This is the first part of a three part post in which Hugh Tomlinson QC considers the future of the law of privacy.  In this part he looks at the new law as it has been developed over the past decade.

INTRODUCTION

The “new law of privacy” has been developed by the English Courts over the past decade. It is a common law development based on case law going back to the mid nineteenth century.  But the pace of development has recently accelerated. The decisive factor has been the Human Rights Act 1998. In this area the Act has had “horizontal effect” – it operates in cases between two private parties.  The action for breach of confidence has been transformed – almost beyond recognition.

By a complex legal process – which has never fully analysed in the cases – Articles 8 and 10 of the European Convention on Human Rights have been “absorbed” into breach of confidence.  This was confirmed by the House of Lords in Campbell v MGN [2004] 2 AC 457.   What has been created is a new claim – for “misuse of private information” (ibid, paras 14 and 17).    In the words of Lord Phillips, it is the “cause of action formerly known as confidence”.   We now know that  “in order to find the rules of the English law of breach of confidence we now have to look in the jurisprudence of articles 8 and 10” (Douglas v Hello! (No.3) [2006] QB 125, para 11).   It is not clear, incidentally, whether repeal of the Human Rights Act would destroy the new claim or whether it would live on as part of the common law.  I will return to this point in Part 3.

The development of the law of privacy was not an unforeseen consequence of the Human Rights Act.  The point was the subject of long debate in the media and in Parliament when the Human Rights Bill was being considered in 1997.  The media suggested a number of strategies to avoid the development of a privacy law including “media immunity” and the removal of Article 8 from the Act. The then Chairman of the Press Complaints Commission, Lord Wakeham moved an amendment during debates in the House of Lords which aimed “to stop the development of a common law of privacy”  (Hansard, HL 24 Nov 1997, col 772ff).  This amendment was withdrawn.

The opponents of Lord Wakeham’s amendment made it clear that they believed that the Human Rights Bill, when it became law, was likely to lead to the development of a common law of privacy by the judges. For example, Lord Irvine LC on behalf of the government said:

“The experience of continental countries shows that their cautious development of privacy law has been based on domestic law, case by case, although they have also had regard to the convention. I repeat my view that any privacy law developed by the judges will be a better law after incorporation of the convention because the judges will have to balance and have regard to Articles 10 and 8, giving Article 10 its due high value” (ibid, col 785).

There can be no doubt that Parliament (and indeed the press) was fully aware that the Human Rights Act was likely to accelerate the development of a law of privacy.  Parliament (although not the press) embraced and accepted that consequence.  The charge that the new law of privacy has been developed by the Judges against the will of parliament and without its knowledge is a bad one.

Against this background I want to deal with the question “what is the way ahead for the domestic law?”  I am not going to consider the arguments for or against the new law of privacy.  I will begin by summarising the present state of that law.  I will then look at some of the ways in which the “how do we deal with privacy” problem has been approached in the past.  I will then map out a number of possibilities as to the way in which the law might develop.

The new law of privacy has been developed through a series of cases in the Court of Appeal and the House of Lords:  Douglas v Hello! ([2001] QB 967) Campbell v MGN ([2004] 2 AC 457),  McKennitt v Ash ([2008] QB 73),  Lord Browne of Madingley v Associated Newspapers ([2008] 1 QB 103), Murray v Express Newspapers ([2009] Ch 481).   It should be noted that Mr Justice Eady, sometimes said to be the author of the new law, was not party to any of these decisions (although appeals against his rulings were dismissed in McKennitt and Lord Browne).

As the law presently stands, when considering a claim for actual or threatened misuse of private information the Court must decide two things:

“First, is the information private in the sense that it is in principle protected by article 8? If “no”, that is the end of the case. If “yes”, the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by article 10?” (McKennitt v Ash [2008] QB 73, para 11).

THE FIRST QUESTION

The first question is an objective one, that is:

“The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity”  (Murray v Express Newspapers [2009] Ch 481, para 35.

The question whether there is a reasonable expectation of privacy is a broad one, taking into account all the circumstances of the case. They include (Ibid, para 36):

  • the attributes of the claimant;
  • the nature of the activity in which the claimant was engaged;
  • the place at which it was happening;
  • the nature and purpose of the intrusion;
  • the absence of consent and whether it was known or could be inferred that consent was absent;
  • the effect on the claimant;
  • the circumstances in which and the purposes for which the information came into the hands of the publisher.

It is not possible to draw a distinction in principle between, on the one hand, engaging in activity which is clearly part of a person’s private recreation time intended to be enjoyed in the company of family and friends, and on the other, routine acts such as a walk down a street, a ride on a bus or a visit to the grocers to buy milk. All depends on the circumstances (Ibid, paras 55 and 56).

THE SECOND QUESTION

If the answer to the first question as to whether the individual has a reasonable expectation of privacy is “yes”, the second question is how the balance should be struck between as between the individual’s right to privacy on the one hand and the publisher’s right to publish on the other (McKennitt v Ash [2008] QB 73, para 40) .   The court must balance the competing Convention rights under Articles 8 and 10, applying the test of proportionality to each.

In performing this “parallel analysis” neither Article 8 nor Article 10 “has as such precedence over the other”. Where they come into conflict, “an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary” (In re S (A Child) ([2005] 1 AC 593, at para 17).   In appropriate circumstances this includes consideration of the Article 10 rights of anyone, party or not, who would be restrained from publishing the specified category of information (X v Persons Unknown [2009] EMLR 290).

This balancing exercise involves wider “public interest” issues. In the well known decision in Von Hannover v Germany ((2005) 40 EHRR 1)  the Court of Human Rights drew a fundamental distinction between reporting facts capable of contributing to a debate in a democratic society, relating to politicians and the exercise of their functions, and reporting details of the private life of an individual who exercises no official functions. The court continued considered that the photographs of Princess Caroline and accompanying commentaries did not come within the sphere of any political or public debate because they related exclusively to details of her private life. The court considered that the publication of the photos and articles in question, of which the sole purpose was to satisfy the curiosity of a particular readership regarding the details of the applicant’s private life, did not contribute to any debate of general interest to society despite Princess Caroline being known to the public. It recognised that the readers of popular newspapers are not entitled to know “everything” about public figures. The court concluded that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest.

In domestic law the public interest defence has grown out of the old defence of exposure of iniquity. The approach to the ‘public interest’ was considered by the Court of Appeal in HRH the Prince of Wales v. Associated Newspapers ([2008] Ch 57).  In that case, the claimant’s private travel journals had been disclosed by one of his former employees. In those circumstances, where the information had been received in confidence, it was not enough that the information was “a matter of public interest”  (Ibid, para 67); rather, the question was

“whether, in all the circumstances, it is in the public interest that the duty of confidence should be breached” (Ibid, para 68)

There is a “public interest” in exposing the truth and putting the record straight.  This was conceded in Naomi Campbell and accepted as correct by the House of Lords (Campbell v MGN [2004] 2 AC 457 at paras 24, 58 and 151).   But where the justification put forward for publication of personal information is not that the person concerned has made false factual statements but has been guilty of hypocrisy in advocating a set of standards or aspirations and behaving differently, much will depend on the particular circumstances, including the person’s role (for example, whether s/he holds or is a candidate for public office) and to what extent their conduct is truly hypocritical.

If the ultimate balance is struck in favour of the individual, publication will be an infringement of their Article 8 rights. If the balance is struck in favour of the publisher, there would be no such infringement by reason of a combination of Articles 8(2) and 10 of the Convention.   In each case the question is one of “balance”, of weighing the competing rights in the circumstances of the case.

In Part 2 of this post Hugh Tomlinson will consider the background to the new law of privacy