The Human Rights Act 1998. A perennial bugbear for the tabloid press, it is frequently depicted as the evil embodiment of the health and safety and ‘snowflake’ culture. It is also the prime symbol of unwanted interference by the EU in this country’s affairs.
Why such hostility? Principally because it is this Act which incorporates the European Convention on Human Rights into our legislation, including at its heart the Art 8 right to respect for one’s private and family life.
Fiendish lawyers, aided and abetted by those other enemies of the people, the judiciary, have developed this right into a tort all of its own: misuse of private information. This tort is now used to suppress publication of precisely the kind of personal and sensitive material about pampered celebrities, sports stars and politicians which readers really need to see!
As if to gauge the British public’s appetite for this, the media has recently offered its readers a crash course in the different ways in which a legal claim for misuse of private information might arise. We examine these different routes over the course of two articles.
Legal & regulatory context
As is widely known, the threshold test to determine if Art 8 rights are engaged is whether you have a reasonable expectation of privacy in respect of the information that has been disclosed. If the answer is yes, the next consideration is whether that right to privacy is trumped by any other competing right, in particular the Art 10 right to freedom of expression. In weighing this balance, the court will apply an intense focus on the facts of the case. A significant factor in determining whether freedom of expression prevails will be an assessment of whether the disclosures are in the public interest.
It is relevant to point out here that the mainstream media’s regulator, the Independent Press Standards Organisation (IPSO), is charged with enforcing the Editors’ Code of Practice which ‘is enshrined in the contractual agreement between IPSO and newspaper, magazine and electronic news publishers’. And Clause 2 (i) of the code virtually replicates Art 8, stating: ‘Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.’
Membership of IPSO is voluntary, so all IPSO members have willingly signed up to (and presumably accept the need for) the privacy provisions in the code.
So with all this in mind, what are the privacy conundrums which the tabloids have presented us with in the latter half of 2019?
The Sun: publication of information which had long ago been in the public domain about an event which occurred overseas
The Sun was first to get the ball rolling with its 17 September article regarding England cricketer Ben Stokes’s family tragedy, which had taken place 31 years ago in New Zealand, three years before Stokes was even born.
In a heartfelt statement responding to the disclosures on Twitter, Stokes described the article as ‘despicable behaviour disguised as journalism’. He and his mother filed a privacy claim against the newspaper.
The newspaper initially sought to justify the publication by arguing that the story had received widespread media coverage in New Zealand at the time so the facts were in the public domain. However, the references in the article to Stokes’s ‘secret’ tragedy rather undermined the implication that the background facts might be known, or easily accessible, to The Sun’s readers.
News Group Newspapers (The Sun’s publisher, NGN) was, of course, the unsuccessful defendant in the Supreme Court case of PJS v NGN  UKSC 26,  4 All ER 554 in which the claimant sought an injunction to restrain publication in England and Wales of private information that had already been published in several other jurisdictions. The Supreme Court held that to allow further unrestricted publication by the English media would nevertheless add significantly to the intrusiveness and distress felt by the claimant and his family.
The same line of reasoning may perhaps be applied here, albeit in the context of a claim principally for damages rather than an injunction. The publication in the UK of the details of a generally unknown and historical personal tragedy was undoubtedly an intrusive act which caused great distress to Stokes and his family. Stokes may be a public figure, but this story had nothing to do with the reasons for his fame. A cynic might suggest that timing was the trigger here: Stokes’s heroics for England in the World Cup and Ashes meant a headline story about him would sell more papers and garner more online hits.
The IPSO Code provides that its privacy clause can be overridden by public interest. This includes:
- detecting or exposing crime, or the threat of crime, or serious impropriety;
- protecting public health or safety;
- protecting the public from being misled by an action or statement of an individual or organisation;
- disclosing a person or organisation’s failure or likely failure to comply with any obligation to which they are subject;
- disclosing a miscarriage of justice;
- raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public; and
- disclosing concealment, or likely concealment, of any of the above.
None of these provide much comfort for NGN (which has removed the offending article from The Sun’s website and Twitter account pending the outcome of the claim), but they may pin higher hopes on translating into a court setting the further guidance in the code that: ‘The regulator will consider the extent to which material is already in the public domain or will become so.’ This raises the interesting question: when does information in the public domain become stale? Before the internet, today’s newspapers wrapped tomorrow’s fish and chips and memories faded. In the digital age nothing disappears; it just slips down the pages of a Google search.
The Sun (again): publication of sensitive medical information
At the same time as The Sun’s Stokes article, another sporting hero, former Wales international rugby union player Gareth Thomas, announced that he felt he had no alternative but to admit publicly (on his Twitter account on 14 September, in a Sunday Mirror article the next day and then in a TV documentary screened on 17 September) that he was HIV positive after The Sun had previously threatened to publish details of his condition.
The background circumstances were alarming: in 2017 a journalist had door-stepped Thomas’s parents and told them their son was living with HIV. It meant he lost personal control over this highly sensitive medical information—something the courts take very seriously. Thomas then fought a lengthy and successful legal battle to prevent The Sun publishing his diagnosis to its readers but the fear that it would emerge at some point in the future, despite his efforts, persuaded him to make the documentary and ‘to live again, to feel free’.
It is worth noting that Thomas’s HIV status was not just private information; it was also clearly confidential information. Even in the pre-Human Rights Act case of X v Y  2 All ER 648 the claimants were able to obtain a permanent injunction restraining publication of information contained in hospital records that identified individual doctors as suffering from HIV and AIDS.
It is disturbing to think that, despite Thomas’s successful litigation, he was not confident that the media would respect his right to a private life, and felt compelled to write his own narrative rather than let them generate the headlines. Echoing Ben Stokes’s fury, Gareth Thomas said: ‘The tabloids will create their own law.’
We will continue this (bushtucker) trial of privacy law in a subsequent episode, before casting our vote as to whether or not it is adapting to life in this social media jungle quickly and effectively enough to stay in the competition.
Jeremy Clarke-Williams, partner, and Nilly Tabatabai, trainee solicitor, Penningtons Manches Cooper
This article was first published in New Law Journal on 6/12/19 and is reproduced with kind permission