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Published: Fri, 02 Feb 2018
Misuse of private information constitutes a serious limitation
Privacy springs from the same source as freedom of expression, therefore it is for the Courts to decide where the balance is to be struck between competing rights (Article 8 concerned with personal privacy and Article 10 that approaches the right of the public to be informed and the freedom of media), by taking into consideration each item of information, in order to determine if the publication in question is ‘proportionate’.
In Britain, until the Naomi Campbell case in 2005, privacy could be protected principally through an action for breach of confidence. However, even today, ‘privacy’ remains a frustrating area of law for both journalist and lawyers (Tugendhat and Christie, 2006). Body of case law or privacy statutes cannot be found. We can only access statutes that deal with a variety of privacy aspects and a disparate body of case law that includes both, confidentiality and privacy. The case of Prince Albert v Strange can be seen as a development for the breach of confidence laws, which allowed the courts to control certain flow of information imparted in the course of a confidential relationship, but of course not without impediments as soon enough it was clear that in certain situation it is very difficult to show that the information derives from a confidential relationship.
The major impetus for a change has come from the European Convention of Human Rights. Currently, Article 10 provides a guarantee of freedom of expression, while Article 8 permits restrictions necessary in a democratic society for the protection of privacy. The breach of confidence is now viewed as an old element and instead, the Courts are looking for a ‘reasonable expectation of privacy’. This is a key concept in a claim for protection of private information as can be seen from three important cases involving the petulant model Naomi Campbell, the Princess Caroline of Monaco and the Hollywood stars Michael Douglas and Zeta Jones.
The leading case in this area is now the ruling of the House of Lords in Cambell v MGN. The Daily Mirror published a story about the model’s addiction and details of her treatment and attendance at a Narcotics Anonymous clinic. The articles were accompanied by photographs with her leaving the meetings. By a majority of 3-2, The HL held that, in conjunction with the photographs, the publication infringed Campbells privacy. Lord Hope stated that ‘the photographs tipped the balance, making the publication overall an unjustified infringement of the model’s privacy’. The photographs did not add anything of importance to the story, as they did not aid the argument of free speech either, but their inclusion created major distress.
Not long after the House of Lords came to a conclusion in Campbell, the European Court of Human Rights gave its judgement in the Princess Caroline Case, which is considered the most rewarding discussion of the relationship between privacy rights of public figures and freedom of expression. The Princess Caroline von Hannover complained that her privacy had been violated by the publication of numerous photographs of her by two popular magazines. Initially she lost in front of German courts that said she was ‘a public figure par excellence’. Her complained to the European Court of Human Rights was upheld as they said that ‘even public figures are entitled to private life, right protected by Art. 8. The Federal supreme court granted her an injunction to prevent further publication of photographs showing her in spaces, where, though public, she had sought seclusion, but declined to stop reproduction of other photographs which showed her either alone or with her daughter in public places.
We can therefore understand that you are allowed privacy when you wish to be private or decide to take certain steps to manifest so. It is difficult to see why this test is any more vague than the numerous restraints of freedom of expression.
With Hannover case, the German Courts decision goes much further than any previous English case, but the rapid development of the law of privacy in the United Kingdom is illustrated in Douglas v Hello. The actors Michael Douglas and Catherine Zeta Jones were married in front of 350 guests. They had sold exclusive rights to OK! Magazine to publish their wedding photographs. They were to choose what photographs could be published and they also warned the guests not to take any photographs of any nature. Sneaky pictures have been sold to Hello! Magazine. The married couple, as well as the OK! sought an injunction to stop publication but they were unsuccessful on the basis that the couple had traded for money and could only receive compensation in damages. Hello! Published the images and four years later, the litigation was back to the Court of Appeal. This time, a different approached has been taken; the Court of Appeal stated that regardless the number of guests, their wedding was still to be seen as a private matter. The guests were invited to describe the event with their own words, but of course a picture was worth a thousand words and was beyond verbal description. In the view of Campbell and Princess Caroline, the Court of Appeal thought that the Court has been wrong to refuse an injunction.
When courts have a difficult task to balance the rights of privacy and the freedom of expression, any public interest will play an extremely important role. Even before the Human Rights act, public interest was considered a defence to a breach of confidence claim. Lord Denning states that he has ‘ no hesitation in rejecting an application to restrain publication of information obtained by an undercover investigator; although the information has been given in confidence, there is a good ground for thinking that these courses contain such dangerous material that it is in the public interest that it should be made known’.
The Chancery courts explain that in breach of confidence cases, the “public interest” justifying disclosure has been wider than showing that the claimant has been involved in crime or other “iniquity”. The question is whether the information is something which the public ought to know or has a proper interest in knowing.
A further example of the public interest defence is revealed in Woodward v Hutchins, where the information corrects a false image which the claimant tried to create. ‘If the image which they foster was not a true image, it is in the public interest that it should be corrected […] it is a question of balancing the public interest in knowing the truth […] The public should not be misled.’ (Lord Denning)
The ‘public interest’ is not the same thing as what the public is interested in. There will always be a fascination in learning intimate details about the lives of the powerful and famous, but this should not be a reason to deny public figures the right to privacy that the rest of us enjoy. Nor should public figures be held to higher standards of personal behaviour than the rest of society by a sensationalist press seeking only to sell newspapers. If newspapers were forced to focus upon the policies and public actions of politicians, rather than their personal foibles, democracy would be better served.
Prior to the Human Rights Act, the Courts were to accept that the public interest justified only certain disclosures, but not to the general public. For instance Francome v Mirror Group Newspapers LTD underlines the principle, as some telephone intercepts that shows a number of breach of horse regulations could justify disclosure to the club that regulated the sport, but not to the public at large.
From the perspective of freedom of expression, it is crucial to draw a distinction between the publication of material of political or other public importance, on the one hand, and of gossip and celebrity pictures on the other. While the latter is more likely to infringe privacy, it is less likely to be protected by free speech arguments. The European Court takes a normative approach to the public interest argument: in its view, it could only be properly invoked as a defence to an action for breach of confidence or privacy, where the publication discloses material in which the public ought to take an interest.
The public interest arguments have been strongly supported by ECHR and The Human Rights Act, as they emphasised how important the role of the press is in a democratic society, especially where matters of public interest are involved. However, the Courts must balance the interplay between privacy (Article 8) and free speech (Article 10). Lord Steyn supports this argument in RE S  as follows:
‘First, neither article has precedence as such over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justification for interfering with each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balance test.’
The first principle in Lord Steyn’s point of view, that neither article has precedence over the other, contradicts the comments of the European Court of Human Rights in the Sunday Times’s case. They brought into light the fact that none of the articles calls for a balance between rights, but establishes a general right, followed by exceptions. (eg Art 10(2) ). It is understandable that the ECHR wanted to focus only on the fact that freedom of expression is limited by exception by default, and not that another article from the convention comes with further limitations. Three possibilities can be taken into account here: that in the Princess Caroline case there is a positive obligation to protect from press intrusion, that there is an absolute right to take photos in public spaces or that Article 8 and Article 10 weight exactly the same, but only when it comes to intimate spaces such as family, personal data or correspondence.
Lord Steyn’s second principle is that the Courts should focus on the comparative importance of the specific rights of the individuals, moreover, should underline all the features that freedom of speech and privacy are of extremely importance, but in completely different ways. ‘Freedom of expression is of particular importance where the publication will concern matters of political and public interest.’ (Robertson & Nicol, 2007)
The people have a right to know about the public figures, especially about the leaders in power over them. At the end of the day, their salaries are paid by the people. Political figures have the right to take decisions that affect people’s lives, therefore they should have the right to make a proper judgement about the leaders and feel like the chose wisely. Attempts to restrict such an important area in the public interest could be visualised as a conspiracy against the voters in order to manipulate them. ‘The arguments for free speech hold a key importance in ensuring effective democracy and uninhibited public discourse, which makes it clear that free speech is an issue.
Public figures need to tolerate a greater degree of press intrusion, but even in their case, sometimes privacy takes over the freedom of expression, as we have seen in the Naomi Campbell’s case.
Article 8 seeks to preserve the individual’s private interest as well as his identity and dignity. Of course it is common that some of these interests will contrast Article 10 rights to speak and publish. We shall not seek to see both articles as opposed, because sometimes a publication can be beneficial (Re Roddy )
Lord Woolf CJ held that while public figures are entitles to a private life, they should recognize that even trivial facts relating to them are of great interest to the public. Two aspects need to be discussed. Firstly that public figures wanted this status themselves, are in constant seek of attention, therefore it is hypocritical to complain that your personal space is invaded. On the other hand, we should take into account the fact that some celebrities acquired their status by mistake (eg footballers). These are people that do not wish to become role models or to have a special status, they simply want to be the best at what they do,so why should we put their private lives subject to scrutiny?
It is clear that while we live in a democratic society, the need for freedom of expression is essential John Stuart Mill fought for the free speech in order for people to find the truth. (!!!!!!! More info)
All elections are about the character of the politicians involved. We need to have access to their private lives to feel like we can make a fair decision. Many would think that a leader that has cheated on his wife will be capable in betraying the country and the promises made to the general public. In the same time, the same democratic society has the need to escape the press, to preserve its own personal life and interest. We should consider that private morality or eccentricities have no influence on someone’s ability to do a job well. If the modern standards would have been applied in the past, not many respected leaders have been reached the peak or even survived in office.( Kennedy-adultery, Roosevelt -disability)
On the other hand, we should consider the fact that Private morality and eccentricities have no automatic relationship to someone’s ability to do a job well. Many great political leaders have had messy personal lives, while others, with blameless private lives, have been judged failures in office. If modern standards of press intrusion and sensationalism had been applied in the past, how many respected leaders would have reached or survived in office? Kennedy (adultery)? Roosevelt (disability)?
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