Freedom of the Press and Privacy | Human Rights Law Essay

Aileen McColganargues that “However jaundiced one's view of gutter journalism, it cannot be in the public interest to provide the sordid, much less the corrupt, with a de facto veto on publication of alleged wrongdoing”. The object of this essay is to critically assess the balance between the context of the claims in privacy versus press freedom. I will discuss the values behind each right and assess the developing nature of the rights in both the UK and European courts. I then progress to the analysis of the role public interest plays in the judgement between balancing privacy and freedom of expression.

The balance between press freedom and privacy has given rise to much debate in recent years, in an era of deep celebrity intrusion, confessional journalism and the invasive ‘telephoto lens'. The nature of the tort has developed dramatically in recent years, to the extent that Lord Nicholls in Campbell V MGN ltd said “The essence of the tort is better encapsulated now as a misuse of private information”, thus the law will “appropriately protect a right of personal privacy' (Douglas v Hello!) The development as to what constitutes ‘Public interest' may be the signifier in what develops and distinguishes between the two rights; yet is cause for concern with regards to trivial press intrusion.

To define privacy is much like defining ones state of being. Retaining one's personal dignity has the importance as Feldman argues, “If people are able to release (private) information, with impunity, it might have the effect of illegitimately constraining person's choices as to his or her private behaviour, interfering in a major way with his or her autonomy”. (HRH Prince of Wales V associated Newspapers) Feldman signifies that privacy is ‘essential to Human flourishing' however individual evaluations of privacy are difficult to define and the courts must balance each case accordingly.

The very nature of politics demands a much more robust protection for freedom of expression. Whereas in cases of celebrity intrusion such as Murray v Express Newspapers or Campbell v Mirror Group Newspapers, it is more difficult for the press to claim under Article 10 that ‘information (is) on matters of serious public concern'.

Freedom of expression is the backbone of English democracy and fundamental to the press.The idea that “Freedom to engage in free expression and reception of ideas and opinions in various media is essential to human development” is one of the principle theories of the media and is fundamental to democracy. This is true; however journalism in the current media age is proving to be consistently intrusive and the free speech or public interest defence ever less plausible.

It is apparent that with two ‘mutually supportive' yet conflicting Convention rights, some kind of balance between Article 8 and Article 10 must occur and upon close examination of specific cases, the ‘right to respect for ones private life, home and correspondence', incorporated in Article 8, is somewhat over looked. (Kaye v Robertson) In the case of Venables & Thompson v News group Newspapers it was clear that unequal weight was given in favour of Article 10 in which the judge stated “I am satisfied that I can only restrict the freedom of the media to publish of the need for those restrictions can be shown to fall within the exceptions set out in Article 10(2)”.Thus this statement highlights that the case was not looked at in a parallel context of equal rights, and supports Fenwick and Phillipson's notion of a ‘striking asymmetry'.

An injunction was sought against a detailed publication of a relationship in a brothel in Theakston v MGN Ltd, but “The relationship between a prostitute in a brothel and the customer was not confidential in nature and the fact that sexual activity had taken place did not, of itself, create a relationship of confidentiality”,thus there was no breach of Article 8. The judgment was based on the notion that he was a ‘role model', “given that T was a presenter of television programmes aimed at younger viewers, there was an element of public interest in some of the material being published”.

Fenwick and Phillipson argue that the issue of public interest is obfuscating rather than clarifying issues of privacy and believe“we have in mind claims of public interest notoriously made by the court of appeal in relation to the revelations about the private lives of footballers based on some vague notion of the impact of ‘role models' on public perceptions”. With this justification one may argue that the rationalisation of Article 10 is weighted more heavily in favour of the press; and any ‘celebrity' is merciless at the hands of the media purely for being of ‘role model' status.

In A v B plc and Theakston, “it was said…the more transient a relationship the less emphasis the court should give to its protection”, which contrasts greatly to Barendt's argument that “free expression on sexual matters itself represents an integral aspect of a liberal community's morality”.

The interpretation of public interest was given an extremely broad reading in the cases of A v B and Theakston. Lord Woolf C.J conceded that public figures have the right to privacy yet “The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest.”Thus Lord Woolf's notion of privacy is obfuscated by the press' desire to publish stories which are of interest to the public; and with the ‘public interest' argument as a defense.

Toulson argues that “for disclosure to the public at large, there has to be a public interest to justify it” (Toulson) thus it is warranted to look at the balanced approach which the Campbell case undertakes.

The best example for balancing freedom of expression and privacy is the Campbell v MGN case which involved details of Naomi Campbell's drug addiction accompanied with photographs of her coming out of a treatment centre. Campbell's ruling extended greatly this privacy tort and provided a thorough balancing using the parallel analysis test, and a justified public interest argument. The judge highlighted in the case, the argument of Fenwick and Phillipson's above, reinforcing the notion that Theakston's ruling may have been incorrcet. “We do not see why it should necessarily be in the public interest that an individual, who has been adopted as a role model, without seeking this distinction, should be demonstrated to have feet of clay.”

In light of Campbell denying the fact she had taken drugs, “the right of the public to receive information about the details of her treatment was of a much lower order than the undoubted right to know that she was misleading the public when she said that she did not take drugs”. Thus the publication of her treatment was justified fairly in the public interest in accordance with Article 10.

Following the Campbell case, Lord Nicholls stated the following four propositions were a ‘new methodology' in dealing with balancing privacy and freedom of expression using the ‘parallel analysis test'. 1) There was no ab inito precedence to be given to privacy claims or freedom of expression claims; 2) the court had to weigh with ‘an intense focus' the comparative strength of the specific privacy claim and the specific expression claim; 3) the court must take into account the weight of the justification for interfering with each claim; 4) the court must take an ultimate balancing decision on the comparative weight of the claims. Ultimately these four claimsshed light on subsequent cases which draw a fairer balance on privacy claims but also regarding each case individually.

The successful privacy breach in the Von Hannover v Germany case is somewhat anomalous with regards to the House of Lords approach, namely the Campbell case.

The German courts ruled that the photographs of her carrying out everyday activities were in breach of Article 8 and infringed upon her privacy rights. The German Supreme Court said that “it represented a legitimate balancing of the right of privacy under Art.8 of the European Convention on Human Rights (the Convention) against the right of publicity under Art.10”. The judgment in Von Hannover, interprets an extremely wide reach of ‘private life', which is in contrast to the Lords approach in Campbell which states that ‘The activity photographed must be private'.

The methodology adopted in the Campbell case highlights the changing nature of this tort, but also shows that the competing rights between the two parties is not easy to remedy. The most notable conflict between the Strasbourg and the UK courts is the case involving photographs of JK Rowlings son (Murray v Express Newspaper). It appeared that the judge followed the Campbell ruling, as it was deemed that the photographs did not constitute a breach of Article 8, as the activity that Murray and his mother were doing was not private. One may argue from this point that the British courts have now adopted a fairer system of parallel analysis in which both competing rights are taken into consideration on a notion that private matters are deemed confidential, and anything else which is not in this realm is not, such as anodyne photographs of JK Rowlings son. This balanced approach does not consider the ‘profit making' motives behind the press, but considers a more pragmatic approach which holds privacy and freedom of expression on a more equal footing. If the courts were to be in favour of Article 8 in the Murray case, it may have topped the balance the other way and “If a simple walk down the street qualified for protection, it was difficult to see what would not”.

Although the ruling for Von Hannover may have interpreted a wide scope of private life, it appears that the ECtHR has interpreted ‘public interest' in the most fair and balanced manner. It stated in the Von Hannover case:

“ … the publication of the photos and articles in question, of which the sole purpose was to satisfy the curiosity of a particular readership regarding the details of the applicant's private life, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public.” This supports Fenwick and Phillipson's notion of public interest and the ‘role model' theory; and also sheds light on the incorrect ruling for Theakston. In light of the Murray case, it may be apparent that the ECtHR will follow Von Hannover in its judgment, claiming precedence to Murray's privacy, even though the activity was not in private.

The balance that the law needs to provide, to assess legitimate protection for human autonomy as well as protecting Britain's press freedom is one that is cause for much debate. It is essential when balancing both rights that neither right is a ‘trump card which always wins'. The balancing act, as Moreham suggests would be based upon, “the countervailing or qualified rights, (and) the courts would reach a conclusion on the basis of legality and proportionality”.

In light of Campbell and Theakston, it is clear that the public interest argument is paramount to the issue of balancing. The press appear to legitimise invasive privacy claims with this notion, yet it is difficult to strike the balance in a democratic country when the press play such an important watchdog role. Thus the blurred lines between ‘public interest' and ‘what is of interest to the public', needs to be established as much as the clear distinction between Article 8 and 10.

It would be somewhat radical for the House of Lords to follow the same approach as Von Hannover, as to imply that any photograph taken in the public domain (whether the figure is hounded or not) would be in breach of Article 8; and this would ultimately create a media furore in the UK.

It appears that the balance between privacy and freedom of expression has developed dramatically in the past few years. So much so, that in hindsight, cases such as Winner, Kaye and Theakston may have been ruled differently.

The balancing between privacy and freedom of expression will remain to be a ‘legal porcupine' and the correct balance is essential in order to retain human autonomy as well as press freedom. The development of privacy rights in Britain's may serve to prevent the degradation and commercialisation of journalism at ‘celebrities' expense; and thus the weight now given to privacy may curb the media's ‘increasingly invasive social environment'.

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