CHAPTER 2: The Evolution of Privacy
Privacy and freedom of expression
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
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
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 itchecks 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.
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.
13. In addition, several statutes protect privacy
in particular situations. These include the Protection from Harassment
Act 1997, the Data Protection
Act 1998 and the Regulation
of Investigatory Powers Act 2000.
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.
Articles 8 and 10 of the European Convention
on Human Rights
(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.
(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.
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.
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."
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
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.
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."
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.
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
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
25. In April 2010, in response to the Trafigura
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
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.
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  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
MoJ and DCMS para 6.
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
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
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
See, in particular, A v B & C  EWCA Civ 337;
and Campbell v MGN  UKHL 22, which concerned a Daily
Mirror story about the model Naomi Campbell attending Narcotics
Anonymous meetings. Back
Murray v Express Newspapers plc  3 WLR 1360. Back
Re S (A Child)  1 AC 593 at . Back
Campbell v MGN, op. cit. at . Back
Terry (previously referred to as "LNS") v Persons
Unknown  EWHC 119 (QB). Back
Rio Ferdinand v MGN Limited
 EWHC 2454 (QB) at . Back
Von Hannover v Germany (2005) 40 EHRR 1. Back
Von Hannover v Germany (no. 2)  ECHR 228. Back
The Trafigura injunction, obtained in autumn 2009, prevented the
publication of a report on the alleged dumping of toxic waste
in the Ivory Coast. Subsequently, a parliamentary question about
the injunction was tabled. Trafigura's solicitors, on learning
of the question, informed the Guardian that it would be
a breach of the injunction if the newspaper reported the question.
The Guardian subsequently published a front-page story
saying it was unable to publish a parliamentary question. Back
Report of the Committee on Super-Injunctions: Super-Injunctions,
Anonymised Injunctions and Open Justice, May 2011. Back
Ibid., p ii. Back