Privacy is a fundamental right of all human beings. It promotes human dignity and other values such as freedom of association and freedom of speech.
The concept of privacy is recognised in one form or another in all legal systems. However the protection and the development of this concept vary from society to society. The need for privacy has long extended beyond the commercial context, and now applies to a wide range of circumstance, including the family and home.
The desire for privacy and protection from invasion by the state, institutions as well as other individuals has long been a problem within the UK legal system. As British society is getting more and more complex, our privacy needs are growing. This means that the scope of our laws is stretching to accommodate this growth.
Privacy is the fine line between a person’s rights to lead his own life without intrusion, and the right for the surrounding public to be made aware of facts and circumstances which may have an effect on them, whether it is good or bad. This line is constantly moving and its boundaries are constantly stretched, not least by the difficulty that the courts have had in handling this issue2.
The issue of privacy is in every part of law. Therefore I have chosen to narrow it down and trace the development of privacy law with regards to role models, and the press. I will analyse the development prior to the Human Rights Act 19983, discuss the impact of the HRA 1998, and also assess the implications of the Press Complaints Commission4.
Before going any further, it should be noted that there is no such thing as a “right to privacy” within the English legal system. This is clear from the speech of Glidewell LJ in Kaye v Robinson. It has never been defined by parliament. What we seem to have rather is protection where privacy has been breached, via other doctrines, namely breach of confidence and trespass. We have seen the courts using various instruments to accommodate the right to privacy. Prior to the Human Rights Act 1998, the courts used the tort of ‘breach of confidence’ to give remedy and protect privacy. Since the HRA 1998, this doctrine has been extended to accommodate the requirements of Article 8 and Article 10. However the roots of the development of a ‘right to privacy’ still lie in this.
Looking at various statutes and case laws, it can be seen that the UK has long sought to protect individual privacy from being invaded. For example The Justices of Peace Act 1361 in England provided for the arrest of peeping toms and eavesdroppers5. However the best historical evidence comes from the writing of parliamentarian William Pitt6 who says;
“The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow though it; the storms may enter; the rain may enter – but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement”.
This clearly demonstrates that the UK does recognise such a thing as privacy.
In its simplest form, a breach of confidence arises when sensitive information comes to the knowledge of a person; in circumstances where it would be unfair where that information to be disclosed to others7
The law of confidence has attracted judicial intervention over the years, but in particular the development of confidence outside of commercial information has been slow.
The early case of Prince Albert v Strange8 was one of the first to see the application of breach of confidence. In this case, private etchings were made for Prince Albert and Queen Victoria, which were copied without authorisation with the intention of publishing. The courts held that this was a situation where the parties were in a position of trust and granted an injunction, as the etchings were obtained in breach of confidence. This in essence marks the beginning of the development of the breach of confidence. The court’s intervention in this case extended the application of breach of confidence to all situations where a breach of trust, confidence or contract has led to the misuse of private information, outside of the commercial context and even where there was no financial detriment to the confider.
However a century later, in Argyll v Argyll9 the court intervened again to grant an injunction to prevent the revelation of a legal marital confidence, thus demonstrating that personal information is covered. This case has very recently been developed in light of case of A v B & C (which will be discussed later).
The later case of Coco v Clark10 identified three necessary elements which were needed for a successful claim in breach of confidence. The first was that the information for which protection is sought must have the necessary quality of confidence. This means that the information cannot be something that is already public property and public knowledge. Secondly, it must have been obtained in circumstances that imported an obligation of confidence, and thirdly it must be used in an unauthorised way to the detriment of the person who communicated the information. The elements of Coco v Clark were used in subsequent cases to identify breaches of confidence.
In Stephans v Avery11, a case concerning information communicated within a close friendship, it was held that it was not necessary to identify a formal relationship between the parties. This suggested that that the confidential nature of the information was the most important factor. This case also demonstrated that a newspaper, which was not party to an original relationship, but was directly involved, i.e. approached by one of the parties, could have obligations associated with a relationship of trust imposed upon it.
The ‘Spycatcher’ case12 took this a step further and made it clear that if the editor had merely acquired the information, they can be held to be under the same duty of confidence if they are aware that the information is confidential.
However the case of Stephans v Avery also provided a defence to breach of confidence. It was held in this case that, where the disclosure of information included matters “in the public interest”, the courts should not apply the principle of breach of confidence. Therefore the press as it stands can trump the duty of confidence if it can show that the publication was in the ‘public interest’ (again this will be discussed in detail later)
From 1988 we have seen the courts in a struggle, trying to balance privacy against other prevailing rights, in particular the right to freedom of expression (which is now dealt with in the HRA 1998). In essence the courts have been stretching, and juggling the principle breach of confidence to fit circumstances which seem fit. Examples of courts defining public interest in different aspects of society can be seen in various cases. For example the case of X v Y13, dealt with issues relating to confidence within health authorities.
The issue of privacy has always been extensively attached to celebrities and role models, and courts have constantly been in a battle trying to draw a line between privacy and freedom of expression. In essence they have been trying to define the goal posts. How far can we interpret the freedom of expression, before it infringes privacy?
Elwood14 argues that celebrities may be seen to have waived their right to privacy; thus he claims the defence to any privacy actions they bring is implied consent. However, it has been argued that in a typical privacy case, and particularly where the information has been obtained surreptitiously, it would be absurd for a newspaper to claim that the plaintiff would have given actual consent to publication if asked. As Feldman15 remarked;
‘It is in principle, unacceptable that merely because an individual seeks favourable publicity… his entire life might be laid bare with impunity’
The HRA 1998 introduced Article 8 and Article 10 of the European Convention of Human Rights16 into UK law. The incorporation of ECHR saw for the first time, recognition and a right to respect for family life (Article 8). Although this was a triumph for role models, strictly speaking this should not be confused with a ‘right to privacy’, but merely a right to ‘respect’, which is a lesser measure.
However, it is no surprise that of all the human rights, privacy is the most difficult to define17. It maybe perhaps, for this reason that the UK parliament has refused to recognise and define it as a separate and independent, freestanding doctrine within the legal framework.
Since the incorporation of the ECHR there has been an increase in the number of injunctions sought against the media to prevent publications of materials, which would cause an infringement of privacy. Such applications for injunctions are now considered in the context of the above articles. The convention provides boundaries within which the court has to decide between the competing rights. The act also places limitations in the manner in which the courts can act, as under s.6 of the HRA 1998, the court cannot act “in a way which is incompatible with the convention”.
The courts seek to overcome this by incorporating the rights into the long-standing action of breach of confidence, so that it accommodates the requirements of the rights.
Therefore in essence the incorporation of the Convention cannot be seen as providing a new direction, but rather extending old doctrines, namely breach of confidence, so as to be able to cultivate newer areas, and thus extend the range of issues where this can operate.
Interpreting the articles it can be seen that these rights are competing rights therefore they appear on either side of the spectrum. This means that whilst Article 8 is seeking to extend and protect private life, in the same instance Article 10 is operating to protect freedom of expression and freedom to receive information, therefore it is necessary for Article 10 to give way so that remedies are available for breach of confidence.
This leads to the concern that the development of confidence as a remedy for privacy will pose a risk to the freedom of the press, and therefore may place Article 10 into abeyance. However cases after the HRA 1998 and even directions from Strasburg, demonstrate that this will not be the case and that considerable weight will still be give to the freedom of the press not only under the guarantees of Article 10 but also the exceptions listed in Article 8(2), for measures taken in the interests of the rights and freedoms of other.
In essence the impact of the HRA 1998 has been that whilst the areas of privacy have been extended under the convention, the courts are still faced with the balancing the two articles bearing in mind s.6 of the Act.
It may be for this reason i.e. the balancing act by the courts, that the incorporation of Article 8 will not bring about a revolution in the determination of privacy claims where the press is concerned.
The HRA 1998 came into effect in October 2000. Almost immediately the case of Douglas v Hello18 came in front of the courts. This legal battle was largely fought on privacy and confidence issues.
This case was also one of the first to consider privacy under the HRA 1998. The case concerned the wedding of Michael Douglas and Catherine Zeta-Jones and, like Hellewell, was concerned with unauthorised photographs. The couple had sold exclusive photo rights to OK magazine and also took precautions to make sure no other photos were taken. Nevertheless a rival magazine Hello! obtained nine unauthorised photos which it sought to publish. OK magazine obtained an injunction in the first instance stopping publication, which led to Hello! appealing, and the injunction being overturned. The claimants were thus forced to proceed to the Court of Appeal in order to obtain relief.
The issue in front of the judges was to which extent confidentiality could be taken. The Attorney General v Guardian Newspapers Ltd (No.2)19 dictates that it only applied to those situations where the parties knew that they were dealing with confidential material, even if they had not been placed under a specific obligation of confidence. In an ice breaking statement Sedley LJ stated that;
‘We have reached a point at which it can be said with confidence that the law recognises and will appropriately protect a personal right to privacy’.
He later acknowledged that this would be ‘grounded in the equitable doctrine of breach of confidence’. This demonstrates the courts willingness to expand existing doctrines to cover new areas, rather then develop a whole new freestanding doctrine. He also suggested that kaye v Robertson might have decided differently if it reoccurred and expressed the view that;
‘English law would now protect all those who find themselves subjected to unwanted intrusion into their private lives’.
The other members of the Court of Appeal did not go quite so far, but accepted that the claimants had an arguable case for breach of confidence.
The Douglas succeeded in their claim for breach of confidence and were awarded damages. In a 92 page long judgment, Lindsay J revisited the criteria set out in Coco v Clark. Overall his judgment pretty much summed up the law with regards to breach of confidence in relation to role models.
In the case of Douglas v Hello, the courts recognised that individuals had a right to privacy, not as a freestanding part of law, but which was entrenched in the doctrine of breach of confidence, However the courts also recognised that in order to grant relief the courts have to take into account the relevant rights under the HRA 1998.
His judgement did not indicate whether the right to privacy outweighs the right to freedom of expression. Therefore in this respect there is no presumption that the freedom of expression under the convention will be greater than the law of confidence.
In essence his judgement states that there can be no clear balance between freedom of expression and the breach of confidence, but rather this is decided on a case-by-case basis when such cases come in front of the courts.
Brook LJ stated that by virtue of the s.12 (4) of the HRA 1998 the courts have to pay particular regard to the Code of Practice of the PCC. He also said that where a newspaper breached the Code of Practice, then the court is likely to find in favour of the claimant.
In the same case Keene LJ addressed whether therefore s12 of the HRA 1998 tipped the balance in favour of freedom of expression. In para 150 he said that
“The subsection does not seek to give priority to one convention right over another…it is merely requiring the court to apply its mind to how one right is to balanced, on the merits against another”.
The decision of this case clearly pointed the way for the development of privacy rights via the concept of breach of confidence. The decision was subsequently relied on in Venables v New News Group Newspapers20 to impose an injunction preventing the publication of the new identities of two men convicted when they were children of murdering a toddler, Jamie Bulger.
After this case the HRA 1998 has been seen as possible providing the catalyst for further development in this area.
The Code of Practice is by no means conclusive as to whether there is a case for breach of confidence, nor does it carry any legal weight.
However this was a further development in the field of confidence, as it now made it clear that in determining whether there has been breach of confidence the courts are able to use the Code of Practice as a guiding factor.