Confidence boosters

Last year was a rollercoaster ride for the press industry as a number of high-profile libel cases made it to the courtroom. The media's duty to report matters of public interest was re-emphasised in Loutchansky • Times Newspapers; Bruce Grobbelaar was stripped of his substantial jury award as the Court of Appeal intervened for the first time to declare the jury's verdict an 'affront to justice'; and The Sun newspaper was held liable for a publication under the statute that was originally enacted to outlaw stalking in Esther Thomas • News Group Newspapers. However, it was the case of Venables • News Group Newspapers that heralded the most significant development in 2001. In the action, the killers of Jamie Bulger were successful in preventing the publication of information that would permit their identification upon release, introducing the issue of an individual's right to privacy. The thorny issue of whether there is a recognised law of privacy in this country has dominated developments in media law during the past year. Following on from the first formal judicial recognition of a right of privacy in Michael Douglas & anor • Hello! Ltd, the year ended with a groundbreaking injunction preventing the publication of the details of a footballer's extra-marital affairs (A • B Plc & anor). It is this latter judgment that has sent shockwaves through the tabloid press and threatens to put an end to the kiss-and-tell exposé, which in many ways has been the staple diet of the tabloids for so long. There is still a certain amount of confusion as to whether there is a consensus on what privacy means and exactly when privacy will be deemed to have been breached. At the heart of the debate is the way the law of confidentiality has influenced decisions on privacy, the role of the Press Complaints Commission (PCC) in protecting against invasions of privacy and the effect of the European Convention on Human Rights (ECHR) on developments in this area of law. Most privacy decisions to date have involved injunctions. The debate surrounding the existence of a law protecting against invasion of privacy looks set to continue, with a number of high-profile decisions due to be revisited later this year. In the meantime, the precarious balancing act called for because of the contrasting rights of freedom of expression (Article 10 of the ECHR) and the right to privacy (Article 8), remains an almost daily concern for journalists and editors alike. The PCC approach is very much in favour of self regulation and it is difficult to predict how the courts will interpret alleged instances of breach of privacy with each case decided on individual merit.
Article 8
Article 8 of the ECHR declares that “everyone has the right to respect for his private and family life and his correspondence”. It has been seen as the catalyst for an increase in the number of complaints against media intrusion that make it to the courtroom. The jurisprudence of the ECHR indicates that private and family life should be interpreted broadly to protect the privacy of the individual concerning matters of sexual relations, orientation and identity. Confidentiality or right to privacy Despite the growing trend among celebrities to use the ECHR to safeguard the right to privacy, the protection of privacy in English law still emanates from the law of confidence. The requirement that the information be imparted in circumstances of confidence has waivered slightly following the decision in Douglas in which Michael Douglas and Catherine Zeta Jones sought to prevent the publication of unauthorised photographs of their wedding. Those who believed that the decision created a new law of privacy may have jumped the gun. It has been noted that the court refrained from recognising a fully-fledged right to privacy because it felt that the law of confidence was able to provide sufficient protection. However, Lord Justice Sedley said: “The law no longer needs to construct an artificial relationship of confidentiality between the intruder and the victim; it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.” Before the Douglas decision, the suggestion of a privacy law was generally given short shrift by the UK courts. The law of confidentiality was considered sufficient to deal with any breach of privacy. However, Douglas certainly added weight to the argument for a law on privacy and altered the way in which the law of confidentiality is perceived. There has been a body of test cases since then that have assisted in establishing a de facto privacy law. The question now is how willing should the courts be to step in to protect the privacy of the individual, and do they need to?
A • B Plc & anor (LTL 16/11/2001)
The central question in this case was whether a sexual relationship between two or more persons is a matter that attracts the protection of confidentiality. The facts of the case are simple enough. A Premiership footballer kept two mistresses outside his marriage. One of them told her story to a newspaper and the footballer sought an injunction preventing the publication of his identity and the details of the affairs on the grounds of breach of confidentiality and breach of privacy. The defendant newspaper was restrained from publishing details of the professional footballer's extra-marital affairs. Mr Justice Jack granted the injunction declaring that the law of confidentiality could apply to sexual relationships regardless of the existence of an express agreement to treat the matters as confidential. So much has been written in the aftermath of Judge Jack's ruling that it would be impossible to do justice to the arguments for and against the injunction, although it has been heavily criticised for the most part. This case more than any other has divided media opinion on the issue of privacy. It is the conflict between the fundamental principles of freedom of expression and the moral justification for releasing intimate details of an individual's private life to the public that need to be reconciled. Does the exposure of a married footballer's extra-marital affairs qualify for the public interest defence? There has to be some sort of justification for an invasion of privacy that stretches further than the editor being able to point towards an increase in newspaper circulation figures, and it is debatable as to who should set the perimeters for public interest stories.
The code of practice
The Right Honourable Lord Wakeham, who was until recently chairman of the PCC, said in a speech released on 23 January that the protection of personal privacy is at the heart of the system of self regulation administered by the European Commission. The press industry's code of practice sets out benchmarks by which all editors must make judgments about possible intrusions of privacy. They echo the terms of the ECHR, although the code stipulates that “a publication will be expected to justify intrusions into any individual's private life without consent”. The code also recognises situations where an intrusion by a newspaper will be in the public interest and includes instances where a newspaper is exposing crime or serious misdemeanour, or protecting the public health and safety. Lord Wakeham has made it clear that he believes the Douglas judgment has been “wrongly hailed as the inauguration of a new legal regime” and that the cases since have supported this proposition. He highlights the fact that on the evidence of these early cases, there is very little to suggest that the courts will use the 1998 act to fashion a privacy law.
R • Press Complaints Commission, ex parte Anna Ford (LTL 31/7/2001)
This case confirmed the role of the PCC as the custodian of privacy issues. The claimant had complained to the PCC about an intrusion of privacy concerning photographs of her and a friend taken on a public beach in Majorca without their knowledge. The commission asserted that the claim had no real prospect of success and the claimant sought judicial review. Mr Justice Silber held that the type of balancing operation conducted by a specialist body such as the PCC was still regarded after the 1998 act as a field of activity to which the courts should and would defer. The commission was deemed a body with membership and expertise that made it better equipped than the courts to resolve the difficult exercise of balancing the conflicting rights. It is understandable that the PCC is worried that a privacy law would seriously undermine the ability of newspapers to investigate, scrutinise and intrude in the public interest. But some commentators question the role the commission plays in protecting privacy and have criticised it for being ineffective. While it may be quicker and cheaper than the courts, some believe that the PCC is unable to provide an effective remedy for a breach of privacy. It has been said that this is reflected in the courts' eagerness to develop the tort of breach of confidence to encompass a much wider right to privacy under Article 8. One of the problems with the law as it stands is that the Human Rights Act exhorts those responsible for protecting our privacy to have particular regard to freedom of expression when deciding each individual case. It also gives the media a public interest defence against anyone trying to stop them from publishing. This means that judges are left with a delicate balancing act to perform, which demands consistency and for which the guidelines are not yet set in stone. As far as the law of confidence is concerned, the Court of Appeal noted its major shortcoming as a privacy-protecting tort. Despite recent case law indicating the courts' willingness to step in to protect against a breach of privacy, the judiciary has not yet fashioned a privacy law that ordinary members of the public could rely on to uphold their rights. But with the Douglases, Naomi Campbell and the DJ Sara Cox among others due in court later this year, we could soon see a distinct legal right to privacy.