The balance between an individual’s right to private life under article 8 of the European Convention and the right to press freedom and freedom of expression under article 10 is a particularly complex. In recent times case law casts some doubts about the ground rules laid down by the European Court of Human Rights under art.10 of the European Convention on Human Rights (ECHR). The right to freedom of expression was recognised as “one of the essential foundations of [a democratic] society” with “little scope … for restrictions on political speech or debates on questions of public interest”. The Court had repeatedly emphasised the special role of the media as “public watchdog” and recognised that “[j]ournalistic freedom … covers possible recourse to a degree of exaggeration, or even provocation”. Now the earth has begun to shift. It is evident from Strasbourg judgments appear to leave states a “wider margin of appreciation” to restrict speech, particularly in defamation and privacy cases. In this coursework I will consider the traditional territory in terms of Art. 8 and 10 ECHR and how it may be shifting for the better or worse.
Art. 10 Echr
Art. 10 of the ECHR set out the right to freedom of expression. Freedom of expression was a free-standing, fundamental right. It did not have to be balanced against any other rights. It appears form case law Art.10’s applicability not only to “information” or “ideas” that are favourably received or regarded as inoffensive or a matter of indifference, but also those that offend, shock or disturb. Article 10 protects not only the substance of the ideas and information expressed but also their form. So the Court has tended to give speakers latitude to decide how they want to communicate them–and not substitute its own views about how the point should have been made. The press benefits from a unique status under art.10, with a duty to pass on information on matters of public interest to the public. This role as the public’s “watchdog” allows it to interpret the facts, exaggerate and provoke. Article 10(2) proclaims that freedom of expression carries with it “duties and responsibilities”. But this has never been used as a stick to beat the press. If anything it gave them a shield to fend off state interference. According to the Court’s classic formulation:
“Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent disclosure of confidential information, its duty is nevertheless to impart–in a manner consistent with its obligations and responsibilities–information and ideas on all matters of public interest …”
While the wide art.10(1) right was “subject to exceptions” identified in art.10(2) its importance required these to “be construed strictly, and the need for any restrictions [to] be established convincingly” by the state. It allows this freedom to be restricted, however, for various legitimate reasons set out in Art. 10(2). This includes controls which are in the interests of ‘national security, territorial integrity or public safety’. The first of these is the main one which is likely to be of relevance in relation to restrictions on the publication of ‘official secrets’.
The ECHR has not, however, given any clearer indication of what is encompassed by ‘national security’ than have the English courts. The Spycatcher cases indicate, however, that the issue is justifiable as far as the court concerned. A further legitimate aim restriction aim for restriction recognized by Art.10(2) is the ‘prevention of disorder or crime’. Some information which may affect criminal investigations is treated as being an ‘official secret’ and restriction on publishing it may be justified on the basis of this aim. Finally, Art. 10(2) also recognizes the legitimacy of ‘preventing the disclosure of information received in confidence’, and in some situations this can be used to cover government information. It is submitted in terms of action for breach of confidence, the press may be restrained by an action breach of confidence from disclosing government secrets, assuming that the newspapers concerned can be taken to know that the information was confidential. It must also be proved that some harm to the public interest will result from publication
Privacy And ECHR
As Glidewell LJ stated in Kaye v Robertson, ‘it is well known that in English law there is no right to privacy’. That is in contrast to many other jurisdictions where such a right is specifically recognised, and protected. The enactment of the Human Rights Act 1998 provided English courts with the legislative impetus they required to address widely lamented shortcomings in the protection of privacy interests. The HRA 1998 has changed the situation in England, however. Article 8 of the ECHR states that ‘everyone has the right to respect for his private and family life, his home and his correspondence’.
In Niemietz v. Germany the Court of Human Rights said that the scope of private life in Article 8 was wide when it said:
“The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of ‘private life’. However, it would be too restrictive to limit the notion to an ‘inner circle’ in which the individual may live his own personal life as he chooses and to exclude there from entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.”
This raises the option, much discussed when the HRA 1998 was being considered by Parliament, that the English courts may at last develop a right of privacy. “Privacy is not an easy concept to pin down”. The Calcutt Committee define 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.” But this definition has been criticised.
As I mentioned above, privacy is dealt with by Art. 8 of the ECHR: ‘everyone has the right to respect for his private and family life, his home and his correspondence’. This particular definition means that it would be difficult for a company or other corporate body to claim an infringement of Art.8. The Court of Appeal (CA), however, ruled, in considering the powers of Broadcasting Standards Commission under the Broadcasting Act 1996, that a company could have its privacy infringed by a television programme. The complaint resulted from secret filming in an electrical shop owned by the company. The court recognized, however, that because of the particular wording of Art.8 noted above this ruling went beyond what would be required under HRA 1998.
As with Arts.9, 10, and 11, Art. 8 contains its own list of qualifications. These are set out in Art. 8(2):
“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of the rights and freedoms of others.”
The broad terminology in Art. 8(1) has led to the Article being used in situations far beyond the scope of privacy, such as sexual orientation or the treatment of illegitimacy and telephone tapping. In Klass the ECHR accepted that such activities involved an infringement of privacy. Indeed it considered that:
“in the mere existence of the legislation, there is involved, for all those to whom the legislation could be applied, a menace of surveillance; this… strikes at freedom of communication… and thereby constitutes an ‘interference by a public authority’ with the exercise of the… right to respect for private and family life and for correspondence”.
Halford is of particular interest because it concerned not a public telephone system but an internal office system which was listened to by the applicant’s employers (the police) with whom she had a long-running and well-publicised dispute about sex discrimination. The Court of Human Rights held that the absence of any legal regulation in domestic law of intrusion on such internal telephone systems violated Article 8(2), which permits interference with a right under Article 8(1) only if it is in accordance with the “law”. The Court also held that there had been a violation of the applicant’s rights under Article 13 of the Convention, to have an effective remedy in national law for breach of her rights under Article 8; the absence of legal regulation meant that she had no legal remedy.
It will be noted, however, that both Malone and Halford concerned interception of telephone conversations by the police, obviously a public authority. The issue which Halford leaves to be decided is whether it would be a breach of Article 8 to fail to protect an individual’s privacy where the facts are exactly the same as in Halford but the employer is a private company rather than a public authority. It is submitted that it should make no difference to the result in Strasbourg. The state should still be liable for breach of its own positive obligation. However, it does not follow that an action can be brought. The cause of action in Strasbourg will still be against the State. To use an analogy from European Community law, this type of action is more akin to an action against a Member State for failing to transpose a directive properly into national law where the directive would have protected an individual against another individual or company than to actions brought against private entities themselves under provisions of EC law which have horizontal direct effect.
It has to be acknowledged that until recently the case law from Strasbourg has not been encouraging to those who wished to assert that the right to privacy includes an obligation on the State to protect privacy against intrusion by private entities. In J. S. v. United Kingdom the ECHR rejected an application where an insurance company had engaged in covert surveillance of the complainant. However, this decision could be explained on the basis that the insurance company was justified in its actions because it was seeking to protect its position in relation to litigation. In Bausson v. France the Commission rejected a complaint where telephone conversations had been recorded by the co-accused and used in criminal proceedings against him. This case is interesting because the mere “fact that the courts become involved at some stage does not, therefore, necessarily engage the responsibility of the State under Article 8.”
In Winer v. United Kingdom the Commission rejected a complaint about newspaper reporting on the ground that the causes of action available in national law, in particular defamation, were sufficient to protect against invasions of privacy. However, the decision is explicable by reference to its particular facts. Clearly, there will be some invasions of privacy where an action for defamation will not lie: for example, where the story is intrusive on private life without any public interest in its publication but is true. It is also interesting to note that in Winer the Commission took the view that the English law cause of action for breach of confidence did not provide an adequate remedy which had to be exhausted before recourse to Strasbourg, on the ground that it was (at that time) insufficiently certain.
The above case law has led one commentator to conclude that:
“Essentially, then, the Commission seems to take the view that positive obligations under Article 8 are fulfilled if remedies offering a degree of protection to the aggrieved individual are available and the national courts at least take into account the privacy aspect. As far as the United Kingdom is concerned, it is true that there are a number of specific remedies for specific wrongs … but it is doubtful whether any of these is appropriate in respect of a true statement, let alone a photograph, and this point was not satisfactorily dealt with in the Winer case…. In spite of some indications that the Commission would give priority to the right of privacy over freedom of expression in appropriate circumstances, it is by no means clear that the European Convention on Human Rights supplies the protection which is lacking at the national level.”
However, in its recent decision in Earl Spencer v. United Kingdom the Commission has taken the view that the law of confidence has moved on sufficiently in the English case law to provide a remedy which must be exhausted before any complaint to Strasbourg. The case arose from media interest in the private affairs of Earl Spencer and his then wife, who suffered from eating disorders and was being treated at a clinic when she was photographed by the press. The Commission held that the reason why the application was inadmissible was that the applicants had failed to exhaust their domestic remedies under Article 26 of the European Convention on Human Rights. This pre-supposes that there are effective remedies under domestic law which are there to be exhausted. The Commission said that it:
“would not exclude that the absence of an actionable remedy in relation to the publications of which the applicants complain could show a lack of respect for their private lives. It has regard in this respect to the duties and responsibilities that are carried with the right to freedom of expression guaranteed by Article 10 of the Convention and to Contracting States’ obligation to provide a measure of protection to the right of privacy of an individual affected by others’ exercise of their freedom of expression …”
On the decisive point in the case, namely that the applicants had failed to exhaust their domestic remedies, the Commission said that:
“The parties’ submissions indicate that the remedy of breach of confidence (against the newspapers and their sources) was available to applicants and that the applicants have not demonstrated that it was insufficient or ineffective in the circumstances of their cases. It considers that, insofar as relevant doubts remain concerning the financial awards to be made following a finding of a breach of confidence, they are not such as to warrant a conclusion that the breach of confidence action is ineffective or insufficient but rather a conclusion that the matter should be put to the domestic courts for consideration in order to allow those courts, through the common law system in the United Kingdom, the opportunity to develop existing rights by way of interpretation.”
This could be seen as a “green light” to those judges who would like to develop the common law (in particular the law of breach of confidence) so as to recognise a right of privacy. One further piece of encouragement from Strasbourg for those who wish to see such a right enforceable even as against the private media is to be found in paragraph C7 of Resolution 428 (1970) of the Parliamentary Assembly of the Council of the Europe which provides:
“The right to privacy afforded by Article 8 of the Convention of Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons including the mass media. National legislation should comprise provisions guaranteeing this protection.”
Although this statement was not a part of the commission’s decision, it nonetheless indicated the potential for the use of Art.8 in this context. This potential has been confirmed by later cases, and in particular by Von Hannover v Germany in which the court rules that there was an infringement of the privacy of Princess Caroline of Monaco by the publication of photographs of her in the German Press. Von Hannover was the culmination of a 10-year campaign by Princess Caroline against various Germanmagazine publishers to restrain them from publishing photographs of her going about her daily business. The German courts held that as a “figure of contemporary society” the applicant had to tolerate photographs of herself in a public place, even where she was not engaged in public duties. The exception to this was if she was a in a “secluded place” out of public eye. However, the notion of “secluded place” did not extend to activities such as her leaving her home, going shopping, engaging in sport or being on holiday. The claimant complained to the ECtHR that the lack of adequate state protection of her private life was an infringement of her Art.8 right. The court accepted that Art.8 conferred on states both negative and positive obligations and the claimant’s right had been infringed. It pointed out that, although the claimant was a public figure, she did not exercise any public or official functions and her private activities were not relevant to any political or public debate. The publication of the photographs did not have the purpose of contributing to any debate of general interest to society, but were solely to “satisfy the curiosity of a particular readership regarding the details of the applicant’s private life”. Further, it held that the public:
“does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and despite the fact that she is well known to the public”.
Finally, the court had regard to the fact that such photos were often taken:
“in a climate of continual harassment that induces in the persons concerned a very strong sense of intrusion into their private life”. In this situation the Princess’s Art. 8 rights prevailed over the press’s right to freedom expression. These decisions are ones which the English courts ought to ‘take into account’, by virtue of s.2 of the HRA 1998, when considering any relevant application of the Convention in English law. The door is therefore open for the courts to use Art. 8 as means of controlling media intrusions on the privacy of individuals through the publication of articles of photographs. What are the factors which might restrain the courts in developing the law in this way?
First, there is the issue of whether they are ready to apply the convention rights where the dispute is between private individuals, rather than between an individual and public authority. That is the question of ‘horizontal’ rather than ‘vertical’ effect. The Spencer and Von Hannover cases clearly indicate that it would be appropriate to do so-treating the failure of the state to provide protection in this area via its courts as breach of the right under Art. 8.
A second issue is the operation of s. 12 of the HRA 1998, which was inserted largely as a response to concerns that convention rights might be used too eagerly by the courts against the media. The section contains provisions requiring the notification wherever possible of the person against whom relief is sought and discouraging restraint prior to publication. The most important provision in this context, however, is s. 12(4). Much of this simply restates what is in any case likely to be a court’s approach to balancing the rights under Art. 10 and Art.8. The Convention case law has regularly emphasized the importance of the media as the guardians of the public interest, so that restrictions of its Art. 10 rights should be approached with great caution. The final provision, however, relating to the need to take into account ‘any relevant privacy code’ goes somewhat further. It seems to suggest that it is where self-regulation through a privacy code has failed in a particular case that the court should consider intervening to restrain or compensate for publication. It does not, of course, impose an obligation on the court not to act where the privacy code is still potentially in play, but it is likely to have a chilling effect, and may discourage claimants from trying to use the law at an early stage.
In fact the case law under the HRA 1998 has shown the courts starting to create ‘privacy’ right through the development of the law relating to breach of confidence, rather than as an independent right. This has had the advantage, among other things, of not requiring the court to address the ‘horizontal’ effect issue. If the privacy right is attached to an existing situation where it is recognized that there is a right of action between individuals then the problem does not arise.
Conflicts Between Ar.10 And Art.8
These two Articles frequently come into conflict, especially when newspapers and journalists wish to exercise their rights to freedom of expression. The first of a number of important cases was Douglas v HelloỊ Ltd. It was held that the photographs could constitute information for the purposes of the law of confidence. The Court treated the parties’ Article 8 and 10 rights as absorbed into an action for breach of confidence and confirmed that the correct test for whether the party seeking to disclose it knew or ought to have known that the owner of that information had a reasonable expectation that the information would remain private. The fact that the claimants had contracted to publish certain authorised selections of their wedding photographs did not negate their claim that events at their wedding were private or confidential. The potential for distress at seeing the publication of other photographs taken on the same occasion would, however, be reduced, which was relevant in considering damages, but did not affect the defendant’s liability. Significantly, the CA in Douglas recognised that commercial interests could be protected from unauthorised exploitation, and that individuals have the right to control their image and protect private information, which is not forfeited because it is planned to exploit it commercially. There was no reason why the law should not protect an individual’s opportunity to profit from confidential information in the same way in which it would protect the opportunity to profit from confidential information in the nature of a trade secret.
The limitations of privacy as against the freedom of the press were further explored in the rather different case of A v B and C The claimant was Gary Flitcroft, a married professional footballer. He also sought an injunction to prevent a newspaper from publishing any information concerning the sexual relationships that he had had with the second defendant and another woman. In deciding whether or not to grant an injunction the CA took into account that one party to the relationship wished to exercise their right to freedom of expression by disclosing information relating to that relationship. The fact that the women chose to disclose their relationships to the press affected Flitcroft’s right to protection of the information, as the women’s own right to freedom of expression had to be weighed in the balance. The CA overturned the judge’s injunction saying that the public have an understandable and so a legitimate interest in being told the information. The Court also said that there is a significant difference between the confidentiality which attaches to what is intended to be a permanent relationship, and that which attaches to the type of relationships in which Flitcroft was involved. Lord Woolf pointed out injunction must be balanced the press’s right to freedom of expression, as emphasized by s.12 of the HRA 1998. In Douglas, Brooke LJ stated that a newspaper has acted in breach of the privacy code may be relevant to consideration of the issues under s.12 of the HRA 1998.
They indicated a strong presumption in favour of publication, particularly in relation to ‘public figures’. Subsequent cases have shown, however, that there are limits to what may be published even about such figure, and can be regarded as having significantly shifted the emphasis of the approach taken in A v B and C. The first decision to consider is that of the HL in Campbell v MGN Ltd the facts are well known. Naomi Campbell, an internationally famous fashion model had courted publicity, volunteered information to the media about her private life and averred publicly, but untruthfully, that she did not take drugs. The newspaper published articles which disclosed her drug addiction and the fact that she was receiving therapy through a named self-help group, Narcotics Anonymous, gave details of group meetings she attended, and showed photographs of her in a street as she was leaving a group meeting. Naomi Campbell accepted that the newspaper was entitled to publish the fact of her drug addiction and the bare fact that she was receiving treatment. The Lords held that looking at the publication as a whole and taking account of all the circumstances, Naomi Campbell’s right pursuant to Art.8 to respect for her private life outweighed the newspaper’s right pursuant to Art.10 to freedom of expression. Accordingly, publication of the additional information and the accompanying photographs constituted an unjustified infringement of her right to privacy. Although Naomi Campbell’s claim fitted within the parameters of a traditional breach of confidence action, the significance of the decision lies in the HL referring regularly to the infringement of her privacy, and in the HL accepting that breach of confidence was the appropriate vehicle to protect privacy. The Lords commented that the Human Rights Act 1998 had given a new breadth and strength to the breach of confidence claim.
The principles applied by the HL in Campbell v MGN Ltd were considered in different circumstances in Re S (a child) (identification: restriction on publication) .In this case the Claimant sought an injunction from the High Court preventing any publicity in relation to the trial which might enable to be identified. The HL noted that both Art.8 and Art. 10 were engaged in this situation, but that, following Campbell, neither article had automatic precedence over the other. An ‘intense focus’ on the comparative importance of the specific rights being claim was needed. The ‘proportionality’ test to be applied to each right. Applying this approach, the HL attributed great importance to the freedom of the press to the report the progress of a criminal trial without any restraint. It therefore upheld the modified injunction, with the result that there was no restriction on publication of the identity of the claimant’s mother, or of photographs of or her deceased son. Campbell was followed in Ash v McKennitt this case concerned the attempt by Niema Ash to publish a book revealing information about a former friend, the Canadian folk-singer Lorenna Mckennitt. There was evidence that Ms McKennitt was fiercely protective of her privacy. The CA agreed with the trial judge that all these areas ‘confidential’. They were protected under Art. 8, unless overridden by Art.10.
The recent CA decision is Associated Newspapers Ltd v His Royal Highness the Prince of Wales . The case concerned the publication by the Mail on Sunday of extracts from a journal produced by the Prince of Wales relating to one of his foreign visits. Lord Phillips LCJ, who gave the judgment in this case, began his appraisal by examining the impact of Article 10 on the traditional action for breach of confidence in England and Wales, noting the observations of Lord Hoffmann on the effects of Campbell on the general obligation of confidence. Recently, HL authority “had observed that neither Article 8 nor Article 10 claimed an inherent precedence over each other, and that where both provisions are engaged, the courts must focus intently upon the comparative importance of the specific rights being claimed in the context of the case in question, weighing up the merits of interference with either interest and considering the issue of proportionality”. In relation to Art.8 and breach of confidence for complaint the CA also held that Prince’s right to keep the material secret was not outweighed by Art.10.
The second recent CA decision is Mosley v News Group Newspapers Ltd Mr Mosley was the President of the Fédération Internationale del’Automobile (“FIA”), which is the governing body of world motor sport. He is also the son of Sir Oswald Mosley, a notorious 1930s fascist leader. Mr Mosley sought to prevent News Group Newspapers Ltd (“NGN”) from reinstating on the News of the World website a short extract from a film showing Mr Mosley participating in a sado-masochistic (“S & M”) orgy at a London flat. The film and the accompanying news article and photographs had already been made available on the News of the World website from March 30, 2008 until the film was removed voluntarily by NGN on March 31, 2008. Eady J. had little trouble in finding that there was no legitimate public interest in revealing the information contained in the film which was powerful enough to override Mr Mosley’s right to privacy. Over recent years both the English courts and “ECtHR”, have acknowledged that the process of balancing competing art.8 and 10 rights necessarily involves an evaluation of the use to which the relevant defendant has put his or her right to freedom of expression. Eady J. explained that this inevitably involves weighing up the relative worth of one person’s rights against those of another. In this respect, Eady J. noted that the HL has accepted that, generally speaking, “political speech” will be accorded greater value than gossip or “tittle tattle”.
Balancing Articles 8 And 10
The most significant development in the English law of confidentiality in recent years has been its abandonment of the limiting constraint of the need for an initial confidential relationship. A “duty of confidence” may now be imposed on a person unknown to the claimant if that person has come by “information he knows or ought to know is fairly and reasonably to be regarded as confidential”. Whereas the “old-fashioned” equitable wrong of breach of confidence imposed obligations of conscience arising from prior interaction, a new tort of misuse of private information recognises liability between complete strangers. The Mosley judgment, however, does nothing to push forward the limits of confidentiality in this way. Although the technology used by woman E may have been state-of-the art, this was otherwise an “old-fashioned” breach of confidence arising out of an existing relationship in which she, Mosley, and all the other participants acknowledged the “recognised code of discretion on ‘the [S and M] scene”’. But this was not the only feature of the case which was only nearly new.
For balancing article 8 and article 10 rights, draws upon the principles which have emerged in case law since the enactment of the Human Rights Act 1998. Freedom of expression is now to be independently recognised, rather than considered merely as one of the strands of public interest considerations, but it does not “trump” privacy, or vice versa. Instead the competing requirements of articles 8 and 10 are to be weighed up by applying an “intense focus” to the circumstances and the justifications offered by both sides. This means that cases can no longer be determined, as sometimes in the past, by reference to generalisations such as “the interest of the public in knowing the truth outweighs the interest of a plaintiff in maintaining his reputation”, or (the example caricatured by Eady J), “public figures must expect to have less privacy”.
The law of confidentiality has always attempted some form of balancing exercise where the confidant has invoked the public interest in disclosure. The method applied in Mosley’s “ultimate balancing exercise” is thus in itself hardly new; it is “essentially the same exercise, although it is plainly now more carefully focussed and more penetrating”. On the other hand, the character and weighting attributed to the balancing factors have altered very considerably. Whereas English law has traditionally been regarded as a remedies-based system, incorporation of the ECHR into domestic law has entailed acceptance of a “new rights-based jurisprudence”. The rights se
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