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The Law Of Privacy In England And Wales Part 1

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14 May 2008

The law relating to the disclosure of private or confidential information is a complex and developing area with repercussions for celebrities or people in the public eye and the media who write about them.  Over the next couple of months we will be taking an in-depth look at the law relating to "privacy" in England & Wales, examining the key cases, practical implications and looking to the future to see how the law looks likely to evolve.

A Human Right to Privacy

Who would have thought that celebrities trying to cover up their indiscretions or control their image would derive such benefit from the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), adopted in 1950 to protect a European individual’s human rights?  If however, you are looking for a date when a right to personal privacy was born in England and Wales then October 2, 2000 would be a good candidate.  This was the date the Convention was incorporated into English law by virtue of the Human Rights Act (“HRA”) coming into force. 

Section 2 of the HRA provides that English courts and tribunals must take account of decisions and opinions of the Strasbourg-based European Court of Human Rights.  Section 3 provides that all legislation must “so far as it is possible be read and given effect in a way which is compatible with the Convention rights”.  It is unlawful for public authorities to act in a way that is incompatible with Convention rights (giving the Convention rights “vertical effect”).  The definition of a public authority includes a court or tribunal meaning that when a court considers a case, it must take into account Convention rights thus giving the Convention “horizontal effect” between individuals and non-government bodies. 

Although individuals could rely on these rights before the courts, in England and Wales they had no separate cause of action against non-government bodies for breach of a Convention right.  An existing cause of action had to be utilised, and as the House of Lords found in Campbell v. MGN, “the values enshrined in Articles 8 and 10(1) are now part of the cause of action for breach of confidence.”  This cause of action was thus extended to enable an individual to enforce rights under Article 8.   

This is not to say that claimants were previously unable to prevent the dissemination of what they considered to be private or confidential information.  The common law tort of breach of confidence(2) has been around for a long time but until the HRA arose only from an underlying contractual, legal or domestic relationship.  It did not generally prevent publication of private information acquired in the absence of such a relationship.(3) 

Over the years – and even after enactment of the HRA – Parliament has consistently refused to intervene and legislate on the matter thus leaving it in the hands of the judiciary to decide what information should be protected and under what circumstances.  There is no denying that the law in this area is now in a process of transition.  A body of case law involving celebrity claimants has emerged in recent years swinging the balance in favour of protecting private information.  The purpose of this article is to discuss relevant and contemporary issues arising from these decisions.  In addition to these developments, it’s worth remembering that there are a whole raft of legal and regulatory provisions which touch on this area, ranging from Data Protection and Harassment laws to regulatory codes issued by bodies such as the PCC and others. 

Next week we will be examining Naomi Campbell's long-running dispute with The Mirror newspaper and what effect the decisions have had on subsequent cases before the courts.

Footnotes

1. Article 8 of the Convention states that everyone has the right to respect for his private and family life, his home and his correspondence.  Article 10 states that everyone has the right to freedom of expression which includes the freedom to hold opinions and to receive and impart information and ideas.

2. The three “traditional” elements of breach of confidence were set out in the case of Coco v Clark  [1969] R.P.C. 41.  1) The information must have “the necessary quality of confidence about it”; 2) the information “must have been imparted in circumstances importing an obligation of confidence”; and 3) there must have been an “unauthorised use of that information to the detriment of the party communicating it.” 

3. See, e.g., Kaye v Robertson [1991] FSR 62 CA – rejecting a breach of confidence claim involving photographs taken of the actor Gordon Kaye critically ill in a hospital bed.

© Davenport Lyons 2008. All rights reserved.
This document reflects the law and practice as at May 2008. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances.


About the Author

Davenport Lyons [www.davenportlyons.com] is an international business law firm based in the West End of London. The firm has an excellent reputation in areas spanning corporate to property, defamation to intellectual property, music to film finance and digital rights to sport.


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Article Published/Sorted/Amended on Scopulus 2009-03-25 19:32:26 in Legal Articles

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