Privacy and Injunctions - Joint Committee on Privacy and Injunctions

Privacy and Injunctions - Joint Committee on Privacy and Injunctions Contents

CHAPTER 2: The Evolution of Privacy Law

Privacy and freedom of expression as concepts

8. At the core of the issues covered in this report is how to strike the best balance between an individual's right to privacy and others' (including the media's) right to freedom of expression.

9. Privacy enables individuals to formulate ideas without public scrutiny; it allows people to remove their "public masks" and act differently in private; and it enables them to form intimate relationships, including the freedom to choose with whom they share their private thoughts. It is rooted in a belief in the dignity of the individual human being and the respect that is therefore due to the private sphere or space which belongs to them.

10. Freedom of expression is essential for discovering new truths and thus enabling social progress; it allows for the moral and cultural self-development of individuals; and it is necessary for the flourishing of a healthy democracy. Like privacy it is rooted in a belief in the worth of the individual. Both values are fundamental to democracy and European culture as it has developed, and are reflected in both our way of life and our laws.

11. Freedom of the press (and other media) is often equated with freedom of expression. They are not, however, identical. The press represents an important power block in society, and as such can represent money, vested interests and particular points of view. It sometimes speaks for those interests as well as for its readers. Sometimes, while purporting to defend freedom of expression, the press (or other media) might really be promoting its own commercial freedom. But it has a crucial role in informing the public and providing a platform for the discussion of political and social ideas. The existence of the press is both a form of freedom of expression and a contribution to preventing tyranny. Yet, because the press itself is a power block, it too needs checks on it—checks provided both by the freedom of the press itself in the form of other newspapers and media, and by the law.

Evolution of privacy laws prior to the Human Rights Act 1998

12. English law historically recognised no right to privacy per se.[2] In seeking to protect privacy claimants had to rely primarily on the law of breach of confidence, which allows for the protection of confidential information. Other areas of law which might protect privacy include trespass, nuisance, defamation and malicious falsehood.[3]

13. In addition, several statutes protect privacy in particular situations. These include the Protection from Harassment Act 1997,[4] the Data Protection Act 1998[5] and the Regulation of Investigatory Powers Act 2000.[6]

Privacy and freedom of expression in the Human Rights Act 1998

14. A general right to privacy was for the first time imported into English law by the Human Rights Act 1998. The Act made it unlawful for public authorities, including the courts, to act incompatibly with the articles of the European Convention on Human Rights scheduled to the Act. These include article 8, covering the right to privacy, and article 10, which for the first time brought into the English legal system an explicit right to freedom of expression.

BOX 1

Articles 8 and 10 of the European Convention on Human Rights

Article 8

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder and crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 10

(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law, and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

15. It can be seen from paragraph (2) of article 8 that the right to privacy is qualified within the article itself. The right to freedom of expression in article 10 is also qualified within that article. More importantly, the rights contained in articles 8 and 10 will by their nature often come into conflict: one person's right freely to express details of a private matter may conflict with another's desire for that private matter not to be published. To deal with concerns about how the courts would approach this conflict in relation to applications for injunctions section 12 of the Human Rights Act 1998 was passed. Section 12 is covered in more detail in the next chapter.

Privacy and freedom of expression after the Human Rights Act 1998

16. Following the commencement of the Human Rights Act in October 2000 the courts began determining cases in which the parties sought to rely on the competing rights to privacy and freedom of expression. The law of confidence was adapted and a tort of misuse of private information gradually developed.[7]

17. There is now a two-stage test for determining cases where an infringement of the right to privacy is alleged—

(1) The court must decide whether the information is in principle protected by article 8 in that the claimant has a "reasonable expectation of privacy" in respect of the information. If that is not so then the claimant's case fails.

(2) If there is a reasonable expectation of privacy, the court balances the article 8 rights of the claimant against the defendant's article 10 rights.[8]

18. In determining, for the purpose of the first stage, whether there is a reasonable expectation of privacy the court will take account of all the circumstances of the case.

19. Once a reasonable expectation of privacy is established, the court must consider the second stage, commonly referred to as the "balancing exercise". Lord Steyn set out the approach—

"First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each."[9]

20. The courts have not sought to give precedence to either article, but rather have looked closely at the facts of each case, and how the rights apply to them. They will take into account many factors in attributing relative weight to the competing claims. There are "different degrees of privacy";[10] the more intimate the aspect of private life which is engaged, the more serious the reasons must be for interference. Also relevant to the balancing exercise are the level of detail and format of the publication and the value accorded by the individual to the privacy of the material.

Recent cases on privacy

21. Recent high-profile court cases have further developed the law of privacy. In January 2010 the then England football captain John Terry applied for an anonymised injunction against "persons unknown" in respect of an affair he allegedly had with the ex-girlfriend of a teammate. The injunction was not granted.[11] The judge held that notice of the injunction was not given to any newspaper when it should have been; that the information covered by the injunction was not considered particularly sensitive by the claimant as he had talked to the press about it; and that the primary objective of the claimant was to protect his commercial reputation rather than his privacy. In the furore surrounding the judgment John Terry was removed as England captain, with the then England manager making public statements about the responsibilities that came with the position. This case was seen by the press as the first step in redressing the lack of open justice when claimants bring privacy actions.

22. On 25 April 2010 the Sunday Mirror published an article under the headline "My Affair with England Captain Rio". It contained an account of the footballer Rio Ferdinand's relationship with Carly Storey over 13 years, including details of text messages exchanged in the months up to him becoming England captain in 2010 and whilst he was married with a child. The article recalled an interview in the News of the World in 2006 in which Rio Ferdinand had talked about being a reformed character and a "family man". The Sunday Mirror article referred to the reasons why John Terry was removed as England captain and statements made by the then England manager about the captain being a role model. Ms Storey was paid £16,000 for the story.

23. Rio Ferdinand sued for breach of privacy. He lost, with the judge saying that "it was a "kiss and paid for telling" story, but stories may be in the public interest even if the reasons behind the informant providing the information are less than noble."[12] The England captaincy was "a job that carried with it an expectation of high standards. In the views of many, the captain was expected to maintain those standards off, as well as on, the pitch." In the interview with the News of the World the claimant "quite clearly wish[ed] to portray himself as a reformed character." The interview was followed by an autobiography and other articles on the same theme.

24. In 2005 the European Court of Human Rights ruled that photographs of Princess Caroline of Monaco taken by German paparazzi in public places breached her privacy.[13] It is unclear whether this decision would be followed in the United Kingdom in a comparable case. In February 2012, however, the European Court of Human Rights ruled[14] that photos of her and her husband on a skiing holiday, published alongside an article about the health of her father Prince Rainier III of Monaco, did not infringe her privacy. The court held that the health of the reigning prince was a subject of general interest and the press was entitled to report on "the manner in which his children reconciled their obligations of family solidarity with the legitimate needs of their private life, among which was the desire to go on holiday".

Master of the Rolls' Committee on Super-Injunctions

25. In April 2010, in response to the Trafigura[15] and Terry cases amongst others, the Master of the Rolls, the Rt Hon Lord Neuberger of Abbotsbury, established a Committee on Super-Injunctions. Its report[16] focused on the procedural aspects of the granting of injunctions and open justice. It did not deal with the substantive issues of how the balance between freedom of expression and the right to privacy should be struck, saying those were issues for Parliament and the courts.[17]

26. The report offered definitions of the terms "super-injunction" and "anonymised injunction". The media tended (and to an extent still tend) to refer to an injunction where the names of either or both parties are anonymised as a "super-injunction". The correct term for an injunction where the name of one or both parties is anonymised (typically letters are used to represent names) is an "anonymised injunction". A "super-injunction" is an injunction which not only imposes a restraint on publishing certain information but also on disclosing the very existence of the injunction.

27. Aspects of the committee's findings are commented on later in this report. A brief summary of some of the main findings is in Appendix 3.

2 MoJ and DCMS para 5. The absence of a right to privacy was in 1991 confirmed by the Court of Appeal in Kaye v Robertson and Sports Newspapers Ltd [1991] FSR 62 when Bingham LJ said that the "monstrous invasion of privacy" of the claimant did not entitle him to any relief in English law. Back

3 MoJ and DCMS para 6.

Back

4 Which provides for a criminal offence of harassment and for a civil remedy, including the issuing of an injunction, if someone is harassed by a course of conduct. Back

5 Which implemented the EU Data Protection Directive (95/46/EC) and imposes controls on those who process data with the objective of ensuring the individual's right to control the storage and circulation of data about him- or herself. In January 2012 the European Commission published proposals for substantial reform of the Data Protection Directive. For more on the Data Protection Act 1998 please see the written evidence of Dr David Erdos, the principal investigator of the Data Protection and Open Society project based at the University of Oxford. Back

6 Which regulates the interception of communications, the acquisition and disclosure of data related to communications, the carrying out of surveillance and the decryption of electronic data. Alastair Brett, solicitor and media law consultant, appends to his written evidence a list of other statutes which prohibit disclosure of information. Back

7 See, in particular, A v B & C [2002] EWCA Civ 337; and Campbell v MGN [2004] UKHL 22, which concerned a Daily Mirror story about the model Naomi Campbell attending Narcotics Anonymous meetings. Back

8 Murray v Express Newspapers plc [2008] 3 WLR 1360. Back

9 Re S (A Child) [2005] 1 AC 593 at [17]. Back

10 Campbell v MGN, op. cit. at [118]. Back

11 Terry (previously referred to as "LNS") v Persons Unknown [2010] EWHC 119 (QB). Back