In the first part of this series, we considered how the ECHR has expanded the scope of article 8 rights, beyond the “new strength and breadth” which Lord Woolf had predicted in 2002 (in A v B) that the mis-named action for “disclosure of confidential information which would infringe privacy” would have. We will now go on to consider the circumstances in which Lord Woolf felt that there could be a countervailing public interest in disclosure, in fulfilment of article 10 rights and contrast them with the relevant circumstances following Von Hannover. We then also consider to what extent the court’s current approach would ever allow the media to discuss the private lives of celebrities.

The reduction in strength of freedom of expression

The ECHR in Mosley said there is no robust protection for freedom of expression in cases involving tawdry allegations about an individual’s private life (no doubt intended to refer, at least in part, to sex lives). Eady J had earlier said that

it is not for the state or for the media to expose sexual conduct which does not involve any significant breach of the criminal law… Where the law is not breached… the private conduct of adults is essentially no-one else’s business“.

The UK does, however, have a generally applicable statutory protection for freedom expression: section 12(4) of the Human Rights Act 1998. According to Lord Woolf, this section underlines the “well-established” common law principle that interference with the freedom of expression and in particular the freedom of the press “is a matter of particular importance.” “The existence of a free press is in itself desirable and so any interference with it has to be justified.”

But, it now appears that this section has had much of its force taken away. the approach taken by Eady J at first instance in McKennitt was criticised by the defendant on appeal as not having paid respect to or applied the section. The Court of Appeal found these criticisms to be unfounded. Relying on Lord Steyn in In re S (A Child), the Court said that “neither article 8 nor article 10 “as such” has precedence over the other.”

Provided that a “reasonable expectation of privacy” is made out (which is seemingly easier than before), the potential interference with Article 8 has to be justified. As Eady J acknowledged in Mosley, he felt required to apply “strict criteria” “in the modern climate” to decide whether publication could be justified in the public interest. He has recently given some examples of what might be in the public interest: “Would it help to achieve some legitimate social purpose, such as the prevention or detection of crime? Or again, echoing the terminology of the Press Complaints Commission Code, would publication in some way prevent the public from being seriously misled?” As far as “kiss and tell” cases are concerned, it seemed to him that one would not have ” far to seek” to discover the answer that there would be no public interest. As the ECHR said in Von Hannover, “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.”

There are, on the other hand, dicta which hint at the desirability of a lower threshold for “public interest”. In ETK v News Group Newspapers ([2011] EWCA Civ 439), Ward LJ acknowledged the desirability of the press being able to embarrass the famous:

“To restrict publication simply to save the blushes of the famous, fame invariably being ephemeral, could have the wholly undesirable chilling effect on the necessary ability of publishers to sell their newspapers. We have to enables sales if we want to keep our newspapers. Unduly to fetter their freedom to report as editors judge to be responsible is to undermine the pre-eminence of the deserved place of the press as a powerful pillar of democracy. These considerations require the court to tread warily before granting this kind of injunction.” [13]

This concern did not influence the result in that case (as an injunction to prevent disclosure of an extra-marital affair was granted, in a case in which the interests of the claimant’s children were paramount) but it is a refreshing acknowledgment of the importance of the press. In part, it echoes Lord Woolf’s concern that “if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest.”

Such concerns are not reflected in the Strasbourg jurisprudence, however. As the Court recently re-emphasised in Mosley: reporting of “tawdry allegations about an individual’s private life” does not attract the robust protection under Article 10 afforded to more serious journalism. In such cases, “freedom of expression requires a more narrow interpretation”. This no doubt, in part, inspired Eady J’s comment in CTB that there “can be no automatic priority accorded to freedom of speech”.

Freedom of speech concerns therefore appear to be of secondary importance.

Where does this leave the press’ freedom to comment on the lives of the famous?

Lord Woolf would not recognise the Strasbourg court’s level of protection for the lives of the famous. As he said in A v B,

The [public figure] should recognise that because of his public position he must expect and accept that his actions will be more closely scrutinised by the media. Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media.” [11 (xii)]

Our concern here is not borne out of a desire for anyone who comes into the public eye to become “fair game” for the press. Rather, the concern is that celebrities who create or allow to be created a particular positive image of themselves (e.g. through magazine appearances or product endorsements) may be able to maintain that image when it is not, in reality justified. The concern is that the right of privacy is too strong and the balancing right of freedom of expression too weak to allow press coverage of information that would compromise (and correct) the public personae of these kinds of celebrities.

Lord Woolf must have been right when he said:

The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you have less ground to object to the intrusion which follows. In many of these situations it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls. [11 (xii)]

The House of Lords in Campbell famously permitted disclosure of information that would correct a misleading impression that had been created by a celebrity. It is not clear, however, that the stringent “contributing to a debate of general public interest” test which the ECHR has set out (and recently reaffirmed in Mosley) would allow for such legitimate information to be disclosed. Tugenhadt J in Terry did, however, acknowledge that “freedom to criticise… the conduct of other members of society as being socially harmful, or wrong” is one of the “most valuable freedoms” , alongside freedom to live as one chooses. This could be taken as a suggestion that contributing to public discussion and debate might be in the public interest.

We should not let the relative merits of newspaper stories about the sex lives of footballers distract from more important questions. The treatment of the issues identified above demonstrates that there is a genuine concern that the Article 8 rights have been given too much strength by the European Court. Far from there being a fair balance to be struck between the competing rights, it seems that it is far easier to show there is an article 8 interest to protect than to show that the article 10 interest should trump that right to privacy. It seems that a lot more information can benefit from privacy protection (e.g. an adulterous one-night stand or a liaison with a prostitute) than can be reported in reliance on the right to freedom of expression. That the law would develop in this way does not appear to have been envisaged by Parliament when they introduced the HRA and, in particular, section 12. It is not entirely complete, therefore, to say that we are where we are because of Parliamentary intent.

We hope that, should an appropriate case arise renewed life would be breathed into the corpse of Article 10 and the balance would be restored, both in that particular case and as a matter of general importance. Perhaps the reported cases have all been too “easy” – involving simple reports of sexual conduct (and in the context of blackmail) with no suggestion of public interest – and haven’t given the courts opportunity to flex their Article 10 muscles. We eagerly await a court’s judgment when it does have this opportunity. Only then will we see if Strasbourg has set the freedom of expression bar too high.

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