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Opinion: “Privacy: Where are we now?” – Heather Rogers QC

Until recently it could safely be said there was no “right to privacy” in the law of England and Wales. There was some protection for private information, including photographs and other recordings, through the established law of breach of confidence. But over the last ten years, since the Human Rights Act 1998 (“HRA”) came into force on 2 October 2000, domestic law has developed greater protection for privacy rights on the basis of Article 8 of the European Convention on Human Rights (“the Convention”) and Strasbourg case law.

The case of Campbell v MGN ([2004] 2 AC 457) acknowledged a new cause of action for “misuse of private information”, the essential elements of which were described by the Court of Appeal in McKennitt v Ash ([2008] QB 73) as follows:

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? The latter inquiry is commonly referred to as the balancing exercise.

The first question requires an assessment of whether there is a “reasonable expectation of privacy”. This is an objective question, which should be formulated, according to Murray v Express Newspapers ([2009] Ch 481) at [35] as follows:

“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” (Campbell v MGN at [99]).

It is also a broad question, taking into account all the circumstances of the case. They include, as summarised in Murray at [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, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher”.

The second question – the balancing test – applies where both Articles 8 and 10 are at stake. Lord Steyn emphasised in Re S (A Child) [2005] 1 AC 593 HL at [17] that, in such a case, there were four generally applicable propositions to be derived from the Naomi Campbell case:

“First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.”

The court’s “intense focus” will consider all the facts of the case, looking at each item of information (including photographs) separately and also by reference to the overall context. How this works in practice is demonstrated by Campbell and McKennitt (at the trial stage) and Browne (on an interim injunction application). The court had no difficulty in dismissing the claimed public interest in HRH Prince of Wales, finding the case so clear that summary judgment was appropriate.

The two questions

In most media cases, it has been very easy for a claimant to satisfy the court that there is a “reasonable expectation of privacy”, so that Article 8 applies or is engaged. However, it is important to consider that first stage carefully because, if there is no “reasonable expectation of privacy” – if the threshold is not crossed – there is no need to go on to the second “balancing” stage .   Claims for injunctions failed at the first hurdle in Napier v Pressdram Limited [2010] 1 WLR 934 CA and Author of a Blog v Times Newspapers Ltd [2009] EWHC 1358 (QB).

One serious concern is that, while the principles to be applied – at both stages – are clear, the outcome is uncertain. This problem is not unique to media cases, but applies in other areas. For example in R (on the application of L) v Commissioner of Police for the Metropolis [2010] 1 AC 410, the police had disclosed information relating to the applicant in an enhanced criminal record certificate. The applicant was working in a school and had responsibility (with others) for the supervision of children over breaks. The police, following careful guidance, disclosed private information, including in relation to her inability to care for her (then) 12-year old son, who was put on the “at risk” register for neglect, only being removed from that register when he was sent to prison. When the information was disclosed to her employer, the applicant lost her job. She claimed that her rights under Article 8 had been infringed. The key issue for the court was the balance between two rival public interests: the protection of the applicant’s privacy and the protection of the vulnerable. The Supreme Court agreed that the balance between the two rights needed to be re-adjusted, to give greater protection to privacy rights. However, even on the re-adjusted balance, the information was properly disclosed. Lord Hope pointed out that the issue was, essentially, one of “proportionality”: [42]. He observed that:

“It is of the greatest importance that the balance between these two considerations is struck in the right place”.

But is there a “right place”?  And, if so, does everyone agree where that “right place” is?

The fact that views can differ significantly is illustrated by another police case, Wood v Commissioner of Police for the Metropolis [2010] 1 WLR 123 CA. The court applied the threshold test – that a “certain level of seriousness” was required before Article 8 would be “engaged” – and all three members of the court agreed that, although the mere taking of the photographs in the street by police (of people believed to be involved in a demonstration) did not engage Article 8, the taking of the photographs together with their actual and/or apprehended use by police, did engage Article 8: [37], [46] (Laws LJ); [64] (Dyson LJ) and [96] (Lord Collins). But on the second stage test, the majority held that, in all the facts and circumstances, the defendant had failed to justify as proportionate the interference with the claimant’s rights: [90] (Dyson LJ); [97-100] (Lord Collins). Laws LJ dissented.

In the media context, there is a vivid – and costly – example of judicial disagreement about where the line should be drawn. In the Naomi Campbell case, the trial judge found for Ms Campbell; the Court of Appeal, 3:0, found for the newspaper, being unanimous that the whole “journalistic package” was worthy of publication; but the House of Lords, by 3:2, decided the claim against the publishers. The key factor was the publication of a long-lens photograph of Ms Campbell, about which the Law Lords took different views. Lord Hope (in the majority) was prepared to allow the media a “a reasonable margin of appreciation in taking decisions as to what details needed to be included in the article to give it credibility”, but found, on the facts, that Article 8 outweighed Article 10: see [112-113], [124]. Lord Hoffmann (in the minority) gave real weight to the editorial discretion, stating at [62]:

Editorial decisions have to be made quickly and with less information than is available to a court which afterwards reviews the matter at leisure. And if any margin is to be allowed, it seems to me strange to hold the “Mirror” liable in damages for a decision which three experienced judges in the Court of Appeal have held to be perfectly justified.

MGN’s liability was not only to pay damages – a modest £3,500 – but also the costs. The bill presented by Ms Campbell’s lawyers at the end of the case was for over £1m, almost 60% of which related to the House of Lords appeal: Campbell v MGN Ltd (No 2) ([2005] 1 WLR 3488). MGN’s application to Strasbourg, both on the substance of the claim and the costs decision, is yet to be determined.

Heather Rogers QC is a barrister at Doughty Street Chambers.

This is Part 1 of an edited extract from a paper presented to the 22nd Sweet & Maxwell Annual Judicial Review Conference on 19 November 2010.  Part 2 will be posted shortly.

1 Comment

  1. Elaine Decoulos

    As mentioned in a paper presented by academic Claire de Than, at the recent Reframing Libel Symposium held at City University on the 4th November 2010, there is a danger that defamation actions are being turned into privacy actions via the back door. No one else is discussing this. This is a real danger and it has happened to me.

    It appears that increasingly both libel claimants and defendants, are using Article 8 as a means to either cover up their actions, suppress the truth or silence their critics on subjects they submit are private. This is being done using CPR 5.4(c) orders and private court hearings, supposedly under CPR 39. There is a clear incompatibility in these areas between the CPR and The European Convention.

    This is wholly unjust. It actually further obstructs the opponents’ claim or defence and allows abuses to occur. It is also increasing costs for libel claims and delays while judges deal with privacy complaints and requests to strike out particular paragraphs in the statements of case for privacy reasons.

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