Mark Thomson has accused the media of self-interest in their reporting of the mis-named “super-injunctions ” scandal. This criticism is an easy one to make but, putting aside the potential conflict of interest, the media are right to object to the courts’ current approach to privacy cases, even if not for all of the reasons on which they rely. Important issues are raised by the apparent willingness of courts to accept that reasonable expectations of privacy exist and that they outweigh freedom of expression, which we explore in this two-part series. These concerns should not be overshadowed by the media’s objections over their inabilities to report on the sex lives of the rich and famous or the “rich and dodgy”, as Alan Rusbridger recently put it.

This should not be taken as an attack on the approach the English courts have taken in the recent reported cases. They are balancing the conflicting privacy and freedom of expression interests in the way mandated by the European Court of Human Rights. They must do so for as long the Human Rights Act 1998 is in force and, indeed, as Hugh Tomlinson QC has pointed out, as long as we are a member of the European Union. It is that approach which is the correct target of the media’s legitimate concerns about how the (ECHR-derived) law of privacy has developed.

To illustrate the impact that the ECHR’s jurisprudence has had on the UK’s privacy law, it is worth comparing the approach taken by courts at the start of the 20th century and the approach taken ten years later. Celebrity injunctions are not a recent phenomenon; Lord Woolf (then Lord Chief Justice) remarked in 2002:

“Since the coming into force of the Human Rights Act 1998 there has been an increase in the number of actions in which injunctions are being sought to protect the claimants from the publication of articles in newspapers on the grounds that the articles contain confidential information concerning the claimants, the publication of which, it is alleged, would infringe their privacy.” (A v B plc [2003] QB 195 [3])

Celebrities and footballers have, however, not always found it as easy as they appear to now to obtain injunctions protecting their private lives; just ask Gary Flitcroft (or “A”) and Jamie Theakston, who may be wishing their “misdemeanours” had happened ten years later than they did. They were both unsuccessful in securing injunctions to prevent publication of details of an affair and a visit to a brothel, respectively. In the Flitcroft case, Lord Woolf commented on how the court’s approach in these “disclosure of confidential information which would infringe privacy” cases had changed following the coming into force of the Human Rights Act 1998:

… articles 8 and 10 … have 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 court [has absorbed] the rights which articles 8 and 10 protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of those articles [4].

He had, however, under-estimated the impact that Convention jurisprudence was to have in these types of cases. As the Court of Appeal in McKennitt v Ash ([2006] EWCA Civ 1714)remarked,

“A v B cannot be read as any sort of binding authority on the content of articles 8 and 10. To find that content, therefore, we do have to look to Von Hannover. The terms of that judgment are very far away from the automatic limits placed on the privacy rights of public figures by A v B”. [64]

Lord Woolf had even used the incorrect nomenclature. As Lord Nicholls observed in Campbell, what the Flitcroft case was actually about wasn’t “disclosure of confidential information which would infringe privacy” but “misuse of private information”.

We will illustrate the impact of the ECHR’s approach by focussing on the court’s assessment of whether article 8 is engaged (in this first part) and, if so, whether there is a countervailing public interest in disclosure, in fulfilment of article 10 rights (in the second part of the series). We then consider to what extent the court’s current approach would ever allow the media to discuss the private lives of celebrities. We think it is revealing to compare where we are now with what Lord Woolf considered to be English law’s accommodation of articles 8 and 10, less than 10 years ago.

The strengthening of the protection for private life

Eady J at first instance in McKennitt v Ash recognised “the increasing scope for protecting private life” and the “width of the notion of “private life” which the European Court of Human Rights is now prepared to recognise.” This was echoed in the Court of Appeal: “there is little doubt that Von Hannover… extends the reach of article 8 beyond what had previously been understood”.

The same judge referred, in CTB v News Group Newspapers ([2011] EWHC 1232 (QB)) to “the new methodology” which means that “there can be no doubt” that there is a reasonable expectation of privacy in liaisons such as CTB’s, as the subject matter of the threatened publication was “conduct of an intimate and sexual nature” and was not conducted publicly.

Contrast this with Lord Woolf who effectively said that the right to privacy becomes weaker the further away from a permanent relationship the circumstances appear so that even a long-running affair would not necessarily be protected. “In situations where the parties are not married (when they are, special considerations may arise) the fact that the confidence was a shared confidence which only one of the parties wishes to preserve does not extinguish the other party’s right to have the confidence respected, but it does undermine that right.”

Where the claimant has a family, it is even more likely that details of a transient relationship will fall within a reasonable expectation of privacy. The claimant in CTB had, as Eady found, met Ms Thomas only three times, yet, as he is a married man with a family:

“It is well established, in such circumstances, that the court needs to take into account and have regard to the interests of the claimant’s family members, and their rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms.” 

In short, any potential revelation involving someone’s sex life will engage that person’s article 8 rights. But how far does the “new methodology” go? Will the English courts now recognise that pictures taken in public do engage article 8 and follow the “shorter course” envisaged by the McKennitt Court of Appeal than that taken by the House of Lords in Campbell? In this light, the second part will go on to consider how strong (or otherwise) the countervailing protection for freedom of expression is.

 Niri Shan and Adam Rendle are media lawyers at Taylor Wessing LLP