Privacy and the Media
One area where the rights under Article 8 of the Convention have had a significant effect is in relation to the media. The publications of stories about your private life can be a clear breach of your right to respect for your privacy, as protected by Article 8. If a public authority were to publish such a story, you would be able to bring an action against them under the Human Rights Act 1998 for breach of your Convention rights. However, in most cases the publisher will not be a public authority, but will be a private company, such as a newspaper, broadcaster, and you will not be able to rely on the Human Rights Act 1998 to bring actions against private bodies.
The laws of defamation, trespass, nuisance, surveillance, harassment etc, do apply to the media, so if the apply equally to the media, so if in getting the story, or in publishing the story, the media has committed one or more of these torts (civil wrongs), you may be able to sue them for damages. But there is no free standing tort of breach of privacy in English law, so you will not be able to bring an action for breach of privacy per se against a private body. However, the Human Rights Act 1998, which requires public bodies to act compatibly with your Convention rights, also expressly binds courts and tribunals. So if you bring a private law action against a private body, and you consider that the private body has acted in breach of your Convention rights, then once in front of the court you can ask that the Court comply with its obligation under the HRA and make sure that your Convention rights are protected.
In this way, the HRA allows individuals to seek redress in the domestic courts for breaches of their Convention rights committed by other private body. In particular, the courts have, through this process, developed the law of confidence to provide some protection against breaches of your privacy committed by private bodies (see CONFIDENTIAL INFORMATION). In the case of Campbell v Mirror Group Newspapers [2005]), the model Naomi Campbell sued the Daily Mirror newspaper when it published photographs of her leaving a meeting of Narcotics Anonymous. The case went all the way to the House of Lords, who upheld her claim. The House of Lords stated that tort of breach of confidence had developed such that there now was a tort that would be better termed as ‘misuse of private information’.
So if a media company publishes information about you which is information that should be considered private, that is to say, information in respect of which you had a ‘reasonable expectation of privacy’, then you may be able to bring an action for misuse of private information. The question of whether or not the information will be considered information in respect of which you have a ‘reasonable expectation of privacy’ is a broad one, which takes account of all the circumstances of the case, including:
If you find yourself subject to unwanted press intrusion of this nature, then you should take legal advice in light of the latest developments of the law. This is a rapidly changing area. You may have a potential action for harassment under the PHA. You may have an action for breach of confidence. You may have an action for breach of the DPA You will also have the right to complain to either Ofcom, the Office of Communications, which regulates UK television and radio services or the Press Complaints Commission. It is worth noting that the Press Complaints Commission is more likely to be responsive to privacy complaints involving ‘intrusion into grief or shock’, such as the publication of photographs taken at a funeral.
However, in every case, there will be a requirement to protect the right to freedom of expression and the right of the media to publish material of public interest. Each case will need to be carefully examined to see if the interests of freedom of expression outweigh your rights to private life.
The court guidelines have been developed in consequence of the express provisions in the HRA dealing with claims for injunctions, which concern freedom of expression. Freedom of expression is, of course, a right which is also incorporated by the HRA through Article 10. In the context of the media, there will always be a tension on the one hand between protecting the right to freedom of expression and a free press with respect to rights of privacy on the other hand. Section 12 of the HRA deals expressly with this tension and makes it clear that any person seeking to restrain publication of material which might affect the exercise of freedom of expression will:
1) Take all practical steps to notify the intended publisher or show that there are compelling reasons why that person should not be notified.
2) Need to satisfy the court that the underlying claim is likely to succeed at trial.
3) Need to deal with the court’s obligation to have particular regard to the Convention right to freedom of expression; and
4) Where such material is journalistic, literary or artistic, will need to deal with the court’s obligation to have particular regard to:
(a) the extent to which the material is, or is about to become, available to the public and it would be in the interest of the public for it to be published;
(b) any relevant privacy code.
This provision is designed to ensure that freedom of expression is not stifled by well-timed injunctions sought by persons at a time when the publisher of the material will not be able to deal with the application properly. However, it does not prevent you from seeking to obtain an injunction in circumstances where there has been an unjustifiable breach of your privacy and you have a good case of succeeding in litigation against the person responsible.
See also THE RIGHT TO FREE EXPRESSION
The laws of defamation, trespass, nuisance, surveillance, harassment etc, do apply to the media, so if the apply equally to the media, so if in getting the story, or in publishing the story, the media has committed one or more of these torts (civil wrongs), you may be able to sue them for damages. But there is no free standing tort of breach of privacy in English law, so you will not be able to bring an action for breach of privacy per se against a private body. However, the Human Rights Act 1998, which requires public bodies to act compatibly with your Convention rights, also expressly binds courts and tribunals. So if you bring a private law action against a private body, and you consider that the private body has acted in breach of your Convention rights, then once in front of the court you can ask that the Court comply with its obligation under the HRA and make sure that your Convention rights are protected.
In this way, the HRA allows individuals to seek redress in the domestic courts for breaches of their Convention rights committed by other private body. In particular, the courts have, through this process, developed the law of confidence to provide some protection against breaches of your privacy committed by private bodies (see CONFIDENTIAL INFORMATION). In the case of Campbell v Mirror Group Newspapers [2005]), the model Naomi Campbell sued the Daily Mirror newspaper when it published photographs of her leaving a meeting of Narcotics Anonymous. The case went all the way to the House of Lords, who upheld her claim. The House of Lords stated that tort of breach of confidence had developed such that there now was a tort that would be better termed as ‘misuse of private information’.
So if a media company publishes information about you which is information that should be considered private, that is to say, information in respect of which you had a ‘reasonable expectation of privacy’, then you may be able to bring an action for misuse of private information. The question of whether or not the information will be considered information in respect of which you have a ‘reasonable expectation of privacy’ is a broad one, which takes account of all the circumstances of the case, including:
- your particular attributes, such as whether your are a person normally in public eye, or whether you are a child or an adult (chidren have a greater expectation of privacy),
- the nature of the activity in which you were engaged in,
- the place at which it was happening,
- the nature and purpose of the intrusion,
- the absence of consent and whether it was known or could be inferred,
- the effect on the you of the publication,
- the circumstances in which and the purposes for which the information came into the hands of the publisher.
If you find yourself subject to unwanted press intrusion of this nature, then you should take legal advice in light of the latest developments of the law. This is a rapidly changing area. You may have a potential action for harassment under the PHA. You may have an action for breach of confidence. You may have an action for breach of the DPA You will also have the right to complain to either Ofcom, the Office of Communications, which regulates UK television and radio services or the Press Complaints Commission. It is worth noting that the Press Complaints Commission is more likely to be responsive to privacy complaints involving ‘intrusion into grief or shock’, such as the publication of photographs taken at a funeral.
However, in every case, there will be a requirement to protect the right to freedom of expression and the right of the media to publish material of public interest. Each case will need to be carefully examined to see if the interests of freedom of expression outweigh your rights to private life.
The court guidelines have been developed in consequence of the express provisions in the HRA dealing with claims for injunctions, which concern freedom of expression. Freedom of expression is, of course, a right which is also incorporated by the HRA through Article 10. In the context of the media, there will always be a tension on the one hand between protecting the right to freedom of expression and a free press with respect to rights of privacy on the other hand. Section 12 of the HRA deals expressly with this tension and makes it clear that any person seeking to restrain publication of material which might affect the exercise of freedom of expression will:
1) Take all practical steps to notify the intended publisher or show that there are compelling reasons why that person should not be notified.
2) Need to satisfy the court that the underlying claim is likely to succeed at trial.
3) Need to deal with the court’s obligation to have particular regard to the Convention right to freedom of expression; and
4) Where such material is journalistic, literary or artistic, will need to deal with the court’s obligation to have particular regard to:
(a) the extent to which the material is, or is about to become, available to the public and it would be in the interest of the public for it to be published;
(b) any relevant privacy code.
This provision is designed to ensure that freedom of expression is not stifled by well-timed injunctions sought by persons at a time when the publisher of the material will not be able to deal with the application properly. However, it does not prevent you from seeking to obtain an injunction in circumstances where there has been an unjustifiable breach of your privacy and you have a good case of succeeding in litigation against the person responsible.
See also THE RIGHT TO FREE EXPRESSION
