The court has had difficulty in striking a balance between the benefits of freedom of expression and the protection of privacy. In A v B & Anor sub nom Gary Flitcroft v Mirror Group Newspapers Ltd [2002] EWCA Civ 337 Lord Woolf CJ states at paragraph 6 that ’…the manner in which the two articles operate is entirely different. Article 8 operates so as to extend the areas in which an action for breach of confidence can provide protection for privacy. It requires a generous approach to the situations in which privacy is to be protected. Article 10 operates in the opposite direction. This is because it protects freedom of expression and to achieve this it is necessary to restrict the area in which remedies are available for breaches of confidence. There is a tension between the two articles which requires the court to hold the balance between the conflicting interests they are designed to protect. This is not an easy task but it can be achieved by the courts if, when holding the balance, they attach proper weight to the important rights both articles are designed to protect. Each article is qualified expressly in a way which allows the interest under the other article to be taken into account.’
Due to the provisions of Section 12 of the Human Rights Act 1998, the court tends to favour the rights of the media and their freedom of expression. In Theaksten v MGN Limited [2002] EWHC 137 (QB) it was held that‘…in the resolution of a conflict between article 10 and article 8, the freedom of expression of the Sunday people and of the prostitute would be given even greater weight than the extra degree of intrusion into the claimant’s privacy. I consider that the scales would be likely to come down in favour of the freedom of expression of the newspaper and of the prostitutes unless it was clear that there was a strong case for inhibiting it. I do not consider that the confidentiality or privacy case in relation to the details of the sexual activity is nearly strong enough to warrant the degree of restriction involved.
However, in comparison to Theaksten, in Naomi Campbell v Frisbee [2002] EWHC 328 Ch it was held that due to the confidentiality obligations of the defendant, the fact that the relationship in question took place in a private place and that the relationship had no effect on the modelling career of the Claimant, the scales should fall in favour of the claimant.
Distinctions have been made between the privacy of a private individual and celebrities. In A v B (ante) Lord Woolf states at paragraph 11(xii) that ‘where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances. A public figure is entitled to a private life. The individual, however should recognise that because of his public position he must expect and accept that his or her actions will be more closely scrutinised by the media…The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others…If you have courted public attention then you have less grounds to object to the intrusion which follows…The court 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. The same is true in relation to other parts of the media.’
Alternatively, in Campbell v MGN Mr Justice Morland observes at paragraph 66 that ‘although many aspects of public lives of celebrities and public figures will inevitably enter the public domain, in my judgment it does not follow that even with self publicists every aspect and detail of their private lives are legitimate quarry for the journalist. They are entitled to some privacy.’ At paragraph 67 he goes on to state ‘In my judgment the media to conform with article 8 should respect information about aspects or details of the private lives of celebrities and public figures which they legitimately choose to keep private, certainly “sensitive personal data”; unless there is an overriding public interest duty to publish consistent with article 10(2).’
Lord Woolf states that ‘any interference with the press has to be justified because it inevitably has some effect on the ability of the press to perform its role in society. This is the position irrespective of whether a particular publication is desirable in the public interest. The existence of a free press is in itself desirable and so any interference with it has to be justified…’ at paragraph 11 (iv) of his judgment in A v B
Due to the conflicting decisions in relation to calculating the balance between article 8 and article 10, Mr Justice Morland in Campbell v MGN addresses the role of the court in applying the new context of the Human Rights Act 1998 and states (at paragraph 40.3) that ‘…since the coming into force of the Human Rights Act 1998, the court as a public authority cannot act in a way which is incompatible with a Convention right: section 6(1). That arguably includes their activity in interpreting and developing the common law, even where no public authority is a party to the litigation….’
In the Judgement for the case of A –v- B (ante) at Paragraph 11(xiii), Lord Justice Woolf further expresses a view on the role of the courts and appears to share the view of Mr Justice Morland that the courts should not over exert their powers in interpretation of the Human Rights Act 1998. He states that ‘in drawing up a balance sheet between the respective interests of the parties courts should not act as censors or arbiters of taste. This is the task of others.’
In A v B (ante) it is stated that ‘the application for interim injunctions have now to be considered in the context of articles 8 and 10 of the European Convention of Human Rights (“ECHR”). These articles have provided new parameters within which the court will decide, in an action for breach of confidence, whether a person is entitled to have his privacy protected by the court or whether the restriction of freedom of expression which such protection involves cannot be justified. The court’s approach to the issues which the applications raise 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.’
Clearly the courts have acknowledged the provisions of Section 6 of the Human Rights Act 1998, preventing them from acting outside of their jurisdiction in relation to cases such as these, however, Glidewell LJ states in Kaye v Robinson [1991] FSR 62 that ‘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 the present case are a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals.’ This was accepted in the case of Douglas (ante) and as a result of this discovery, there has been much debate, particularly within the cases of Douglas and Venables with regard to whether the court should create a freestanding course of action based directly upon the convention.
Keene LJ states in his judgement for the case of Douglas, Jones and Northern and Shell PLC v Hello! Ltd [2000] that ‘it is clear that there is no watertight division between the two concepts [of confidentiality and privacy]’ it appears that slowly but surely the courts are beginning to develop such an action by drawing less distinction between the laws of confidentiality and (a lack of) those relating to privacy.
The European Court of Human Rights however, seems to have encouraged the idiosyncratic interpretations of the various courts. In X and Y v The Netherlands [1985] 8 EHRR 235 they stated that ‘the court…observes that the choice of the means calculated to secure compliance with article 8 in the sphere of the relations of individuals themselves is in principle a matter that falls within the Contracting States’ margin of appreciation. In this connection, there are different ways of ensuring “respect for private life”, and the nature of the state’s obligation will depend on the particular aspect of private life that is in issue’
Clearly there is still much ground to be covered before equilibrium can be found in establishing a balance between the two conflicting articles. As law continues to change, the courts have and will begin to find comfortable level and become accustomed to their new circumstances.
Scott LJ in the case of Haseldine v Daw [1941] 2 KB 343, 362-3 stated (in relation to ‘the versatility of the common law to adapt to new situations’) that ‘The common law has throughout its long history developed as an organic growth, at first slowly under the hampering restrictions of legal forms of process, more quickly in Lord Mansfield’s time, and in the last one hundred years at an ever-increasing rate of progress as new cases, arising under new conditions of society, of applied science, and of public opinion, have presented themselves for solution by the courts.’
Clearly the law will continue to change and evolve as society does so. Changes in the law are often part of a natural process, and as with all natural development, it is often as a result of necessity. Change is also the route of fundamental controversy within the legal structure. It is unlikely that there will ever be a time when there is complete contentment with any legal system, new or old, at home or abroad.
In order for the law to change, one of two approaches can be taken. Parliament can draft further statutes, or the judges can pass judgments based on an interpretation of Parliamentary Statutes and creating common law by precedent. It is unlikely that many changes will be made in relation to human rights by way of statute and as such, the development of the law in this area will rely upon the input from the courts.
Judges therefore may and no doubt will use the new context of the Human Rights Act 1998 to develop their own common law principles concerning human rights and breach of confidence.
