Privacy 23rd February (continued) Privacy

General position in English law: no special privacy tort. right of privacy under art8 of ECHR incorpertaed by hRA 1998 but English law still recognisises no tort of privacy scatter-gun approach according to L&O Kaye v Robinson, number of causes of actios fired at a problematic case hoping one hits the target Warren and Brandis article in Harvard Law Review advocates general privacy tort by judges and commentators in the US however this hasn't swayed british judges. Article states o Individual Is entitled to decide that which is his shall be given to the public. No other has the right to publish his productopsn in any form witout his consent the right is lost only when author communicates priduction to the word is the right lost What is the nature of the basis of the right to prevent publication of work? it is said ti be a property right howeber what about stuff that is invaluable e.g. a man record in a letter to his son that he did not dine with his wife? Although courts have asserted they rely on propetction of property we do have more liberal doctrines Albert v Strange Prince alberts emloyees made unauthorised copies of etching of the queen and their family, interim injunction greanted. Court argued that t was justified on grounds of employees breach of confidene and Princes property rights However Warren and Brandeis argue the real basis was protection of privacy said English law had always had law of privacy English courts reluctant to accept this

o o o

Right of individual to be left alone The courts in searching for something to rely on outside property ook at breach fo confidece remedy against a stranger however Right to privacy are not in the rights of property

Essential reading L&O 788-815 Author of a Blog v Times Newspapers [2009] EMLR 22 Seminar outline

(1) No right to privacy in English law

Malone v Metropolitan Police Commissioner [1979] Ch 344
No privacy tort

Kaye v Robertson [1991] Fleet Street Reports 62

Facts: Gorden kaye, star of Allo Allo injured in car accident, very seriously injured and put on lifesupport machine and intensive care. Was moved to a private room. Was in no fit state to be interviewd, journalist gained access to his room and attempted to conduct interview and took pictures. Interim application made to prevent Sunday sport from publishing an article which claimed

that kaye had agreed to give an exclusive interview- injunctions granted and appealed to CoA. 4 torts argued 1. libel defamatory in that it represents he was capitalising on his terrible misfortune. Would have to prove an innuendo which would be a jury question thus couldn't be persued further. Not granted an injunction as jury unable to tell consent. Note that the pictures were all true thus libel action could be defeated. 2. 3. Tresspass to the person - tort of battery when taking photo of him shining bright light into his eyes. Said would have to be for a longer time to be a battery Malicious falsehood for the Sunday sport to repsent that Kaye had consented to this interview was untrue thus establishing the malice and the falsity, as they knew it was untrue granted on injunction on his basis. Require that D published false words and malice will be inferred if D published words that were flase or reckless as to whether they were false or not. Passing off (not on our course, using mark or image in a way that suggests that you have their consent). Also possible that Mr Kaye may suffer loss because in the future he might want to seel his story to another newspaper but would not be able to do that if Sunday sport had run an interview.

4.

Bingham LJ: this case highlights failure of common law to effectively protect personal privacy of citizens - landscape changed once we have Campbell decision

Wainwright v Home Office [2004] 2 AC 406 (Lord Hoffmann) effect of HRA

Facts: claimants and her son were strip searched on a prison visst to see her son, prison authorities suspected tht ONeill was dealing drugs and required visitors to be strip-searched. The searched were conducted in breach of prison rules. Sought damages for invasion of privacy. - One of the aspects of the Wainwright decision is whether English law has a right to privacy and a tort of evasion of privacy. Lord Hoffman said no. - he said right to privacy was a value in common law not a principle, even in the US the privacy right has to be broken down into specific torts - says law is compliant with ECHRA

(2) Breach of confidence protecting privacy before the HRA 1988

Became apparent that that this tort can be expanded outside the trade secret concept and could look a lot like protection of privacy. Requirements (Coco v A N Clark) now however look at Campbell v MGN 1) Information has to be confidential i.e. must not be in public domain 2) D must be under an obligation of confidence traditionally thought to be some sort of relationship betweent the parties e.g. doctor/patient, solicitor/clint the requirement has been watered dow 3) Confidential information has to have been misused in some way by the D

Stephens v Avery [1988] 1 Ch 449

Facts: concerned a publication in Mail on Sunday which resported that claimant stevens had a lesbian affair with T. this affair had been confided by Stevens to her then friend avery. The matter had become as T had died suspiciously. Stevens said Avery committed breach of confidence against her. D raised two arguments against liability none of which succeeded: 1) immoral information was not protected by breach of confidence. Court rejected this saing while uit might be true that it would not be protected however amongst public in general said this extramarital affair is not universally morally

condemned. 2)FILL IN THE GAPS! no obligation of confidence. Court said not necessary in order to establish relationship of confidence

Woodward v Hutchins [1977] 1 WLR 760 (Denning)

One of articles concerned disreputable going on a plane . CoA held no tort of breach of confidence commited: 1) goings on the jumbo jet were known by those on the plane 2) no tort of breach of confidence as it was in the public ineterst to have the claiamants misrepresentation of himself was not true.

(3) The influence of the European Convention on Human Rights

Art 8: Right to respect for private and family life Peck v UK (2003) 36 EHRR 41
Claimant was a man who had previously attempted to commit suicide in a distressed and diheleved state and was recorded. Operator of CCTV system and notified the police and ambulance. The local council was struck by what a great way this was to advertise their CCTV and used some of these images to promote the quality of their cctv. Also sold some of the footage to the bbc. Strasbourg court held art8 right to private life had been infringed. Said it did not matter that the events ook place in a public area because what had happened to him was that the moment of distress and anguish was viewed by far more people than he could have anticipated or consented to. He had an expectation of privacy. Have to balance art8 and art10 and that under art8 itself theres an exception for prevention of crime for CCTV however the interefence was disproportionate.

Von Hannover v Germany (2004) 40 EHRR 1

Concerns intrusion by the press. the German press followed Princess of Monaco. She was in a variety of public or quasi-public places. She sues n germany claiming that private rights have been berached. Germany has an extremely developed law of privacy. She loses her case in germany as the courts she is public figure and, has been happy to be pictured and is in public places, then she must put up with infringment of of rights. the ECHR disagrees. Strasbourg makes lofty staements of what the pblic ineterst is What is in the public inetrest according to Strasbourg is not (put pregagtively) mere gossipnot what the public is interested in but is those things that make a genuine contribution to public debate i.e. things which are necessary for citizens in a lively and well informed democracy holding their leaders to account. Extremely high-minded lofted. Very unpopular decision in german If you open an issue of open and hello it is full of pictures of celebrities, all of which accordin to von Hannover ar actionable none of this makes a contrubution to public debate.

Case illustrates the positive obligations on states to protect private lives. Exceptional Article. Formulated the test of reasonable expectation of privacy. European Court told us that when have situation like this, wehere claimants right to privcy should be weighed up against freedom of expression, we must balance rights and look for WHETEHER PUBLICATION CONTRIBUTED TO PUBLIC INTEREST.

Breach of confidence tort combining with the ECHR jurisprudence creating an initiaive to develop the English law of tort relating to breach of confidence in a way that allows breach of confidence to protect persons private life.

(4) Privacy against the media since the HRA 1988 -

*Campbell v MGN [2004] 2 AC 457 (Lords Hoffmann and Hope, Lady Hale)
Facts: newspaper Stated that she was being trated for the addiction and that it was taking place at a narcostics anonymous place. Gave information about treatment used. Included photographs of her in the street. The issue befote the HoLs was whether the newspaper was entitled to reveal where she was getting treatment, what type of treatment it was and the photograph showing her emerging from the premises of a narcotics anonymous centre. complaning about the details, nature and details complaining about photographs

HoLs HELD 3-2 that mirror had committed an actionable wrong. Lord Hoffman and Lord Nicholls in minority. Lord Nicholls general principles adopted by the majority even though he ws in minority. Principles: the equitable wrong of breach of confidence required to be expanded as a resulto f, amongst other things, the recognition of art8. He didnt say the HRA had horizontal effect he said the HR values to which the uk had subscribed indicated that it was necessary to develop breach of confidence so as to provide a remedidy in this situation. No Langer appropriate to talk abotu the wrong as breach of confidence, said it was a tort of misuse of private infomation. The wrong previsuly known as breach of confidence was now to be defined as misuse of private info. No Langer requiuired to show pre existing relationship between the two. The assessmenet instead has to take place in two stages as per Baroness Hale: 1. ask whetehr Article 8 is engaged ask whetehr D had a reaosnable expectation of privacy to be judged objectively. Rather circular arguments 2. If answer to 1 is yes then consider whetehr expectation of privacy is outweighed by any counterveiling factors a. in particular look at whether invasion of privacy was done to contribute to debate on public interest (ARTICLE 10)

Lord Nicholls exlained that his Choice of the test was a careful Choice and he deliberately rejected two posibilities: 1. ask whether information was seriously offencesive to caimant said this was a bad test because mixed up two seperate issues: a. 2. question of whether there was any expectation of privacy with the negree to which privacy had been invaded

Rejected lady Hales about wheteher D ought to have realised that has reaosnable expectation of privacy

Lord Nicholls wieghed up art 8 and art 10 sai dit was a question of propritionality so need to look at negree of interefereance with privacy and the negree of restricto non art10 rights. The minority effectively saw the case in being one in which there was very little added by the publication of the treatment and details about it location. article 8 and 10 more important than th three requirementd of breach of confidence. Do we now have two torts i.e. breach of cnfidence dealt with the three requirements and the one which dlas with orivate information through the framwork of a8 and a10.

Lord Nicholls (dissent) - this case is about wrongful disclosure of private information - the time has come to recognise hat the values enshrined in art8 and art10 are now parto f the cause of actions for breach of confidence. - when both art 8 and art 10are engaged, a difficult question is the QUESITON OF PROPORTIONALITY may arise thus we need to look at t the negree of the interferente with privacy and the negree of the restriction of article 10 rights no right can have priority over each other according to Lord Nicholls. Why is this a sticky statment in English law? Our HRA says that, under SECTION 12, that particular regard must be had to freedom of expresin with regards of a remedy

- essentially the touchstone of private life is whether in respect of teh disclosed Facuss he person had a reasonable expectation of privacy. E.g. when she talked to the media, she would go out of her way tos ay that unlike oher models she did not take drugs repetition of tehse stataments mean she Could no longer expectthis part of her life to be kept private. - having put her addicition and treatment in the public doman, did further attendance at Narcotics anyonymous metings retain its character of prvate information sufficiently to engae art 8? No. Same with the detils about the treatment and how long they had been going on. - the need to be free to disemnate imformation regarding Miss Campbells drug addiction is of a lower order than the need for freedom to dessminate information Photographs issue: argued that the information conveyed by the photigraphs was privat einofmration, however he said that the photographs di dnot convey any etra information said was no longer breach of confidence but a tort of misuse fof private information he says test of whether information is private is whether its subject has a reasonable expectation of privacy compare this to Baroness Hale where the test is whether the Publisher know sor ought to have known there is a reasonable expectation of privacy. oT IS LORD NICHOLLS APPROACH WHICH SEEMS TO HAVE BEEN USED Murray v Express Trust

Lord Hoffmann (dissent) the result of these actiosn has been a shift in the centre of gravity for action in breach of confidence whe it is used as a remedy for publicstion of personal information - new approach: onstead of teh cause of action being based upon the duty of good faith aplicable to confidencial personal information and trade secrets alike, it focuses on the protection ofhuman autonomy and dignity . Barroness Hale starting point must be that the information was private and confidencial and that then its publication requires special justification Freedom of speech o Top of the list is political speech. Can Naomi Campbells private life really be concerning thepolitical and social community? Could argue educational side: the article talked about how she was geting help however artiles of this nature normally run with the public figure on their side.

If the complaint was just about a photograph in the streets going abotu her Business then she would have no complaint as nothing essentially prvate about the information nor can it be expected to damage her private life Here the acconpmanying text made it plain that these photographs were different also added to the potencial harm as she Could be deterged from going back no need o do this. Not every statement about a persona healthwill carry the badge of confidentiality

Reasonable expectation of privacy what exactly does this mean? If we thinking of Campbell case what expectation of privacy does she really have? Honest answer would in fact in be non. It has been made clear however that this test of reasonable expectation of privacy isnt about what a person actually Experts but what they are entitled to expect. OBJECTIVE. This comes throught in Murray Douglas v Hello! (No 3) [2005] 4 All ER 128, [39-91], [103-121] (don't bother) Facts: what is private to one person may have commercial value as a secret to another. Fim stars sold ok magazing the right to pubish photographs for 1million a couple of days afte the wedding it came to the claimant attention that hello managazine was planning to publish photographs taken. Their

application for an interim injunction faled as they were going to publish the pictues anywyay but succeeded in claim for damages.

*McKennitt v Ash [2007] EMLR 4; [2007] 3 WLR 194

The publication concerned was a book by Ash who was a fromer friend of a world famous Canadian folk singer about when her fianc was killed in a boating accident. She funded a water safety charity as a result of the tragic death of her fianc. Ash argued that by talking about the chiarty in public, she had made this zone of her private life public. CoA rejected this argument saying art8 protected that claimant can choose what they want to be talked about.

CC v AB [2007] EMLR 11 *Murray v Sunday Express [2008] EWCA Civ 446

Claimant was a two year old boy son of JK Rowling. Photograph of him taken and it was alleged that taking a photo of him in public street and then being published was an invasion of privacy. CoA said have to take all circumstances in to account including claimants age and then ask whether a reasonable person in claimants position would expect their privacy to be respected and the answer was potentially yes. - however question to be asked is how objective is the objective test? Counterveiling factors- main point here is that in decideding whether counterveiling factors are sufficient the court will undertake an intense focus on the particular facts and will be concerned with questions of proportionality. In partocular in weighing this up they said, in the Modely case, photographs are particularly infasive. Main factor public interest overriding. Two classic examples: 1. where claimants hypocrisy is exposed 2. where criminal activity is revealed. However Moseley case said that in the case where various criminal activities had been inflicted, weigh up seriousness of crime that is being exposed against invasion of privacy. Whether defendant is relating their own experience this came out in Ash where book was written by former close friend. This was a elevant factor to take in to account In these cases very much emphasises that public interest is politics, criminal etc. the dissenting judges in the Von Hannover case argue however that public is interst in these people because they regard them as role models and have a legitimate nterest in their private life. This can be seen in Av B Plc where the court says it is in the interest to have lots of newspapers thus in public interest to have successful newspapers. What this argument really gets at is a more difficult question of what we think test of public interest should be doing.

3. 4.

HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776
Lord Phillips obiter: it migh be possible in future to adapt our law to restrain privacy full stop more than just private information. This is not where we are now however is the obligation under article 8 this stong? The problem with this is that it seems to contradict the courts historical reluctance to not create torts in light of the HRA. - We indirectly protect these actions anyway: nuisance, trespass etc. one rule might be seen ripe to change is whether nuisance is only available for those with property interests (Hunter is the uathoirty saying nuisance is a ort against land not individuals) Khorasandijan v Bush debate. -

*Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) FIRST CASE WHERE ENGLISH JUDGE CAN APPLY VAN HOVER. EADY J
Facts: newspaper alleged main defence was that he was dressed as a Nazi and, as a figure against racism and had made public statements against racism, that this was in the public figure much like

Campbell case. the first hald of the mosley judgment is all about fact: were they Nazi themed? No. the Newspaper tried to plea uniforms, speaking German, concentration type scenario etc none of which was capable of amounting o Nazi themed party; was too vague. Other defence pleaded number of women involved; around 6/7 newspaper said too mahy to have expectation of privacy: the women were reluctant to give any information. Defence to expose crime: GBH in Brown however most alleged in Modley was ABH. Not a brothel at common law as requires more than one person only Mosley visited. All of the defences failed. He was awarded 60,000 near the top end of privacy end we lack any authority of what privacy damages are trying to do. Compared to libel is very low. Information confidential even though known to people who had been present at the party. Information about sexual behaviour is normally expectation of privacy. Obiter Buxton LJ: if Campbell had been decided today he begs to see whether the result would be he same doesn't contrubute to public debate? (McKnennet v Ash)

*Author of a Blog v Times Newspapers [2009] EMLR 22

No reasonable expectation of privacy (4) Statutory torts/remedies Classic remedy is an injunction where material about to be published is stopped. This is the best kidn of remedy as is the only way the privacy of the matter can be retained. May be that the claiamant is too late and here damages are available. Mosely case discusses damages compensatory daages for invasion of privacy should reflect the distress and injured feeling experience by C. if this sum seems inadequate, the damages reward can also reflect an element of vindication i.e. an award of damages can be made simply to reflect he fact that a right has been invaded. Court also emphasised important that proportionality should be observed. Under facts of mosely, the court awarde don 60,000 which in contrast to defmation is low. Expemplory damages damages to punish, were not available in tort of misuse of private inform. Mosely case taken to Strasbourg and it was decided last yr. argued that although he had won in the case, English law did not adequately protect his rights under 8 as they had let him publish thiis without telling him notification should be given. Protection from Harassment Act 2007 Thomas v News Group [2002] EMLR 78 Data Protection Act 1998, ss 1-2, 13, 32 Optional further reading N Moreham, The Protection of Privacy in English Common Law: A doctrinal and theoretical analysis (2005) 121 LQR 628. E Barendt, Balancing Freedom of Expression and Privacy: The Jurisprudence of the Strasbourg Court (2009) 1 Journal of Media Law 49.