Privacy law is complex and nuanced. Students should understand, as a minimum, that people may well have a right to privacy in many situations – even when they are in a public place. Laws on data protection and anonymity also have a bearing here.
The most important points are highlighted in burgundy: they do not need to be learned word-for-word: it is the principle only that is important.
Note: this briefing refers to personal privacy; journalists are also affected by the law on breach of confidence, which is often used to try to prevent publication of confidential material such as commercially sensitive information and leaked government reports.
Privacy law is linked to Article 8 of the Human Rights Act 1998, which protects the right to respect for privacy and family life.
The BBC Academy offers an easy-to-understand introduction to privacy, here. Briefly, it says:
Privacy law applies when reporting on people’s personal or sexual lives, finances, or health, say; or filming in their home without consent. They may even have a reasonable expectation of privacy even in a public place – for instance, at a funeral.
Public interest is a key factor in deciding whether the media can justify publishing private information. The public interest might include:
- revealing crime
- protecting public health,
- unmasking hypocrisy by public role models, or
- exposing misleading claims by institutions.
The public interest is not merely “what interests the public”.
Privacy is an emerging area of law that is making headlines, thanks to celebrity actions and the phone-hacking scandal. In high-profile cases, people are suing for breach of privacy rather than defamation: the outcome is more predictable and the damages (the payment made to the victim) can still be high.
The first privacy claim was brought only in 2004, when the model Naomi Campbell sued the Daily Mirror for running stories saying she was a recovering drug addict and attending Narcotics Anonymous meetings. In that case, the House of Lords introduced a new form of claim for misuse of information, influenced by the Human Rights Act 1998. This is the form of claim usually used to try to prevent publication of stories.
The Naomi Campbell case: key points
The Mirror showed pictures of the model Naomi Campbell leaving a drugs therapy session. She sued for breach of privacy.
- There WAS a public interest justification for exposing her drug problem
- Reason: she was a role model who claimed not to use drugs
- But the pictures were deemed to breach privacy
- Reasons: pictures are considered more intrusive; and
- a drug problem is “medical” – which is considered private
- Also: The pictures might have discouraged her from seeking further help
- Naomi Cambell’s vulnerability was a factor in ruling on privacy
Reasonable expectation of privacy
In the Naomi Campbell case, the House of Lords set a two-stage test:
- Does the claimant have a reasonable expectation of privacy relating to the material in the story?
- Is their claim to privacy more important than the defendant’s right to freedom of expression?
In 2008, the Court of Appeal set out factors for judging reasonable expectation:
- attributes of the claimant (who/what are they?)
- nature of the activity they were engaged in
- the place
- nature and purpose of the media intrusion
- absence of consent
- effect of publicity on the claimant
- how the information was obtained
Attributes: the question is how the person in the story would be affected by publication, not how a typical person would react. Naomi Campbell was deemed to be vulnerable.
The footballer John Terry won a temporary injunction to stop stories about his affair being published, but a judge refused to extend it because he had a robust personality and was unlikely to suffer distress.
Nature of the activity: attending a drug rehab meeting was deemed to be akin to medical treatment, which would be considered private.
An anonymous police blogger called Night Jack did not have a reasonable expectation of privacy because blogging was a public activity.
Sex is a private matter – usually: CCTV pictures of a model engaged in sexual activities inside the closed door of a nightclub were deemed “clearly” private. Max Mosely was secretly filmed at an orgy and successfully claimed misuse of private information by the News of the World.
However, revealing that two people are in a sexual relationship may not be a breach of privacy – as John Terry found.
Privacy in public places
If information is in the public domain, it is not usually private. People usually do not have a reasonable expectation of privacy if they do something in a public space where they know people may see them, or even film them.
But McNae’s Essential Law says there may be a reasonable expectation of privacy in public places when someone:
- is ill
- is in distress
- has an accident
- is vulnerable
- is a child (including the children of celebrities)
Pictures and video
Photographs and video are considered more intrusive than facts alone, especially if taken covertly. In the Campbell case, Baroness Hale said privacy law does not prevent pictures being taken of people doing mundane things such as “popping out for a pint of milk” that convey only trivial information. However, this has been complicated by a European Court of Human Rights ruling in the case of Princess Caroline of Monaco, who successful argued that someone’s daily business did not contribute to “a debate of general interest” and so was private. The rules are also tighter regarding children (see below).
Pictures of people on remote beaches have usually resulted only in legal settlements outside court, meaning a lack of guidance based on court rulings. However:
In Campbell, being photographed outside a Narcotics Anonymous meeting might deter the model from attending future meetings – so it was private.
Sir Elton John failed in a privacy claim over photographs of him walking from his car to his house on the grounds that they showed his baldness was returning; this was “trivial”.
The BBC ran video of a man attempting suicide, to show how CCTV saved his life. The European Court of Human Rights said it breached Article 8 (respect for privacy) because he was recognisable and video is so intrusive.
A judge suggested that a couple who were filmed from a police helicopter while having sex might have been able to claim lifelong anonymity as victims of voyeurism. But there was a small detail that complicated the issue… they knew they were being filmed. So were they really victims of a sex offence? The media were left to decide for themselves whether to risk running the story. Read more.
The toddler son of the writer JK Rowling was secretly photographed in Edinburgh; the case prompted the Court of Appeal to rule children had a stronger protection from media intrusion, especially where pictures were taken without consent that would not have been given if asked for. But children did not have a guarantee of privacy, and privacy must still be balanced against freedom of expression.
A married politician had a love child, having done the same once before with another woman. He gave the mother a job. The mother dropped hints he was the father and the gossip went beyond her circle of friends. A judge said the mother had compromised the legitimate expectation of privacy; publishing the story was legitimate because it suggested a high-profile figure was reckless, questioning his fitness for public office. BUT there was no public interest in publishing pictures of the child. The Daily Mail and Mail on Sunday were ordered to pay £15,000 damages.
The source of the story
The friend of a folk singer wrote a book giving intimate details of the singer’s life, including sexual relationships and vulnerability. A judge said she only knew such things because of a close friendship, in which it could reasonably assumed information shared was private. The writer had to pay £5,000 damages and further publication was blocked.
Is the information already public?
Sometimes, private and even intimate information can be deemed to be public.
Video was posted of Formula 1 chief Max Mosely taking part in an orgy. This was clearly private. But because it had previously been posted (then removed) and received 1,4 million hits, a judge refused a banning injunction because there was no longer any privacy left to protect.
A politician’s partner failed to prevent the Daily Mail reporting she was bisexual and had been in a civil partnership with a woman, because she was open about her sexuality and a civil partnership was a public ceremony.
But just because a particular group of people know something, this does not mean it is “in the public domain”.
A married man in the entertainment industry secured an injunction blocking reporting his affair with a colleague. Other colleagues knew about it but might be expected not to make it public outside the company, the Court of Appeal decided.
Information that is only partly in the public domain can also be protected.
The Wolverhampton Express and Star published the addresses of four houses that were to be used to provide residential care for what it called “yobs” and “sex offenders”. The addresses were in the public domain because they could be obtained from the Land Registry, but a court said linking this public data with information about the children’s disabilities went beyond what was in the public domain.
The footballer Ryan Giggs had an affair with a Big Brother contestant. The press reported the affair, without naming Giggs as the man involved. A newspaper applied for the lifting of an injunction protecting his identity, because it could be established from social media. A court refused, saying blanket media coverage would be more intrusive than the availability of the information for those willing to search for it; and that other private information might emerge. The injunction was later lifted when circumstances changed.
Privacy versus freedom of expression
A legitimate expectation of privacy must be weighted against the publisher’s right to freedom of expression (which includes the public’s right to receive information). The test is one of proportionality: is the public interest in the story more important than the right to privacy?
Test 1: a debate of general interest
It might be deemed fine to publish private information if it adds to a current public debate on an issue.
Case study: England football captain Rio Ferdinand portrayed himself as having reformed since his wild days. He tried to block a story about an extra-marital affair. The story contributed to debate about whether he was suited to a job that made him a role model for young people.
Cast study: German courts banned publication of the name of an actor found guilty of possessing cocaine. The European Court of Human Rights (ECHR) said there was a general public interest in reports of criminal proceedings, as a matter of principle. The factual story, from reliable sources, could be published. Note that ECHR rulings have an impact on UK laws – and Brexit won’t change that.
Case study: The father-in-law of chef Gordon Ramsey had fathered two love children. Chris Hutcheson was not a public figure, so normally this would be private information. But he had been in public dispute with Gordon Ramsay, blaming him for a breakdown in relations between Mrs Ramsay and her parents. An injunction would have prevented Gordon Ramsay from showing that there was another side to the dispute.
Test 2: Correcting a false impression
Reporting Naomi Campbell’s drug addiction was valid because she had frequently presented herself as someone who did not have a drug problem.
David and Victoria Beckham presented themselves as a blissfully married. It was legitimate for their nanny to reveal details of the relationship, despite a confidentiality clause, because it showed this public image was false.
There was no public interest in publishing a story about Max Mosely’s sex life, because he had never presented himself as someone opposed to sex outside marriage. It did not correct a false picture.
But difference between celebrities’ real behaviour and the public image they create must not be merely trivial to justify publication: in the case of the Canadian folk singer, the judge said all people fall short from time to time.
Test 3: Public interest and celebrity
Celebrities do have a right to privacy. Stories that breach privacy are more likely to be acceptable if they are about someone in a public role – such as a politician, or a media personality who is considered influential. But for the breach of privacy to be justified, there has to be some relevance to their public position. Does it show they’re untrustworthy? That is likely to be justified, if it is someone whom people need to trust. Does it show they have a liberal attitude to marriage? That might be justified if they use their public role to campaign for the importance of traditional family life, or if it suggests hypocrisy – but otherwise, probably not.
Ethics and the law do not always set out the same rules. But a judge deciding on a case involving the media and privacy will be more likely to rule that a story is in the public interest if journalists have complied with the relevant code of practice (the Editor’s Code or the Ofcom Code).
Privacy and Electronic Communications Regulations
This briefing largely addresses privacy from a human rights perspective. Publishers can also get caught out by the Privacy and Electronic Communications Regulations, which impose responsibilities on dealings with subscribers. Press Gazette reported that the Telegraph was fined £30,000 for breaching the rules in 2015 when it sent an email urging subscribers to vote Tory. They had only given consent for the Telegraph to email them about editorial content.
Invasion of privacy
The law allows people to bring actions for invasion of their privacy, for which the court can award damages. The level of damages is relatively low when compared to damages in libel. The highest recent award was £60,000. However, the legal costs of a case will usually be significantly higher than the damages awarded and are paid by the losing party.
Privacy injunctions are regarded by many as a more important way of protecting their privacy because once private information is published it is difficult to make it private again. As a result, people are usually more concerned with preventing publication of the story than with getting damages subsequently.
Privacy injunctions are orders of the court that prevent publication of the private information. These are often obtained on an urgent basis shortly before a planned story is due to be broadcast, when there is not sufficient time for the court to properly consider all of the arguments.
As a result, the court will often grant an ‘interim injunction’ which is put in place until a full trial of the issues.
Interim and super injunctions
If a person applies for an interim injunction, the court will decide whether or not the person seeking the injunction is more likely than not to succeed at trial – so in essence the court will look on a preliminary basis at the issues discussed above.
Sometimes, in order to avoid undermining the purpose of an injunction, the court will also order that the media is not allowed to report who has obtained an injunction (which is when you will see letters used instead of a person’s name in reports). In rare cases, it will order that the media cannot publish the fact that an injunction has been published at all (often called a ‘super injunction’).