Podcast: the Fair
I have chosen a privacy question, as this topic seems to be gaining currency on tort courses, is now a distinct chapter in textbooks (even revision guides) and also brings in a blend of ‘pure’ tort and some of the human rights jurisprudence that is increasingly a feature of the study of modern tort law. It also enables me to comment on the use of case law, analysis, response to questions, etc. – all of the things that I believe should be features of effective feedback.
I think that the point should be made – if it isn’t already - in this feature that feedback is not just about giving a negative critique of what the student has produced, and that they should be shown ‘how to’ as well as ‘how not to’.
In Campbell v MGN Ltd [2004] AC 457, Lord Nicholls observed that ‘protection of various phpects of privacy is a fast developing area of the law’. (At p. 464.)
By reference to the relevant authorities, analyse developments in the law of tort that drew his Lordship to this conclusion.
Podcast: the Fair
While it has been previously stated that there is not a tort of privacy in the UK, there is some protection that can be seen through the application of other torts. The torts of trespass, defamation and malicious falsehood have all been called on to protect various privacy interests, but each has its own rules and each is not specifically designed to protect a person’s privacy in the widest sense. There have also been a number of acts of Parliament which also offer some limited secondary protection of peoples’ privacy interests. This essay will consider the developments in the law that led to Lord Nicholls’ observation. (1)
While there could be a little more detail (for example, where has it been 'previously stated'?), this is a clear opening paragraph, which identifies the task at hand and suggests that it will stay relevant to the question.
Key developments in the law have been seen through a series of cases involving well known celebrities, as will be examined below. The importance of protecting privacy though is not limited to celebrities, as was seen in the case of Venables v News Group Newspapers, and also in a human rights case of Peck v UK. The way that English law has developed to protect privacy has been driven by human rights considerations and the coming into force of the Human Rights Act 1998. This Act has meant that the law has had to develop in a way consistent with the European Convention on Human Rights.
In the Wainwright case the judge said that there was not a specific right to privacy in English law. He said that it would be undesirable for the courts to get involved in creating one as well. That point was later picked up by Baroness Hale in the case of Campbell, where she was of the opinion that a privacy law could not be created by the courts even if they wanted to. Other cases, though, such as Mosely v News Group Newspapers have given the impression that the judges have created such a law even if it is not a specific tort in its own right. In that case the judge, Eady J, was subsequently criticised for creating an undemocratic law. (2)
Although this paragraph is accurate, it does jump about a bit. It would benefit from better explanation, as there is a lot of knowledge that is being assumed and it gives the impression of something that has just been learned by rote. Explain why the law undemocratic.
An issue to consider is why the law has developed in the way it has. (3)
That is a statement of the obvious, as it is what the question is asking you to do.
Some writers have noted that there has not been a clear definition of what privacy actually is. Others have noted that the fact that Parliament has been unable to come up with a definition means that it is more difficult for the courts to do so and be consistent in that. There were attempts to define privacy and to create a law as far back as the Younger Committee in 1972, but the difficulty of balancing the competing interests of privacy on the one hand and freedom of speech on the other meant that the law did not develop to a degree where it could easily be seen what would give rise to an action for a claimant. (4)
This is a little vague. Whereas the preceding couple of paragraphs contained some specific examples, this one is more limited.
The limitations of privacy laws in English law were dramatically demonstrated in the case of Kaye. Here an actor who was in intensive care was photographed and interviewed while very ill and suffering from head injuries. His claim for an invasion of privacy failed, despite the court agreeing that there had been a clear invasion of his privacy. The only remedy he had was in the tort of malicious falsehood as the paper had stated that the interview had been printed with his permission. (5)
This is good; it highlights the inadequacy of the law as it existed.
This was not sufficient to prevent the publication. Despite this clearly unsatisfactory decision, the law was not changed by either Parliament or the courts.
The most important development of recent times has been the adoption of the European Convention on Human Rights (ECHR) through the Human Rights Act 1998. Article 8 of the ECHR protects a person’s right to a private and family life. A key case where the extent of the right was considered by the European Court of Human Rights was the case of Van Hannover v Germany where Princess Caroline of Monaco recovered against paparazzi photographers who took pictures of her in a restaurant. Set against this right though is article 10, which permits freedom of expression. It is a difficult balance, as Lord Hoffmann observed in Campbell, and was noted by Lord Nicholls that the development of the law of privacy had a lot to do with the passing of the Human Rights Act. (6)
This is reasonably good; it would be improved by noting that the HRA explicitly provides that the competing interests be weighed together in s 12.
How the courts have dealt with the Human Rights phpect can be seen in the way that they have adapted the equitable doctrine of breach of confidence to cover privacy issues. (7)
As well as the sentence being a little clumsy, it does not actually make explicit why the courts would develop the law, which is concerned with the obligation set out in s 6 HRA.
Originally applied to disclosure of confidential information in primarily commercial situations, it has been adapted for use in cases of personal information. The case of Coco v Clark required a duty of confidentiality to be owed which was then later breached. The duty of confidentiality was based on the quality of the information – should the person holding it have been aware that disclosing it would be wrong? This then presupposed that there was an existing relationship between the parties, because they would have to know each other to understand the quality of the information and enable the obligation of confidence to arise. The requirement for a pre-existing relationship has since been removed. Instead, a duty of non-disclosure can arise when a person obtains private information and knows/should know that this information should be kept confidential. On the flip-side is the fact that there is a public interest defence to the disclosure.
Looking at the case law shows how the law has developed. In Douglas v Hello the defendant’s publication of illicit photographs taken at a celebrity wedding, when it was widely known that there was an exclusivity deal with another publication resulted in a successful action using breach of confidence. The leading case of Campbell, extended this slightly further with Lord Nicholls suggesting that a new tort of misuse of private information had been created. Here the claimant sought damages against the defendant newspaper, which had published details of her treatment for drug addiction as well as photographing her leaving a Narcotics Anonymous meeting. Importantly, Campbell developed the test: reasonable expectation of privacy lay where it was obvious that the information published was ‘private’. In the context of the case, this meant that treatment details remained private, whereas the photograph did not fall into that category. Divulgence of personal information went a step further in the case of McKennitt v Ash, where a former friend of a singer published material relating to her love-life and other very personal information about her life. What is key to the determination, therefore, is what type of information is to be considered private, and whether there is a public interest reason for publication.
Two recent cases have brought the issues into sharp relief. In the case of Mosely, the News of the World’s undercover reporting of the claimant attending a sado-masochist orgy was held to be a breach of confidence in that there is no general interest in another’s sex life. The defendant had tried to argue that there was a Nazi theme to the proceedings and that given that the claimant had a high profile position in a leading sport it was in the public interest. The court found no such them to be present and the claimant was successful. This compares with the Terry case, where the extra marital affairs of the England football captain were held not be sufficiently private not to be published, although the issue appeared to be more concerned with potential impacts on sponsorship deals, and team morale, than the effect on his family. (8) It is good to include (and contrast) contemporary applications of the law, although the decisions in both could be slightly better explained.
In conclusion, the law has developed a long way since the failings that were exposed though the Kaye case. Driven by the need to provide remedies in accordance with the ECHR, the HRA has empowered the judges to act. In the face of controversy in establishing the balance between freedom of expression and privacy, however, it may be that Parliament should consider legislation in order to bring clarity to the definitions and take the pressure off the courts. Lord Nicholls’ observation that there is no overarching privacy tort remains true at this point in the law’s development. (9) The conclusion successfully ties together the threads that went before it and once again brings the material back to an explicit answer to the question asked.