Privacy Law - its not about Max Mosley or Imogen Thomas but about applying legal principle
Does Mr Justice Eady’s ruling that so upset Imogen Thomas (The Sun kept a distance and silent) spell an end to the Kiss’n’Tell and what does it tell us about the new privacy law?
His judgment is a salient reminder that the raft of cases and superinjunctions and football shagging (gagging) orders seen of late are not there to serve the interests of philandering sports stars or others seeking to protect their misdemeanours, nor are they there to feed media frenzy or unduly restict freedom of expression, they are - or as Mediabeak would qualify - have come about as a result of the application of legal principles that do not provide absolutes but instead provide principles that are engaged and become part of a balancing act depending on the individual circumstances of a case. In short, those who have kissed run the risk of the telling, those who have not kissed attract more protection agains fabricated tellings.
In having upheld the claimaint – CTB’s right to privacy and allowed it to trump the competing free speech rights of, on the one part Imogen Thomas and on the other The Sun (and by application other media), Eady was clearly not convinced by the public interest merits of CTB being exposed by what would be the resulting headlines.
His judgment went beyond the mere facts and provides a useful statement of the new privacy law as perceived by the judiciary and as it is therefore being applied. A clear message being delivered is that if the public and politicians don’t like the law then don’t snipe at the judges or judgments and sort out the legislation (something politicians in successive governments have been at pains to dodge doing).
SO WHAT IS THE NEW PRIVACY LAW?
The starting point lies in the European Convention of Human Rights which creates the conflict between the competing rights of privacy and those of free speech.
Article 8 ECHR provides:
(1)Everyone has the right to respect for his private and family life, his home and his correspondence.
(2)There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 10 ECHR provides:
(1)Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(2)The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary
What ECHR means:
PRIVACY – there is a right to privacy and that right shall not be interfered with by a public authority – the law does not specify that the right shall not be interfered with by the media – and where a public authority does seek to interfere with the right to privacy it can only do so ‘in accordance with the law’ AND to the extent such interference is ‘necessary’ (for the reasons set out in Art.8)
FREEDOM OF EXPRESSION – there is a right to freedom of expression that includes being able to receive as well as impart information (as the media does) – and that right shall not be interfered with by a public authority (which is as in this case usually a judge/the courts). Art.10 however qualifies the right saying that its exercise is still subject to ‘restrictions or penalties as are prescribed by law’ – in other words if the exercise of the free expression damages someone else’s right e.g. privacy or defamation or contempt of court – the person exercising their right in a damaging way will still be subject to and caught by legal penalties. However the exercise/enforcement of such legal penalties have – under Art.10(2) – to be shown to be ‘necessary’.
The UK Human Rights Act 1998
This came into force in 2000 and provides that public authorities must not act in a manner that is incompatible with ECHR rights – in other words, public authorities e.g. the courts have to take into account ECHR when ruling on matters – such as whether to grant or extend a privacy injunction.
The application of the law (through cases) in the UK
Mr Justice Eady pointed to the string of cases reaching back to the widely publicised battle between supermodel Naomi Campbell and The Mirror over pictures and a story about her drug taking, the case of Re S (concerning a child in care proceedings) that set out the ‘new methdology’ to apply in privacy cases, through to Hello magazine’s spoiler of Michael Douglas and Catherine Zeta Jones’ wedding pictures that the couple had exclusively syndicated to OK! Magazine, through to folk singer Loreena McKennit’s spat with former employee Niema Ash over private information contained in a book Ash intended to publish, through to Prince Charles embarrassment over leaked diary extracts published in the Mail on Sunday, and culminating in Max Mosley’s mission to prior restraint all private revelations.
In relation to kiss’n’tell revelations and football shagging orders there is a two stage test (as applied by Mr Justice Eady):
1: Is the nature of the subject matter in relation to the person claiming their privacy has been invaded such that there is a reasonable expectation of privacy? and do any additional rights under traditional legal principles such as the law of confidence apply?
2: To the extent that a reasonable expectation of privacy arises – and the rights under Article 8 ECHR are engaged – are there any competing rights that arise – such as the right to free expression under Article 10 ECHR?
The competing rights then have to be balanced against each other and – as provided for under ECHR and as reflected in media regulation and case law – be distilled through public interest considerations. That is to say is there a legitimate public interest and are the interests of the public served by the revelations etc being allowed – e.g. would lifting a gagging order serve a higher public purpose such as preventing crime or the public being misled?
The European Court case of Von Hannover v. Germany pointed the way in this regard. That case concerned the publication of photographs of Princess Caroline of Monaco (aka Von Hannover) and family that showed family members engaged in private activities such as riding horses and bicycles and challenged whether just because the public may be interested in the family because of its royal status and wealth etc did that mean the media could argue there was a public interest in a human rights sense? – the court, among other things, ruled that the publication of photographs of people (whether royalty or not) in a private setting was ,in absence of grounds giving rise to a legitimate public interest, a violation of the Article 8 rights to privacy.
In relation to his decision in CTB v Thomas (and of course The Sun), Mr Justice Eady was quick and clear to conclude that: “As in so many “kiss and tell” cases, it seems to me that the answer, at stage two, is not far to seek. Indeed it was not even argued that publication would serve the public interest.”
So it’s a question of balance and in that sense does take the law of privacy from being a universal test to being a very subjective (on the facts) balancing act of the wider objective principles of the laws that apply.
The ‘new methodology’ test set out in the Re S case set out that:
* No one ECHR Article (be it 8 or 10 or any other) has any or automatic precedence over another.
* Where there is conflict between Articles – as in the current case, Article 8 (privacy) and Article 10 (freedom of expression), an ‘intense focus’ is required in the particular circumstances of the case upon the comparative importance of the specific rights being claimed.
* The court has to take into account the justification that has been put forward for interfering or restricting each right (as provided for in e.g. Article 8(2) or 10(2) of the ECHR).
* The proportionality test of the response and need to apply the law.
In the CTB case Mr Justice Eady concluded that (in respect of the application of privacy law): “one can rarely arrive at the answer in any given case merely by reference to generalities. It must all depend upon the particular facts of the case. It follows too that there can be no automatic priority accorded to freedom of speech.”
So while the legal principles remain the same no two cases and their circumstance will be the same.
Rounding in on the kiss’n’tell exposure as the facts suggested in the CTB case, Mr Justice Eady summed up what has been both the approach and ruling in recent cases namely: “It will rarely be the case that the privacy rights of an individual or of his family will have to yield in priority to another’s right to publish what has been described in the House of Lords as “tittle-tattle” about the activities of footballers’ wives and girlfriends”.
This mirrors the decisions in Max Mosley’s privacy crusade both in the domestic courts and even in comment from the European Court (although the latter did not uphold the claim) that such “tittle-tattle” allegations will not attract the same level of protection in relation to ECHR Article 10 rights as those of a more robust (public interest evidencing) journalistic stories might.
UK law does not have a bill of rights or similar constitutional guarantees that specifically set out a right to free speech (such as the US First Amendment) or a right to privacy or personality rights (as in other jurisdictions e.g. France or Germany). The legal protection derives from the provisions of ECHR as given legal effect through the UK Human Rights Act and reflected in regulatory codes (such as the PCC or Ofcom code). The application of that legal protection and the upholding of rights finally devolves to the courts that have to apply the balancing act in relation to specific circumstances.
What is clear – from the law and the judgments as highlighted by Eady – is that neither Article 10 or Article 8 rights have any supremacy or prevailing features. They provide the weights to put on either side of the notional scales of justice and these scales need to be calibrated by the courts through their application of the law in relation to the facts and distilled through the ‘new methodology test’ AND public interest.
Mediabeak thinks this topic and issues are finally reaching the level of debate required to make real progress for both the law and the litigants. Is it fair to deride the judges for being left to carry out the balancing act made necessary by the laws? – no. Is it right to malign the media for being as commercial as their subject matter? – no. If society wants more certain and prescriptive protection and rules relating to privacy then there needs to be engagement and debate that helps shape revised regulation or laws that provide for this. It’s too easy to have a go at lawyers or journalists for not getting the result or providing the story that may be subjectively desired because of the uncertain crossfire of competing interests and interpretations at play.
What is clear is that in relation to both Article 10 and Article 8 rights there is a sliding scale of expectations, behaviours and public interest components that increase or decrease the potency and legal appreciation of these rights depending on the particular circumstances. It’s all relative.