Balancing Arts 8 and 10 Flashcards
Does the class of the claimant bear any weight when balancing Arts 8 and 10?
Yes. Certain classes of claimant incur a reduction in the level of privacy they can reasonably expect:
Public figures: because there is a public interest in what they do.
Role models: must accept a greater degree of scrutiny and intrusion into their personal lives
Waiver of privacy: prior conduct may imply the claimant ‘waived’ their rights to privacy on certain topics.
The role of HRA 1998
Sections 2(1), 3 and 6 all combine to oblige the courts to protect Convention rights through domestic courts.
Waiver of privacy argument
Theakston v MGN - spotted in a brothel, pictures leaving said brothel. Seeks injunction.
Held:
A brothel is not a private place
C had previously discussed relationships with other celebrities so can’t complain now his sexual activities shed him in a less favourable light.
However, the court did grant an injunction for the photo of him leaving the brothel. A resonable expectation of privacy?
Role model/public figure
Sir Cliff Richard v BBC (2018) - coverage of police raid on his house with footage from helicopter after child sexual abuse allegations.
Also brought against South Yorkshire Police for leaking details of the raid to BBC.
Held: His rights were infringed in a ‘serious and sensationalist way’
- Whilst the investigation “might be on interest to the gossip-mongerer” there was not a “genuine public interest” defence.
Awarded £210,000 (said to be terrible precedent)
Sir Cliff Richard v BBC (2018) - Justification
“Weighing against the interests of freedom of expression in this case was the style of the reporting”
- i.e helicopter
Criticism of Richard v BBC
Paul Wragg: won a case he probably should have lost. Sets a dangerous precedent that a person suspected of a criminal offence has a reasonable expectation of privacy.
Shouldn’t use a holistic approach because it conflates “privacy harms (eg emotional distress) with reputational concerns”. That should be a matter for defamation claim further down the line, not MPI.
Approval of Richard v BBC
Thomas Bennett: Disagrees with Wragg.
Should use a holistic approach: ‘it was reasonable that the BBC would not do ALL these things, TOGETHER, and thereby victimise him.
Descheemaeker: was right to go down a similar route to that of Gulati v MNG, dubbed the uni-polar model (to conflate the wrongful act with the harmful consequences)
Role models in football
A v B (2003) - Gary Flitcroft footballer had an affair with a lap dancer, who sold the story to the press.
Held: For role models, there is extra public interest in knowing how they conduct themselves
ALSO waiver as he had previously spoken about his relationship and “the press will normally be entitled to put the record straight
similarly: Ferdinand v MGN - he did have a reasonable expectation but role model and waiver arguments surpass this
Waiver argument vs art 8 rights
In Ferdinand v MGN and McClaren v NGN, a reasonable expectation of privacy was found, but the claims were lost at the balancing stage on justification for waiver argument.
What does a sporting figure have to do to avoid opening up their lives to scrutiny?
According to Paton-Simpson, a celebrity must take measures to protect their private life that anyone would call paranoia. They must do this because they have waived their rights to privacy by ‘choosing’ to become a public figure.
What we would call paranoid, courts would call reasonable measures due to celebrity status.
AMC v NGN: as a sportsman and thus role model, his privacy may be lower for information related to his sporting competency. He is a role model for aspiring sportsmen, not cooks.
Spelman v Express Newspapers
16 y/o son of MP caught doping as a rugby player.
Held: the fact he is a child is irrelevant in this context. Some sports are dominated by under-18s. He is still a role model. Also, doping has to do with his ability to be a sportsman - so should have no expectation of privacy in those matters.
Doesn’t matter that he wasn’t at the highest levels of his career as every sportsman starts at the bottom.
Weller v Associated Newspapers
Paul Weller pictures with two 10 m/o and a 16 y/o children.
Held: It is actually the 16 y/o that gets the highest award of damages as had a “greater perception of his own privacy” so interference with privacy would have a greater affect than it would with an infant.
AAA v Associated Newspapers
Boris Johnson
Claim fails as Mother had disclosed the information to a total stranger who was the journalist.
Also considered whether in the public interest.
Only gets damages for the pictures of the child, not the information. Nor does she get injunction.
