Out-Law News 6 min. read
10 Aug 2010, 5:06 pm
In recent years, the media has taken to invading the privacy of the rich and famous more than ever in response to sky-rocketing public demand for celebrity gossip. This increasingly intrusive behaviour has been the subject of several high-profile cases over the course of the last decade. This article will examine some of the most important examples and explain the developments which have emerged from them.
Supermodel Naomi Campbell brought an action against Mirror Group News after the Daily Mirror published a story exposing her attendance at Narcotics Anonymous (NA) meetings. The story included photographs of Campbell leaving an NA session and precise descriptions of where, when and how often she attended meetings.
Campbell successfully argued that aspects of her private life had been wrongfully divulged to the public. This case is of great importance as it established for the first time in English law an actionable right for "wrongful disclosure of private information".
This new right constituted a significant development of the law of privacy in that it added a whole new personal privacy facet to the tort of breach of confidence. Prior to this decision, an action could only be brought in respect of the disclosure of confidential information (such as, for example, trade secrets).
The European Convention on Human Rights was formally incorporated into UK law by the Human Rights Act 1998. The Human Rights Act states that all UK legislation must be interpreted in accordance with the Convention and that the UK Courts must take into account the jurisprudence of the European Court of Human Rights (ECHR) when making decisions.
Under Article 8 of the Convention, individuals have the right not to have their "private and family life" (a term with an extremely wide definition) unduly interfered with. Conversely, Article 10 protects an individual’s right to freedom of expression.
The values enshrined in Articles 8 and 10 of the Convention were recognised as being part of the cause of action for breach of confidence by the House of Lords. It was also agreed that neither right should be treated as being of greater importance than the other and that, accordingly, a complex balancing test would have to be carried out.
The judgment outlined clear criteria to be used when analysing cases of potential wrongful disclosure of private information. The first stage is a consideration of whether the information disclosed is obviously of a private nature. If so, Article 8 will of course be engaged.
When the private nature or otherwise of the information disclosed is not clear-cut, another test must be carried out. There must be an assessment of whether the disclosure in question would cause “substantial offence” to a person of “ordinary sensibilities” placed in the position of the person about whom information has been disclosed. This is a stark change from the position of the Court of Appeal, which applied the same test, though, crucially, from the perspective of the reader.
Using this process, the Lords found that all of the information disclosed was, on first appearances, private in nature. It was, however, held that there was clear public interest in the publishing of the fact that Campbell had a drug problem and was in receipt of treatment due to her public statements to the contrary. Nonetheless, the Lords decided that everything beyond that (publication of the specific organisation Campbell was attending, publication of the place, time and frequency of the meetings and photographs of Campbell leaving meetings) constituted a wrongful disclosure of private information.
It is worth noting that the Lords were fiercely divided on the application of the test to the facts of the case (two of five judges were opposed to the decision reached). This highlights the inherently subjective nature of considerations of privacy.
Formula One boss Max Mosley brought an action against News Group Newspapers in the High Court after a story portraying his involvement in what was dubbed a "Sick Nazi Orgy with Five Hookers" appeared in the News of the World.
The story contained an explicit eyewitness account of the events and numerous secretly-obtained photographs and video recordings, all of which were provided by one of the women present.
The account alleged that Mosley had been involved in a sado-masochistic role-play scenario based in a Nazi concentration camp in which several participants were wearing Nazi uniforms. The High Court ruled that News Group had infringed Mosley's right to privacy due to the lack of public interest in the publication of the story.
With Mosley claiming an infringement of his private life, and News Group professing to have been exercising its freedom of expression legitimately and in the public interest, Articles 8 and 10 of the Convention were in play.
ECHR jurisprudence clearly demonstrates that sexual activity and the making of clandestine recordings on private property are acts which fall within the ambit of Article 8 "private life". Accordingly, it was straightforward for the High Court to conclude that Mosley had a reasonable expectation of privacy.
The High Court ruled that public interest could not justify the intrusiveness of News Group's actions. The story referred to the fascist allegiances of Mosley's notorious father, Sir Oswald Mosley, but its claims that Max Mosley's activities had a Nazi element were not supported by the evidence. Had there been any truth to the story, Mr Justice Eady acknowledged that there could have been a public interest in publishing it.
The judgment referred to another ECHR ruling, from 2004, which concerned the publication of photographs of Princess Caroline of Monaco. In that case the ECHR said that "the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest."
The News of the World's story fell some way short of this standard, reasoned Mr Justice Eady. It was titillation, he said, that led thousands of people to view the video at the newspaper's website – not a desire to participate in a debate of general interest.
Mosley was awarded £60,000 in damages for hurt feelings and loss of dignity. He subsequently lodged an application with the ECtHR which, if successful, could herald fundamental changes in the law of privacy.
Mosley’s case has thus far brought about no concrete developments. It has, however, hung a substantial question mark over the degree of protection afforded to those who find their privacy invaded by the media.
In Mosley’s case, Mr Justice Eady summarised the predicament thus:
“[T]he media are well aware, once privacy has been infringed, the damage is done and the embarrassment is only augmented by pursuing a court action. [...] Thus, if journalists successfully avoid the grant of an interlocutory injunction, they can usually relax in the knowledge that intrusive coverage of someone’s sex life will carry no adverse consequences for them.”
This practice is known as “publish and be damned”.
Mosley argues that the UK has failed to discharge its positive obligation to ensure that its citizens’ right to privacy is effectively protected and is therefore in violation of Article 8 of the Convention. He believes that, in light of the cynicism and commercial mindset of tabloid newspaper editors, the imposition of a requirement that the subject of a story be notified prior to publication is the only way to afford proper protection to privacy rights under Article 8 of the Convention. Indeed, a prior notification requirement would allow the subject to seek an injunction preventing publication of the story whilst they challenge the legitimacy of publishing it.
A system like the one envisaged by Mosley already operates successfully in France under Article 9 of its Code Civil.
The flipside of this coin is of course a restriction on freedom of expression, protected by Article 10 of the Convention. Paul Dacre, editor of the Daily Mail and Chair of the Editor’s Code Committee of the Press Complaints Commission (PCC) has expressed fears that Mosley’s case could have a “chilling effect” on freedom of expression. He has criticised Mr Justice Eady’s reasoning as being “arrogant” and “amoral”; and he has called the Human Rights Act part of a “lethal weapon in crushing press freedom”.
It is understood that Mr Mosley’s case may be heard in 2011.
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