Podcast: the Good
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 Good
There has been an apparent degree of reluctance for either Parliament or the courts to create a specific tort for the invasion of privacy. As an alternative, recent years have seen the courts attempt to develop principles that can then be applied, sometimes rather awkwardly, to fit to certain instances where claimants have complained of interference. Therefore, the statement by Lord Nicholls requires context and evaluation to determine its accuracy. (1)
It is very important in an essay to address the specific question asked of you. Providing a general introduction to contextualise the question suggests to the reader that you have a grphp of the issues. It also helps to give you an 'anchor' in an exam situation.
First, in terms of the ‘landscape’ of legal developments, some consideration was given to the developing of statutory responses in the 1960s and this was revisited again most recently by the Calcutt Committee in 1990. In all circumstances Parliament was reticent to intervene and create a statutory tort protecting individual privacy. Other than direct media intrusion, there has been piecemeal development, charted by a number of authors (2)
Such as? Despite the accuracy of the statement, it is always good to add a named reference. The point made, though, is accurate and does reflect the question; it does not assume that the question is solely concerned with privacy in a press context (although the context of Campbell means that the question is asking for that to be the predominant consideration) and so it is useful to at least note that fact before moving on.
, of subject specific protection, such as the Data Protection Act 1998 and the Protection from Harassment Act 1997. However, none of these provisions provides a general tortious mechanism to protect privacy. Very clear gaps in the law have been exposed in cases such as Kaye (1991) and in Wainwright v Home Office (2004), which are suggestive of a failure in the approach taken to date.
In Kaye for example, four torts were alleged by the claimant, who was falsely claimed to have consented to be interviewed and photographed whilst critically ill in a hospital bed. His success on the grounds of malicious falsehood merely prevented the tabloid from claiming that he’d agreed to publication, and the pictures and interview were published regardless, thereby, as was recognised by the court, invading his privacy without sufficient legal redress (3)
The case is well used. It is not just a statement of facts, and what the decision was. It has a place in the developing argument and is referential to the need shown above that there is a need to address failings in the law.
. Indeed, in the case itself, Lord Justice Glidewell was clearly of the view that the claimant’s privacy had been invaded, and that it was for Parliament, but not the courts to provide effective redress. As there remains no statutory intervention, it is necessary to examine other reasons why the law has developed as Lord Nicholls has observed.
It seems that the main driver has been the coming into force of the Human Rights Act (HRA) 1998, which enables claimants to claim the rights contained in the European Convention on Human Rights (ECHR) in the UK courts. Section 6 of the HRA requires the courts, as public authorities, to develop the law in accordance with the ECHR rights. The problem with privacy cases is that there are competing rights to consider. First, there is the right to respect for privacy guaranteed in article 8 (4)
Strictly speaking the right is not one of 'privacy' but goes much further than that. It is also not a 'guaranteed' right, which might suggest that it is 'absolute'; rather it is subject to qualification in certain circumstances.
; and article 10 provides a right to freedom of expression. At first glance the two might seem incompatible. The HRA provides, in s 12 that the courts must, however, balance these competing claims. The way in which they have done so, would appear to reflect the developments in the law identified by Lord Nicholls, which have been developed more recently following the decision in Campbell. It should be noted at this point that the majority of the cases have concerned celebrity figures, although it should be pointed out that the principles would apply universally.
The development has been seen in a series of cases in which a relatively small branch of law, with its roots in equity, called breach of confidence has been manipulated to permit the courts to find in favour of claimants in ‘privacy’ cases. The doctrine was developed from a three-stage test, which had been outlined in a case with nothing to do with what we understand to be ‘privacy’. The case of Coco v Clark was concerned with the use of design information, but the test, outlined by Megarry J was stated to be that: first, the information must have a necessary quality of confidence about it; second, the information must have been given in circumstances that created an obligation of confidence; and finally that there must be an unauthorised use of that information which was detrimental to the party who’s information it was. A refinement occurred in the Guardian Newspapers case in 1990, where it was held that there was no need for a pre-existing relationship. (5)
This is nicely summarised, and hopefully will help to keep a focus on the analysis of the developments in the law as the essay progresses. It is good to have a point of reference, so that you can compare back and the marker is able to see how you are approaching the answer.
The first real use of the formulation in relation to what we have come commonly to understand as a privacy issue was in the case of Douglas v Hello, where the claimants sued the defendant gossip magazine over the publication of unauthorised photographs of their wedding. They had ‘sold’ the rights to the photographs to a rival publisher, and in full knowledge of this fact the defendant published secretly taken photographs. It was held that the publication of the photographs amounted to a breach of confidence.
The high point of the development in the law to date was the decision in Campbell v MGN as referred to in the question. Here, the House of Lords blended the obligations placed upon the courts by the HRA to give effect to the balancing act between articles 8 and 10 of the ECHR, whilst at the same time using the breach of confidence concept to find for the claimant. The case arose after pictures of the claimant leaving a meeting of the drug rehabilitation group Narcotics Anonymous, and details of drug rehabilitation treatment she was receiving, were published by the defendant newspaper. It was held, by a 3-2 majority, that there had been a breach of confidence in that the publication of details of her treatment was confidential information which the defendant was under a duty not to disclose. The case also redefined the test from Coco, stating that the duty arose where there would be a reasonable expectation of privacy in relation to the information and that the scales were tipped in favour of privacy over freedom of expression (6)
This is slightly simplistic, but in the context of an examination answer it would be okay. It does convey the basic, if not extended, point but is not quite refined enough to be totally unambiguous. It might have been useful here to have considered the arguments put forward by the defendant that it was in the public interest to publish given Campbell's denials of her drug use.
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The Lords’ analysis raises the question of what private information actually is. In Campbell it was offered that it would be information about a character that a reasonable person would find offensive if revealed about them. That view was later applied in the case of McKennit v Ash, in which a singer successfully claimed a breach of confidence in relation to personal material, relating for example to her deep seated fears, and relationship issues, which was contained in a book written about her by a friend. The decision in McKennit also reflected the decisions of the European Court of Human Rights (ECtHR) on the issue, and particularly the most significant case of recent times, Von Hannover v Germany. The case was brought by Princess Caroline of Monaco because of the constant intrusion into the her life by paparazzi photographers, who photographed her doing all manner of mundane tasks and ultimately took long-lens pictures of her enjoying a meal in a restaurant. Because the German courts had taken a view of privacy that meant that her celebrity was an issue of general interest, nothing was done to prevent the intrusion. The ECtHR held that the public doesn’t have a legitimate interest in how people behave in their general lives, even if it means that sometimes they are in ‘private’, such as having a meal in a restaurant, despite the place itself being public, a point confirmed in Murray v Express Newspapers. (7)
Again, despite the fact that this is reasonably accurate, it is slightly clumsy. Being hyper critical, a 'perfect answer' would also have reflected that the pre-Von Hannover position was something applied by the English Courts as well in cases such as A v B and Theakston (despite the latter case differentiating between text and pictures).
A series of later cases have confirmed this view as being the correct one, although the court has also looked at the motive in some instances (see CC v AB) (8)
This is correct, but looks as though the writer is running out of steam, or maybe time. In an examination, it is more acceptable to pay passing reference to a case than it would be in an assignment, but it is still not the greatest style. Of course, if time is not one your side, it may be the only option.
. Recent cases involving high profile sports people – Mosely v News Group Newspapers, and LNS v Persons Unknown – have made the picture slightly more confusing. In the former case, it was held that the sex life of a person was not in the legitimate public interest, and the claimant received damages against the defendant News of the World. In the latter case, involving the adultery of an England football player, it was held that his position as a role model, and the fact that the primary concern in trying to suppress publication was the affect it could have on his sponsorship, enabled the court to hold that publication was legitimate.
From the above discussion it can be seen that Lord Nicholls’ statement is an accurate reflection of the current state of the law in the UK. There have been considerable developments, most linked to the greater and more far-reaching development of human rights jurisprudence, and the greater willingness of the courts to become involved in the balance between the freedom of expression and the right to a private life. The whole area of privacy is complex and cannot be simply reduced to stories about celebrities, although they have undoubtedly provided the most obvious legal developments to date. (9)
The conclusion is supported by what has come before it. It ties the concepts together effectively and concisely and provides a clear response to the question. The Murray reference is correct, but it doesn't explain 'how' it confirms what went before.