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The Law Of Privacy In England And Wales Part 8


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2 July 2008

In this, our final privacy alert in the series, we look at where the case law has taken us so far and what the future may have in store. 

The Future

As Article 8 protects the right to respect for private life, it is relevant in relation to both defamation and “privacy” cases.  Whether we will see more defamation related issues coming to the fore under the guise of “privacy” claims will be watched with interest.  For instance, in relation to “factional” films, books or television programs which feature real people (or actors playing characters representing or based on real people) in fictional situations, the defamation risks of identifying a person are well established.  But what happens when a character in a film or book based on a real person is shown in a private situation?  Will the real person be able to claim a breach of their Article 8 rights?  It looks like “false privacy,” which has been well established by French case law, for example, for over 40 years, will become a weapon in a celebrity’s arsenal. 
It will also be interesting to see how the courts deal with the publication of manifestly speculative material.  For instance, when the media choose to speculate about a person’s health, perhaps that they are pregnant or have been diagnosed with a serious illness, will they have any defence to a privacy related claim?  Will the courts choose to crack down on this area or develop a defence akin to “fair comment” in defamation actions?
The approaches adopted by the House of Lords in Campbell and the Strasbourg court in Von Hannover have looked increasingly hard to reconcile, particularly so with regards to photographs taken of celebrities or public figures in public places.  This was acknowledged and looked at in detail by Mr Justice Patten in Murray at first instance, when he appreciated the difficult position he found himself in stating “one of the difficulties which I face in this case as a first instance judge is to decide how I should attempt to give effect to what I perceive to be the reasoning of the EctHR in Von Hannover where it appears to conflict with the decision of the House of Lords in Campbell”.  Patten J recognised that “as a matter of precedence I am bound by the decision in Campbell … if it comes to a straight choice between Von Hannover and Campbell I should follow the decision in Campbell”.  In the end he found support with Lord Justice Buxton’s judgment in McKennitt, a judgment “prepared to uphold the decision of Eady J that even post Von Hannover certain categories of innocuous or anodyne personal information would not raise an expectation of protection from disclosure under Art. 8”. 

Perhaps the reason for this different approach is the different origins of the law being applied.  Though the English courts may have re-christened it, they are still using the tort of breach of confidence.  Whilst the test may have changed in relation to such cases (since Campbell), from whether the information in question has “the necessary quality of confidence about it” to whether there is a “reasonable expectation of privacy” in respect of the information, the focus is still on the information itself.  The Strasbourg court, on the other hand, are approaching the matter from a completely different position.  With a background focusing on human rights abuses by governments it is perhaps not surprising they are more protective of an individual’s rights.  They tend to favour an approach looking at whether a person is on or off duty, or engaged in a public role.  However, relatively few people featured in the UK media on a daily basis are engaged in the sort of public role envisaged in Von Hannover, i.e. that of a politician or someone serving in public office.   

When Murray was decided at first instance it looked to be a positive decision for the media, but the practical reality was that future decisions on whether or not to publish photographs were only likely to get harder for editors and their lawyers.  The idea that “a distinction can be drawn between a child (or an adult) engaged in family and sporting activities and something as simple as a walk down a street or a visit to the grocers to buy the milk” sounds sensible but would have been very hard to apply in practice.  However, the judge did not like the alternative; “If the law is such as to give every adult or child a legitimate expectation of not being photographed without consent on any occasion on which they are not, so to speak, on public business then it will have created a right for most people to the protection of their image.  If a simple walk down the street qualifies for protection then it is difficult to see what would not.”

Such concerns did not seem to faze the Court of Appeal when they heard the Murray case and decided it was at least arguable that the claimant’s Article 8 rights were engaged.  So where does this leave us?  Are things any clearer?  Well it seems there is no doubt any more as to the tests which need to be applied in such cases.  Firstly the court will look at whether Article 8 is engaged at all (i.e. did the individual have a reasonable expectation of privacy in the circumstances - what would a reasonable person feel if placed in the same position as the claimant and faced with the same publicity) and then, if this hurdle is cleared, whether the Article 8 right to privacy is defeated by the Article 10 right to freedom of expression (in other words the Court must balance the strengths and weaknesses of these respective rights). 

In addition, publishers and their lawyers now have a list of factors which should be considered (whilst remembering that much will rest on the individual circumstances of the case).  These 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.

But whether this helps or not, there is still room for uncertainty.  Does the Court of Appeal’s decision mean Von Hannover has been accepted and privacy law extended to cover trivial and anodyne activities in a public street or just that children are special?  Either way, the celebrity paparazzi shot is only part of the story. 

The decisions we’ve looked at do little to suggest the courts will take a different approach to more “serious” publications.  Only when Article 8 has been deemed to apply will the balancing test occur and the Article 10 arguments surface.  As it stands, disclosures about the private lives of celebrities have largely shaped the development of privacy law.  It may be simplistic (and cynical) to suggest that celebrities ascending the ladder of fame crave media coverage of any kind while only those at the top want to control anything negative.  But it is the latter’s efforts which have created unprecedented rights to control image and information.
At some point courts in England and in Strasbourg may recognise the symbiotic relationship between celebrities and the press and adjust their concepts of privacy and taste accordingly.  It may take a case involving genuine public interest disclosures about a politician before the courts reveal whether they are minded to draw a distinction between celebrity issues and instances involving investigative reporting or what libel lawyers may term “responsible journalism”.  A professional biographer or investigative reporter writing about the Prince of Wales, Lorenna McKennitt or Lord Browne would undoubtedly draw on both profound and anodyne information, and endeavour to draw out “shared experiences” from ordinary people who crossed paths with such individuals.  In this context, the public interest in receiving a full portrait of these figures is obvious, but with the decision in the Prince of Wales case in the background, it seems the courts will need quite some persuading that information is genuinely in the public interest as opposed to being of interest to the public.

© Davenport Lyons 2008. All rights reserved.
This document reflects the law and practice as at July 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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