Article 8 of the ECHR is the tottering mast upon which the banner of privacy now flutters. From a legal standpoint, its scope is excruciatingly voluminous: the protection of the ‘right to respect for … private and family life, [and] … home’ plainly opens the door to an alarming range of activities. And the European Court has construed the article to include, inter alia, ‘physical and psychological integrity,’ protection of one’s environment, identity, and personal autonomy.
The reach of Article 8, thus extends well beyond the protection of privacy, let alone personal information. But here I want to explore a different aspect of the application of this disquieting provision.
The courts have formulated the following five-stage enquiry:
(1) Is Article 8 engaged? If not, that is the end of the matter.
(2) If Article 8 is engaged, is Article 10 also engaged?
(3) If so, then the court will seek to ‘balance’ the competing rights, applying an ‘intense focus’ upon the facts to decide which article should yield.
(4) Other rights (ECHR and non-ECHR) may need to be taken into account, and, in respect of the former, the same balancing approach should be adopted as is the case in respect of Article 10.
(5) The ‘balancing’ process should avoid mere generalities.
In answering the first question, the court enquires whether the victim had ‘a reasonable expectation of privacy.’ And this test, the Court of Appeal has stated, ‘is a broad one, which takes account of all the circumstances of the case. They include 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.’ Murray v Express Newspapers  EWCA Civ 446, .
These are all perfectly proper questions in the case of intrusion into an individual’s seclusion or solitude. Where I am subjected to surveillance, for example, the question is appropriately addressed as to whether, in all the circumstances, I had a reasonable expectation of privacy. When pursued by paparazzi using zoom lenses, or when spied upon with hidden electronic devices, when my telephone calls are intercepted, my room or office is bugged, or my computer is hacked into, the first question that must arise under Article 8 is whether I had a reasonable expectation of privacy.
But, I want to suggest, the question is wrongly applied to the separate issue of the publication of private facts.
What is violated in cases of intrusion is the legitimate (or ‘reasonable’) expectation of the individual not to be seen or heard in the absence of knowledge or consent. Hacking into my voicemail infringes my privacy since by this objective measure a court is able to decide whether, in all the circumstances, I am entitled to assume that my telephone is secure. It therefore examines the circumstances rather than merely the information that may warrant protection.
Where my personal information is published, however, (whether obtained through intrusion or not) the enquiry moves out of the zone of physical privacy—the overriding concern in cases of intrusion—into that of the misuse of personal information. In such cases, the ‘reasonable expectation’ test is inappropriate. Why? Because it raises different issues that relate to the use to which the victim is willing to consent. It is, in other words, a matter of control over the dissemination of one’s private facts.
By failing to differentiate between the two forms of invasion of privacy, the enquiry not only neglects the separate interests of the claimants that are generated by each activity, but it also renders more complex the balancing exercise with Article 10 that arises in cases of disclosure.
The distinction is between my expectation in the case of intrusion, and my wishes in respect of disclosure. The two are often intimately linked, but not ineluctably so. It is entirely possible for a celebrity to object to her photograph being taken surreptitiously, but to be content to allow its publication in the gossip press. Even if her disapproval extends to both, however, the wrongfulness of the intrusion rightly turns on her reasonable expectation of privacy, while the unlawfulness of the subsequent publication should be adjudged by reference to her right to control the use or misuse of her image.
Separating the two activities may also have constitutional implications. For example, in the United States employees and ex-employees of a Senator surreptitiously removed papers from his files, copied them and handed the duplicates to two newspaper columnists. The journalists, with full knowledge of the circumstances of its acquisition, included the information in their column. The court held, dealing separately with disclosure and intrusion, that, in respect of the former, the First Amendment protected the revelation of such information and, as to the latter; the columnists could not be liable for the intrusion merely upon proof of their knowledge of its occurrence: Pearson v Dodd 410 F 2d 701 (DC Cir), cert denied, 395 US 947 (1969).
On the other hand, the concept of ‘reasonable expectation of privacy’ is, rightly, at the heart of the American tort of intrusion. Indeed, the judicial origin of the test involved the interception of telephone calls. The Supreme Court’s decision in Katz v United States 389 US 347 (1967), interpreting the Fourth Amendment’s protection against ‘unreasonable searches and seizures’, held that in order to warrant protection, the plaintiff must have had a ‘reasonable expectation of privacy.’
In my recently published book, Privacy and Media Freedom (OUP, 2013) I propose instead an approach in respect of wrongful publication that seeks to ascertain what specific interests of the individual the law ought to protect. At the heart of the right of privacy is the concern every individual has in thwarting those in pursuit of personal or sensitive information. Although the concept of ‘private life’ in Article 8 has willy-nilly facilitated the judicial protection of ‘private facts’ against unauthorized disclosure, the core of the analysis has not always been to decide whether the facts sought to be protected are genuinely private, thereby also affording greater protection to freedom of expression, since trivial or innocuous information would fall outside the law’s aegis.
A focus on the type of private information, rather than the circumstances that may give rise to a reasonable expectation of privacy, would convey a less equivocal statement—to both public and publisher—about the boundary between privacy and free speech.
If the starting point of any enquiry were whether the facts sought to be protected were indeed private or personal, it might assist in identifying the genuinely intimate or sensitive facts that are worthy of legal protection. And this would help in providing more robust protection to freedom of speech. In other words, by concentrating on identifying the categories of private information, rather than the circumstances that may give rise to a reasonable expectation of privacy, the law would broadcast a clearer message—to both the media and the public—as to where the law draws the line between privacy and freedom of expression.
This approach is not, of course, a panacea; it would not automatically obviate the evaluation that is inevitably required when deciding whether to proscribe or permit publication of personal information. But it does promise both a greater measure of certainty in interpreting the amorphous terms, particularly of Article 8.
But it is not enough. Clearly drafted legislation is the ideal means by which to balance privacy and media freedom.
In view of the post-Levesonian brouhaha engendered by the proposed ‘legislative underpinning’ of an enhanced media regulatory body, it might seem rash to advance a statutory resolution to this intractable problem. Why wade into the rough waters of legislation when, if left alone, the courts will continue their interpretive quest to protect individual privacy? To this reasonable question, there are at least three answers.
First, my intention is not to control or curtail the activities of the media, but to suggest practical measures better to safeguard the privacy of victims of intrusion or unsolicited publication of personal information. Unlike the contentious Leveson plan, this legislation is essentially in the shape of illumination and support—rather than regulation or supervision. (A draft bill is included as an appendix in my book.)
Secondly, legislation would provide democratic legitimacy to a framework that would otherwise be characterised, especially by the media, as judicial high-handedness.
Thirdly, the current law, under the disconcerting sway of the Human Rights Act 1998, and particularly Article 8’s bloated abstractions, provides inadequate guidance both to the individual and the media in regard to their respective rights and obligations in this fundamental domain of democratic freedom.
Raymond Wacks is Emeritus Professor of Law and Legal Theory. Privacy and Media Freedom (2013) is published by Oxford University Press.