Chapter 27

Question 1

Which article of the European convention on human rights guarantees the right to respect for private and family life?

Answer 1

Article 8

Question 2

When can someone assert the rights to respect for private and family life?

Answer 2

When something that has been published, or something that journalists have done, is alleged to have intruded into that person’s privacy.

Question 3

During a legal dispute over alleged breach of privacy, what two things will a court do?

Answer 3

• Determine whether the claimant had a “reasonable expectation of privacy” in the particular circumstances in which the alleged intrusion occurred.
• If the decision is that they did, the court will then carry out a “balancing exercise”, considering which of the competing rights should prevail, based on the particular facts of the case.

Question 4

What defence might a media organisation use if sued for alleged misuse of private information?

Answer 4

Public Interest

Question 5

List the five areas covered by article 8

Answer 5

• Family life
  * The article specifically protects the privacy of family life. Courts may consider those of people linked to the claimant such as family members, especially children.
  
  • Home
    
    • Intrusion within someone’s home needs a strong public interest justification to be legal.
  • Correspondence/private communications
    
    • A media organisation publishing personal and private material from such communications without the senders consent needs a public interest justification or some other defence to avoid having to pay damages if sued for misuse of private information.
  • Relationships
    
    • The courts recognise that people have a reasonable expectation that what they say and do intimately within a personal relationship is private.
  • Health
    
    • Information about health is normally treated as being of the highest confidentiality

Question 6

In determining reasonable expectation of privacy, what circumstances will the court take into account?

Answer 6

• The “attributes” of the claimant
• The nature of the activity in which the claimant was engaged at the time of the alleged intrusion
• The place at which the activity was happening
• The nature and purpose of the alleged intrusion
• The absence of consent for intrusion, and whether that absence of consent was known or could be inferred
• The effect of the alleged intrusion on the claimant
• The circumstances in which, and the purposes for which, the information came into the hands of the publisher or would-be publisher

Question 7

What remedies are there for a breach of privacy?

Answer 7

• Damages
• Injunctions and “super-injunctions”
• The permanent injunction contra mundum