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The Law Of Privacy In England And Wales Part 7


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25 June 2008

Following last week's overview of the law relating to the disclosure of private but 'trivial' information and the publication of photographs taken in public, we continue to look at what guidance the leading cases have provided.  This week we focus on issues including the public domain and waivers, shared experiences, image rights, the role of the appellate courts, public interest arguments, privacy injunctions and so called 'false privacy'.

The Public Domain and Waivers

A point arising from several of the cases outlined in our previous bulletins is the extent to which, if at all, a claimant’s prior disclosure of private information affects a later claim for a reasonable expectation of privacy in relation to information from that same “zone.”  This was considered in McKennitt v Ash where the court considered how previous disclosures made by Ms McKennitt should limit her future protection.  Ms McKennitt had in fact discussed in media interviews her fiancé’s death in a boating accident as part of her charitable work in relation to the future prevention of such accidents. 
Here the Court rejected the idea of a “zonal waiver.”  It was not accepted that an individual who discusses information within a “zone” of their private life has, as a result, a greatly reduced expectation of privacy in respect of other information in that zone.  The Court of Appeal in McKennitt did not undertake a detailed comparison of the claimant’s prior disclosures to those in the defendant’s book, relying instead on Eady J’s review of all the “circumstances” in the case.

This is perhaps an indication of the extent to which the law in this area has moved on as in the case of A v B(1) Mr Justice Eady seemed to suggest that a claimant’s prior disclosures would indeed affect a claimant’s “reasonable expectation” of privacy.  In that case he rejected an application to enjoin publication about a celebrity, agreeing in general that the “Claimant's own intimate revelations should be taken into account in determining whether it was reasonable for him to expect information of the relevant kind still to be protected”.

Shared Experiences

This issue, relevant to the “balancing act” between Articles 8 and 10, was also discussed in McKennitt.  The Court was presented with an argument that much of the book was merely recounting “shared experiences” therefore enabling Ms Ash to tell her story.  In other words, she had a competing Article 10 right to tell her story every time Ms McKennitt might say her Article 8 right was violated.  The Court of Appeal was not particularly sympathetic to this argument finding that the story being told was Ms McKennitt’s, and therefore Ms Ash’s Article 10 rights must yield to Ms McKennitt’s Article 8 rights.  While this may have been the case on the facts (as the book was unlikely to have been a commercial success if based on Ms Ash’s story) this argument may have merit in other cases.

Image Rights

In Von Hannover the Strasbourg Court expressly referred to the obligation on the state “to protect private life and the right to control the use of one’s image.”  One may think that this would lead to the increased possibility of image or character rights being accepted in the English courts rather than the present reliance on other causes of action such as trade mark infringement or passing off(2).

The issue arose before the House of Lords in Douglas where Lord Hoffman was quick to quash any such ideas stating that there was no question of “creating an image right or any other unorthodox form of intellectual property.”  Lord Walker noted the Douglases’ claim came “close to claims to a ‘character right’ protecting a celebrity’s name and image such as has consistently been rejected in English law.”

The Role of the Appellate Courts

In McKennitt the Court of Appeal considered the role of the appellate court in an Article 8 and 10 battle and found that it is limited to whether the judge below has made an error of principle.  If not then the appellate court cannot overturn the judge’s decision on the balancing exercise. 
In Browne the Court of Appeal again said the appellate court should be slow to interfere with the decision of the judge unless he had “erred in principle”; reached a conclusion which was “plainly wrong”; or was “outside the ambit of conclusions which a judge could reasonably reach.”

The Public Interest

While we have considered what will engage Article 8 and give rise to a “reasonable expectation of privacy,” we have not yet looked at the factors often argued in support of Article 10 and freedom of expression, important considerations for media defendants and their lawyers.  Perhaps the only argument here is that publication (or disclosure) of the private information in question is in the public interest, and to such an extent that Article 8 will be trumped.  Sometimes the arguments are more ingenious than this.  In John v Associated Newspapers Ltd (referred to above) Eady J’s attention was drawn to the case of A v B Plc and in particular a paragraph stating:

“Any interference with the press has to be justified because it inevitably has some effect on the ability of the press to perform its role in society.  This is the position irrespective of whether a particular publication is desirable in the public interest.”
Bearing in mind that Mr Justice Eady is the trial judge who hears many of these cases, it is interesting to note that he felt this “is a general statement of law which remains valid.  In other words, it is not necessary to demonstrate, in the case of a tabloid publication in particular, that the contents of an article or the content of a photograph is desirable in the public interest.”   
In Von Hannover the ECHR found there was no public interest in the publication of the photographs complained of since they made no contribution to any political or public debate.  The Court said “a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions.” 
In McKennitt the same issue arose, and there was some discussion as to what is in the “public interest.”  The Court was sceptical of the defendant’s “role model” argument (that because someone is in the public eye they are a role model and should behave accordingly). The argument before Eady J was that, due to the fact that Ms McKennitt had listed certain principles by which she tried to live her life on her website, where it could be shown that she had failed to live up to these, there was a public interest in showing her as a hypocrite or failed role model.  At trial Eady J did not accept the point on the facts of the case stating that “a very high degree of misbehaviour” would have to be shown before a defendant would be entitled to expose a claimant’s hypocrisy.  The Court of Appeal accepted that perhaps this went a little far (at least if read as an entirely general free standing statement) suggesting that the test may be lower where it is the claimant’s conduct which gives rise to the public interest in disclosure, though the higher test may apply where the public interest is said to arise from hypocrisy or lies by the claimant about past conduct (as opposed to from the conduct itself).

This appears to conflict with the Court of Appeal’s judgment in A v B Plc(3) (the “Flitcroft” case).  Gary Flitcroft was a married premier league footballer who was attempting to prevent publication in the national press of details of his infidelities.  One of the issues considered by the Court of Appeal was whether it was in the public interest to publish details of his behaviour due to his position in society and status as a role model. 

The Court stated that “A public figure is entitled to a private life. The individual, however, 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.  Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure.  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”.  As noted above, following McKennitt it is unlikely the position is to be this clear cut going forwards.   
Even if the courts do find that there is a public interest in the publication of private information, Campbell is certainly a warning that the media should not go too far and embellish an article with unnecessary photographs or revealing details.  The Prince of Wales’ case shows that even in cases where the public interest argument looks potentially strong that may not be enough.  In that case there appeared to be merit to the arguments that a future head of state’s musings on political matters, recorded while on public business abroad, may satisfy even the high test envisaged in Von Hannover.  As it was, the court thought the public interest in enforcing obligations of confidence should prevail over disclosure of the information in breach of confidence. 


As will be noted from the case law discussed above, many of the relevant legal principles have arisen where one party has applied to the court for an injunction restraining publication of certain information.  This gives rise to a number of practical points.  For instance, the courts are willing to hold hearings in private where it is considered necessary to protect the privacy of the information in issue.  It would defeat the object if the courts refused to adopt this approach, which has been approved and applied in McKennitt and Browne. 

It has also become common practice in cases seeking interim orders to anonymise the claimant (or perhaps both parties).  In Browne, the Court of Appeal emphasised that referring to the parties anonymously was a “course to be avoided unless justice requires it.”  An anonymity order will be appropriate however in cases where any identification of a party would defeat the object of the order sought. 

When these orders are made, they need to be served on persons whom they affect but who did not attend the hearing at which they were made.  The person served is entitled to request certain materials.  If the person then requests materials read by the judge or a note of the hearing the applicant must comply with the request unless the court orders otherwise, which it will do where necessary.

An injunction in a breach of confidence/misuse of private information case will mean that, in accordance with the approach required by section 12(3) of the HRA, in respect of each category of information in question, it is for the claimant to show his prospects of success are sufficiently favourable to justify an injunction being granted on the facts.  In other words, he must show he is “likely” to establish at trial that publication should not be allowed.  In Browne the claimant submitted it is for the defendants to show that they are more likely than not to be allowed to publish.  However, the court rejected this interpretation stating “where there is uncertainty, publication should be permitted unless the claimant can show that he is likely to succeed at the trial.”(4) 

False Privacy

Another point to arise from the McKennitt case relates to what is sometimes described as “false privacy.”  The Court of Appeal accepted that a claimant’s rights are not limited to “true” private facts; they will also extend to cover “false private information.”  A defendant cannot deprive the claimant of a remedy by showing that the information in question was false. 
However, if the “nub” of the case is a complaint about “false” allegations, and it can be shown that a claim was brought in confidence (as opposed to defamation) in order to avoid the rule in Bonnard v Perryman then an abuse of process argument could be raised.  As discussed above, on an application for an injunction in a breach of confidence/misuse of private information case it is for the claimant to show his prospects of success are sufficiently favourable to justify an injunction.  In other words, he must show he is “likely” to establish at trial that publication should not be allowed.  The rule in Bonnard v Perryman is that an injunction to restrain publication of defamatory allegations will not be granted where the (future) defendant indicates an intention to justify the allegations in question.  So, in a defamation case, unless the publisher does not have any evidence to justify at all, a claimant is unlikely to prevent publication at the injunction stage, a very different position from that in so called “privacy injunctions.”     
This raises interesting practical points.  A publisher who comes across a story of interest will need to carefully consider their options.  For instance, many stories are likely to refer to some wrongdoing (such as infidelity/inappropriate sexual liaison or drug taking).  Such an allegation is likely to be defamatory as well as revealing private information.  If the media approach the potential claimant asking for their response to the proposed story (being responsible journalists), then there is a very real risk that the claimant will seek an injunction to prevent publication of private information.   

This is especially likely when one considers that an injunction is the only real weapon for the claimant in a privacy context.  After all, the awards of damages for a successful claimant have been low.  Campbell received compensatory damages of £2,500 plus £1,000 in aggravated damages while Michael Douglas and Catherine Zeta Jones each received £3,750 for distress together with damages for additional work and expense.  This could well change however.  In December 2007, The Sun and The News of the World newspapers contributed to a £37,500 payout to the actress Sienna Miller for publishing “intrusive” photographs of her taken whilst she filmed a nude scene for a film.  Newsgroup Newspapers and the Xposure Photo Agency (which supplied the pictures) paid out the money between them and met Miss Miller’s legal costs.  Whilst this was perhaps a particularly intrusive invasion of Miss Miller’s privacy, it will be interesting to see in the future whether such awards increase.

Next week we conclude our examination of privacy law in England and Wales with a look to the future considering how this area is likely to develop.


  1. [2005] EMLR 36.
  2. See Eddie Irvine v Talksport Ltd [2002] 1 WLR 2355
  3. [2002] EWCA Civ 337
  4. Citing to Cream Holdings v Banerjee [2005] 1 AC 253 HL

© Davenport Lyons 2008. All rights reserved.
This document reflects the law and practice as at June 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 [] 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 19:25:02 in Legal Articles

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