Opinion: “Privacy – the way ahead? Part 1 – The New Law of Privacy”

23 02 2010

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  This amendment was withdrawn.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





Sex Is Back – the media’s revenge?

22 02 2010

A piece in today’s Media Guardian under the headline “John Terry case: the aftermath” looks at the fallout from Mr Justice Tugendhat’s discharge of the privacy injunction relating to the former England captain.  We have previously blogged about this case here and here.   The Guardian article looks at the changed attitude of the press to “privacy” stories over recent weeks.   It quotes a “senior newspaper executive” as saying: Read the rest of this entry »





Opinion: “The Petition for Libel Reform: Case not Proven”

22 02 2010

The Simon Singh libel case (discussed here) has generated huge media interest, partly as a result of a very effective campaign by the defendant himself.  He has has recently appealed to supporters to gather 100,000 signatures on a petition to reform the law of libel. Read the rest of this entry »





Libel Law: Singh case to be heard by the Court of Appeal

22 02 2010

What must be on of the most widely discussed interim rulings in British libel history comes before the Court of Appeal on Tuesday 23 February 2010.   The case of British Chiropractic Association v Singh is being heard by a Court consisting of Lord Judge LCJ, Lord Neuberger MR and Lord Justice Sedley.  This unusual combination of the two most senior Court of Appeal judges is, doubtless, a response the wide public discussion of the case. Read the rest of this entry »





Culture Media and Sport Select Committee Report – the Leaks

21 02 2010

Culture Media and Sport CommitteeWe have already blogged the imminent publication of  the Culture, Media and Sport Select Committee report on Press Standards, Privacy and Libel.  This Report is likely to contain a number of criticisms of the media and to be the subject of some leaking and spinning.  Read the rest of this entry »





Phone Hacking: Disclosure Ruling in Max Clifford v News of the World

20 02 2010

Max CliffordIn a judgment given on 3 February 2010 by Mr Justice Vos,  Max Clifford obtained extensive disclosure orders from the High Court against the two defendants, private investigator Glenn Mulcaire and Newsgroup Newspapers in his action for breach of confidence in respect of telephone interception. Clifford also obtained an extensive order for disclosure against the Information Commissioner. Read the rest of this entry »





Canadian Media Law Conference – Report

19 02 2010

In Canada, two recent Supreme Court rulings on the defenses for libel and forthcoming rulings on protection of sources have invigorated the debate about responsible journalism.

The Canadian Journalism Foundation held a Forum at the University of Toronto, Innis College on Feb. 16. The panel discussion on the impact of what the Court has called “the defense of responsible communication on matters of public interest” included media lawyer Paul Schabas and defamation counsel Peter Downard who had both appeared before the Supreme Court. The Head of CBC News Investigative Unit Harvey Cashore also weighed in on the implications for journalists as they pursue stories.

All panelists welcomed the two related Dec. 22, 2009 judgments Grant v Torstar and Quan v Cusson suggesting that they heralded a new era for freedom of expression in Canada and would give clarity to media organizations. There was less agreement on how “non-professional” journalists (bloggers and commenters specifically included by the Court) will respond.  The lawyers explained to the audience how the guidelines of the UK “Reynolds Defense” were referenced in the Grant judgment and adapted for a “made in Canada” approach to responsible journalism practices. Questions from the floor included concerns over economic downsizing of fact-checking and research resources, corporate influence over editorial decisions, protection of sources, exponential internet diffusion and the “collateral damage” of errors on reputation and privacy.

Related articles of interest:

“The responsible communication defense: What’s in it for journalists?

“Libel law reform: Be careful what you wish for“.





Culture Media and Sport Select Committee Report to be published 24 February

17 02 2010

According to the Journalism.co.uk website, the House of Commons Select Committee for Culture, Media and Sport on Press Standards, Privacy and Libel will publish its long awaited report at midnight on 24 February.

The Committee’s investigation is discussed on this blog here.   The Report is expected to consider and address whether the Human Rights Act 1998 needs to amended or “recalibrated” in order to adjust the balance in favour of the press, whether libel is in need of reform, the various phone hacking cases, superinjunctions, and the role of the PCC and whether a statutory regulator should be introduced.





Opinion: “The Ministry Of Justice and statistics” William Bennett

17 02 2010

The deadline has just expired for submissions to the MoJ regarding the Controlling costs in defamation proceedings consultation.  The Consultation Paper relies upon the following premise: because statistics compiled by the Media Lawyers’ Associaton show that in 2008 claimants won 90% of defamation claims the maximum success fee in all defamation CFAs, whether to assist a claimant or a defendant, ought to be 10%.   William Bennett, a defamation barrister at 5RB, points out why the reliance on these statistics has caused the consultation to proceed on a false basis.

Suppose that I toss a coin 100 times and get 50 heads and 50 tails.  From this experience I will know that if I toss the coin another 100 times that I will get the same or an almost identical result.  This is because the facts on the first 100 tosses are the same as the facts on the second 100 tosses: I will use the same coin (although it could be any two-sided coin).

On the other hand, no two defamation claims are the same.

Suppose that in 2009 100 defamation claims had gone to trial and that the verdict in 90 of those trials had been in favour of the defendant.  If a claimant were defamed in January 2010 one could not objectively conclude that, by reason of what happened in a series of unconnected cases in 2009, he or she would only have a 10% chance of winning at trial.  Similarly, it would not follow that in 2010 90% of cases would be resolved in the favour of defendants.  All of the 2010 cases would be different from the 2009 cases.

Further suppose that the sole issue in all of the 100 defamation claims was the defence of justification i.e. the issue was whether or not the allegation complained of was substantially true and there were only two possible outcomes (ignoring the chance of a hung jury): either the allegation was substantially true (in which case there would be a finding for the defendant) or it was not (in which case there would be a finding for the claimant).  Again, one could not predict what was going to happen in 2010 in trials in which the only issue was going to be justification by analysing what happened in 2009.

Consider the following scenario.  On 1 January 2010 Monica Brown is defamed by a national newspaper, which accuses her of defrauding the DSS by claiming unemployment benefit which she was not entitled to.  She was due to start a new job on 1 February but her prospective employer has withdrawn the offer of work as a result of having read the defamatory article.  The prospect of finding work again in the town in which she lives looks bleak unless she can vindicate her reputation.

Monica finds a local solicitor willing to take on her case under a CFA (she could not possibly pay privately for such services).  The solicitor writes to the newspaper refuting the allegation and asks it to publish an apology.  The newspaper replies in strident terms that the allegation is true and that it will defend it at trial.

The solicitor arranges a conference with a specialist defamation barrister who is one of the few who will accept cases on a CFA basis.  Monica appears to be credible.  She says that the person who acted as the newspaper’s source set her up as part of a vindictive campaign against her.  People who give stories to newspapers often do so because they are being paid for the information or they are motivated by some form of animus towards the person they are informing on.  However, this does not necessarily mean that the information which they give is false.  The barrister has encountered many a client who has lied to him without the truth being uncovered until much later in the litigation.  On the other hand, the newspaper’s informant could be lying; who knows.

How does the barrister assess the risk of taking on the case?  On the face of it, someone like Monica deserves a chance to vindicate her reputation.  This is not a trivial libel.

At this point of the claim, the best the barrister can do is to assess the chances of success at trial as being 50%.  Nothing which occurred in 2009 in a series of unconnected cases would cause him to conclude that the fact that claimants only won 10% of cases in 2009 meant that the chances of winning Monica’s case were less than 50%.  Not for one second will he conclude that because defendants won 90% of cases in 2009 that Monica therefore has a 10% chance of success; it will not even feature in his consideration of whether she will win at trial or not.  Similarly, if claimants had won 90% of cases in the previous year he would not therefore advise Monica that she had a 90% chance of success: this statistic will be irrelevant in assessing whether the newspaper will be able to prove that the allegation that Monica had defrauded the DSS was substantially true.

As all juries are advised, the verdict will turn on the evidence and nothing but the evidence in that particular case.  The evidence in each case will be different.

It is interesting to note that if one accepts the analysis relied upon in the Consultation Paper, no defendant would be represented under a CFA because no lawyer in his right mind would take on a case in which (by reason of the MLA statistics) he only had a 10% chance of success, particularly if he were only to receive a 10% success fee for taking on a case with a 90% chance of failure.

The illogicality of the reasoning deployed in the Consultation Paper can be further demonstrated as follows: it assumes that defendants lose 90% of cases and that therefore success fees ought to be 10% regardless of whether the lawyer acting on a CFA is doing so on behalf of a claimant or a defendant.  Suppose that a lawyer acts on a CFA basis for defendants in 10 cases.  On the Consultation Paper’s reasoning he will win 1 of those cases and under the Paper’s proposal will receive a 10% uplift for the risk he has taken. So, if his base fees for those 10 cases were £5,000 on each occasion, having conducted £50,000 of work he would only be paid £5,500 or, put another way, he would have lost £44,500 (89%).

Assume a lawyer acted on CFAs for 10 different defendants and on each occasion incurred £5,000 worth of fees.  If defendants only do win 10% of cases, the lawyer would only win one of those cases.  This would earn him £5,000 in base fees but in order to recover a further £45,000 in order to be “costs neutral” he would have to charge a success fee of 900%.  This would cause him to recover £5,000 in base fees and £45,000 in a success fee on his one successful case.  Thus, applying the logic of the MoJ Consultation Paper, no lawyer would take on a CFA case for a defendant unless he could charge a 900% success fee and yet the proposal is that success fees be capped, regardless of whether a claimant or defendant is being represented under a CFA, at 10%.  If the Consultation Process wants to proceed on the basis that claimants win 90% of cases as justifying a reduction of the success fee to 10% in cases where claimants are assisted by means of a CFA, it follows that it must also propose that defendants who are assisted by means of a CFA ought to be able to claim as much as 900% in success fees.  (I am not advocating this but it does show why the justification for a maximum 10% success fee is flawed.)





Mosley ECHR Case – Media get permission to intervene

17 02 2010

The former President of the FIA, Max Mosley, has a pending application to the European Court of Human Rights in which he seeks to contend that the United Kingdom has a positive obligation under Article 8 to require the media to give prior notice of publications which may infringe privacy rights.  This application was lodged on 29 September 2008 and was communicated to the British Government on 22 October 2009. Read the rest of this entry »