Part 10 - Privacy Law

Question 1

What is there in civil law regarding privacy?

Answer 1

The tort of misuse of private information.

Question 2

Where are the rights to respect for privacy set out?

Answer 2

In the first paragraph of Article 8 of the European Convention on Human Rights, which says:

‘Everyone has the right to respect for his private and family life, his home and his correspondence.’

Question 3

What does a court first do when it considers a claim that privacy has been or will be breached?

Answer 3

It considers if Article 8 rights are engaged.

Question 4

What is the criterion that the court uses to establish whether Article 8 rights are engaged?

Answer 4

Whether the claimant has a ‘reasonable expectation of privacy.’

Question 5

How can privacy be breached?

Answer 5

Both by an intrusive act of gathering of private information - e.g. intrusive photography, filming or recording, which in itself or the subsequent discovery of which distresses the subject, and was without their consent - and by publication without their consent of the information gained, including any image.

Question 6

What are the remedies for a breach of privacy?

Answer 6

Damages or an injunction.

Question 7

In privacy law, why may an injunction be imposed?

Answer 7

Either to prevent a breach or prevent its repetition, e.g. by re-publication.

Question 8

What may determine if there is a ‘reasonable expectation of privacy’? Explain.

Answer 8

The location of the event(s) may determine if there is such a ‘reasonable expectation’, in that it is not - or is less - reasonable for a person to expect privacy if the location is a public place; but that location may not be the only consideration, e.g. if the person is distressed, mentally ill or being medically treated after an accident in a public place, such as a road.

Question 9

Where is there usually an expectation of privacy?

Answer 9

The interior of a person’s home.

Question 10

According to case law, when has it been established that there is a ‘reasonable expectation of privacy’?

Answer 10

As regards information concerning health, including mental health, and intimate personal relationships, including sexual relationships, including adulterous ones.

Question 11

Name some cases reflecting a ‘reasonable expectation of privacy’.

Answer 11

• Peck v United Kingdom
• Campbell v Mirror Group Newspapers
• Mosley v News Group Newspapers
• PJS v News Group Newspapers

Question 12

Why are children more likely to be regarded by the courts as needing protection in civil, privacy law?

Answer 12

Because of their immaturity and emotional vulnerability.

Question 13

Outline the Weller case and what it illustrates.

Answer 13

Article 8 can protect family life, so that in some
circumstances, e.g. during a private, family outing, a child has ‘a reasonable expectation of privacy’ irrespective of location, and so his/her privacy can be breached if he or she is filmed or photographed without parental consent, even when this is done in a public place.

(see textbook for case)

Question 14

What will be considered in a privacy lawsuit and what does this mean for whether or not the claimant succeeds?

Answer 14

The method by which the information was obtained will be considered by the court; so that the fact that a person has been photographed or filmed or recorded without being aware of this at the time may mean he/she is more likely to succeed in a privacy lawsuit because he/she may have reasonably expected the situation was private.

Question 15

Outline the Princess Caroline of Monaco case and what it illustrates.

Answer 15

If a person has been repeatedly harassed and stalked by photographers he/she may be more likely to persuade a court in a privacy lawsuit that such activity and/or publication of information gained by such activity, including images, would breach or has breached Article 8 rights by limiting the human right to social interaction.

(see textbook for case)

Question 16

In a privacy lawsuit in which a media organisation or journalist is the defendant, what will the court then consider if it rules that the claimant’s Article 8 rights are engaged because there is a ‘reasonable expectation of privacy’?

Answer 16

It will consider if Article 8 rights are overridden by Article 10 rights, e.g. the defendant’s rights to freedom of expression and/or to impart information and the public’s right to receive it.

Question 17

What will a court consider when considering if there is a ‘public interest’ defence for information to be published, including under Article 10?

Answer 17

• the extent to which publication has contributed or will contribute to ‘a debate of general interest to society’
• how well-known the claimant is, e.g. if they ‘play a role in public life’, which may mean they have a reduced right to privacy in some circumstances
• the prior conduct of the claimant, e.g. if they have compromised their own privacy by seeking publicity previously
• how harmful publication was or would be for the claimant and his/her family
• whether it was or is proportionate for any, some or all the information to be published
• whether or the extent to which the relevant information/image is already in the public domain

Question 18

How can a media organisation in some circumstances minimise the likelihood of a privacy lawsuit being launched or successful, or reduce the level of damages being awarded?

Answer 18

By having regard to the principle of proportionality by not publishing some detail concerning or part of an image/footage from a news event, e.g. it could obscure or pixelate the face of a vulnerable person to hide his/her identity, e.g. someone who is suicidal in a public place; or otherwise protect some element of privacy, or by not showing the face of or a close-up of a person in distress or pain after an accident in a public place and/or by using only brief footage or by not showing the face of a celebrity’s child without consent when the event is not a public occasion.

Question 19

What are the risks associated with publication of footage or pictures which are from CCTV or user-generated/supplied by third parties/taken from social media websites?

Answer 19

It could lead to the publisher being sued for breach of privacy and thus could lead to damages being awarded by a court.

Question 20

What has privacy law has evolved to protect, and what does this mean for media organisations and journalists? Outline the relevant case.

Answer 20

Privacy law has evolved to protect people under investigation by the police or any other official agency, so that a media organisation or journalist who published a report which identifies a person as being under such investigation – for example, that the person’s home or office has been searched or he or she has been questioned – could be successfully sued for damages by that person for misuse of private information if he or she is not charged with any offence, and the person may seek an injunction to prevent publication of the fact that he or she is under such investigation. The Cliff Richard case is an example of this development.

(see textbook for case)

Question 21

What is case law not yet clear on as regards privacy law?

Answer 21

Whether the law protects the person as regards publication of the fact of an arrest, but that it might do.

Question 22

When is a search or arrest less likely to be ruled to intrude into a person’s privacy?

Answer 22

If it was visible to the public because there would be no reasonable expectation of privacy in respect of the event unless there was an exceptional factor, e.g. the person was mentally ill.

Question 23

When can information regarding a search or arrest be safely published?

Answer 23

If a police force/another investigation agency officially releases the person’s identity to the media in such circumstances for a legitimate purpose.

Question 24

What else are courts required to consider when ruling in privacy actions?

Answer 24

The provision of ‘any relevant privacy code’, usually the Editors’ Code of Practice or the Ofcom Broadcasting Code.