Freedom of Expression and Right To Privacy

The brief deals with Articles 8 and 10 of the European Convention on Human Rights (ECHR). It investigates the right to privacy and the right to free speech. The brief discusses the development of the right to privacy in the UK. It further investigates whether the right to freedom of expression or the right to privacy is paramount. The brief will attempt to show that the courts developed tests to determine which right should reign supreme in any given situation.

Introduction

The UK adopted the ECHR by enacting the Human Rights Act (HRA) in 1998. [1] The HRA came into full effect on 2 October 2000. Watson [2] states that privacy and the protection thereof have attracted a great deal of attention in the common law world in recent years. She is of the opinion that the lack of precision of the concept of privacy means that it includes a wide variety of interests.

Article 8 of the European Convention on Human Rights

Right to Privacy

Article 8 of the ECHR provides that everyone has the right to respect for his private and family life. It is generally known as the right to privacy. Article 8(2) specifically provides that a public authority may not interfere with this right. [3] It is therefore clear that this right is protected against actions by public bodies but it does not categorically state that it enjoys horizontal application.

Warren and Brandeis [4] pieced together old judgements where the courts granted relief to claimants on the basis of defamation, or invasion of some property right, breach of confidence and implied contract and came to the conclusion that there existed a broader principle which deserved separate recognition namely the right to privacy. They identified two remedies namely, an action of tort for damages in all cases and secondly an injunction.

In contrast to their view, Prosser [5] argued that the right to privacy is not one right but in reality four different rights namely, intrusion upon the plaintiff’s seclusion or solitude or into his private affairs, [6] public disclosure of embarrassing private facts about the plaintiff, [7] publicity which places the plaintiff in a false light in the public eye [8] and fourthly appropriation of the plaintiff’s name or likeness by the defendant to his or her advantage. [9]

Kalven [10] says that privacy is a less precise way of approaching more specific values such as freedom of speech, association and religion. He concludes that it seems to him to be a mistake to use tort law to protect privacy. [11]

Judgements

Lord Glidewell held in Kaye [12] that it was well known that there is no right to privacy in English law and accordingly no right of action for breach of a person’s privacy. Kaye was a British television actor who was involved in a motor vehicle accident that resulted in serious injuries and extensive head surgery. While he was still in hospital recovering journalists gained entry and took photographs of him and interviewed him. A friend of the plaintiff sought an interlocutory injunction. As the claimant did not have any right of action for privacy, the claim was brought under four causes of action, namely libel, trespass to the person, passing off and malicious falsehood. [13] Kaye was unsuccessful with all causes of action.

Beatson [14] refers to the case of Francome [15] as proof that the courts will issue an injunction against defendant in interlocutory proceedings. In this case the defendant obtained illegal tape recordings of private telephone conversations of the plaintiff. Unfortunately the court did not grant the same order at trial. Beatson [16] argues that private conversations whether surreptitiously recorded or misappropriated by theft will be protected against unwarranted disclosure.

Beatson [17] further argues that misuse of private information can be restrained by injunction as in the Argyll [18] judgement and if disclosure has already occurred, by an award for damages as in the Stephens [19] judgement. Beatson [20] further argues that the same procedure could have been followed in Kaye [21] and the court could have issued an injunction.

In Prince Albert [22] the court held that the publication of private etchings of the Prince and Queen Victoria invaded the Royal Family’s right to privacy, in the sense of the right to control one’s possessions and enjoy them

In Wainwright [23] the House of Lords confirmed that there was no such tort as invasion of privacy in English law. Prior to the enactment of the HRA, a mother and son were subjected to a strip search when they visited her other son whilst he was in prison awaiting trial. The mother and son claimed for breach of privacy and although the court a quo found in their favour for invasion of privacy, both the Court of Appeal and the House of Lords rejected the claim. The facts of the case arose prior to the adoption of the HRA. The ECtHR held that article 8 of the Convention was not observed by the prison authorities in Wainwright. [24]

In Coco [25] the court confirmed the three step approach used in English law to establish a claim. The first part is that the information itself must have a quality of confidence about it. [26] The second part is that the information must have been provided to a party under circumstances that imports an obligation of confidence in relation to it, and lastly the information must have been used to the detriment of the party who communicated it. [27]

Human Rights Act 1998

Does the HRA only apply vertically between state and citizen or does it include the relationship between citizens (horizontally)?

Section 3 of the HRA provides that primary and subordinate legislation must be read to comply with Convention rights. [28] The section only states that the interpretation of legislation must be made in such a way as to make it compatible with Convention Rights so far as it is possible to do so.

Section 6 of the HRA provides that it is unlawful for a public authority to act in a manner that is incompatible with a Convention Right.That the act applies the Convention to the relationship between the state and private individuals is clear. All state action must therefore comply with the ECHR. It however does not say anything about the horizontal application of the Convention rights.

In Wainwright [29] the ECtHR held that the State’s action was a breach of Article 8 of the ECHR and impinged on the rights of the applicants.

Section 6(3) of the HRA provides that a court is also a public authority and the argument that has been put forward is that based on that clause the article applies to horizontal relationships. [30] Wade [31] states that according to Section 6(3)(a), a court is deemed to be a public authority and as such it is unlawful for it to act incompatibly with the ECHR. The courts will be unable to give a lawful judgement if a Convention point arises except to make the decision in accordance with that right.

Mak [32] argues that the courts in civil cases have not yet considered fully the horizontal effect of the Convention. In some cases the courts have given a certain effect to Convention Rights. The courts have however tended to bring cases under existing doctrines of private rather than elaborating on the role of fundamental rights in the further development of private law. [33]

In X v Y [34] the applicant worked for a charity that worked with young people. He was arrested for gross indecency with another man and cautioned. He was dismissed by his employer and claimed that the dismissal breached the terms of Article 8 of the Convention. The public had access to the public toilet and the fact that he wished to keep it a secret did not mean that it was private. It also constituted a crime which is a matter of legitimate concern for his employer. The appeal was dismissed.

The court maintained that the HRA remains relevant and the court provided an approach when considering dismissals brought against a private employer inter alia [35] :

Are the circumstances encompassed by one or more of the Convention Articles.

Does the state have a positive duty to secure enjoyment of that convention between private persons?

The court therefore was in favour of applying the conventions in a matter between two private parties.

Article 10 of the European Convention on Human Rights

Article 10 of the ECHR provides that everyone has the right to freedom of expression without any interference from public bodies. The article provides for limitations to the right of freedom of speech. It specifically refers to those restrictions that are necessary in a democratic society. [36]

The limitation of the right of freedom of speech is required to ensure that persons do not encroach on the rights of others and especially the rights contained in Article 8 of the ECHR.

Feldman [37] states that the liberty to express oneself freely is important as it is an important instrument of freedom of conscience, personal identity and self fulfilment. Secondly it assists in the growth of knowledge and understanding and thirdly, it allows the political discourse required in a country that aspires to democracy.

In Reynolds [38] the court said that the freedom to disseminate and receive information on political matters is essential to the proper functioning of the system of democracy. The court therefore embraced the democracy principle. The court placed emphasis on the protection of reputation as a matter of public interest.

The court in Douglas [39] regarded the acceptable limitation provided for in Article 10(2) of the Convention as an inherent aspect of the right stated in Article 10(1). One such limitation is the protection of the reputation r rights of others. Steele [40] says that it was taken to mean that the right to freedom of expression is inherently qualified by the need to protect other Convention rights.

When one considers the right of freedom of expression and the right to private life, it is clear that there will be a conflict between the two which needs to be weighed up against each other when the courts consider which right should prevail.

Balance between Freedom of Expression and the Right to Privacy

In Douglas [41] the facts were that the plaintiffs sold the rights to photographs to their wedding to a magazine. Hello! Ltd lost out on the bidding but convinced a guest to take photographs of the wedding and sell it to Hello!. Where Hello! was unsuccessful in obtaining the photographs legitimately, it obtained them for much less than the amount that OK! agreed to pay for it.

The argument that was put forward was that the taking of the photographs was a breach of confidence. Lord Sedley however said that it was an artificial relationship that the courts developed to create the relationship of confidentiality between the victim and the intruder. Lord Sedley further said that the court can recognise a legal principle drawn from the fundamental value of personal autonomy [42]

The court a quo granted an injunction against the photographs being publicised but on appeal the court did not uphold the injunction. The court of appeal examined the interrelationship between the plaintiffs’ right to a private life under Article 8 of the Convention and the defendant’s right to freedom of expression under Article 10 of the convention.

The court had regard to Section 12(3)of the Human Rights Act which must be considered when the court is asked for an injunction against the publication of information that might impact on the right of freedom of expression. Section 12(3) provides that no relief should be granted to prohibit the publication unless the plaintiff can satisfy the court that he or she will be successful in showing that publication should be prohibited.

The existence of Section 12 of the HRA did not entail that Article 10 of the Convention had priority over Article 8. [43] There was therefore no presumption of priority of Article 10 over Article 8. It is the duty of the court to weigh the two conflicting rights and in doing so to ensure that a fair balance between the two rights are attained. The court held in favour of the defendants. Even if the plaintiffs satisfied the court that publication should not be allowed based on confidentiality, their privacy was traded to OK! and OK! was the party who should be protecting the rights which have become a commodity. [44]

The court further held that an injunction was unnecessary. The court held that damages were sufficient to compensate the plaintiffs for the damage that they suffered and that the defendant would suffer irremediable damage if the injunction was maintained. [45] In general the courts will not grant an injunction if damages will suffice to recompense the plaintiff for his or her losses.

The matter went on further appeal and The House of Lords reinstated the damages that were awarded by the court a quo. [46]

Mirror Group Newspapers published information about Ms Campbell a supermodel that was true. She denied that she was addicted to narcotics. Ms Campbell conceded during the trial that it was in the interest of the public that the truth about her addiction be made known to the public but the court in a 2:3 judgement on appeal confirmed her right to privacy.The court referred to the Australian judgement of Lenah [47] and held that the question was whether a reasonable person would feel offended if she were placed in the same position as the plaintiff and faced with the same publicity. The court held that the article should be read as a whole and even though her addiction and treatment were legitimately published the article as a whole was offensive to the reasonable objective person. [48]

Their lordships balanced Articles 8 and 10 of the Convention and held that Ms Campbell’s right to privacy outweighed the right of the public to know as such publication could harm her recovery. [49]

In A v B [50] the court held that the right of the public to know that a footballer was involved in an adulterous relationship was more important than his right to privacy as he was in a public position and must accept that his actions will be closely scrutinised.

In Jagger [51] the court held that the plaintiff, who was taped on CCTV in sexual conduct with her boyfriend, had a legitimate expectation of privacy and held that her right to privacy outweighed the right of freedom of expression. The court ordered that the recording may not be publicised. [52]

In von Hannover [53] princess Caroline of Monaco was successful in a claim “to be left alone”. The plaintiff was photographed skiing, shopping, horse riding and drinking coffee at a cafe. The tribunal held that the photographs came within the ambit of private life and the publication was not in the interest of the public. She was entitled to have a legitimate expectation of protection of private life.

In weighing up the rights ensconced in Article 8 of the Convention against that in Article 10, the tribunal considered the decisive factor the contribution that the published photos and articles make to a debate of general interest. The tribunal held that there was no contribution. The plaintiff was not carrying out any official function when the photographs were taken and she was therefore entitled to protection.

Conclusion

The judgements that this brief discussed show that the courts in England has moved to the protection of privacy although the courts were loathe to recognise the creation of the tort of invasion of privacy. The courts preferred to hold that there was some breach of confidentiality when Article 8 of the Convention has been breached.

The Hannover [54] judgement has given the courts some guidance especially as to the factors that the courts should consider when faced with a claim based on a breach of Article 8 of the Convention.

It is however important that the courts not forget that freedom of expression is also a fundamental human right and the provisions of Section 12 of the HRA should be carefully considered before the court grants and order of injunction.

If it is in the public interest to know the information then the right of the public must outweigh the right of the individual and the courts should not shy away from refusing relief to the plaintiff.

Each case needs to be weighed and decided on its own facts. No one has absolute rights and any right carries with it the responsibility to carry out that right with due regard to the rights of others.

It is interesting to note that New Zealand was the first common law jurisdiction where a judge made right of action for invasion of privacy was adopted in the case of Hosking. [55]

Although the plaintiff lost the case the court held that for the right to exist the plaintiff must show that there were facts in existence that are private which gave rise to a reasonable expectation of privacy and publication of those facts must be seen as offensive to an objective and reasonable person. [56]

Bibliography

Books

Beatson J., Cripps Y., Freedom of Expression and Freedom of Information Essays in Honour of Sir David Williams (2002) Oxford University Press

Feldman D., Civil Liberties and Human Rights in England and Wales 2 Edition Oxford University Press

Steele, J., Tort Law: Text Cases and Materials (2007) Oxford University Press

Cases

A v B Plc [2002] 2 All ER 545

Argyll v Argyll [1967] Ch 302

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCAtrans 127 available at as at 2 January 2010

Campbell v MGN Ltd [2004] UKHRR 648, [2004] EMLR 15, [2004] UKHL 22, [2004] 2 All ER 995, [2004] AC 457, [2004] 2 AC 457, 16 BHRC 500, [2004] 2 WLR 1232, [2004] HRLR 24available at as at 2 January 2010

Coco v AN Clark (Engineers) Ltd [1969] RPC 41

De May v Roberts 46 Mich. 160, 9 N.W. 146 (1881)

Douglas v Hello! Ltd [2001] 2 WLR 992, [2000] EWCA Civ 353, [2001] EMLR 9, [2001] FSR 40, [2001] 1 FLR 982, [2001] QB 967, 9 BHRC 543, [2001] UKHRR 223, [2001] HRLR 26, [2001] 2 All ER 289, [2002] 1 FCR 289 available at as at 2 January 2010

Douglas v Hello! [2005] EMLR 609, [2005] 4 All ER 128, [2005] 2 FCR 487, [2005] EMLR 28, [2005] 3 WLR 881, [2005] HRLR 27, [2005] EWCA Civ 595, [2006] QB 125 available at as at 2 January 2010

Francome v Mirror Group Newspaper [1984] 1 WLR 892

Hosking v Runting and Pacific Magazines NZ Ltd [2004] NZCA 34 available at as at 31 December 2009

Jagger v Darling & Others [2005] EWHC 683 (Ch) available at as at 2 January 2010

Kaye v. Robertson [1991] IPR 147

Lord Byron v Johnston 2 Mer. 29, 35 Eng. Rep. 851 (1816)

Melvin v Reid 112 Col. App. 285, 297 Pac. 91 (1931)

OBG Limited & Others v Allan & Others [2007] 4 All ER 545, [2007] BPIR 746, [2007] Bus LR 1600, [2008] 1 AC 1, [2007] EMLR 325, [2007] IRLR 608, [2007] UKHL 21, [2007] 2 WLR 920, [2007] 19 EG 165, [2008] 1 All ER (Comm) 1, [2007] EMLR 12 available at as at 2 January 2010

Prince Albert v Strange 41 ER 1171, 1 McN & G 2, [1849] EWHC Ch J20, (1849) 2 De Gex & Sim 652 available at as at 31 December 2009

Reynolds v Times Newspaper [2001] 2 AC 127

Roberson v Rochester Folding Box Co. 171 N.Y. 538, 64 N.E. 442 (1902)

Saltman Engineering Co. Ltd. V. Campbell Engineering Co. Ltd [1948] 65 RPC 203

Stephens v Avery [1988] 2 All ER 477

von Hannover v Germany (application no. 59320/00) available at as at 2 January 2010

Wainwright v Home Office [2003] 3 WLR 1137

Wainwright v United Kingdom (2007) 44 EHRR 40

X v Y [2004] EWCA Civ 662 available at as at 2 January 2010