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A privacy law in all but name?

March 2007 - Media, Entertainment & Sport. Legal Developments by Harbottle & Lewis LLP.

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Recent decisions in the High Court and Court of Appeal reveal a judiciary keen to address the current gap in the law relating to the protection of private information. The decisions will no doubt send a shiver down the spines of the editors of tabloid newspapers and celebrity magazines as well as book publishers because they will have an impact on the type of material that can be published in the future. No longer will publishers be able to seriously claim that information that is simply gossip can be considered to be in the public interest.

Von Hannover v Germany

The facts surrounding the recent decisions in X & Y v Persons Unknown, CC v AB, McKennitt v Ash and Prince of Wales v Associated Newspapers Ltd are clearly different. However, what they have in common is a recognition of the importance of the 2004 decision in Von Hannover v Germany. Buxton LJ clearly acknowledged this significance in McKennitt. Various ‘media parties' (the Times Newspapers Ltd, the Press Association and the BBC) had applied to intervene in the case because of its importance. Buxton LJ stated:

‘There is little doubt that Von Hannover extends the reach of Article 8 beyond what had previously been understood, which is no doubt why the appellant and, more particularly, the media parties put before us a series of reasons why we should be wary of the case.'

‘... the media parties, in particular, were most anxious to persuade us that the ECtHR went no further in Von Hannover than to hold that the Princess's privacy had been invaded by a campaign of media intrusion into her life, of which the enjoined photographs were the fruit. The taking and publication of the photographs would otherwise not have been in itself an invasion of privacy.'

It is also interesting to note that Sedley LJ shared the same views when he commented in the 2006 Blackstone Lecture that the implications of the Von Hannover decision for ‘our own law are far reaching'.

X & Y v Persons Unknown and CC v AB

In X & Y and in CC Eady J made it clear that ‘even well known people are entitled to some privacy' and intimate personal relationships will be within the scope of the law's protection as being private and confidential. The two cases clearly differ. The former concerned allegations relating to a husband and wife who wished to prevent the disclosure of private and confidential information relating to their ‘marital stresses and strains'. The latter concerned an affair between two married individuals. The husband of the wife who was having the affair wished to publicise the fact of the affair to third parties. The similarity between the cases is that the persons who were in the relationship did not want the information to be revealed to third parties. The Court was sympathetic to the argument that the individuals would suffer a tremendous ‘hounding' from the media if any information was revealed.

In X & Y, Eady J stated that it:

‘... by no means follows that an individual who is photographed and described in print, and about whom information or speculation is published regarding his or her private life, must have so behaved as to forfeit or waive the entitlement to privacy with regard to (say) intimate personal relationships or the conduct of a private life generally.'

McKennitt v Ash

The privacy argument was considered further in McKennitt. The defendant claimed that because the claimant had spoken briefly about her health and her distress at the death of her fiancé, this meant that she had waived her right to privacy in respect of this ‘particular zone' of her life. It was ultimately rejected by the Court of Appeal, with Buxton LJ stating that ‘if information is my property, it is for me to decide how much of it should be published' and that does not undermine a person's right to privacy.

Public interest

Eady J gave further useful guidance on the issue of public interest in CC. He stated:

‘... while it may conceivably [be] right to restrain the sale of celebrity tittle-tattle in which there is no real public interest, on the other hand there would be no necessity or proportionate countervailing advantage in preventing [the defendant] from conversing with relatives, friends or (say) doctors or counsellors about the subject of his own marital breakdown and what may have contributed to it.'

His remarks will certainly be of assistance in the future. He also stated that:

‘... sexual relationships involving those who are in the public eye, whether they merit the application "public figures" or not, are generally likely to be interesting to the public, but they will not necessarily be of genuine public interest.'

The issue of public interest was also addressed by the Court of Appeal in Prince of Wales v Associated Newspapers Ltd but this time from a different angle. In this case the Lord Chief Justice, Lord Phillips, upheld the Prince of Wales's claim that his right to privacy, under Article 8 of the European Convention on Human Rights, had been breached by Associated Newspapers. The Mail on Sunday had published extracts from his private diaries that had been handed to it by a former employee in breach of the undertakings that she had given as to confidentiality. Lord Phillips accepted that:

‘... there is an important public interest in the observance of duties of confidence. Those who engage employees, or who enter into other relationships that carry with them a duty of confidence, ought to be able to be confident that they can disclose, without risk of wider publication, information that it is legitimate for them to wish to keep confidential.'

The test to be applied when considering whether or not to restrict freedom of expression of information is to ask:

‘... not simply whether the information is a matter of public interest but whether, in all the circumstances, it is in the public interest that the duty of confidence should be breached.'

In this case the Court of Appeal felt that it was not in the public interest for private information to be disclosed. The decision means that the media will no longer be able to publish private information obtained from employees with impunity. It is not enough for the information to be of interest to the public.

Disreputable behaviour

Another factor that the courts may need to bear in mind, if it is raised, is whether or not there is any merit in the argument that no protection should be given to a ‘public figure' if they have misbehaved by acting either ‘disreputably or insincerely in any way'. This point was considered by Eady J in CC. He held that the claimant, who had conducted an affair with the defendant's wife, had not ‘misled the public by false denials, nor has he moralised publicly on family life, or his own continence in sexual matters'. Accordingly, there was no ‘genuine interest' so far as the public was concerned in the disclosure of this information.

Conclusion

What is clear from the recent decisions is that as Eady J acknowledged in X & Y:

‘... it is no longer fashionable, as it was for a short time a few years ago, to describe Article 10 [ECHR] as a "trump card".'

Each case needs to be decided on its own facts. The Court of Appeal has also made it clear that it prefers to define the cause of action as either the tort of the misuse of private information or breach of confidence. However, the fact that the word ‘privacy' is used in many of the decisions to describe the cause of action shows that, even if that is not the term expressly stated, it is clearly in the minds of the judges when they make their decisions. It may only be a matter of time now before the more appropriate term is used, namely the tort of invasion of privacy.

X & Y v Persons Unknown [2006] EWHC 2783 (QB)

CC v AB [2006] EWHC 3083 (QB)

McKennitt v Ash [2006] EWCA Civ 1714

Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776

Von Hannover v Germany [2004] ECHR 294

By Louise Prince, solicitor, Harbottle & Lewis LLP.

E-mail: louise.prince@harbottle.com.

For more information please visit www.harbottle.com.