Striking a balance: Defining the right of privacy

The issue of the scope of privacy law has been making regular front-page headlines, with the use of Parliamentary privilege to overcome a High Court privacy injunction being a lightning rod for extensive public debate. This controversy followed hot on the heels of the European Court of Human Rights (ECHR) decision in the case of Mosley v United Kingdom¹ and the publication, on 20 May 2011, of the Report of the Committee on Super-Injunctions set up by the Master of the Rolls, Lord Neuberger of Abbotsbury.

European countries such as France and Italy have long had strong legal privacy protections which have restricted press disclosures about powerful people. In stark contrast, in the USA the First Amendment affords the press great freedom. In between these two conflicting traditions, for many years the English courts had declared there to be no general privacy right, inching their way forwards through the development of the equitable remedy of breach of confidence. The incorporation of the European Convention on Human Rights into English law by the Human Rights Act 1998², bringing with it the Article 8 right to respect for private and family life, changed the UK privacy landscape.

The English courts, unused to a general privacy law, have had to address the often difficult question of how to balance the Article 8 privacy right with the counter-balancing Article 10 right to freedom of expression. There is no very clear guidance on this balance, barring non-binding case law in other countries and a relatively small number of ECHR decisions. As both the Article 8 and 10 rights can be abused and cause serious harm if a careful balance between them is not achieved, where that balance lies is an important issue in an online world in which personal privacy faces growing intrusion.

After a number of successful privacy actions involving celebrities such as Naomi Campbell, Michael Douglas and Catherine Zeta-Jones, the floodgates opened wider still when Max Mosley, then the president of the regulatory body for Formula 1, the FIA, succeeded in his High Court action for breach of privacy against the News of the World for its publication of details of his S&M session with four prostitutes. Although Mosley was a public figure filling a powerful position of authority in a major world sport, his colourful extra-marital activities were held to be a private matter which were protected by Article 8 and not overridden by any public interest justification under Article 10.

Some sections of the press expressed great fear about the rich and powerful using the right to private life to stifle justified press enquiry and disclosures. Mosley was equally dissatisfied, partly because he felt that the record £60,000 damages were insufficient deterrent to press intrusion, especially as the difference between his actual and recoverable legal costs left him out of pocket on the action, but mainly because, once publication occurred, the damage had been irrevocably done. Mosley argued that for privacy truly to be respected, the subject of the disclosures should be given the chance to stop the publication by being given prior notice. He asked the ECHR to hold that the UK had violated its positive obligations under Article 8 by failing to impose a legal duty of pre-notification.

The ECHR, despite accepting that there had been a "flagrant and unjustified invasion of the applicant's private life"³, rejected the call for pre-notification, pointing to the "chilling effect" this could have on the press, not only in relation to sensationalist articles but also on political and investigative reporting. It pointed to the protection offered in the UK by the Press Complaints Commission and the availability of civil damages and interim injunctive relief, saying that Convention states enjoy a wide "margin of appreciation" in determining the steps to ensure compliance with the Convention. It also noted that no other Convention state imposes pre-notification. Mosley is requesting referral of the case to the Grand Chamber for review, but such requests are accepted only on an exceptional basis.

The ECHR decision was welcomed by the press, but the growth in the number of privacy injunctions still caused great concern. The report of the Committee on Super-Injunctions, which was published a few days after the Mosley decision, focused on procedural matters rather than making recommendations for substantive reform of the law, which it left to Parliament and the courts.

The report affirms that the principle of open justice is a fundamental constitutional principle, and although derogations are permitted, this must only be where strictly necessary for the administration of justice with such derogations being as narrow as possible consistent with achieving their aim. The report supports the existence of 'super-injunctions', which prevent even the existence of the order and proceedings from being reported, and the more common anonymised injunctions, which prohibit the identification of parties to the proceedings in question. It points out that there have only been two 'super-injunctions' granted since the John Terry⁴ case in 2010 and that increasing numbers of injunctions are being set aside on appeal. Such injunctions, the report concludes, should be kept under review once granted to avoid the risk of them becoming permanent.

The report proposes the issuing of Practice Guidance on the application procedure for injunctions in order to clarify what orders may be sought and in what circumstances. It stresses that only very rarely should advance notice of such applications not be given to media organisations likely to be affected by the order. The report asks that consideration be given to the feasibility of collecting data on interim injunctions for annual publication to identify significant future trends. However, it rejects the creation of a fast-track appeals process, saying that expedition of appeals can already be sought under the existing framework. The report rejects the idea that specialist judges should hear all applications, proposing instead that specialist judges provide training to non-specialists likely to hear these applications.

Finally the report addresses Parliamentary privilege, pointing out that although Parliamentary debate and Hansard reports enjoy an absolute privilege, there is no judicial decision on whether the qualified privilege the law provides to good faith and non-malicious media summaries of Parliamentary proceedings extends to reports which intentionally have the effect of frustrating a court order.

The extensive debate on this issue throws doubt on whether the right balance between privacy and press freedom has yet been found. Commentators have expressed concern that only the rich can protect their privacy and that too many injunctions are being obtained by public figures who are seeking to cover up behaviour which is inconsistent with their public image – in particular, behaviour which might reveal aspects of their character which are relevant to the positions they hold . Also, once a secret emerges it can quickly go viral on the internet and appear in countries such as the USA which do not have strong privacy protection. When does the public have a right to know? At what point must you accept that the genie is out of the bottle? As each case will be different it is impossible to define where the right balance lies precisely. However, further work is needed, whether judicial or legislative, before there is greater consensus on the right approach to determining that vital balance.

Michael Hart is head of the intellectual property department at Baker & McKenzie LLP in London.

Notes:

1 Application 48009/08

2 This Act brought the Convention into operation on 2 October 2000.

3 Para. 104