There has been some debate on the impact of the Human Rights Act 1998 on individual privacy. Privacy has traditionally been protected under the law of confidence. However, the precise limit of what is 'private' in the first place has been heavily prescribed by the principle of freedom of expression. In the recent Court of Appeal case A v B Plc97, as mentioned before, Woolf LCJ discussed the relationship between the law of confidence, the Act, the right to privacy and freedom of expression.
A footballer (Gary Flitcroft) had what were described as 'adulterous relationships' with women who subsequently sold their stories to the defendant newspaper. The footballer claimed these disclosures were made in breach of confidence and should not be published. Woolf LCJ held that the degree of confidentiality that attached to the affairs was so modest that it was outweighed by the women's right to freedom of expression. The affairs were unstable relationships and as such were not capable of creating a relationship of confidence.
The quality of the relationships was relevant because it revealed the context in which the sexual confidences arose. However, as noted by Sedley LJ in the Douglas v Hello case, an existing relationship is not a necessary condition; instead it must be clear from the circumstances that an obligation of confidence arises. Woolf LCJ approved the principle that neither freedom of expression nor privacy is absolute or hierarchical. The fact that one party wishes not to preserve a confidence does not extinguish the other party's right to privacy.
Factors such as whether the individual is a public figure, a role model or has courted publicity are highly relevant. Public figures are entitled to some privacy, but this should be balanced with the public's understandable and therefore legitimate interest in public figures. If newspapers do not publish articles that the public want, fewer newspapers will be published, which would not be in the public interest; there is public interest in freedom of expression itself.
These principles can be seen in the widely publicised Naomi Campbell case98 (as briefly mentioned before). In that case, the defendant newspaper published an article disclosing that, contrary to Miss Campbell's prior assertions; she was in fact a drug addict and receiving counselling for her addiction. The article then gave details of precisely when and where that counselling was taking place and its format. Photographs of Miss Campbell leaving counselling sessions accompanied the article. Subsequently, the newspaper published further articles.
Miss Campbell shrewdly conceded that the public had a right to know that she was a drug addict and receiving therapy; she had courted publicity and set herself up as a role model who had not succumbed to drugs. Morland J held that notwithstanding this she was entitled to some privacy. The first article and photographs had breached that right and the further articles had aggravated the matter. Miss Campbell had attended the sessions dressed in a low-key manner and engaged in the private activity of therapy.
The actual content of that therapy was private even though it only consisted of counselling. In addition, the newspaper's 'processing' of Miss Campbell's 'sensitive personal data' for 'journalistic purposes' had been an infringement of the Data Protection Act 1988. It would appear that the recent case law has begun to define the precise scope of those interests that can legitimately be protected as 'private'. However, as Woolf LCJ recognised, each case is heavily dependent on its facts. What is private in each case will therefore be different, sometimes very different.
However, there is no doubt that the scope of the Human Rights Act will continue to be tested in the Courts over the next few years. The interests of writers and publishers are likely to centre on the balance between respect for private life and the right to freedom of expression. The recent developments by the English law may only be the thin end of the wedge. The courts may interpret the laws of privacy further to cover an even wider range of scenarios. CHAPTER 3: HOW EFFECTIVE ARE MEDIA REGULATORS? (1) How Extensively is Privacy Protected?
The ever-increasing significance of privacy issues over the past twenty years has been epitomized by the increasing activity of media regulators. Since the 1960's there have been a number of draft privacy bills promoted. 99 Furthermore, since the 1970's various committees have published reports which, on the whole, have recommended greater regulation of the media. 100 The Broadcasting Act 1981 created a Broadcasting Complaints Commission (BCC) to deal with complaints about fairness and invasion of privacy.
During 1996 the BCC was replaced with the Broadcasting standards Commission (BSC) which was required to draw up a code that could help to avoid "unwarranted infringement of privacy in, or in connection with the obtaining of material" included in radio and television programmes. 101 However, statutory regulation of broadcasters has never been extended to the print media. The press council was set up in 1953 in order to censure unacceptable journalistic conduct,102 but it was generally perceived as a 'toothless watchdog'103 and in 1989 a private members' bill aimed at setting up a statutory complaints body received a lot of encouragement.
As a result, the government set up a committee chaired by David Calcutt QC to consider "privacy and related matters". 104 In 1990 the Calcutt report recommended that the Press Council should be replaced by a Press Complaints Commission (PCC), which would demonstrate "that non-statutory self-regulation can be made to work effectively. " (2) The Regulatory Codes Even though the law does not generally recognise a right of privacy as such, the different Codes of Practice which regulate the activities of the media all contain provisions relating to privacy.
Whether or not the media complied with the relevant code is a matter that the court should consider whilst deciding when relief should be granted, although it is not determinative. The codes share a common characteristic that compliance with their provisions is not a legal obligation. A breach of the Codes does not necessarily mean that the defendant has acted unlawfully. However, due to the scheme of s. 12 of the Human Rights Act, the provisions of the Codes have come under close scrutiny by the courts in cases involving assertions of infringement of privacy.
(2) (i) The Press Complaints Commission (PCC) The PCC is a voluntary organisation set up and paid for by the press. Most of the print media subscribe to the PCC and there has been substantial debate over and criticism of its operations. Unlike most other regulators, working journalists and editors serve on the PCC together with lay members. The PCC code is the shortest of the regulators' codes and it has been regularly updated. The Press Complaints Commission (PCC) receives many complaints from members of the public regarding (among other matters), infringement of personal privacy.
The Commission has published a Code of Practice (see Appendix 4) which provides professional standards in respect of reporting in the printed media. The code covers all newspapers, whether daily or weekly and whether national or local. It also covers most magazines, except those which are available only on subscription. Complaints have to be made in writing to the Commission and should include: a cutting of the complete article; a summary of the complaint and how it has breached the code; and copies of any relevant correspondence.
After receiving this information, the Commission will make an initial evaluation as to whether the complaint shows a breach of the code. If it does not show any breach the Commission will write to the complainant informing them of that decision and will send a copy of the complainant's letter to the editor of the newspaper concerned. If the Complaint does reveal a potential breach, then the commission will send a copy of the complainant's letter to the relevant editor and investigate the matter further.
If the complaint is upheld then the newspaper concerned will be asked to publish the adjudication of the PCC with "due prominence". Most of the provisions in the Code of Practice came into force in January 1998 and in part reflected by public and media concern over press activity in the wake of the death of Diana, Princess of Wales (See Appendix 5). In the view of the PCC chairman (at the time), they represent a 'substantial toughening' of the Code. He made a specific reference to material obtained through persistent pursuit in the harassment provisions of the Code.
He also referred to the onus on publication, to ensure that the sources of their material have complied with the Code and that it is intended to stamp out the market in the UK for photographs of celebrities obtained from photographers who stalk, pursue or hound their subjects. (2) (ii) Private Places In the case of Begum Aga Khan and His Highness the Aga Khan v Daily Mail,105 the complaint was related to a photograph showing the complainants on the deck of their yacht. The complainants argued that the photograph had breached clause 3 (privacy) of the Code.
They stated that it must have been taken form a private Island near to where the yacht was moored to preserve privacy. The Daily Mail argued that the decks of the yacht was in full sight of casual observers, it was moored on the Mediterranean in the middle of summer and was not therefore a place where the complainants could expect privacy. 'If they wanted privacy they should have gone below the deck'. 106 However, the PCC decided to uphold the complaint. They held that when the photograph was taken, the complainants had been on board their private yacht, moored near a private island on which the general public was not allowed.
Therefore, this was a place where there was a reasonable expectation of privacy. In the case of Sir Elton John v The Sport,107 the complainant argued that a photograph of guests relaxing in the privacy of his home in the South of France was a breach of clause 3 of the Code. He claimed that the photographs had been taken secretly, possibly from the top of a ladder placed against the wall of Sir Elton's property. The PCC upheld the complaint. It stated that an individual had the right to respect for his home life.
The taking of photographs and the subsequent publication intruded into that home life and into the privacy to which he and his guests expected. There was no public interest justification. The Daily Mail argued adamantly that the pictures were taken form a public footpath adjacent to the property. However, this made no difference to the PCC's decision against the newspaper. Furthermore, in the case of Sir Paul McCartney v Hello,108 Sir Paul McCartney argued that the publication of photographs of him with his family in Paris, just after his wife's recent death, were in breach of clause 3 (privacy) and clause 5 (Intrusion into grief and shock).
The photographs showed him and his children walking through Paris, eating lunch and visiting the Notre Dame cathedral. Hello stated that the pictures were obtained from news agencies rather than being specially commissioned. They editor of Hello also stated that the picture of the cathedral had been added without her consent. Hello also made the point that the photographs showed the family's very close relationship. However, the PCC decided to uphold the complaint and it stressed that the editor was responsible for the content of her publication.
The argument that the pictures had been obtained through news agencies was irrelevant, as was the fact that a picture was added without her consent. Furthermore, the claim that the public interest was served by showing the close relationship of the family was also rejected. The PCC 'deplored' the photograph in the cathedral because it was a place of worship, and it was a clear example of a place where there was a reasonable expectation of personal privacy.
The interpretation of "privacy" under the PCC code was also considered in the relatively recent case of R (Ford) v Press Complaints Commission. 109 The complainant, a famous television journalist (Anna Ford), sought permission to apply for judicial review of the PCC's decision to reject her complaint about publication of photographs of her and her partner on a secluded but public beach abroad. However, Silber J refused permission due to the "broad discretion" given to media regulators and the "extended defence given by the courts" to their decisions.
This approach is very controversial and questionable. In contrast to the decision in Ex parte BBC111 on which the court relied, the PCC was taking a more narrow view of the scope of "private life". In such a situation it is not appropriate to defer to the regulator. This is a case in which the court should have made a primary judgement as to whether the applicant's privacy had been invaded by the publication of the photographs. Therefore it seems that this case may have required a full hearing, and permission for judicial review should have been granted.