Opinion: “Privacy: the Law in Action” – Heather Rogers QC

Misuse of private information constitutes a serious limitation on free speech. Everyone, including celebrities and other public figures, has a right to protect their private information. Whether the media can publish private information about an identifiable individual, without their consent, will depend upon an ‘intense’ scrutiny of the facts. The court decides where the balance is to be struck between the competing rights, Articles 8 and 10, by considering each item of information (including any photograph) to determine whether its publication is ‘proportionate’.

Media organisations, making decisions every day about what to publish, in books, articles and television programmes, have to try to second-guess what a court might think about the inclusion of any private information, particularly when there is a risk of an injunction.  While the general test is clear, questions to be explored include the following:

(1)    To what extent will the court protect trivial or anodyne information?

The requirement of a “certain level of seriousness” has been mentioned above. This is in line with one of the “limiting principles” in the law of breach of confidence, as stated in the Spycatcher litigation (Attorney-General v Observer Ltd [1990] 1 AC 109 HL) that the law would not protect the trivial or the anodyne. But it appears that even banal information about a person’s home is capable of being protected: see McKennitt (above) at [21-22].  The court regarded it as “obvious” that a person’s home cannot be lightly intruded upon; and that the disclosure of “household minutiae” would be particularly distressing.

(2)  To what extent will the court protect information in the “public domain”?

If the concept of “public domain” ever had clear limits, these have been lost.  The cause of action in breach of confidence fell away if information lost its “quality of confidence”. But privacy is different: there can be a “reasonable expectation of privacy” in a public place and it appears that information can remain “private” (and protectable) even if it has been published. The fact that a photograph containing “private” information has been published may be no defence to a privacy claim: Douglas v Hello! (No 3) [2006] QB 125 CA at [105]:

“In general, .., once information is in the public domain, it will no longer be confidential or entitled to the protection of the law of confidence, though this may not always be true: ….. The same may generally be true of private information of a personal nature. Once intimate personal information about a celebrity’s private life has been widely published it may serve no useful purpose to prohibit further publication. The same will not necessarily be true of photographs. In so far as a photograph does more than convey information and intrudes on privacy by enabling the viewer to focus on intimate personal detail, there will be a fresh intrusion of privacy when each additional viewer sees the photograph and even when one who has seen a previous publication of the photograph is confronted by a fresh publication of it. To take an example, if a film star were photographed, with the aid of a telephoto lens, lying naked by her private swimming pool, we question whether widespread publication of the photograph by a popular newspaper would provide a defence to a legal challenge to repeated publication on the ground that the information was in the public domain. There is thus a further important potential distinction between the law relating to private information and that relating to other types of confidential information.”

It appears that a “public domain” defence will justify the publication of information which would otherwise be protected by Article 8 only if the information has been so widely and fully publicised that its further publication could not reasonably be expected to cause damage or distress to the person concerned (see Toulson & Phipps Confidentiality at [7-071]; Green Corns v Claverley Group Ltd [2005] 2 FCR 309 (Tugendhat J) at [69]-[81]; McKennitt v Ash [2006] EMLR 178 (Eady J) at [81]).  The court refused an interim injunction to prevent publication of recorded images in Max Mosley’s case, on the grounds that the material had become so widely available that the order would make little practical difference: [2008] EWHC 687 (QB) at [36].

(3)  The question of “public interest”

A key area of concern is whether the recognition of greater privacy rights will impede reporting of matters of “public interest”. It is interesting to note, in the context of the Freedom of Information Act 2000, that the scope of the exemption from disclosure for “personal data” under section 40 of FOIA (an exemption designed to protect privacy rights) would have been likely to result in the concealment of matters of public interest in connection with MPs’ expenses (the protection of home addresses would have concealed “flipping”). The information came to light after “leaked” documents were published.

The court determines what disclosure is – and is not – in the public interest. The belief of the journalist (even if reasonable) does not decide the matter (Mosley v News Group Newspapers Ltd [2008] EMLR 679). The judge thought that there might have been a public interest, had there been a “Nazi theme” to the sexual activity or if it had included mocking of Holocaust victims. But, since there was not, there was no public interest.

In breach of confidence cases, the “public interest” justifying disclosure has been wider than showing that the claimant has been involved in crime or other “iniquity”. The question is whether the information is something which the public ought to know or has a proper interest in knowing (see, for example, London Regional Transport v Mayor of London [2003 ELMR 88 – disclosure legitimate if “the public interest in the free flow of information and ideas will be served by it”).  A similar approach should apply to privacy cases. The ECtHR has focused on whether the publication of private information contributes to a political or public debate.  The Codes of the media regulators – including Ofcom and the Press Complaints Commission – attempt non-exhaustive definitions of the public interest.

It was conceded by the claimant in the Naomi Campbell case that it was in the “public interest” to set the record straight about her false public statements about drug-taking (See Campbell v MGN [2004] 2 AC 457 at [24], [58] and [151]).  In X & Y v Persons Unknown ([2007] 1 FLR 1567 at [42]-[49]). Eady J accepted that the role of the press includes “putting the record straight” when a person has previously presented a false public picture. But it appears that the court will be wary where – in the absence of false factual statements – it is claimed that a person has been guilty of hypocrisy by articulating one set of standards, but behaving differently: see McKennitt at [67-70]. Nor is it likely to be sympathetic to arguments based merely on the fact that the claimant is a “role model”: in the Gary Flitcroft case, for example, it was suggested that a footballer could be “a role model whose conduct could well be emulated by others”. The Court of Appeal in McKennitt observed at [64] that the Flitcroft approach could not be reconciled with that of the ECtHR in Von Hannover and that, in any case where Articles 8 and 10 had to be balanced, the view in Von Hannover was to be preferred.

(4)    The availability of Interim injunctions

The biggest concern for the media so far about privacy has been about the availability of interim injunctions to prevent publication. Prior restraint remains a serious interference with the right to freedom of expression and is a measure that should be granted only where, and to the extent that, it is strictly necessary. Obtaining an interim injunction in a defamation case has always been very difficult: if a defendant intends to defend the claim on the basis that what is published is true (or any other substantive defence), the court will not grant an interim injunction (Bonnard v Perryman [1891] 2 Ch 269; Holley v Smith [1998] QB 726). The general rule against prior restraint in defamation has survived the HRA:  Greene v Associated Newspapers [2005] QB 972. It is tempting to add “so far”, since it is arguable that a rule that deprives a claimant who is about to be defamed by an allegation about their private life, where there is no “public interest” in the information, is not compatible with Article 8 (which now includes the protection of reputation).  But, for now, the effect of a claim being found to be essentially about the protection of “reputation”, rather than “private information” is devastating to the claimant, as illustrated by John Terry’s case.

Section 12 of the HRA provides that an injunction should be granted only if the applicant establishes that s/he would be “likely” to win at trial: section 12(3) (See Cream Holdings v Bannerjee [2005] 1 AC 253).  The court will take into account the importance of the Convention right to freedom of expression, as well as the extent to which the material is in the public domain; the extent to which its publication would be in the “public interest”; and the provisions of any relevant privacy code: section 12(4).  The claimant has to establish that s/he is “likely” to succeed in respect of each of the items of private information (including any photographs): see Browne (above) at [43], where the Court of Appeal held that s12(3) of the HRA proceeded “on the footing that where there is uncertainty publication should be permitted unless the claimant can show that he is likely to succeed at the trial”. The grant of privacy injunctions has also given rise to media concern about “superinjunctions”, the grant of anonymity and other derogations from open justice.

(5)        Prior notice of publication

A claimant who does not know that publication is about to take place is unable to take any action to protect their privacy. There is, at present, no express requirement that the press give prior notice of an intention to publish private information (although in many cases, notice is given), though there are regulatory requirements that broadcasters give advance notice of allegations. Max Mosley, having had no opportunity to prevent publication by the News of the World, is applying to Strasbourg, to establish a requirement (backed, he asks, by criminal sanction) that the media must give notice before publication of private information. The case is fixed for hearing by the ECtHR in January 2011.

Some good news (for the media) about privacy

Against all this, the good news for the media is that awards of damages by the courts have been modest (see Duncan & Neill Defamation (3^rd edn) Appx 7, Table 2). The only substantial award – £60,000 – was made in the Max Mosley case. The judgment contains a useful explanation of the relevant heads of damages. It rules out a claim for exemplary damages (Mosley did not appeal, but this decision may well be taken further in a different case). It is likely that, for the time being at least, the media’s financial concerns about privacy cases are more likely to focus on the amount of costs than the amount of damages. And claimants are more likely to be interested in preventing publication in the first place, rather than recovering damages afterwards.