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 laws of breach of confidence, trespass, nuisance, surveillance, harassment etc., apply equally to the media and you may be able to bring actions against the media where they have infringed those laws. Libel may restrict some intrusions on private life but only if the words are defamatory in that they discredit the individual or lower him or her in the estimation of others. In reality, however, actions for libel are of limited use as a means of protecting against intrusions of privacy. If the words relate to a private matter but are substantially true, then an action for libel is likely to be successfully defended. Moreover, public funding is not available for libel actions so they are less useful to an individual of limited means.
In practice, it has often been very difficult to control the worst excesses of the media and flagrant breaches of the rights of privacy of individuals have been allowed to go on without redress. This does not simply apply to celebrities or royalty. In many cases, the media have significantly intruded upon the rights of unknown individuals who have become famous or, more usually, infamous as a result.
In the absence of any right to privacy as such, lawyers have had to resort to strange suits to try and prevent invasions of privacy. In this respect, actions for malicious falsehood were on the rise. In theory, public funding for actions of this type is available. Malicious falsehood was notoriously used as a cause of action against a newspaper which photographed and interviewed a famous actor who was recovering in hospital from brain surgery at a time when he was not in a fit state to consent to such an interview. The court dealing with the claim recognised that the remarks which the patient had made were wrongly portrayed as part of a voluntary and exclusive interview.
However, the newspaper got round this problem by publishing a statement that the interview was not voluntary or exclusive. This did not enable the real mischief, the invasion of the actor’s privacy at a time when he was most vulnerable and sensitive, to be dealt with and the courts have been criticised for failing to develop the law so as to protect people in positions such as this. The ingredients for an action in malicious falsehood are also difficult to establish. The victim must show that the words are false, that they were published maliciously and that they have either caused financial loss or, in some cases, were likely to cause such loss.
Copyright can also be used as a way of preventing publication of private papers or pictures, but working out who owns copyright - and who is therefore the right person to bring an action - can be a complicated matter. Additional protection is given to a person who commissions photographs for private or domestic purposes. Even if the photographer owns copyright, that person can prevent their publication.
It is these inadequacies that may be resolved by the incorporation of Article 8. It is clear from the recent cases involving press intrusion that the courts are prepared to give effect to the rights under Article 8 by expanding the existing cause of action of breach of confidence.
The courts are also themselves under an obligation to act compatibly with Article 8. Although there is no requirement on private individuals or companies - such as journalists and newspapers - to act compatibly with Article 8, the courts may be increasingly willing to develop the common law so as to provide proper protection for privacy. A recent decision from the House of Lords suggests that there is continued reluctance to recognise a new right to privacy and the Government has rejected a recent Select Committee proposal urging the introduction of such a right. However, the development of existing causes of action will give much wider protection than was previously the case.
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. As a general rule, the courts will not intervene to protect you merely because the media is intending to publish material in a particularly lurid way. The courts are not there to judge the taste of an article. They will be concerned with whether or not the material itself should be disclosed or published at all. Where you are seeking to prevent the media from publishing an article or putting out a programme, then the courts will apply the principles relating to injunctions which have been set out in the case involving the footballer Gary Flitcroft.
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.
In practice, it has often been very difficult to control the worst excesses of the media and flagrant breaches of the rights of privacy of individuals have been allowed to go on without redress. This does not simply apply to celebrities or royalty. In many cases, the media have significantly intruded upon the rights of unknown individuals who have become famous or, more usually, infamous as a result.
In the absence of any right to privacy as such, lawyers have had to resort to strange suits to try and prevent invasions of privacy. In this respect, actions for malicious falsehood were on the rise. In theory, public funding for actions of this type is available. Malicious falsehood was notoriously used as a cause of action against a newspaper which photographed and interviewed a famous actor who was recovering in hospital from brain surgery at a time when he was not in a fit state to consent to such an interview. The court dealing with the claim recognised that the remarks which the patient had made were wrongly portrayed as part of a voluntary and exclusive interview.
However, the newspaper got round this problem by publishing a statement that the interview was not voluntary or exclusive. This did not enable the real mischief, the invasion of the actor’s privacy at a time when he was most vulnerable and sensitive, to be dealt with and the courts have been criticised for failing to develop the law so as to protect people in positions such as this. The ingredients for an action in malicious falsehood are also difficult to establish. The victim must show that the words are false, that they were published maliciously and that they have either caused financial loss or, in some cases, were likely to cause such loss.
Copyright can also be used as a way of preventing publication of private papers or pictures, but working out who owns copyright - and who is therefore the right person to bring an action - can be a complicated matter. Additional protection is given to a person who commissions photographs for private or domestic purposes. Even if the photographer owns copyright, that person can prevent their publication.
It is these inadequacies that may be resolved by the incorporation of Article 8. It is clear from the recent cases involving press intrusion that the courts are prepared to give effect to the rights under Article 8 by expanding the existing cause of action of breach of confidence.
The courts are also themselves under an obligation to act compatibly with Article 8. Although there is no requirement on private individuals or companies - such as journalists and newspapers - to act compatibly with Article 8, the courts may be increasingly willing to develop the common law so as to provide proper protection for privacy. A recent decision from the House of Lords suggests that there is continued reluctance to recognise a new right to privacy and the Government has rejected a recent Select Committee proposal urging the introduction of such a right. However, the development of existing causes of action will give much wider protection than was previously the case.
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. As a general rule, the courts will not intervene to protect you merely because the media is intending to publish material in a particularly lurid way. The courts are not there to judge the taste of an article. They will be concerned with whether or not the material itself should be disclosed or published at all. Where you are seeking to prevent the media from publishing an article or putting out a programme, then the courts will apply the principles relating to injunctions which have been set out in the case involving the footballer Gary Flitcroft.
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.
