The House of Lords in Campbell v MGN, recognised that the tort of misuse of private information has come of age.
The need for this clear recognition arose from the values enshrined in Article 8 of the European Convention (the right to a private life). While the Human Rights Act 1998 created no new causes of action, it did, by Section 6, impose an obligation upon public authorities, including the courts, not to act inconsistently with convention rights. This ‘horizontal effect’ between private litigants asserting private rights included convention rights such as Article 10 (freedom of expression).
The difficulty in reconciling these competing rights was seen most clearly in Green Corns v Claverley (2005). Green Corns provided care for children referred by local authorities. Many of those children had suffered abuse and Green Corns provided them with intensive treatment to aid their rehabilitation.
The company began operations in Wolverhampton, where the Claverley Group’s newspaper, the Express & Star, circulated. The paper published a series of articles about the houses that Green Corns had chosen as potential homes for the children, which the paper had described as “sex offenders” and “yobs”. The paper specifically identified four houses. There were protests outside the houses and significant damage was caused to two of the homes, although there was no proof that this was caused by the identification of the houses in the newspaper. Green Corns sought an injunction to prevent publication of addresses.
The existence of a course of action to protect disclosure of private addresses was not disputed in principle. The newspaper argued that the information regarding private addresses was already in the public domain, and in any event this issue, where vulnerable children were housed in the community, had raised a high Article 10 issue in that there should be no interference with the freedom of expression in such a case.
Was the information private?
Green Corns asserted that the addresses of its properties amounted to private information and was protected under Article 8. The newspaper argued that the addresses were already in the public domain. After all, the addresses were known to those neighbours who lived near the properties and the addresses could even be obtained from the Land Registry with a proprietorship search. Likewise, some addresses could be obtained from local authority websites where minutes were not published in redacted form.
The fact that information was known by some people did not mean that the information was incapable of attracting legal protection.
Two important questions arose: to what extent was the information in the public domain, and would republication have a significant effect? In Green Corns the extent to which the information was available did not provide a reason for refusing an injunction. In any event, the republication of addresses, perhaps together with commentary on the likely disabilities and characteristics of the occupants, would amount to publication of new information.
The ultimate balancing test
If neither article has precedence over the other, an analysis on a case-by-case basis of the specific rights and issues in the case is necessary. For Green Corns there was the right to protect the privacy of the addresses of the children in its care. The evidence showed that some properties had been attacked and there was a boast from the newspaper that publication of some addresses had caused the company to abandon certain properties.
The countervailing Article 10 right was that a newspaper should be free to discuss the issues surrounding the placing of vulnerable children and to also voice the Article 8 rights of those families that would be living adjacent to Green Corns’ properties.
Mr Justice Tugendhat undertook a careful analysis of the countervailing rights. The rights asserted by and on behalf of the newspaper included the right for families in adjacent properties to be free from interference with the enjoyment of their properties. There was no evidence (as opposed to concern) that the children placed with Green Corns, and who were supervised constantly, would present a danger to neighbours, and in any event there were remedies available to such neighbours to deal with any nuisance.
The central argument of the newspaper was its high Article 10 rights in conducting an important debate. It was accepted that this was a high Article 10 right case, but the limited restriction which was sought, namely the publication of addresses and specific locations, did not prevent the newspaper from conducting that debate. The debate, properly analysed, was whether and how vulnerable children should be housed in residential areas, not whether one house or street rather than another was suitable. The protection sought fell within the accepted limitations in Article 10(2) itself.
Specific guidance on future cases is limited, but the method for balancing these rights is now clear. It is also likely that claims for injunctive relief are more likely to be successful the narrower the relief sought and the greater the harm that may be caused by publication.
David Casement is a chancery barrister at Exchange Chambers in Manchester and Serle Court.
Julian Diaz-Rainey is a commercial litigation partner at Halliwells