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Published: Fri, 02 Feb 2018
Right Of Privacy In English Courts
The right of privacy in the UK though not legally enforceable at common law, have been acknowledged by the English courts as Lord Denning in one case said, “While freedom of expression is a fundamental human right, so also is the right of privacy.” Schering Chemicals v Falkman1. Lord Scarman, in another case said the right to privacy is fundamental, Morris v Beardmore2. Lord Keith in one of the case said, “the right to personal privacy is clearly one which the law [of confidence] should … seek to protect” AG v Guardian Newspapers Ltd (No 2)3. In one of the landmark case of Entick v Carrington4 Entick won his case and accordingly awarded damages as the king’s officers failed to establish any legal authority for the trespass in to his house.
Privacy has been recognised is one of the most important human rights reflected in different religions. There are references to privacy in the Holy Qur’an, the Bible and Jewish law. The recognition of the privacy stated in the Holy Qur’an in Surah Al Noor is, “O People who believe! Do not enter the houses except your own until you obtain permission and have conveyed peace upon its inhabitants; this is better for you, in order that you may ponder.” “And if you do not find anyone in them, even then do not enter without the permission of their owners; and if it is said to you, “Go away” then go away – this is much purer for you; and Allah knows your deeds”5.
As per the Jewish law due regards exist to privacy with respect to the issue of private property, the 8th commandment states, “You shall not steal.” This means respecting property rights means to respect privacy rights6.
1.  QB 1 at 21
2.  AC 446, 464
3.  1 AC 109, 255
4. (1765) 19 St Tr 1029
5. Surah Al-Noor 24:27-28 (Yusufali); al-Hujraat 49:11-12 (Yusufali)
Jesus taught to his followers for keeping their generosity private and revealed that, “But when you give to the needy, do not let your left hand knows what your right hand is doing, so that your giving may be in secret. Then your Father, who sees what is done in secret, will reward you.” 7
The concept of God’s Holiness lies in the concept of God’s Privacy. Therefore, we should respect the concept of privacy.
The UK is party to various international human rights treaties, which recognise the existence of a right to privacy, yet UK law does not contain a single enshrined right to privacy. No Act of Parliament creates such a right, and the common law only allows a limited recognition of privacy rights in specific situations.8
Where did the Human Rights Act (HRA) 1998 start and how it work?
The HRA came into force in England and Wales on 2nd October 2000.9The HRA is the Act of Parliament that has brought the European Convention on Human Rights (‘the Convention’) into UK law. After passing of the HRA, it allows people to enforce their rights given by the Convention in the UK courts.
Prior to the HRA came into force, if aggrieved parties believed that their human rights under the Convention had been infringed, they had to take their complain to the European Court of Human Rights (ECHR) in Strasbourg, France which could consider the complaints whether or not the UK is infringing the Convention. In case the court finds the breach, it has power to make a compensation order against the UK.10 This was time consuming and could be quite complicated.
7. Matthew 6:3.4 ( http://www.bcbsr.com/topics/privacy.html)
There have been various rulings against the UK. The United Kingdom (UK) has been a party to the European Convention on Human Rights (ECHR) since 1951 which was written down, providing important basic human rights.11
Section 3(1) of the (HRA) provides that, as far as possible, the courts should interpret and apply the law in a way which respects or fits in with people’s Convention rights. However, in case if it is not possible to interpret an Act of Parliament for making it compatible with the Convention, the judges are not permitted to override it. What all could be done for the judges is to issue a declaration of incompatibility (Section 4 of (HRA). However, such declaration does not affect the validity of the Act of Parliament: in such a way, the HRA seeks to maintain the principle of Parliamentary sovereignty. Any person still can take his case to the Strasbourg court as a last resort.
The HRA also provide that public authorities including government departments, the police, local authorities, courts, schools, hospitals, GP surgeries, prisons and public libraries. and the Benefits Agency must pay respect to the people’s Convention rights.13 The courts could even refer to the provisions of the Convention of ECHR14 prior to the HRA in order to interpret ambiguous legislation.15 The courts have gone to the extent by saying that breaches of the European Convention could encourage them for carrying out the judicial review of minister’s decision and hold it to be unreasonable and thus illegal.16
11. http://www.cabinetoffice.gov.uk/secretariats/economic_and_domestic/legislative _programme/guide_html/echr.aspx
15. R v Home Secretary ex parte Brind  @1 AC 696.
16. R v Ministry of Defence ex parte Smith  4All ER 427. Before ECHR,
What is Privacy?
The international catalogues on human rights have found difficulty in defining the privacy. 19
However, the definitions of privacy varied widely in accordance with the context and environment. The Calcutt Committee, in the UK provided a satisfactory statutory definition of privacy as, “the right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information.” 20 In nutshell, the privacy could be defined as:
the right to be left alone; 21
freedom from interruption, intrusion, embarrassment or accountability 22
control of the disclosure of personal information. 23
a protection of the individual’s independence, dignity and integrity 24
secrecy, anonymity and solitude 25
the right to protection from intrusion into your personal life. 26
Privacy in the (HRA)
There is no general right existed in English law however partial protection existed through the tort remedies of trespass, defamation and breach of confidence.27 The injustice experienced in the absence of any general right to privacy was seen in the case of Kaye v Robertson. 28 The facts of the case were that an actor Kaye received head injuries in a car accident in London on 25 January 1990.
20. Report of the Committee on Privacy and Related Matters, Chairman David Calcutt QC, 1990, Cmnd. 1102, London: HMSO, at 7.
21 Warren & Brandeis (1890, p. 205) (Britz, 1999; Velasquez, 1998)
23 (Elgesem, 2001; Fleming, 2003; Tavani & Moor, 2001)
25. http://www.springerlink.com/content/jrp61378317v2571/ 26.http://www.privileged.group.shef.ac.uk/projstages/stage1/introduction/definitioncounter/
28.  C A
He was evacuated to Charing Cross Hospital. There was lot of interest amongst Mr Kaye’s fans to know about Mr Kaye’s progress and condition through newspapers and television. The hospital staff tried to keep Mr Kaye in isolation and placed notices at the entrance asking visitors to see a member of the staff before visiting in order to lessen the risk of infection.
However on 13 February 1990, Mr Kaye was interviewed and photographed by a journalist and a photographer from Sunday Sport on Mr Robertson’s (editor) directions against the instructions. After some time when members of the nursing staff learned what was happening. They tried to stop the journalist from photographing and to leave, but failed and finally the security staff were called to eject the representatives of Sunday Sport.
As per the medical evidence, Mr Kaye was unfit to be interviewed or to give any informed consent to be interviewed. The accuracy of this evidence was confirmed just after approximately a quarter of an hour when the representatives of Sunday Sport left the room, and Mr Kaye had no recollection of this incident of interview and photographs.
Sunday Sport edition page, which was put in evidence, was also containing pornographic material.
A copy of the edition of Sunday Sport which was put in evidence was also showing many of the advertisements containing many forms of pornographic material. In this regard Leggatt LJ said: that a celebrity’s identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorised commercial exploitation of that identity. ‘The famous have an exclusive legal right during life to control and profit from the commercial use of their name and personality’: Carson v. Here’s Johnny Portable Toilets Inc. @(1983) 698 F. 2 d 831 at page 835.www.a-level- law.com/caselibrary/KAYE%20v%20ROBERTSON%20%5B1991%5D%20FSR%2062%20-%20CA.doc Kaye v Robertson 1991 right to privacy
An application regarding an injunction to restrain publication failed. Glidewell L J said:
“It is well known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person’s privacy.”
Leggatt LJ gave the remarks that, “We do not need a First Amendment to preserve the freedom of the press, but the abuse of that freedom can be ensured only by the enforcement of a right to privacy. This right has so long been disregarded here that it can be recognised now only by the legislature”.
@(1983) 698 F. 2 d 831 at page 835.
www.a-level- law.com/caselibrary/KAYE%20v%20ROBERTSON%20%5B1991%5D%20FSR%2062%20-%20CA.doc Kaye v Robertson 1991 right to privacy
Role and Effect of Article 8 of European Convention on Human Rights (ECHR)#
The HRA implements the ECHR as an integral aspect of British legislation and HRA is mainly concerned with the relationship between citizens and state. Employees of the public authorities could apply the HRA directly. Section 6(1) of HRA imposes a duty on public authorities to ensure they comply with the Convention. Employees working in the private sector are supported in their privacy concerns because Section 3a of HRA provides a general duty on British courts to interpret all legislation consistently with the convention. Finally, and most broadly, Article 1 of the Convention (http://www.hri.org/docs/ECHR50.html ) requires states to secure Convention rights to everyone in their jurisdiction.
Article 8 provides guarantees to everyone the right to respect for his private and family life, his home and his correspondence. Section 2 provide the details of the limits to this right. (http://www.hri.org/docs/ECHR50.html
The history about interpretation of Article 8 by the ECHR has shown that the right to privacy is to be understood quite broadly. It relates to surreptitious photography, personal information, sexual identity, and phone calls from home and business premises. The ECHR made use of Article 8 to protect the persons from unregulated and excessive police [email protected] (Malone v UK, 1984; Perry v UK, 2003); correspondence [email protected] (Foxley v UK, 2001; Halford v UK, 1997); an illegal entry into person’s sexual practices by the [email protected] Dudgeon v UK, 1983; ADT v UK, 2000) and events of privacy in public spaces @( (Peck v UK, 2003; Von Hannover v Germany, 2004).
HRA 1998 Case Law
The first round of post (HRA) privacy cases started with Douglas, Catherine Zeta Jones and OK! magazine requiring an injunction to restrain the publication of surreptitiously taken wedding photographs in Hello! [email protected] Douglas v Hello! Ltd  QB 967)
In the case Spencer v United [email protected](Application 28851/95, 28852/95)  EHRLR 348
Douglas v Hello! Ltd  QB 967)
Application 28851/95, 28852/95)  EHRLR 348
The facts of the case were that Earl Spencer and Countess Spencer #were photgraphed in the private clinic where she was under treatment for bulimia and alcoholism. Her pictures and details of the treatment appeared in various newspapers together with personal information concerning the private lives of both applicants.
The Press Complaints Commission (PCC) recognised the complaints against the newspapers for invasion of privacy and accordingly all the newspapers published apologies. The applicants also threatened an action for breach of confidence and obtained an injunction against their former friends, who were thought to be the source of the disclosures in order to stop them from making any further disclosures.
A complain was made under Article 8 of the Convention to the Commission for a breach of their right to respect for private and family life, and the right to an effective remedy under Article 13. The complain was made to the commission with out bringing any domestic proceedings against the newspapers.
In this case the issue was, whether the domestic remedies had been exhausted by the applicants before making their complaint to the European Commission.
It was held, there were reasonable prospect of success available to the applicants under national law to establish that the newspapers had acted in breach of confidence. Having failed to explore the matter in the domestic courts for consideration through the common law system, their application under Article 8 of the Convention was declared inadmissible and Article 13 of the Convention was rejected by the Commission as manifestly ill-founded within the meaning of Article 27.2 of the Convention.
However, in Douglas v Hello @(2001 C A) , the Court of Appeal made a ruling that claimants do have a right to personal privacy, which was grounded in the doctrine of confidence. Douglas and Catherine Zeta-Jones had granted OK! magazine exclusive rights for publishing photographs of their wedding. Hello! magazine obtained photographs surreptitiously of the wedding on 18 November 2000. Both have lessened the degree of privacy about their wedding by allowing OK! to publish photographs, thus affecting the balance between their rights to privacy and the rights of others to freedom of expression. Douglas sought an injunction to prevent Hello! from publishing unauthorised wedding photographs.
@(2001) C A
OK! and the Douglases initially managed to obtain an injunction to prevent the publication by Hello! in November 2000. However, on appeal, the Court of Appeal on the grounds of having adequate remedy in the form of damages if the case was proved at trial lifted the injunction.
In April 2003, the trial took place and Mr Justice Lindsay found in favour of the Claimants, on a traditional breach of confidence basis. The deal, between OK! and Douglases rendered the information contained within the photographs a valuable “commercial trade secret. @ 3 AllER 996, at paragraph 180 (ii)
In the judgment the award of damages to OK! @ (£1,033,156) and special damages to Douglases along with the Court’s recognition of the Article 8 of the ECHR shows the importance of the judgment. The Court recognised that Article 8 binds governments to take positive steps to protect privacy and to refrain from unwarranted intrusion into private lives.
The European Court in Princess Caroline of Monaco [email protected] stated that parties to the Convention are obliged for the protection of individuals from unjustified invasion of private life by other individuals and also the courts of Convention are under obligation for the interpretation of the legislation in a way that would achieve that result.
In the UK in the absence of any privacy legislation, the only suitable way to confront the gap is that an English courts could give effect to that obligation was to develop the action for breach of confidence. The Court of Appeal made clear that it was less than happy with being required “to shoe-horn within the cause of action of breach of confidence claims for publication of unauthorised photographs of a private occasion”, but it carried out its task impeccably.#
This case transpired that if private information is of commercial value, and loss is proved, substantial damages could be awarded. The result of this case provide that claimants were granted their remedy and it was relating less to privacy and more to the commercial rights of celebrities and publishers. The decision was made on the base of commercial confidence (Hello! on the liability issue and the Douglases on the privacy issue).
@Princess Caroline of Monaco in Von Hanover v Germany  ECHR
In Peck -v- [email protected] Mr Peck was filmed on CCTV when he was walking alone down Brentwood High Street having a kitchen knife in his hand and later he attempted suicide by cutting his wrists, this was not shown on the CCTV footage. The police ultimately arrived, disarmed him, and was taken to the police station, where he later without charge was released.
A press releases was published by the local Council to demonstrate the power of CCTV and its effectiveness by showing two still photographs taken from the footage without masking Mr Peck’s face. The story was published in two local newspapers and also appeared along with the footage provided by the Council, on Anglia Television and the BBC. Many of his friends and family members who saw the BBC’s programme recognised Mr Peck.
Mr Peck made a complaint to the concerned authorities* for alleging infringement of his privacy. His complaints were considered genuine and upheld except by (PCC)@ @and for applying for judicial review regarding Council’s disclosure of the footage.
As there was no general right of privacy under English law=(R. v Brentwood BC Ex p Peck, 1998 EMLR 697) Mr Peck made a complain to the European court for an invasion to his privacy.
The European court held +  EMLR 15 that Mr Peck’s private life was interfered by the disclosure of CCTV footage with out his consent and masking the relevant images, contrary to Article 8 which also provide protection to identity and personal development. The footage taken in a public street was not sufficient for excluding it from being regarded as a private situation.
The European court further made conclusion that, as there was no defective remedy available to Mr Peck under domestic law, so the UK was in breach of its Article 13 obligation to provide effective remedies. This provides the glaring lack of domestic “privacy remedies”.
*Broadcasting Standards. Commission (BSC ),Independent Television Commission (ITC), Press Complaints Commission (PCC)
@@(PCC) rejected on the plea that the events occurred in a town, public street which was open to public view.
=(R. v Brentwood) BC Ex p Peck, 1998 EMLR 697)
+  EMLR 15
The Select Committee on Culture Media and Sport in June 2003, ##:
recommended that the government should reconsider for bringing legislative proposals for clarifying the protection that individuals could expect from unwarranted intrusion by others – not the press alone – into their private lives. This is necessary to fully satisfy the obligations upon the UK under the ECHR. @(http://www.scribd.com/doc/27380273/Part-2-of-PCC-Report)
The response of the government was swift and unequivocal. On the same day, it issued a statement saying that it had no intention of bringing in specific legislation to protect privacy. The formal response of the government in early October 2003 was that following the (HRA), the government is of the view to let the courts deal with the issue: “The weighing of competing rights in individual cases is the quintessential task of the court, not of government or of parliament. Parliament should only intervene if there are signs that the courts are systemically striking the wrong balance; we believe there are no such signs.”@@@New Law Journal, 21 November 2003
Unfortunately opposite view was taken by the courts. The House of Lords on 16 October 2003 gave judgment in Wainwright v The Home Office  3 WLR 1137. The decision was widely criticised being too conservative, but it should be noted that it was done in respect of a case bought prior to the implementation of the (HRA). The House of Lords refused to hold that there has been a previously unknown tort of invasion of privacy, since 1950 at least. A restrictive view was taken of the effect of Peck (para 33). However, Lord Hoffmann appeared to accept that a “confidential relationship” was no longer necessary to establish a “breach of confidence” claim (para 29).
##after having heard extensive evidence from victims and from the media and made extensive reference to the Douglas litigation and the decision in Peck. The committee concluded:
@@@New Law Journal, 21 November 2003
 3 WLR 1137.
The facts of the Wainwright v Home office @ UKHL 53 case were that Mrs Wainwright with her handicapped son Alan when visited Leeds Jail in January 1997 to see her another son, Patrick. Both were strip-searched on grounds of suspicion of bringing drugs into the prison. Both sued for having trespass to the person and invasion of privacy and Alan also sued for battery. The Judge, at first instance awarded damages. @Mrs Wainwright (£2,600), and to Alan (£4,500). But on appeal, all the claims except for battery were rejected by the Court of Appeal. An appeal to the House of Lords was made which was rejected on the basis that there exist no general cause of action in English common law for invasion of privacy and, further, that Article 8 did not require the UK to adopt such a cause of action.
In 2006 both applicants appealed before the European court and it was held, that the treatment was negligent and fell short of the level of severity necessary to constitute a breach of Article 3. However, as the searches had not been proportionate to the aim of preventing crime and disorder in the manner in which they had been carried out, there was a violation of Article 8 which also protects physical and moral integrity.The absence of an effective domestic remedy, in particular the absence of a general tort of invasion of privacy, resulted in a breach of Article 13. The applicants were awarded 3,000 Euros each in damages for the distress caused to [email protected] http://www.5rb.co.uk/case/Wainwright-v-United-Kingdom
In Campbell v Mirror Group Newspapers @ case, Campbell was awarded compensation by the High Court for the disclosure of information relating to her attending meetings for the treatment of drug addiction by the Mirror.
Campbell v (MGN) Ltd (2002) EWCA Civ 1373
Campbell v Mirror Group Newspapers ( UKHL 22
The High Court recognised that celebrities, even self-publicists, were entitled to some space or privacy. Unless there was an overriding public interest in publication, the media had to respect information relating to the private lives of celebrities which they legitimately chose to keep private.
On appeal, the Court of Appeal took a different view and overruled the High Court judgement. @ Court of Appeal ordered Campbell to pay the Mirror’s legal costs of £350,000. In May 2004 the House of Lords disagreed with the view of the Court of Appeal and found in favour of [email protected] The decision made by the House of Lords in Campbell @ was the first opportunity for the Lords to decide on the issue in a post Human Rights Act 1998 case.
The House of Lords unanimous decision on Campbell’s drug addiction ( private information) and reorganisation that the cause of action in breach of confidence should be expanded so as to provide a remedy for the unjustified publication of personal information. ==It was held that, following the introduction of the (HRA), the law of confidence has absorbed the values protected by Article 8 (privacy) and Article 10 (expression) of the ECHR.
The House of Lords held that her privacy had been invaded with the publication of photographs and information that she was receiving treatment for her addiction as there was a danger that publication could harm her. The Lords stressed that though right to privacy does not exist in English law but the case was decided under breach of confidence with that, it does go one-step closer to confirming a right to privacy. Lord Nicholls stated that ‘the protection of various aspects of privacy is a fast developing area of the law.’ The effect of their judgment is that privacy can be protected as part of a duty of confidence. Campbell case failed to create a right to privacy; but it does represent a gradual judicial development of the law of confidence to embrace issues of privacy.
@Court of Appeal ordered Campbell to pay the Mirror’s legal costs of £350,000.
Campbell v Mirror Group Newspapers ( UKHL 22)
Campbell may be compared with A v [email protected]  All ER (D) 142 (Mar). Here, a professional footballer, A, of a premier division football club was married with two children, had had short-lived sexual relationships with C and D. He did not want his wife to find out about his relationships with C and D. C and D, however, had no interest in maintaining confidentiality. C and D sold stories recounting their affairs with the claimant to the newspaper. The newspaper intended to publish the stories, and the claimant sought an interim injunction against it and C, to prevent publication. D took no part in the proceedings. In this case, it was not obvious to the court why confidentiality should be maintained. A’s relationships were not relationships which the court wished to protect when other parties did not want them to remain confidential. The court held in this case that the media’s freedom of expression (the Article 10 of the ECHR) should prevail.
A v B (2002)  All ER (D) 142 (Mar)
In A v B plc  QB 195, the Court of Appeal was prepared to accept that no pre-existing confidential relationship between the parties was required. Lord Woolf MR stated:
“If there is an intrusion in a situation where a person can reasonably expect his privacy to be respected, then that intrusion will be capable of giving rise to a liability in action for breach of confidence unless the intrusion can be justified… The bugging of someone’s home or the use of other surveillance techniques are obvious examples of such an intrusion.”
The broad extension of the circumstances in which a duty of confidence can arise remains to be worked out in the case law. Nevertheless, it has been recognised by the Court Of Appeal in D v L  EWCA Civ 1169 that the publication of a covert tape recording of a private conversation involves a breach of confidence, and publication of a tape or photograph may also be more intrusive than the publication of the information which it contains.
The UK courts have shown their unwillingness for creating a wide-ranging of privacy law on a piecemeal basis, and Parliament has declined to legislate. In the absence of any privacy legislation, the only suitable way to confront the gap is that an English courts could give effect to that obligation by developing the action for breach of confidence to embrace [email protected]
It is clear that the privacy legislation will not be brought in for the foreseeable future. Therefore, in view of the reluctance by the government and every predecessor since the Younger [email protected] (Cmnd. 5012, HMSO,1972) to legislate on privacy, it would be up to the courts to give effect to this obligation.
@Douglas and Others v Hello! Ltd (2001); Campbell v Mirror Group Newspapers (MGN) Ltd (2002); Venables and Another v News Groups Newspapers and Others (2001); A v B (2001); and Lord Coe’s case.
6. UK Parliament Acts, Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland.
See generally, Lee Bygrave, “Data Protection Pursuant to the Right of Privacy in Human Rights Treaties,” 6 International Journal of Law and Information Technology 247-284 (1998), available at http://folk.uio.no/lee/publications
Right to personal privacy
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