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10.3 Privacy Lecture - Hands on Examples

Question:

Toby is a footballer who plays for Leicester City F.C. 

One day, he is out in the supermarket buying alcohol for a party he will be holding that evening. He loads his basket with bottles of vodka, and goes to pay. Whilst at the till, his photo is taken by a member of the paparazzi who regularly follows him. A photo is also taken by someone else at the supermarket, which soon makes the rounds on Twitter and Facebook.

The photo is published a day later by a tabloid newspaper – The Star, along with the headline ‘Tipple-Loving Toby Stocks Up!’. It is well known that Toby enjoys a drink, having been photographed falling in and out of various clubs in the local area.

The next week, the same photographer makes the journey out to Toby’s country estate. He climbs a fence and hides in the bushes until he sees something of interest. Using a long-range telephoto lens, he is able to snap the football player in a compromising position with a famous model. Both Toby and the model are married to different people. The photographer then trips a security system, and in captured by a camera. Toby recognises the paparazzo from the CCTV images, and quickly approaches the courts for an injunction, to stop the photo from being run in the press.

Advise Toby as to any claims he might have for breach of privacy against the newspaper, and whether it will be possible for him to obtain an injunction. Do not consider any other tortious acts (such as trespass.)

Answer:

There are two possible breaches of privacy. The first is the photo taken in the supermarket of Toby as he shops. As per Campbell v Mirror Group Newspapers [2004] UKHL 22 the court will consider two elements in coming to their decision. Firstly, they will consider whether Toby had a reasonable expectation of privacy – in other words, whether an actionable breach of privacy has occurred.

This will be based on a number of different factors. It can be argued that Toby has a lesser expectation of privacy than the average individual. He is a Premiership footballer, much like the claimant in A v B [2002] 2 All ER 545, and thus it cannot be said that being recognised or photographed in public is an unforeseeable or unreasonable phenomenon. Whilst the content of The Star’s headline is slightly distasteful, it cannot be said that even an ordinary person would consider the exposure of the contents of their shopping basket to be ‘offensive’ in the sense of the persuasive (if not binding) description of privacy in Australian Broadcasting Corporation v Lenah Game Meats [2001] 208 CLF 199. Furthermore, whilst Toby has some right to privacy even whilst in public, as per Peck v UK [2003] EHRR 287, he cannot reasonably expect that his choice of shopping will be included in this privacy.

As per s.12(4)(a)(i) of the Human Rights Act 1998, the courts are to consider the extent to which the concerned information has already been made public. This is relevant in two ways. Firstly, a photo to the same effect as the one The Star has published was disseminated over social media. This suggests that The Star’s actions are not particularly destructive with regards to Toby’s privacy, since a photo to that effect has been independently published. Secondly, it can be argued that the implication behind the photo, essentially that Toby drinks a lot, is not novel. Toby’s antics mean that he is well known as a drinker, and thus the article and the photo cannot be said to have introduced any new information into the public sphere. Just as in A v B, the claimant’s impropriety was a matter of public knowledge, so too, is Toby’s propensity to drink.

Thus, it is likely that Toby’s claim for the supermarket photograph will fail the first part of the Campbell test. In turn, because the case for protecting Toby’s Article 8 rights is weak, the second part of the Campbell test, regarding The Star’s Article 10 rights, will be proportionally easy to pass. It can easily be argued that, in addition to standard arguments for press freedom, there is a further interest in the public being made aware of the perhaps questionable personal health choices of a public sporting figure. Therefore, primarily on the basis that Toby’s argument for privacy is weak, a claim for damages for breach of privacy will likely fail.

The second claim is for an injunction to prevent the publication of the photo of Toby with the model. The privacy case is much stronger for this event. Firstly, the events photographed can be considered to come within the ‘obviously private’ category mentioned by Lord Hope in Campbell at 96.

Secondly, as per A v B, sexual activity comes within the remit of private activity, even if it is of an adulterous nature. The case at hand can be distinguished from the decision in A v B, since neither similar photos, nor the information which they will confer have been exposed to the public before.

Thirdly, as per Beckham v Mirror Group News Ltd [2001] All ER (D) 307, photos of the inside of an individual’s house taken without their permission are regarded as private.

Fourthly, Baroness Hale’s comments in Campbell at 30 can be repurposed to fit the case at hand. Hale notes that photos are a particularly invasive form of information gathering, and can deter an individual from going to a location. Since the photography is of Toby in his own home, the invasion can be regarded as particularly egregious; after all, an individual’s home is the place they go when they desire privacy, even if they can’t find it anywhere else.

Fifth and finally, it should be noted that the process that the paparazzo uses to gain the photos is of an invasive nature – he has to break onto Toby’s estate in order to gain the photos. This means that Toby clearly expected to be in a private environment – this is the purpose of the fences that are put around properties, and the walls that are built around houses.

Thus, there is an extremely strong Article 8 case for privacy. This will require a substantively powerful Article 10 argument to be made in order to outweigh it. Whilst there might be a public interest in the salacious details of an affair, it is unlikely that the courts will regard the desirable freedom of press to extend into allowing the press to take highly invasive photos of people in their private homes. The application for an injunction will thus likely succeed.


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