The Law Surrounding Privacy in the UK Is Complex

UK common law has held that there is no tort of invasion of privacy, even at the lament of the courts [1] and this has since be affirmed even in the light of the Human Rights Act 1998 (HRA). [2] So is privacy protected at all?

In equity, there exists a claim for a breach of confidence. Megarry J in Coco v. AN Clark (Engineers) Ltd [3] gave the classic definition and at the time, it was thought that any successful claim for a breach of confidence would have to establish a pre-existing relationship between the parties. This has now been swept aside by Lord Goff in AG v Guardian Newspapers Ltd No.2 [4] when he described situations where private information can accidentally come into another’s hands, and still be liable to claim if it is published. Traditionally this claim was used to protect trade and industrial secrets but has been used in recent years by public figures to protect personal information. [5]

In the case of Campbell v MGN Ltd [6] the use of private information relating to individuals changed, and moved away from trade information towards of a claim of ‘misuse of private information’. Lord Nicholls stated ‘a duty of confidence’ and confidential information did not sit comfortably, and so the essence is of a tort of misuse of private information. [7]

In Campbell the court diverted from a breach of confidence and into a new area of misuse of private information that according to Pinto ‘move[d] English jurisprudence more in line with the way the European Court of Human Rights analyses cases.’ [8]

There now exists a two-part test as to whether there is a misuse of private information: i) is the information private, as in likely to be protected by Article 8? Then ii) Should Article 8 yield to Article 10 on balance? This was what Buxton LJ asked in McKennitt v Ash. [9]

Neither Article has precedence over the other, [10] and both are qualified. Judgements have to be made on a case-by-case basis.

Our current system operated by the courts awarding damages against parties who publish private information results in retrospective control of the media. One problem with this is cost. Cost has always been a large problem in these actions, both for the claimant and the defendant. [11] Costs is one area many parties argue is in need of reform. Cases for breach of privacy and defamation can have astronomical figures associated with them. [12] This prevents access to justice for everyone but the well heeled. If even Max Mosley makes a loss of £30,000 then what for the man on the Clapham Omnibus? The actual law seems settled on privacy actions now that cases should be decided on their facts. Do privacy actions still need to be decided by the courts?

The print media publishes most private information stories in the UK. One could point to the looser Editor’s Codes the regulatory body impose. Print media is regulated by the Press Complaints Commission (PCC). The PCC is a self-regulatory body that responds and adjudicates on complaints made by the members of the public. However, it has regularly faced criticism that it ‘lacks teeth’ [13] in its remedies and investigations. It has been under increased fire since the phone-hacking scandal resurfaced [14] and it is hard to see how it will emerge with much integrity remaining. Jonathan Coad argues vehemently [15] against it, supporting a private members bill [16] which aimed to ensure that when a newspaper had published inaccuracies, corrections received due prominence. This involved the setting up for a statutory body to oversee the complaints.

To find an area that needs reform, it is important to look at where media is heading in the future. A continuing trend one can point to is media convergence. With the advent of Digital Terrestrial Television, IPTV and online video, it is now hard to point to a media outlet and state under whose authority they lie. Should Ofcom regulate print media’s websites instead of the PCC? Are newspapers allowed to broadcast video under the PCC’s rules or Ofcom’s? This is where the necessary area of privacy reform lies: in the regulation of the newspapers.

The law itself seems to have sailed into clear water in as much as decisions on a case-by-case basis can do, and now the prohibitive aspect of the law is cost. Most comes from anything around the courts. So how are other professions regulated without the courts? Regulatory bodies. Many regulatory bodies in in the UK oversee important aspects of our society like the General Medical Council or the Employment Tribunals Service. These can be said to be trusted even more after the Woolf reforms which promoted alternative dispute resolution.

The author argues that the PCC should be abolished and it’s regulatory duties be carried out by Ofcom.

Any regulation of the press would need to take into account the differences between print and broadcast media. A person can receive broadcast material passively. Although the passive nature of broadcast could be argued to have diminished recently by the increase in plurality by digital radio and digital television: broadcast media comes to a person whether they act to continue receiving it or not. With the print media, a person has to actively purchase a newspaper, read each article. This vital distinction would have to be taken into account by any regulatory body and would mean that the broadcast media would still be held to a higher standard than the print.

Ofcom argues that it approaches complaints regarding privacy from a different standpoint from the PCC: [17] in that Ofcom has to take privacy into account as a starting point as per their fairness and privacy procedures but the PCC allows privacy intrusions if the Editor can justify it [18] or there are public interest justifications. The two bodies approach privacy from two very different standpoints. These two standpoints need to be closer together, as there is so much crossover between stories and outlets, the older distinctions have faded away.

Ofcom mentioned the increase of media convergence at paragraph 49-51 of its report. [19] It stated that it was pleased the PCC had chosen to regulate print media’s websites but was unsure of where the law stood in relation to live streaming. This and other points of convergence have led to a blurring of the lines between the remit of the PCC and Ofcom. It leaves uncertainty for a complainant, in that if they feel their privacy is breached, they are likely to have two varying outcomes depending on which regulator was contacted. This uncertainty and overlap should not exist.

The regulation of the press by this new body should be free for the complainant, not award damages but fine instead and require an apology given equal prominence in the publication to the original story. This would underline that breached privacy is priceless, not profitable.

Arguments that are likely to come against any area of media reform that involves bringing the PCC under Ofcom would be likely to revolve around claims that the freedom of the press is at risk, with the Government controlling the stories and that it is a waste of public funds to pay people to do what is already done for free.

The first argument would be likely to cite the MP expenses scandal as a story that perhaps wouldn’t have broken if the Government were in charge of the media. But it is important to work out that this story had a high public interest – public money was being used for fraud. Even though the information was private, the money was not and any misappropriation of public funds would be likely to satisfy a public interest defence. This story would still have broken, because there is no need for prior notification and as the cat would be out of the bag, following the presumption against prior restraint, the importance of the story would have been hard to ignore.

With regards to the public money argument, the extra funds needed could just be diverted from the papers that currently fund the PCC as a form of tax. It would also save money in freeing up of court time from injunction and privacy hearings.

The law of privacy is fairly settled after Campbell, which adapted privacy law to the ECHR. The main problem with the area that all sides agree on is cost. To cut cost, the legal bills must be cut. To do this without hindering free speech involves a changing of the regulatory system to allow for publication but ensure adequate redress is made if a breach of privacy occurs. Although bringing the regulation of the press under a public body could be highly controversial to some, most likely those in the media, it seems that the PCC has lost the trust placed in it by the public. It either needs to work very hard to regain that trust or accept it has failed to regulate the press sufficiently and impartially and work alongside the Government in establishing a fair system that works. Allowing for increased media convergence in any area of reform is key to enable the new system to function in the future; so bringing it under the wing of Ofcom would be the best way forward. In the future it will be hard to differentiate between different types of media and so any independent news print regulatory body would fall by the wayside.

The trade off between cost and freedom of speech can be overcome if the law is taken as settled. There is nothing in the proposed reforms that prevents judicial review, and so the public body would still be subject to scrutiny. Ofcom adopting the PCC’s role will be the best way to reduce costs. The press may have to accept that it needs tighter regulation to bring back trust the public has lost in it [20] and move forward to a more informed society that trusts its newspapers.