Traditionally, privacy has been protected by using other causes of action such as breach of confidence, copyright, data protection, trespass – even defamation. But now the common law, with a bit of help from the Human Rights Act (HRA), “can recognise privacy itself as a legal principle, drawn from the fundamental value of personal autonomy”.
The quote comes from Lord Justice Sedley's judgment in Hello! v Douglas. Exclusive rights to publish photographs of the Michael Douglas/ Catherine Zeta-Jones wedding had been sold to OK!. The happy couple had taken elaborate steps to protect the privacy of the occasion, including issuing security passes to wedding guests and confiscating cameras at the door. When OK!'s deadly rivals Hello! obtained nine photographs from an unauthorised source, a legal battle ensued.
This was not the most promising set of facts from which to create a freestanding right to privacy: information which might have been regarded as private had been sold for publication, no doubt for a very large sum. The case was not really about privacy at all, but commercial information. Small wonder that the Court of Appeal refused an injunction and left OK! to claim a monetary remedy.
But the case shows that there is no obstacle to recognition of a freestanding right to claim damages or an injunction for infringement of privacy. The common law would eventually have got there on its own, but there is an additional argument: Article 8 of the European Convention on Human Rights gives us all the right to respect for our private lives, including our home, family and correspondence; under Section 6 of the HRA, it is “unlawful” for the court, as a “public authority”, to act in a way that is “incompatible” with a convention right. So the court must give legal effect to the right to privacy.
For a time, at least, lawyers will go on claiming other remedies at the same time. But the courts can – and will – be asked to grant injunctions to protect privacy itself. This is another large stick with which to beat the media.
Concern about the easy availability of injunctions to restrain publication of private information led to frantic media lobbying and the enactment of Section 12 of the HRA. This looked like a safeguard for the media: before granting an injunction, the court must have “particular regard” to the convention's right of freedom of expression. So far, so good. But that right, enshrined in Article 10, is not absolute. Restrictions may be imposed if they are “necessary” in a democratic society for the purposes of – among other things – protecting the rights of others. Such as the right to privacy.
However, there is reason to wonder whether Section 12 will benefit the media. On the plus side, section 12 requires the court to consider potential defences: the extent to which information has been available to the public and whether its publication would be in the “public interest”. This reflects defences previously available in breach of confidence.
On the other hand, by the requirement that the court give regard to “any relevant privacy code”, Section 12 permits claimants to rely on regulatory codes of practice. These include, for the press, the Code of Practice policed by the Press Complaints Commission, and for the broadcasters a variety of codes, including those of the Broadcasting Standards Commission, the Independent Television Commission and the BBC's Producers' Guidelines, all of which are available online.
Although there is nothing new about the actual content of the codes, what is new is the way in which the codes (and the adjudications by the relevant body) will be scrutinised and given legal effect by the courts. A claimant who can find an infringement of a code will have a better chance of getting an injunction. And who could object to this? After all, the court would be doing no more than giving effect to standards of responsible journalism, espoused by the media.
It is not clear who will be better off in this new legal landscape. When privacy was protected by the law of confidence, the media was pretty much free to publish information which had been put into the public domain. But privacy is different – it does not follow from the fact that information has been published before that it can be published again. And although the concept of privacy is “essentially human and personal”, to quote Judge Mustill, secret filming in a shop might well constitute an “unwarranted invasion” of a company's right to privacy.
The legal recognition of a right to privacy must be welcomed. Pictures of Gordon Kaye in hospital, for example, should clearly not have been published without his consent. However, wealthy and powerful individuals and companies will undoubtedly try to use this new weapon against the media. There is great potential to hinder, or even stifle, investigative journalism which invades privacy in pursuit of matters of legitimate public interest. Can we trust the judges to restrict the growth of the newly -emerged legal right of privacy, so as to enable freedom of expression to flourish? We shall soon find out. n
Heather Rogers is a barrister at Matrix Chambers