ‘privacy codes’ which apply to the press and to broadcasters. Clause 3 of the PCC Code states that: “(i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual’s private without consent. (ii) The use of long lens photography to take pictures of people in private places without their consent is unacceptable. Note – private places are public or private property where there is reasonable expectation of privacy.” The privacy codes of the ITC and BSC make specific provisions in relation to matters such as: filming in public and semi-public places; filming police operations; filming in circumstances of distress; revisiting past events; secret filming and the use of children in programmes. All these are areas which could potentially be the subject of protection by a tort of invasion of privacy.
CHAPTER 2:
THE IMPACT OF
THE HUMAN
RIGHTS ACT
(1) Media law, Privacy and Human Rights
Even in the absence of ‘horizontal’ application, it is likely that the Human Rights Act will have considerable impact on media law. It is clear that there are many situations in which the media infringes the private life and home of individuals. Although the press is not governed by direct state regulation, it is strongly arguable that the Press Complaints Commission is a functional public authority and, as a result, it must act in conformity with Article 8. In comparison, The Broadcasting Standards Commission is a body established by statute and is also a functional public authority. Consequently, if the Press Complaints Commission or the Broadcasting Standards Commission failed to establish and effectively police a regulatory regime which provides proper protection for Article 8 rights then their actions may be unlawful under section 6 of the Human Rights Act. Therefore, the ‘victim’ may be entitled to damages or injunctive relief. On the other hand, the effect of ‘privacy rights’ in the media law context gives rise to complex issues of balancing of the rights under the convention.
Similar to the rest of the Convention, Article 8 is interested in providing guarantees against the activities of the government or other public bodies. But the European Court has developed an idea that in some respects the Convention puts a ‘positive obligation’ on the member states to make provision in their laws for other rights as against the government or as against other private bodies or individuals. This notion of ‘positive obligation’ has been primarily used in the context of Article 8. The issue concerning protection of privacy has been raised on several occasions on applications from the U.K. However, none have yet gone beyond the admissibility stage and on each occasion the Commission found that other remedies could satisfy any requirement under the convention. Relatively recently the Commission held that the developing law of breach of confidence could well satisfy whatever positive obligation existed in this area. While the Human Rights Bill was being debated, the media were vocal in their concern that the UK courts would create a fully developed right of privacy in our law. The result was the inclusion of s.12 in the Human Rights Act. This gave some protection against interim injunctions and highlighted the importance of the extent to which material the claimant sought to suppress was already in the public domain or was of public interest. On the other hand, it also obliged the court to have regard to “any relevant privacy code”. The courts will read this as a further incentive to develop a UK law of privacy.
(2) Human Rights, Privacy and Recent Cases
A number of commentators have suggested that the HRA will give a decisive impetus to the pre-existing but slow development of a new tort of privacy at common law. Just over five years ago Lord Irvine LC said in the course of debates on the Human Rights Bill that: “the judges are pen-poised regardless of incorporation of the convention to develop a right of privacy to be protected by common law … it will be a better law if the judges develop it after incorporation because they will have regard to article 8 and 10, giving Article 10 its due value … I believe that the true view is that the courts will be able to adapt and develop the common law by relying on existing domestic principles in the laws of trespass, nuisance, copyright, confidence and the like to fashion a common law right to privacy”. The response of the courts to these suggestions has been ambiguous. The case law after 2 October 2000 does not speak with one voice.
In H (A Healthcare Worker) v Associated Newspapers Limited Lord Phillips referred to: “the development of the law of privacy, under the stimulus of the Human Rights Act, under which the possibility of a new civil law right is being recognised as one that can be legitimately protected by the grant of an injunction.” In contrast, in Wainwright v Home office, the court of Appeal held that there was no common law tort of invasion of privacy. Lord Woolf CJ commented that the HRA “certainly cannot be relied on to change the substantive law by introducing a retrospective right to privacy which does not exist at common law.” The judges were divided as to whether or not a tort of invasion of privacy was desirable. Mummery LJ foresaw “serious technical difficulties and conceptual problems in judicial development of a ‘blockbuster’ tort vaguely embracing such a potentially wide range of situations.” He suggested that because “privacy” covers an extremely wide range of cases, which are affected by an extremely wide range of policy considerations, the social balance should be struck by parliament and not by the judges. On the other hand, Buxton LJ said that recognition of a right to privacy is an attractive prospect but “authority in this court precludes our taking that course.”
It is already clear that the UK parliament has refused to legislate to protect privacy from media intrusion. The European Convention on Human Rights and the Human Rights Act may spur the judiciary to act instead. The law of breach of confidence has shown capacity for growth and the government is adamant that it could go even further, as illustrated in Spencer v UK. This argument was not lost in the Court of appeal in Douglas v Hello which considered that Kaye v Robertson may well be decided differently today. However, In a thorough and clear judgment handed down in the High Court, on 11 April 2003, Mr Justice Lindsay found for Michael Douglas and Catherine Zeta-Jones in their action for breach of confidence (with an award of nominal damages under the Data Protection Act), but against them in their privacy claim. The judge found that despite the massive publicity which accompanied the wedding, it was nonetheless "private". He also found that the contract with OK Magazine was "a means of reducing the risk of intrusion by unauthorised members of the media and hence of preserving the privacy of [the wedding]." The judge made some important observations about the law of privacy in dismissing the claimants' claim in that respect. The main reason he gave for dismissing that part of the claimants' action was that he doubted that UK law had a distinct right of privacy. He observed that the case of Peck showed that UK law did not adequately protect the European Convention right in this respect. He said that Parliament should step in to correct this deficiency, but that if Parliament failed to grasp the nettle the court would ultimately have to do so. That would not happen until the court was faced (as it was not here) with a claim where breach of confidence did not provide an adequate remedy.
It was arguable that other jurisdictions, in general terms no less free or democratic than England and Wales, had apparently workable laws of privacy which neither oppressed nor stifled, the judge (Mr Justice Lindsay) said. It was also apparent from the remarks of Lord Justice Sedley in one of the earlier hearings in the Court of Appeal that a strong case could be made, by way of the Convention and the Human Rights Act coupled with decisions of the European Court of Human Rights, that "in some respects we do now have a law of privacy". However, Mr Justice Lindsay declined to accept the invitation to hold that there was an existing law of privacy under which Mr Douglas and Miss Zeta Jones were entitled to relief.
Another example, which illustrates the capacity for growth of the law of breach of confidence under the stimulus of the Human Rights Act was the injunction granted by the High Court to protect the new identities of the killers of Jamie Bulger after their release from custody. Their new identities and appearances were confidential and the judge decided that the need to protect them was paramount in view 9of the risk of revenge attacks. The high risk of such attacks allowed the applicants to invoke article 2 of the European Convention on Human Rights, which is ‘the right to life’. The judge granted the injunction against the world so that it would apply directly against all newspapers rather than rely on the indirect effect of the law of contempt.
There has been some debate on the impact of the Human Rights Act 1998 on individual privacy. Privacy has traditionally been protected under the law of confidence. However, the precise limit of what is 'private' in the first place has been heavily prescribed by the principle of freedom of expression. In the recent Court of Appeal case A v B Plc, as mentioned before, Woolf LCJ discussed the relationship between the law of confidence, the Act, the right to privacy and freedom of expression. A footballer (Gary Flitcroft) had what were described as 'adulterous relationships' with women who subsequently sold their stories to the defendant newspaper. The footballer claimed these disclosures were made in breach of confidence and should not be published. Woolf LCJ held that the degree of confidentiality that attached to the affairs was so modest that it was outweighed by the women's right to freedom of expression. The affairs were unstable relationships and as such were not capable of creating a relationship of confidence. The quality of the relationships was relevant because it revealed the context in which the sexual confidences arose. However, as noted by Sedley LJ in the Douglas v Hello case, an existing relationship is not a necessary condition; instead it must be clear from the circumstances that an obligation of confidence arises. Woolf LCJ approved the principle that neither freedom of expression nor privacy is absolute or hierarchical. The fact that one party wishes not to preserve a confidence does not extinguish the other party's right to privacy. Factors such as whether the individual is a public figure, a role model or has courted publicity are highly relevant. Public figures are entitled to some privacy, but this should be balanced with the public's understandable and therefore legitimate interest in public figures. If newspapers do not publish articles that the public want, fewer newspapers will be published, which would not be in the public interest; there is public interest in freedom of expression itself.
These principles can be seen in the widely publicised Naomi Campbell case (as briefly mentioned before). In that case, the defendant newspaper published an article disclosing that, contrary to Miss Campbell's prior assertions; she was in fact a drug addict and receiving counselling for her addiction. The article then gave details of precisely when and where that counselling was taking place and its format. Photographs of Miss Campbell leaving counselling sessions accompanied the article. Subsequently, the newspaper published further articles. Miss Campbell shrewdly conceded that the public had a right to know that she was a drug addict and receiving therapy; she had courted publicity and set herself up as a role model who had not succumbed to drugs. Morland J held that notwithstanding this she was entitled to some privacy. The first article and photographs had breached that right and the further articles had aggravated the matter. Miss Campbell had attended the sessions dressed in a low-key manner and engaged in the private activity of therapy. The actual content of that therapy was private even though it only consisted of counselling. In addition, the newspaper's 'processing' of Miss Campbell's 'sensitive personal data' for 'journalistic purposes' had been an infringement of the Data Protection Act 1988.
It would appear that the recent case law has begun to define the precise scope of those interests that can legitimately be protected as 'private'. However, as Woolf LCJ recognised, each case is heavily dependent on its facts. What is private in each case will therefore be different, sometimes very different. However, there is no doubt that the scope of the Human Rights Act will continue to be tested in the Courts over the next few years. The interests of writers and publishers are likely to centre on the balance between respect for private life and the right to freedom of expression. The recent developments by the English law may only be the thin end of the wedge. The courts may interpret the laws of privacy further to cover an even wider range of scenarios.
CHAPTER 3:
HOW EFFECTIVE ARE MEDIA REGULATORS?
(1) How Extensively is Privacy Protected?
The ever-increasing significance of privacy issues over the past twenty years has been epitomized by the increasing activity of media regulators. Since the 1960’s there have been a number of draft privacy bills promoted. Furthermore, since the 1970’s various committees have published reports which, on the whole, have recommended greater regulation of the media. The Broadcasting Act 1981 created a Broadcasting Complaints Commission (BCC) to deal with complaints about fairness and invasion of privacy. During 1996 the BCC was replaced with the Broadcasting standards Commission (BSC) which was required to draw up a code that could help to avoid “unwarranted infringement of privacy in, or in connection with the obtaining of material” included in radio and television programmes. However, statutory regulation of broadcasters has never been extended to the print media. The press council was set up in 1953 in order to censure unacceptable journalistic conduct, but it was generally perceived as a ‘toothless watchdog’ and in 1989 a private members’ bill aimed at setting up a statutory complaints body received a lot of encouragement. As a result, the government set up a committee chaired by David Calcutt QC to consider “privacy and related matters”. In 1990 the Calcutt report recommended that the Press Council should be replaced by a Press Complaints Commission (PCC), which would demonstrate “that non-statutory self-regulation can be made to work effectively.”
(2) The Regulatory Codes
Even though the law does not generally recognise a right of privacy as such, the different Codes of Practice which regulate the activities of the media all contain provisions relating to privacy. Whether or not the media complied with the relevant code is a matter that the court should consider whilst deciding when relief should be granted, although it is not determinative. The codes share a common characteristic that compliance with their provisions is not a legal obligation. A breach of the Codes does not necessarily mean that the defendant has acted unlawfully. However, due to the scheme of s.12 of the Human Rights Act, the provisions of the Codes have come under close scrutiny by the courts in cases involving assertions of infringement of privacy.
(2) (i) The Press Complaints Commission (PCC)
The PCC is a voluntary organisation set up and paid for by the press. Most of the print media subscribe to the PCC and there has been substantial debate over and criticism of its operations. Unlike most other regulators, working journalists and editors serve on the PCC together with lay members. The PCC code is the shortest of the regulators’ codes and it has been regularly updated.
The Press Complaints Commission (PCC) receives many complaints from members of the public regarding (among other matters), infringement of personal privacy. The Commission has published a Code of Practice (see Appendix 4) which provides professional standards in respect of reporting in the printed media. The code covers all newspapers, whether daily or weekly and whether national or local. It also covers most magazines, except those which are available only on subscription. Complaints have to be made in writing to the Commission and should include: a cutting of the complete article; a summary of the complaint and how it has breached the code; and copies of any relevant correspondence. After receiving this information, the Commission will make an initial evaluation as to whether the complaint shows a breach of the code. If it does not show any breach the Commission will write to the complainant informing them of that decision and will send a copy of the complainant’s letter to the editor of the newspaper concerned. If the Complaint does reveal a potential breach, then the commission will send a copy of the complainant’s letter to the relevant editor and investigate the matter further. If the complaint is upheld then the newspaper concerned will be asked to publish the adjudication of the PCC with “due prominence”.
Most of the provisions in the Code of Practice came into force in January 1998 and in part reflected by public and media concern over press activity in the wake of the death of Diana, Princess of Wales (See Appendix 5). In the view of the PCC chairman (at the time), they represent a ‘substantial toughening’ of the Code. He made a specific reference to material obtained through persistent pursuit in the harassment provisions of the Code. He also referred to the onus on publication, to ensure that the sources of their material have complied with the Code and that it is intended to stamp out the market in the UK for photographs of celebrities obtained from photographers who stalk, pursue or hound their subjects.
(2) (ii) Private Places
In the case of Begum Aga Khan and His Highness the Aga Khan v Daily Mail, the complaint was related to a photograph showing the complainants on the deck of their yacht. The complainants argued that the photograph had breached clause 3 (privacy) of the Code. They stated that it must have been taken form a private Island near to where the yacht was moored to preserve privacy. The Daily Mail argued that the decks of the yacht was in full sight of casual observers, it was moored on the Mediterranean in the middle of summer and was not therefore a place where the complainants could expect privacy. ‘If they wanted privacy they should have gone below the deck’. However, the PCC decided to uphold the complaint. They held that when the photograph was taken, the complainants had been on board their private yacht, moored near a private island on which the general public was not allowed. Therefore, this was a place where there was a reasonable expectation of privacy.
In the case of Sir Elton John v The Sport, the complainant argued that a photograph of guests relaxing in the privacy of his home in the South of France was a breach of clause 3 of the Code. He claimed that the photographs had been taken secretly, possibly from the top of a ladder placed against the wall of Sir Elton’s property. The PCC upheld the complaint. It stated that an individual had the right to respect for his home life. The taking of photographs and the subsequent publication intruded into that home life and into the privacy to which he and his guests expected. There was no public interest justification. The Daily Mail argued adamantly that the pictures were taken form a public footpath adjacent to the property. However, this made no difference to the PCC’s decision against the newspaper. Furthermore, in the case of Sir Paul McCartney v Hello, Sir Paul McCartney argued that the publication of photographs of him with his family in Paris, just after his wife’s recent death, were in breach of clause 3 (privacy) and clause 5 (Intrusion into grief and shock). The photographs showed him and his children walking through Paris, eating lunch and visiting the Notre Dame cathedral. Hello stated that the pictures were obtained from news agencies rather than being specially commissioned. They editor of Hello also stated that the picture of the cathedral had been added without her consent. Hello also made the point that the photographs showed the family’s very close relationship. However, the PCC decided to uphold the complaint and it stressed that the editor was responsible for the content of her publication. The argument that the pictures had been obtained through news agencies was irrelevant, as was the fact that a picture was added without her consent. Furthermore, the claim that the public interest was served by showing the close relationship of the family was also rejected. The PCC ‘deplored’ the photograph in the cathedral because it was a place of worship, and it was a clear example of a place where there was a reasonable expectation of personal privacy.
The interpretation of “privacy” under the PCC code was also considered in the relatively recent case of R (Ford) v Press Complaints Commission. The complainant, a famous television journalist (Anna Ford), sought permission to apply for judicial review of the PCC’s decision to reject her complaint about publication of photographs of her and her partner on a secluded but public beach abroad. However, Silber J refused permission due to the “broad discretion” given to media regulators and the “extended defence given by the courts” to their decisions. This approach is very controversial and questionable. In contrast to the decision in Ex parte BBC on which the court relied, the PCC was taking a more narrow view of the scope of “private life”. In such a situation it is not appropriate to defer to the regulator. This is a case in which the court should have made a primary judgement as to whether the applicant’s privacy had been invaded by the publication of the photographs. Therefore it seems that this case may have required a full hearing, and permission for judicial review should have been granted.
(2) (iii) Procedural Drawbacks of the PCC
Unless there are special circumstances, the PCC will consider only complaints made within one month of publication or one month after the last correspondence with the editor of the newspaper or magazine. The PCC will not consider complaints where the complainant is also bringing legal proceedings against the publication. Furthermore, the PCC will not consider hearings, and due to this, all representations are made in writing. For this reason, disputes of evidence cannot be resolved. Any publication which is criticised by the PCC is only required to print the adjudication, and the PCC has no power to award compensation.
(3) TV and Radio
(3) (i) The Broadcasting Standards Commission (BSC)
The Broadcasting Standards Commission (BSC) is a statutory regulator designed to cover matters of fairness, privacy, taste and decency in all categories of broadcasting media (most commonly T.V and Radio). It considers and adjudicates on complaints, and it also monitors and reports on the standards of broadcasting. Its remit covers programmes broadcast by the BBC and by commercial broadcasters whether on cable or satellite. However, there is an overlap with the operation of the ITC, which regulates only commercial broadcasters. The BSC has produced a “Code on Fairness and Privacy” which deals with matters including: hidden microphones and cameras; recording of telephone calls; door-stepping; Suffering and distress; and children.
The BSC “Code on Fairness and Privacy” provides that an infringement of privacy will not be acceptable unless there is an “overriding public interest” in disclosing the information. This can include the revealing of criminal or disreputable behaviour, protecting public health or safety, exposing misleading claims or disclosing significant incompetence in public office. In addition, the code states “for much of the time, the private lives of most people are of no legitimate public interest.” On the other hand the UK Parliament did not define privacy in any of the Broadcasting Acts. In R v Broadcasting Complaints Commission, ex parte Granada Television the broadcaster argued that a finding of infringement of privacy could not be made in relation to matters which were already in the public domain. The Court of Appeal held that it was a reasonable supposition to say that the Broadcasting Act did not contain a definition because Parliament “considered it more appropriate that the difficult questions of fact and degree and value judgement, which are raised by the question of the concept of an infringement of privacy, are best left to a specialist body … whose members have experience of broadcasting”. In this case the Court of Appeal also stated that this did not preclude there being an invasion of privacy, even though this matter has previously been put in the public domain. It was an issue of fact and degree for the regulator.
The significance of the specialist role of media regulators in determining what is meant by “privacy” was also emphasised in the case of R v Broadcasting Complaints Commission, ex parte BBC. In this case, the BBC had secretly filmed several sales transactions in Dixons stores to check whether they were selling some second hand goods as new. The BSC held that the actions of the BBC had amounted to an unwarranted infringement of Dixons’ privacy. The BBC decided to challenge this adjudication through judicial review arguing that a company could cot complain about an infringement of privacy because this was by its very nature personal and human in nature. However, the Court of Appeal upheld the decision of the BSC because complaints of invasion of privacy could be made by a corporate body. The court of appeal made it very clear that media regulators had a “broad licence” in exercising their judgement and discretion in relation to complaints of infringement of privacy. Lord Woolf summarised this position in the following terms: “So long as the approach which the BSC adopt is one to which, in their statutory context, the words ‘infringement of privacy’ are capable of applying then the courts should not interfere. It is only if an approach of ‘infringement of privacy’ by the BSC goes beyond the area of tolerance that the courts can intervene”.
However, both the Ex parte Granada and Ex parte BBC cases involved challenges by the media to adverse privacy adjudication. In both cases the regulator had given the Code an interpretation which was probably wider than that required by the common law or Article 8. The position may have been different if the regulator had taken a narrower interpretation of ‘privacy’ than the common law or article 8, as illustrated in the case of R (Ford) v Press Complaints Commission. Furthermore, Lord Woolf stated in the Ex parte BBC case that: “to construe a statute so that it does not provide less than the protection given by the Convention can be appropriate, but I would resist the use of the Convention to cut down the protection which a statute would otherwise provide”. Therefore, a regulator that rejects a privacy complaint due to a narrower view of the extent of private life should not be given the same “margin of tolerance” afforded in the Ex parte Granada and Ex parte BBC cases, and the court is likely to be more prepared to intervene.
The BSC does not have the power deal with privacy complaints before the programme has actually been broadcast. This issue is illustrated in the case of R v Broadcasting Complaints Commission, ex parte Barclay. In this case the Barclay brothers made a complaint, prior to broadcast, that a BBC film crew had, without permission, visited their private island. The BCC refuse to deal with this complaint because there is no jurisdiction to consider such a complaint. In addition, the complainant’s application for judicial review was rejected by Sedley J. He stated that the terms of the Broadcasting Act 1990 limited the power of the BCC and that it could not deal with a privacy complaint prior to the programme being broadcast. He also suggested that this meant that there was no effective remedy for breach of privacy and that this was inconsistent with European Convention rights.
(3) (ii) Procedural Drawbacks of the BSC
Only the person affected or someone authorised by him may make a complaint to the BSC. The BSC may refuse to consider a complaint if the person making the complaint was not the subject matter, and he did not have sufficient direct interest. The BSC does have oral hearings but these are not open to the public. In addition, when the BSC adjudicates against a broadcaster the adjudication does get published in its monthly bulletin and on its website. However, the BSC has no power to fine or order publication of an apology or correction. Sometimes the broadcaster is asked by the BSC to broadcast a summary of the adjudication. There is no right of appeal against all BSC decisions; nevertheless they are subject to judicial review.
(3) (iii) The Independent Television Commission (ITC) and the Radio Authority
These two statutory bodies grant licences for independent television and radio services. The terms of these licences expect the licensees to comply with the codes of practice which these two bodies draw up and enforce. They can impose breaches of privacy by telling the broadcaster to either publish a summary or an apology. The ITC Programme Code is probably the most in depth of all the regulatory codes. It includes detailed guidance for filming in public or semi-public places, for undercover filming and for filming people in distress. The ITC code looks at Article 8 and 10 of the European Convention and states: “As a public authority the ITC must seek to ensure that the guidance given through this code is consistent with Convention principles.”
In relation to public interest exceptions, it states that any act that relies on public interest must be proportionate to the actual interest served. Examples of what the ITC means by public interest are: the detecting or the exposing of a crime or serious misdemeanour; the protection of public health and safety; preventing the public from being mislead by some statement or action of an individual or organisation; and (similarly to the BSC) the exposing of significant incompetence in public office. The definition of “public interest” in the ITC code is different from that in other codes. Moreover, the ITC has the power to impose a financial penalty and the ITC also monitors programmes so that it may investigate matters without a formal complaint being made. In the event of a serious breach of code, the ITC can exercise its power to direct the licensee to broadcast an apology. The Radio Authority has two relevant codes, the Programme Code and the News and Current Affairs Code. However, there is no express reference to privacy in either.
(3) (iv) OFCOM
The government will be introducing a new media regulator, OFCOM, on December 15, 2003. It will take over the functions of the broadcast regulators, such as the ITC, the Radio Authority and the BSC, as well as ICSTIS and OFTEL. The act which introduced this idea is already in force. Under this new regulation there will be, in general, a deregulation of the broadcast media and probably a single code and more consistent adjudications. The position of the BBC in this new regime is not absolutely clear. The BBC is not a statutory body and it has been suggested that the BBC should be on a formal statutory footing and regulated by OFCOM like other broadcasters. However, it is very doubtful whether this will happen.
(3) (v) SURVEY
The survey, which I carried out on the 21st and 22nd of January 2003 (See Appendix 6), shows that a significant proportion of the people questioned would like the government to improve privacy regulations in the UK. The survey also shows that the public, at both locations, want their privacy to be protected just as much as celebrities or public figures. In addition, a substantial proportion of the sample, at both locations, believed that celebrities should be allowed to live in privacy. In contrast the majority of the sample believed that MP’s and other public figures should not be allowed to live in such privacy. This may be because the public want to know how the country is being run, and they do not want scandals to be ‘swept under the carpet’.
The survey seems to show that the public believe that the ‘rich’ benefit more from the privacy regulations in the UK. This result was achieved by a much greater majority in Perry Barr. This may be because the majority of the poorer public can not afford, or do not have the time to make a complaint about breach of privacy. In addition, the unavailability of legal aid effectively deters all but the intrepid or wealthy from taking action in libel. As stated before, the former chairman of the Press Complaints commission, Lord Wakeham, consistently argued that a law protecting privacy would be counter-productive, protecting only the rich.
Furthermore, the results also illustrate that the public, at both locations, believe that it would be right to make breach of privacy a criminal offence. This opinion shows that the public are far from happy about the way personal privacy is currently being regulated and they would like it to be more strictly governed. The survey also shows that the public want the Press Complaints Commission to have the power to award compensation. This may be because the public believes that making a complaint is not worth all the trouble if they can get no compensation for all the aggravation. The survey also illustrated the point that the general public believe that ‘public interest’ is more important than the personal privacy of MPs. As stated before, they would like to know about how the country is being run, even if this means the breach of an MP’s personal privacy. On the positive side, the public do believe that a single regulator of the media is a good idea. Therefore pending introduction of OFCOM will have some public support.
(3) (vi) Is There a Need for Reform?
There has always been a wide-ranging debate on the role of the press in our society. Its terms varied from, stressing the need for freedom from overt state control, and recently, the need to distance the press from the state. There have also been other debates embedded in this argument, for example, about the truth, accuracy and obligations of journalist. A further layer of complexity has been added by the fact that there has never been, ever since the press reforms of the nineteenth century, a comprehensive acceptance that the state has no role in regulating ‘privacy’ in the industry. A number of things will shape the context in which any new reforms may take place. They include the Human Rights Act, the Data Protection Act and the libel laws.
There have been many examples of European states that have established a legal right to reply or some form of binding sanctions on the press. This has usually been part of a constitutional or legal framework, which can also grant rights and freedoms to the press. In West Germany, before unification, press laws were established. The majority of these laws, as well as guaranteeing freedom to the press, they also contained an obligation of accuracy and thoroughness, and the press was required to check that the origin of content did not breach personal privacy. In addition these laws included a right to reply which obliged newspapers to ‘publish an accredited reply by any individual or organisation who had been misrepresented over a matter of fact’. In France a press law granting freedoms and imposing responsibilities on the press, including a right to reply, has existed since 1881. This system has ‘provided some notable positive rights and freedoms: the principle of right of access to official information, a right of reply, strict privacy laws protecting individuals against unwarranted press intrusion, and … protection afforded to journalists and their sources’. There is no evidence that this framework has resulted in state control of the press. By the late 1990’s a number of other European countries had both privacy and right of reply laws, including, Austria, Denmark, Norway, Spain and the Netherlands. The fact that these laws are evident in states other than Germany indicates that they are a practical option. Therefore United Kingdom has the opportunity to look at good European practice in this area and adapt it for domestic use.
Furthermore, a new Press Freedom Law plus a version of the Freedom and Responsibility of the Press Bill might go some way towards removing the power of employers over the complaints process, and involve more fully and effectively both journalists and the public in the task of framing and upholding press standards. They would also help to challenge the ability of employers and editors to claim that their interests are to be equated to press freedom. This can be done by providing mechanisms that would allow others to have a say in defining press freedoms and responsibilities. In addition, a ‘fast track’ system to correct complaints, backed by sanctions, would give authority to the complaints procedures. By its very existence the system would support the routine work of those journalists by applying the highest standards possible in their work, and by preventing distortion and breaches of privacy. Another advantage of this system is that it will provide a code of conduct which reflected the views of all sections of society, not just the rich and affluent, and it will provide a set of criteria by which the public can judge the activities of the press.
CONCLUSION
The adjudication of regulators, whether published or broadcast, has limited effect. Since regulators seek to avoid repeating the offending material, the adjudication tends to be enigmatic. In addition, some adjudications are anonymous, and this means that they often have limited value in providing either vindication for the complainant or future guidance for the media. Some BSC and ITC decisions must be broadcast, and all adverse PCC decisions must be published. Thus, broadcasters tend to take more steps towards avoiding invasions of privacy than the printed press (i.e. newspapers and most magazines). In practice, the lack of any other remedies, such as fines or awards of compensation, means that invasion of privacy will occur in all forms of the media. In general there is no restraint or monitoring. On the other hand, the public’s ‘right to know’ should not be blocked, as Lord Woolf said: “the courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest”.
On the whole, privacy is protected to a certain extent by regulators, their powers are limited and the ability to challenge their decisions, up to now, has also been very limited. It remains to be seen whether applications under the Human Rights Act or the regulation under OFCOM will improve this position. The major flaw in the regulatory system, as regards to the protection of privacy, is that the regulators have no power to stop broadcast or publication. The only remedy is adjudication, by which time the information has already been published and the damage done. Therefore there is clearly a lot of room for improvement.
APPENDICES
APPENDIX 1
Newspapers jumped the gun celebrating 'press freedom' victory
By Kim Fletcher
(Filed: 28/03/2002)
SO is there or isn't there a law of privacy? Do the famous have private lives? A fortnight ago, the answer was No. Newspaper editors celebrated a Court of Appeal judgment that promised freedom to publish whatever their readers might find interesting.
Attempts by lawyers to establish a law of privacy on the basis of article eight of the Human Rights Act, the right to a private life, seemed to have foundered on the competing right to freedom of expression, protected by article 10.
Now, after Naomi Campbell's victory over the Mirror, it is clear only that newspaper celebrations were premature. The territory must be fought all over again.
The case that seemed to assert the primacy of press freedom involved a philandering footballer who claimed that his affair with a lap dancer was a private matter and obtained an injunction to prevent the Sunday People reporting it. The People went to the Court of Appeal, where the judgment of Lord Woolf, the Lord Chief Justice, was widely interpreted to indicate that rights to freedom of expression under article 10 of the Human Rights Act readily outweighed rights to privacy under article eight.
"The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest," he said.
But Mr Justice Morland, hearing the Campbell case, did not see the public interest in such terms. He said that the Mirror was entitled to report Ms Campbell's addiction to drugs. But in publishing details of her treatment, gleaned from an inside source, it publicised matters that she was entitled to regard as confidential.
Many journalists are dismayed with the way in which famous people believe that they can turn on and off their celebrity. Many people - some of them journalists - believe that the press has become too intrusive. Neither Miss Campbell nor Piers Morgan emerged with any great credit from the case. She lied. He showed off. But the unattractive qualities of both parties should not be allowed to obscure the legal issue.
There is more at stake here than the right to write about what famous people do in their own time.
The fear is that lawyers will extend the notion of what can be regarded as confidential - conversations between business colleagues, tax discussions? - to prevent newspapers gaining and publishing information that may be of greater significance and more in the public interest than a model's drug addiction.
Much investigative journalism depends on information from insiders. What they have to say could be held to be a breach of confidentiality on the basis that there was an implicit expectation that they would not discuss these matters. If courts develop confidentiality into a law of privacy in this way, will wrongdoers be able to use the law to prevent their activities being reported?
The key test will be that old chestnut, the public interest. Journalists tend to want it to mean what the public is interested in. Lawyers prefer to define it more narrowly. Mr Justice Morland said it was in the public interest to report that the self-proclaimed clean-living Miss Campbell was a drug addict. It was not in the public interest to go into details of her treatment.
Lord Woolf, in the footballer case, appeared - to the delight and astonishment of journalists - to define public interest very widely. Journalists will hope that his is the view that prevails.
APPENDIX 2
Footballer loses year-long fight for privacy
Steven Morris
Saturday March 30, 2002
A married Premiership footballer who had affairs with two women yesterday made a last desperate attempt to prevent the media identifying him in a case with important implications for privacy laws and press freedom.
For almost a year Garry Flitcroft's lawyers have kept his name out of the headlines by claiming that under human rights and confidentiality laws, his privacy was being invaded by a Sunday tabloid which wanted to tell the women's stories.
However, earlier this year the country's most senior judge ruled that a high court judge had been wrong to stop the tabloid, the Sunday People, from publishing.
Over the past few days tabloid newspapers have been putting the finishing touches to in-depth stories about the 29-year-old Blackburn Rovers player and his affairs in readiness for midnight last night when an injunction preventing him being named ran out.
Yesterday his lawyers made a last-ditch effort when they argued his name should be kept secret until he had heard whether he had been given leave to take his case to the House of Lords, the country's highest court.
Though Flitcroft's wife is understood not to have known of his affairs last spring, when the People first planned to publish, she has since been told - and other newspapers have tried to persuade her to tell her side of the story. The footballer has also been offered large sums of money for his story but, according to his lawyer, Mark Lewis, has rejected the offers.
Ironically, naming Flitcroft will almost certainly be a letdown. Though successful and respected in the game, he is hardly a household name. The story, standard kiss-and-tell fare, has snowballed because of the legal implications.
The People planned to run the women's stories in April last year, but Flitcroft's lawyers secured an injunction halting publication.
They claimed that confidentiality laws - which are often used to prevent employees from revealing an employers' secrets - could also be applied to two parties in a love affair. They also argued that under article eight of the European convention on human rights, Flitcroft had a right to privacy.
The European convention, incorporated into English law in the Human Rights Act, has been seized upon by media lawyers since Catherine Zeta Jones and Michael Douglas claimed successfully in the appeal court that their privacy had been breached by a celebrity magazine which printed unauthorised photographs of their wedding.
Jamie Theakston, Sara Cox and, most recently, Naomi Campbell have all tried to invoke the Human Rights Act to protect themselves against alleged invasions of privacy.
When details of Flitcroft's case emerged last November, editors were aghast. In a judgment - which named neither the footballer nor the newspaper involved - Mr Justice Jack ruled that sexual relations were by definition confidential.
It was felt that the ruling could affect not only kiss-and-tell stories but serious investigative journalism. It was pointed out that the Profumo affair might not have come to light under the new laws.
On the Sunday after the ruling the People claimed that the judgment would "protect adulterous politicians and cheating celebrities and prevent abused women telling of their ordeals at the hands of such sexual predators".
Lord Wakeham, then chairman of the press complaints commission, wrote: "This judgment seems to me fundamentally to threaten that freedom and the public's right to know."
The People printed the women's stories anyway, though it could only identify them as Miss C and D and could not even say which position the footballer played in.
Miss C, a nursery nurse, claimed that the footballer had seduced her with lies about love and promises of marriage. Miss D, a lap dancer and former air stewardess, claimed that he lied to her that he was single before revealing he was married in a text message.
As the legal wrangles became more acrimonious, the People also claimed that the footballers' union, the Professional Footballers' Association, had helped the player to meet his legal costs.
Gordon Taylor, chief executive of the PFA, said the players' union would continue to support the footballer, but he would not comment on claims that it had paid £100,000 towards the legal costs.
Earlier this month Lord Woolf, the country's most senior judge, ruled that Mr Justice Jack was wrong to prevent the People publishing the interviews with the women.
He said public figures were entitled to privacy, but had to recognise that their public position meant that their actions would be subjected to close scrutiny by the media.
Blackburn Rovers are playing in Leicester today. Flitcroft, who has played for England schoolboys and England under-21s, is bound to face derision from opposition supporters when he runs out.
But Mr Lewis, his lawyer, said: "He will be getting on with playing football and will continue to try to keep his private life just that - private."
APPENDIX 3
Privacy: The threat to press freedom
Newspaper revelations have fuelled calls for a privacy law in the UK
Britain's proud tradition of a free press is once more in conflict with the right to privacy.
The desire not to have one's private life poked into and peddled purely for public entertainment is understandable and fully justified.
But fury at pictures of a topless Sophie Rees-Jones in the Sun, and the resultant calls for privacy laws, could imperil the investigative powers and free voice of the press, experts warn.
Our loyalty to the idea of a free press has historically prevented the introduction of a formal British law setting out citizens' rights to privacy.
Instead, editors have three governing influences:
- a voluntary code of conduct aimed at achieving a standard of ethics across the whole newspaper industry
- the European Convention on Human Rights
- the libel laws.
The code of conduct, which aims to regulate the behaviour of reporters and photographers during investigations, is intended to reassure the public, politicians and celebrities that they will not suffer unnecessary intrusion. Journalists use it to argue that a law is not necessary.
Voluntary guidelines
The code is enforced by independent watchdog the Press Complaints Commission and came under scrutiny after the death of Diana, Princess of Wales, who had complained of intrusion. The guidelines were then significantly toughened up.
They include a pledge to allow everyone respect for their private life: "Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual's private life without consent. The use of long-lens photography to take pictures of people in private places without their consent is unacceptable. "
The code states journalists must not photograph people in private places and must not publish material from other sources which do not meet these requirements.
But it allows exceptions under the "public interest" - the defence most often quoted by newspapers.
These guidelines come close to the European convention, which is currently being tested by the courts. It seeks to protect both individuals' privacy, and that of the freedom of the press - in an apparently contradictory way, which underlines the difficulty of framing any legislation.
These restraints create grey areas into which many stories and pictures fall. And passionate debate continues both for and against a new privacy law.
Chairman of the PCC, Lord Wakeham, consistenty argues that a law would be counter-productive, protecting only the rich, while limiting public interest investigations.
He says the new code includes protection for schoolchildren, including Princes William and Harry.
"Self-regulation will never be perfect," he said. "It will have its ups and downs and we will have to keep changing it. But it is infinitely more successful than any legal system is likely to be."
Relying on humiliation
His view is supported by Rod Allen, head of Journalism at City University in London, who believes a law would allow wrongdoing to go undetected.
"You have to think very carefully about what might be lost under a privacy law," he said. "Take cases such as Neil Hamilton or David Mellor which were exposed by the press - a law would work against the public interest. The right of the press needs to be protected zealously."
Mr Allen warns against any kneejerk legislation: "A law introduced in public anger would be very restrictive," he said. "Especially as politicians and journalists are natural opponents.
"We have to rely on the potential humiliation that self-regulation creates. David Yelland [editor of the Sun] has had to apologise and been humiliated by public opinion. When the PCC finds against the Sun - and it will - they will have to publish a non-tongue-in-cheek apology which will be worse for him.
"The self-regulatory system is full of flaws but it's infinitely preferable to a law that would be too restrictive. The freedom of the press ought to be absolutely safeguarded as it's so valuable to a democracy."
The only possible redress for someone who believes their privacy has been infringed is the law of confidentiality. The principal means used to enforce it is the injunction - in the case of the media, a court order banning publication. But this often hard as the plaintiff has to prove many points to succeed.
TV investigations
Labour MP Clive Soley, who seven years ago drafted a controversial bill setting up an Independent Press Authority to enforce correction of inaccuracies, doubted whether self-regulation was enough.
Mr Soley told BBC News Online he would like to see a Freedom of the Press law containing clauses on accuracy, impartiality and privacy - and believes the UK will get one eventually.
"We should enable a person to go to court and argue 'that was an invasion of my privacy and unnecessary' and the court would make a judgement.
"The newspaper code of conduct isn't bad but it isn't enforced."
Mr Soley denied that a law would block investigations, saying newspapers could be subject to the same regulations governing the BBC and ITV, who in his opinion, produced some of the best investigative journalism around and were respected for it.
Then Britain's tough libel laws could be reduced, he said
APPENDIX 4
http://www.pcc.org.uk/cop/cop.asp
APPENDIX 5
http://news.bbc.co.uk/1/hi/uk/40858.stm
Friday, December 19, 1997 Published at 15:21 GMT
UK
Tabloids get code of honour after Diana's death
Lord Wakeham says the code is the toughest in Europe
Britain's press watchdog has published a new code of practice that it calls "the toughest in Europe" following public outcry against media intrusion after the death of Diana, Princess of Wales.
Britain's tabloids were urged to respect new guidelines on privacy, harassment, intrusion into grief, children and what may be published in the public interest.
Will newspapers stop snooping? Click for today's Talking Point.
Diana died in high-speed Paris car crash while being chased by paparazzi photographers on motorbikes. Her driver later was found to have been drunk.
Under the new code, drawn up after wide consultation in the industry, "persistent pursuit" by reporters or photographers is forbidden.
And in a move to protect Diana's two sons, William, 15, and Harry, 13, the code says young people should be free to complete their time at school "without unnecessary intrusion."
The code, which newspapers observe on a self-regulatory basis, also provides protection for the children of the famous by banning newspapers from approaching or photographing pupils without the permission of school authorities.
Lord Wakeham, the Chairman of the Press Complaints Commission, said he was pleased the newspaper and magazine industry had responded so positively to the recommendations he put forward in September, immediately after Diana's death.
"As I said at that time, the new code will be the toughest set of industry regulations anywhere in Europe," Lord Wakeham said.
He would be continuing efforts to seek equivalent provisions in other European countries to deal with the issue of media harassment.
Sir David English, a former editor of the Daily Mail and chairman of the newspaper industry's code committee, said he was confident that British editors and journalists would observe the code.
But some media commentators have questioned whether new guidelines will stick, as newspapers have in the past cheerfully violated self-imposed restrictions when they got in the way of a good story.
Included in the new code of practice is a ban on the use of long lens photography to take pictures of people in private without their consent.
Also forbidden is obtaining or publishing material gathered by using clandestine listening devices or by intercepting private telephone conversations.
Two of the most scandalous stories surrounding the British royal family in recent years resulted from the publication of secretly recorded intimate phone calls between Prince Charles and his companion Camilla Parker Bowles and between Princess Diana and her friend James Gilbey.
APPENDIX 6
SURVEY
This survey was conducted on the 21st of January 2003 in the One Stop Shopping Centre (Perry Barr, Birmingham), and on the 22nd of January 2003 on the Sutton Coldfield High St (Sutton Coldfield, Warwickshire). I chose these two different locations because of the contrast in their occupants’ social class and economic status. Sutton Coldfield is viewed as a more ‘well-off’, prosperous suburb and Perry Barr is viewed as a working class, inner city suburb. I targeted a sample of 100 people (50 men and 50 women) at both locations. All participants were residents in the area and were in the 18-30 age groups. Their ethnic origin was left random. I chose to target this sample because the results obtained will reflect the views of the younger section of society. Furthermore, these are the people that could have a major influence on the parliament’s decisions in the future.
Q1) Should the protection of the right to privacy be different for MPs, royalty and celebrities?
Perry Barr
Sutton Coldfield
Q2) Should celebrities be allowed to live in privacy?
Perry Barr
Sutton Coldfield
Q3) Should MPs and other public figures be allowed to live in privacy?
Perry Barr
Sutton Coldfield
Q4) If you were on a public beach with your partner, should it be permissible for people to take photographs of you?
Perry Barr
Sutton Coldfield
Q5) Who do you think benefits more from the privacy regulations in the UK?
Perry Barr
Sutton Coldfield
Q6) Should breach of privacy be a criminal offence?
Perry Barr
Sutton Coldfield
Q7) Do you think the printed press (i.e. newspapers & magazines) and broadcasters (i.e. TV and radio) are being properly governed by media regulators?
Perry Barr
Sutton Coldfield
Q8) Should the Press Complaints Commission (the regulator of the press) have the power to award compensation to complainants?
Perry Barr
Sutton Coldfield
Q9) What is more important, the ‘Public’s interest’ to be informed about the lives of MP’s or the personal privacy of the MPs?
Perry Barr
Sutton Coldfield
Q10) Do you think all the media should be governed by one regulator?
Perry Barr
Sutton Coldfield
Wainwright v Home Office (2001) EWCA Civ 2081, para 57, Mummery LJ
Lord Denning in Re X (a minor) (1975) Fam 47, 58. Also illustrated in Malone v Commissioner of Police (No 2) (1979) Ch 344, 372
This is illustrated in, Khorasandjian v Bush (1993) QB 727, 744; and Wainwright v Home Office (2001) paras 100 to 101 (Buxton LJ).
Douglas v Hello (2001) 1 QB 967, 988 (para 73) Brooke LJ.
Opinions differ as to whether this would have made any difference. Lord Scott believed that it would (“Confidentiality”, in J Beatson and Y Cripps, Freedom of Expression and Freedom of Information, Oxford University Press, 2000, p.272) while Lord Bingham said that it would not unless the action for breach of confidence had been substantially extended (Lord Bingham, “Opinion: Should there be a law to protect rights of personal privacy?”, in The Business of Judging, Oxford university Press, 2000, pp.148-149).
Tom Crone, Law and the Media, Focal Press, 2002, page 115
H (A Healthcare Worker) v Associated Newspapers Ltd (2002) EWCA Civ 195, para 40.
A v B & C (2002) EWCA Civ, para 1 (vi).
For example: A v B & C; Campbell v MGN Ltd (2002) EWHC 499 (QB), para 5.
Lord Browne Wilkinson (558 & 571) and Lord Nolan (582-583) (in R V Khan (1997) AC 558
As the Court of Appeal said in Av B & C (2002): “The court’s approach … has been modified because under section 6 of the 1998 Act, the court, as a public authority, is required not to act “in a way which is incompatible with a Convention right”. The court is able to achieve this by absorbing the rights which articles 8 and 10 protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of those articles.”
For example: Venables v News Group Nespapers Ltd (2001) 2 WLR 1038; Douglas v Hello (2001) 1 QB 967, 988; H (A Healthcare Worker) v Associated Newspapers Ltd (2002) EWCA Civ 195,
Douglas v Hello (2001) QB 967 at 1001 (para 126).
(2002) EWCA Civ 337, para 11 (x).
PCC Complaint dated 4 June 2000, Renate John v Sunday Mirror; this is also illustrated in Mills v News Group Newspapers (2001) EMLR 957 in which Lawrence Collins J said that it “may be somewhat artificial to classify the address of a person as confidential information.” (para 21).
PCC Complaint dated 17 August 2001, Rowling v OK Magazine.
PCC Complaint Dated 11 June 1999, Charters v Sun.
PCC Complaint Dated 6 August 1998, McQuarrie v Scotland on Sunday.
It is important to note that in Wainwright the Court of Appeal accepted that if the incident had taken place after 2 October 2000 the claimants would have had a freestanding HRA claim against the Home Office for breach of Article 8. On the other hand, if those requiring removal of clothes had been private security guards employed by a private body then there would have been no HRA claim at any date. A potential tort of invasion of privacy would avoid such an anomaly.
See footnote 3, at 1001 (para 126)
It is important to note that in April 2003 Michael Douglas and Catherine Zeta-Jones failed in their privacy claim, but they were successful in their action for breach of confidence (with an award of nominal damages under the Data Protection Act). The fundamentals of this case will be discussed further.
This is illustrated in the case of Campbell v MGN Ltd (2002) EWHC 499 (QB). In this case the claimant (Naomi Campbell) decided not to pursue her claim for breach of privacy.
Hugh Tomlinson QC, Privacy and the Media – ‘The Developing Law’, 2002, page 11
Warren and Brandeis ‘The Right to Privacy’ (1890) 4 Harvard L Rev 193, p.13
D Feldman, ‘Secrecy, Dignity, or Autonomy? Views of Privacy as a Social Value’ (1994) 47 Current Legal Problems, p.41.
See footnote 33, (Warren and Brandeis, p.195)
A Westin, Privacy and Freedom, (Bodley Head, 1967), p. 116. R Wacks, The Protection of Privacy, (Sweet & Maxwell, 1980), p.84.
X v Iceland (1976) 5 DR 86
For example, Kaye v Robertson (1991) FSR 62.
R Wacks, ‘The Poverty of Privacy’ (1980) 96 LQR 73, p.7
What might be called “the human right to privacy”
Warren and Brandeis ‘The Right to Privacy’ (1890) 4 Harvard L Rev 193, p.19
Restatement of the Law of Torts, 2nd Edition, para 625A ff.
Australian Broadcasting Corporation v Lenah Game Meats (2001) HCA 63, paras 120-128 (Gummow and hayne JJ, with whom Gaudron J agreed).
Tucker v News Media Ownership Ltd (1986) 2 NZLR 716; Bradley v Wingnut Films Ltd (1993) 1 NZLR 415; P v D (2000) 2 NZLR 591; and L v G (2002) DC Reg 234.
HC 294-1, paras 48-9; In addition, the committee also recommended that the Bill should include provisions specifying criminal offences resulting from the unauthorised use of invasive technology and harassment. The Committee’s recommendations were not implemented.
Report of the Committee on Privacy and Related Matters (1990) Cm 1102 (The Calcutt report), para 3.8.
Consultation Paper, July 1993
Hugh Tomlinson QC, Privacy and the Media – ‘The Developing Law’, 2002, page 15
Corresponding to the first and third aspects of the tort identified in the Restatement (USA).
Australian Broadcasting Corporation v Lenah Game Meats (2001) HCA 63, para 42 (Gleeson CJ).
(2002) EWCA Civ, para 11 (vii)
(2002) EWHC 499 (QB), at para 40 (1)
P v D (2000) 2 NZLR 591, at 681
R v BSC, ex parte BBC (2001) QB 885, paras 37 and 43.
A-G v Guardian Newspapers Ltd (No 2) (1990) 1 AC 109
For example, Peter Wright, who retired from MI5 to Tasmania and authored Spycatcher.
Tom Crone, Law and the Media, 4th Edition, 2002, p. 116
A-G v Guardian Newspapers Ltd (1987) 1 WLR 1248
By a majority of only three to two
Tom Crone, Law and the Media, 4th Edition, 2002, p. 117
A former MI5 officer who used information gathered in the course of his employment to contribute to articles, material and a column in Punch magazine.
Niemietz v Germany (1992) 16 EHRR 97, para 30; Amann v Switzerland (2000) 30 EHRR 843, para 65.
Which is “a most intimate aspect of private life” – Dudgeon v United Kingdom (1981) 4 EHRR 149, para 52.
ADT v United Kingdom (2000) 9 BHRC 112
Murray v United Kingdom (1995) 19 EHRR 193, paras 84-86 – the taking of these photographs was held to be justified under Art 8 (2)
Friedl v Austria (1994) 21 EHRR 83, paras 48 and 51 – S Naismith, ‘Photographs, Privacy, and Freedom of Expression’, (1996), p.21
The courts are required by section 12 (4) (b) of the HRA to have reference to such codes when considering whether to grant relief which might affect the exercise of the Convention right to freedom of expression. The codes also receive statutory recognition in s.32 of the Data Protection Act 1998.
Independent Television Commission
Broadcasting Standards Commission
Richard Clayton & Hugh Tomlinson, Privacy & Freedom of Expression, Oxford University Press, 2001, p.83
R v Press Complaints Authority, ex parte Stewart-Brady (1997) 9 Admin LR 274
R. Singh, ‘Privacy and the Media After the Human Rights Act’, (1998), EHRLR 712
G. Robertson QC & A. Nicol QC, Media Law, 4th edition, Sweet and Maxwell, 2002, p. 285
Winer v UK, Application No. 10871/84 (1986), 48 DR 154; Stewart Brady v UK, Application No. 27436/95, July 2, (1997) 90 DR 45; & Stewart Brady v UK, Application No. 36908/97, October 21, (1998).
Spencer v UK, Application No. 28851/95 & 28852/95 (1998) 92 DR; (1998) 25 EHRR CD 105.
For example: Lord Bingham, “The way we live Now: Human Rights in the New Millenium” and in The Business of Judging, OUP, 2000, p.167; Dame Mary Arden in “The Future of the Law of Privacy”, 1998-99 9 KCLJ 19; R Singh in “Privacy and the Media after the Human Rights Act”, 1998, EHRLR 712.
(2002) EWCA Civ 195, para 40.
(2001) EWCA Civ 2081, para 40
However, in reaching this conclusion the court did not address the question as to whether the common law should be developed to meet Convention obligations – R Clayton and H Tomlinson, The Law of Human Rights Act, OUP, 2000, para 5.88ff.
Except indirectly through measures such as the Data Protection Act and the Protection from Harassment Act
Peck v UK, 3 February 2003, ECHR
He said in his judgment: "It is notorious that, as our law was before the Human Rights Act, there was no effective law of privacy; there was nothing to fill such gaps as might exist when neither the law of confidence nor any other law protected a claimant."
Venables v News group Ltd (2001) 1 All ER 908
even those not party to the proceedings.
A v B Plc [2002] 2 All ER 545
Campbell v Mirror Group Newspapers Ltd [2002] EWHC 499 (QB)
There were “privacy bills” introduced by: Lord Mancroft in 1961; by Alexander Lyon MP in 1967; by Brian Walden MP in 1969; b y William Cash MP in 1987; and by Lord Stoddart in 1989.
Younger Committee Report on Privacy (1972) Cmnd 5012; Calcutt Committee Report on Privacy and Related Matters (1990) Cm 1102; Calcutt Review of Self-Regulation (1993) Cm 2135; National Heritage Select Committee 4th Report on Privacy and Media intrusion (1993); Lord Chancellor’s Department and Scottish Office Consultation Paper, ‘Infringement of Privacy’, (1993)
Broadcasting Act 1996, s. 107
Robertson and Nicol on Media Law, 4th edition, pp.668-679
This is illustrated in the Gordon Kaye case (Kaye v Robertson (1991) FSR 62.), where the Sunday Sport completely ignored the Press Council’s condemnation of its behaviour.
(1998) PCC adjudication, 3 May
Sallie Spilsbury, Media Law, Cavendish Publishing, 2000, p. 320
(1998) PCC adjudication, 4 June
(1998) PCC adjudication, 30 May
This case will be discussed further in the section covering the Broadcasting standards commission (BSC)
Broadcasting Act 1996, s.106 and 107
In relation with para 18 of the BSC Code.
Section 111 Broadcasting Act 1996
s.111 (1) Broadcasting Act 1996
s.111 (7) Broadcasting Act 1996
Section 2 of the ITC Code.
Independent Committee for the Supervision of Standards of Telephone Information Services, the self-regulating body for chat lines.
Office of Communications Act 2002.
Government White Paper “A New Future for Communications”, CM 5010 and the Government Response to the second Report from the CMS Select Committee 2000-2001, CM 5316.
Tom O’Malley & Clive Soley, Regulating the Press, 2000, p. 182
Humphreys, Mass Media, 1996, pp. 63-64
