Private lives in public

The recent decisions in the cases of Naomi Campbell v Mirror Group Newspapers (HL) and Caroline von Hannover v Germany (ECHR) have caused much public debate about whether we now have a law of privacy in the UK. Ever since the introduction of the European Convention on Human Rights into UK law, the courts have seen several (and various) challenges on single articles – i.e. individual against state.

The debate for the media and those seeking to protect their privacy has, however, generally been focused on the direct clash between two competing rights: article 8 (right to respect for private and family life) and article 10 (right to freedom of expression). Generally, the media has come out on top in most of these disputes, but recent victories for Naomi Campbell and Princess Caroline have suggested that there is now a line for the media not to cross when covering stories involving individuals’ private lives.

The seeds of change

We in the UK have perhaps taken more interest in the debate because of our traditional approach to privacy. We have not recognised a right to privacy in this country in the same way that the French or even the Americans have. That probably can be explained not only by cultural differences but also by their constitutional set-up. Citizens there have been accustomed to their rights being enshrined and codified in a manner which to us has been simply alien.

As recently as 1991, in the English case of Kaye v Robertson, Lord Justice Glidewell stated: “It is well known… that there is no right to privacy, and accordingly, there is no right of action for breach of a person’s privacy.”

That is not to say that individuals had no rights of challenge whatsoever. Cases have been brought under the laws of confidence (most famously “Spycatcher”), and Parliament did legislate to protect certain considered privacy rights in many forms, including the Rehabilitation of Offenders Act 1974, the Data Protection Acts 1984 and 1998, and the Protection from Harassment Act 1997, which Princess Diana had welcomed shortly before her death.

However, recent developments have changed our rather black and white approach to privacy. It is not just article 8 of ECHR which has led to a change in approach. The PCC Code governing newspapers has clauses both on privacy and harassment. Ofcom, the regulator for the UK communications industries, has a lengthy section on privacy in its television code. Society itself has also changed, with a seemingly greater appetite among the public for information about celebrities and their private lives. That desire is arguably brought on by the publicity-seeking individuals themselves, apparently desperate to have their picture in a newspaper or magazine.  

Article 8 v Article 10

The best known decision until Campbell in which the privacy/expression argument was aired was Douglas/Zeta-Jones v Hello!. Douglas and Zeta-Jones won damages against Hello! for publishing unauthorised pictures of their wedding in the face of an exclusive deal they had agreed with Hello!’s greatest rival, OK magazine. There, Mr Justice Lindsay was at pains to point out that the claimants had won their case under the existing laws of confidence and data protection. He threw out the main invasion of privacy claim, but did state: “A glance at a crystal ball of, so to speak, only a low wattage, suggests that if Parliament does not act soon the less satisfactory course of the courts creating the law [of privacy] bit by bit at the expense of litigants and with inevitable delays and uncertainty, will be thrust upon the judiciary.”

Another significant decision was the Flitcroft case, in which the (until then) anonymous Premiership footballer failed to have his identity kept confidential. Gary Flitcroft was ultimately exposed by The People newspaper as having been involved in an extra-marital relationship. The newspaper eventually won, but what was perhaps of most interest were the detailed guidelines from Lord Woolf, which included the following directions:

• If an injunction is not granted the claimant may be deprived of the only remedy that is of any value. However, that must be weighed against the media’s right to freedom of expression.
• Any interference with freedom of expression must be justified, because it has an effect on the ability of the press to perform its public role.
• There is generally no need to decide whether there exists a new tort of infringement of privacy. A claim for breach of confidence will generally be sufficient.
• In the majority of the cases, the issue of whether the claimant has a sufficient claim for confidence should be obvious. If it is not obvious, then it is likely to be outweighed by freedom of expression.
• While a public figure is entitled to have his privacy respected in appropriate circumstances, such a person must recognise that his actions will be more closely scrutinised by the media, particularly where he has courted attention relating to his private life. The public have an understandable and legitimate interest in being told information about such a person.
• The fact that a newspaper might adopt a lurid approach is irrelevant, if the claimant cannot otherwise satisfy the court that publication should be prevented. Questions of taste and presentation are for editors.

This decision was understandably welcomed by the media, who also supported the Government’s decision not to bow to calls for a specific privacy law at that time. Similar decisions fell around the same time in favour of the media against Jamie Theakston and, in the Court of Appeal, against Naomi Campbell.

The pendulum swings

The recent decision by the House of Lords, therefore, in Campbell, to overturn the appeal court’s ruling, appeared to flow against the tide. Naomi Campbell was reported (and photographed) in the Daily Mirror as attending Narcotics Anonymous, to beat an addiction she had previously denied. The key issue for the court was whether the publication at issue “was legitimate in that the public interest in favour of publication outweighed any public interest in the protection of Naomi Campbell’s rights of confidentiality”.

Lord Hope wrote perhaps the most significant judgment of those favouring Campbell, when he stated: “The mind that has to be examined is that, not of a reader in general, but of the person who is affected by the publicity. The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity.”

That passage certainly seemed critical vis-à-vis the facts of this case, but whither a law of privacy?

One finds a closer answer in the passages of those dissenting, namely Lords Nicholls and Hoffmann. Lord Nicholls stated that “the time has come to recognise that the values enshrined in Articles 8 and 10 are now part of the cause of action for breach of confidence”. Lord Hoffmann observed that there is no general cause of action for privacy, but highlighted: “the right to privacy is in a general sense one of the values, and sometimes the most important value, which underlies a number of more specific causes of action, both at common law and under various statutes”.

More recently, in Strasbourg, the Court of Human Rights found in favour of Princess Caroline of Monaco, who took action over a series of photographs taken in France and published in Germany of her everyday life (picking up her children from school, supermarket shopping etc). Although the German Government claimed that she was a public figure “par excellence”, the majority of judges said that the balance between articles 8 and 10 depends on “the contribution that the published photographs and articles make to a debate of general interest”. Here, they found that publication did not contribute to the public debate and therefore ruled in the Princess’s favour.

Is there now a right to privacy?

The UK courts still appear keen to re-emphasise the significance of  the existing laws of confidentiality rather than defining these actions as privacy cases. After all, Parliament has never legislated specifically on the matter.

The Campbell case will not  prevent the media in this country from covering stories of individuals’ private lives, nor will it prevent them from arguing that they, like the individuals who rely so heavily on them for exposure, also have rights afforded to them under ECHR, found in article 10. The courts still support that view very clearly. We have seen, for example, a huge amount of material this past month on the private life of the England manager Sven-Goran Eriksson.

But the two recent cases, coming so close together and from two such powerful courts, mean that the media will have more cause for reflection, both when ingathering photographic evidence and when deciding what, and how to publish by way of articles involving the private lives of public figures. They may also give celebrities more encouragement to seek pre-publication interdicts or injunctions. Whether the pendulum will swing back after the next high profile case is unclear, but this is probably the closest we have ever been to having a law of privacy in the UK.

David McKie is a partner with media law practice Levy & McRae, Glasgow