UK: Privacy v. Freedom of Expression - the Right to Privacy under the Human Rights Act 1998

The Human Rights Act 1998 (“the HRA”), which came into force on 2 October 2000, incorporated the majority of the European Convention on Human Rights (“ECHR”) into UK law. The HRA gives litigants the right to claim damages against public authorities for breach of the HRA but the HRA does not give rise to a free standing cause of action in cases where both parties are private individuals or companies. However, Courts and tribunals are not allowed themselves to breach the HRA. This has the effect that in cases not involving public authorities the Courts are being influenced by the Articles of the ECHR.

Article 8 of the ECHR provides for the right to respect for private and family life. Article 8 has been cited in a number of recent high-profile domestic cases in which injunctions have been sought by the claimants against the media to prevent publication of articles or photographs on the grounds that they contain confidential information which would infringe the claimants’ right to privacy. These cases have required the Courts to give guidance on the conflicting principles in Article 8 and Article 10 (the right to freedom of expression) of the ECHR and also on section 12 of the HRA. Section 12 of the HRA applies where a Court or tribunal is considering granting relief in civil proceedings which might affect the exercise of the right to freedom of expression and requires the Courts to have particular regard to the importance of the right of freedom of expression (section 12(4)). If the proceedings relate to journalistic, literary or artistic material the Courts are required by section 12(4) to have particular regard to two conflicting factors, namely (1) the extent to which the material has or is about to become available to the public, or it is or would be in the public interest for the material to be published, and (2) any relevant privacy code.

Recent case law

The Hello! case

In Douglas and Others v Hello! Ltd [2001] Q.B. 967, the claimants’ application for an injunction to prevent the defendant publishing a magazine containing unauthorised photographs of Michael Douglas and Catherine Zeta Jones’ wedding was dismissed on the basis that the balance of convenience favoured the defendant, whose losses would be difficult to quantify if publication was not permitted. The Court held that UK law recognised a right of personal privacy under the equitable doctrine of breach of confidence, and that when considering whether to grant any relief which might affect the exercise of the right of freedom of expression by restraining publication before trial, a Court would have to take into account those rights under the ECHR which were relevant. The Court noted that ECHR jurisprudence acknowledged different degrees of privacy. In this case, the claimants had lessened the degree of privacy by allowing widespread publicity to be given to their wedding in the third claimant’s magazine in any event, so the balance to be struck between their rights and other considerations was likely to be affected.

The footballer case

The Court of Appeal again discharged an injunction, granted in favour of a premier division footballer which prevented a national newspaper from publishing details of his extra-marital affairs with two women, on the basis that it was an unjustified interference with the freedom of the press (A v B & C [2002] EWCA Civ 337). The Court noted that Articles 8 and 10 of the ECHR “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 assessment of a balance between the competing rights to freedom of expression and privacy “involves giving a new strength and breadth to the action [of breach of confidence] so that it accommodates the requirements of those Articles”. The Court considered that a spectrum of degrees of protection applied to different categories of relationship, in respect of which the more intimate relationships were afforded greater degrees of protection. However, the Court held that the transient nature of the relationships between the parties in this case did not attract a right of confidence as the other parties to the relationship did not wish them to remain confidential.

The TV presenter case

The Court again considered the scope of Article 8 when considering whether there had been a breach of confidence and breach of the right to privacy under Article 8 of the ECHR in circumstances where the defendant had published photographs of the claimant, a children’s television presenter, visiting a brothel (Theakston v MGN Ltd [2002] EWHC 137). The judge considered the material published under three headings: the fact of the claimant’s attendance at the brothel, the detail of the activities, and the photographs. As to the first, he doubted whether confidence or the protection of Article 8 extended to the claimant’s activities in the brothel: even if he did have rights to privacy, this was outweighed by the Article 10 rights of the newspaper. As to the second, he did not consider that the details of transient sexual relations between an unmarried man and a prostitute were confidential and that the press’ right to freedom of expression would probably defeat any injunction application at trial. However, an injunction was granted in respect of the third issue, the publication of the photographs, on the basis that freedom of expression was outweighed by the “peculiar degree of intrusion into the integrity of the claimant’s personality” by their publication.

The supermodel case

A claimant supermodel succeeded in her claim for damages for breach of confidence and compensation for breach of the Data Protection Act 1998 following publication by the defendant of articles with accompanying photographs of her attending Narcotics Anonymous meetings, which claimed that she was a drug addict (Campbell v MGN Ltd [2002] EWHC 499). In respect of the breach of confidence claim, the Court considered that the details of the claimant’s attendance at the meetings had the necessary quality of confidence given that they were identifiable as private and a reasonable person of ordinary sensibilities would find their disclosure highly offensive. The Court stated that the media should respect information about the private lives of celebrities or public figures which the individuals legitimately chose to keep private, as well as sensitive personal data, unless there was an overriding public interest duty to publish the information. The defendant has lodged an application with the Court of Appeal for permission to appeal against this decision.

Commentary

These cases demonstrate the reluctance of the Courts to establish a right to privacy as a separate cause of action in UK law. Instead, the Courts have absorbed the right to personal privacy under Article 8 of the ECHR into the tort of breach of confidence.

In determining breach of confidence claims in the context of injunctions against the media, the Court has applied a careful balancing test in respect of the competing rights to privacy and freedom of expression. The current approach of the Courts applies the following principles:

1. Where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances.

2. However, there are circumstances where the public have a legitimate interest in being told information relating to the public figure.

3. A legitimate public interest in publication may arise in circumstances where the public figure holds a position where higher standards of conduct can be rightly expected by the public, or the public figure is a role model whose conduct could well be emulated by others. The higher the profile of the individual concerned, the more likely it is that this will be the position.

4. Whether the public figure has courted publicity or not, he/she may be a legitimate subject of public attention, but if he/she has courted public attention he/she has less ground to object to the intrusion which follows.

5. In carrying out the balancing exercise between Articles 8 and 10 of the ECHR, the Courts should not act as censors or arbiters of taste.

"© Herbert Smith 2002

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