"This Bill does not impose any statutory controls on the press by a back-door privacy law… I would not agree with any proposition that the courts as public authorities will be obliged to fashion a law of privacy because of the terms of the Bill" Whilst incorporation will no doubt influence how the courts deal with privacy issues in future, it will be up to the courts whether they use this provision to alter the current disorganised ad hoc protection the law provides.
An underlying factor of the Human Rights Act is that public authorities must act in accordance with the same when reaching a decision; this therefore gives the HRA far reaching consequences. As the courts have been little guidance by the act itself, the courts have used their obligation as a public authority to 'give effect' to the convention rights to ensure the individuals privacy rights are protected. This is also in circumstances where the potential defendant is not a public authority itself, therefore ultimately expanding horizontal effect; this is called "indirect horizontal effect".
The act implies on the state two duties; not only to refrain from interfering with one's private and family life, but also to take positive steps to protect them. The competing factors in this scenario are the right to privacy (Article 8), if one right actually exists; and the freedom of expression (Article 10), therefore, they need to be discussed jointly and severally. Before detailed analysis, it is important to note the statutory hierarchy of the articles within the act.
Both articles are given equal status, although not identical by the Act, as both are qualified rights, and therefore the right or freedom may be interfered with if permissible by the second paragraph of the appropriate article. We shall first consider the apparent right to privacy. Article 8 has the core intent to protect moral autonomy. As a base for discussion, we can look at pre-HRA cases. In Kaye v Robertson2, a newspaper reporter surreptitiously took pictures of an actor in hospital.
The court found the privacy could not be used as a head of claim, but did note that this was an intrusion of the actor's privacy. In this case, Lord Justice Bingham makes an appeal to rectify the shortfall, by saying that English law had failed. Therefore, we see a development of breach of confidence. The right to privacy has been extended in two similar cases, pre and post October 2000. First Hellewell v Chief Constable of Derbyshire3, the court did not impose an injunction to prohibit the use of photos taken by the police, as long as they were used for preventing or investigating crime.
The later case of Perry v United Kingdom4, the police used a secret tape recording of the suspect, so to obtain evidence, as the suspect refused to take part in an identification parade. The European Courts of Human Rights held this violated the suspect's right to privacy. During the Hellewell case, the judge noted that if one with a telephoto lens were to take a picture of someone engaged in a private act without his or her permission, any subsequent disclosure of the photograph would surely amount to a breach of confidentiality, and therefore may lead to a right to privacy.
As prescribed in paragraph two, a public interest need may outweigh the right to privacy. The foundation of privacy law post HRA was built by the case of Douglas v Hello5. The Court of Appeal recognised the right of privacy in English law by developing and adapting the existing law of confidence, to allow them to protect the rights of aggrieved parties under Article 8. This case was soon followed by Thompson & Venables v News Group Newspapers6. Lady Justice Butler-Sloth said that the need to protect the defendants from death or serious injury, therefore invoking Article 8, overrides the need for freedom of expression under Article 10.
The case of Tammer v Estonia7 confirmed by the ECHR that a decision to allows a private individual to invoke Art 8 would be compatible with Art 10. In R v Peck8, the court found the Council's disclosure of the relevant video footage was a serious interference with the applicant's right to respect for his private life, and therefore there was a violation of article 8 of the Human Rights Act. It was suspected that the claimant would have suicidal tendencies, but it was decided that this was not a strong enough reason.
The case of A v B plc9 soon followed, and the court recognised that a breach of confidence would be an appropriate head of claim where the protection of privacy was being sought. This is a development from Kaye. (Ibid) In the circumstance we are faced with, it could be said that public figures are courting the attention of the media, and therefore their private life can be laid bare to the media, this was rejected by the court in Campbell v Mirror News Group 10. Article 8(1) describes in what circumstances the act can be invoked to protect ones privacy.
It could be argued that because the information is in possibly a public place. E. g. a hospital, then the information is already in the public arena, therefore not covered by privacy law. This argument was used by the Daily Mirror, as the Queen attempted to obtain an injunction against the paper to prevent revelations by a footman. It was argued that as Paul Burrell's book had already revealed the information, it was already in the public domain. It was also raised that Article 10 should be invoked to promote freedom of expression.
In Z v Finland11, the court made an important observation. 'the protection of… medical data is fundamental importance to a persons enjoyment of his or her respect for private life". This quote was cited in Campbell, and this also raised the point of 'sensitive personal data', which attracts special protection under the Data Protection Act. So that the information, which has been surreptitiously procured, about 'Tony Blair' can be classed as private, it will need to fulfil the criterion as when protected by the law of confidence.
In Douglas II, the judge commented, "to the extent that privacy consists of the inclusion only of the invited and the exclusion of all other. " This quote surely includes the photographer taking pictures of Tony Blair without his permission or knowledge, as the photographer is not invited, therefore impliedly excluded. As described above, even if the pictures are taken in a semi-public place, this does not automatically mean they are in the public domain, as described in R v Peck.
Under s8 Public Order Act, and from discussion in Ruckwire v DPP a hospital is a public place, therefore it could be argued by the journalist that it was in the public domain, although in this situation Peck would offer more sound reasoning. As Tony Blair is a public figure, it could be argued that he has impliedly consented to interference into his private life, and in effect wavered his right to privacy. This concept was composed in Woodward v Hutchings12. Although this case is twenty-five years prior to the HRA formulation, it still gives foundation to breaches of confidence, and therefore privacy.
Two approaches are used to apply implied consent, the 'blanket' and 'differentiated' approaches. The blanket approach is heavily criticised. The former simply removes all rights to privacy. The alternative is the 'differentiated' approach, whereby protection for private life is lost only where the applicant has courted publicity in relation to the same area of private life as that covered by the complained-of publication. It is difficult for the courts to decide which article has priority.
In Thompson and Venables 13, Article 10 was compared to Article 8 and Article 2, of which Lady Justice Butler-Sloth rightly decided that Article 2 should prevail. But what of these two competing articles. Should one take priority, then the other is used to strike it down, using the reasons given in the second paragraphs, or should a decision be made proportionately, based on the facts. Article 10(2) provides exceptions to the enforcement of this article. Especially as prescribed by the same, 'for preventing disclosure of information received in confidence'.
To justify such interference to the right, it must be accepted that a breach confidence is well founded, as in the situation it is. A resolution to the conflict and competition of the two articles would be to analyse section 12(4) (a) (i). In the surrupticious nature of the acquisition of the photographs, the journalist has breached the implied confidence. In promotion of this view, we could consider Douglas v Hello, although it was accepted that the way in which the photographs were taken breached confidentiality.
Due the public nature of the wedding and the fact that the couple did allow photographs to be taken, the court did not allow an injunction. This view can be transposed to Tony Blair's circumstance, clearly he was in private, and he would not want photos taken of him. As accepted in A v B, the weaker the argument for Article 8 to be invoked, the less likely it shall take priority over Article 10. A different view was taken by the EctHR in Sunday Times v UK,
'The choice is not between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted' Sedley LJ commented that s12 does not simply give Article 10 an automatic priority over Article 8. As Simon Brown LJ explained in Holdings Ltd v Bannerjee14, we cannot rank Article 10 higher than Article 8, as the basic rights cannot be competing against one another. This again was emphasised by Lindsay J in Douglas II15, 'there is no presumptive priority' given to freedom of expression when it is on conflict with another convention right.
As from the judgment in Venables, the dicta amounts to the most comprehensive endorsement of the presumptive priority of Article 10, not only over Article 8, but over other Convention rights. Butler-Sloss P stated in Venables: 'The onus of proving the case that freedom of expression must be restricted is firmly upon the applicant seeking relief. The restrictions sought must… be shown to be… justifiable as necessary to satisfy a strong and pressing social need, convincingly demonstrated, to restrain the press… and proportionate to the legitimate aim pursued'
It was considered in the 'useful guidance' given by the Council of Europe Resolution 166 5 of 1998. These rights are neither absolute nor in any hierarchical order, since they are of equal value. This does not provide any satisfactory resolution, as no guidance is given to which, if any should take priority. There is a clear public interest for the need to know the state of health of Tony Blair, but an important balancing and possible outweighing factor in this situation is the surrupticious nature of the photographs.
As Brooke LJ remarked, 'In the absence of any public interest the court is especially bound to pay particular regard to the PCC and a newspaper which flouts the code may have its claim to freedom of expression trumped by Article 10 (2) considerations of privacy. ' Although the clear commercial cynicism of Hello's actions, the judge found that a clear breach of the PCC through the surrupticious photography was such to tip the balance against freedom of expression.
As breach of confidence is only remedied by equitable principles16, therefore the judgement given must be made taking into account all circumstances, and if either party has acted bona fida, if not must bare the consequences.
References Books Human Rights in the UK (First Edition), David Hoffman & John Rowe. Pearson Education. Tort Series 2001, Giliker & Beckwith. Sweet & Maxwell Constitutional & Administrative Law Fourth Edition, Hilaire Barnett. Cavendish Publishing Articles