Privacy Flashcards
Existing Laws which protect ‘Privacy’
Trespass Nuisance Defamation Malicious falsehood Breach of confidence Protection from Harassment Act 1997
Kaye v Robertson [1991]
Gordon Kaye recently died. Now, if you recognize his face, it’s because it was in the newspapers just a couple of months ago. He was an actor. Very famously in his day he took part in sitcoms – comedies on television. The most famous was one called ‘Allo ‘Allo!, which was based in France. It was about the French resistance, and he was a character called Renee.
In Gordon Kaye’s heyday he was caught up in a hurricane in London. During the hurricane in October 1987 a piece of boarding (a piece of fabric of a building) flew off and hit him in the head. It caused him really really bad head and facial injuries. He was on death’s door. He was in hospital. What happened was some newspaper reporters from the Sunday Sport managed in to get into is hospital bedroom, whereupon without his consent they took pictures of him. He was literally on death’s door, so, he was hooked up to machinery; he had very bad facial injuries. The newspaper was going to publish these pictures in the next edition.
Gordon Kaye took action to try and prevent this. He sought an injunction, and he relied on various of these existing laws. Unfortunately, none of the laws covered the facts.
He couldn’t use trespass; the land was not his. He was in hospital.
This had happened once, so there was no scope for nuisance.
His reputation wasn’t affected; so there was no scope for defamation.
So, what the judge said, and it was Lord Justice Bingham, was that none of the boxes of liability provided a remedy despite the fact that this was the clearest example of an invasion of privacy that he could imagine — going into the hospital room of someone who is seriously ill, taking pictures without their permission… Lord Bingham said fell outside the existing boxes of liability, and yet it was a clear example of an invasion of privacy. But the law did not, at that stage, protect Mr. Kaye.
Section 40 Crime and Courts Act 2013
So, once the new regulator was approved, the idea was that Section 40 would be the incentive for the press to join up, because if you joined the approved regulator then Section 40, when in force, will give you exemption from exemplary damages. We talked about this in Defamation — these are extra high damages which tend to occur in privacy/defamation cases. Section 40 also gives you cost protection. Effectively, even if you sue and lose you would not have to pay costs…even if you are sued and lose, you would not have to pay costs.
But the reverse is also true.
If you don’t sign up to the Regulator, then you are not exempt from exemplary damages. And even if you win a case, Section 40 says you have to pay the legal costs of the other side.
Currently are Culture Secretary Chief, Karen Bradley, is considering whether or not to bring Section 40 into force. Now, if she does the vast majority of the national newspapers will still not play ball. They have made that clear. They are not going to sign up to IPSO. So, effectively they will be self regulated as they always were.
Independent Press Standards Organization (IPSO)
The press didn’t like this this Royal Charter idea, so they set up their own regulator outside the Royal Charter. So, the Independent Press Standards Organization (IPSO) operates outside the Royal Charter. It is not approved, and it never will be.
Now, a lot of our national newspapers have signed up to IPSO. The Daily Mail, for example. It is IPSO that the complaints were made to about the Legs-exist — the legs of Theresa May and the other lady on the Daily Mail’s front page. So, the Daily Mail belongs to IPSO.
The key point is that it is not an approved regulator. It is outside of the Royal Charter.
Albert v Strange (1849)
(Breach of Confidence)
Just briefly on the facts because it is a very old case. Prince Albert had some etchings made of his children, of which there were quite a lot. He then sent them to a printer for copies to be made. Whilst these etchings were at the printer’s, some of the copies were taken by an employee and passed to the defendant who ran what were effectively art exhibitions.
The etchings went to the printer. Copies were made and some of those were taken and passed on to the defendant who is going to put them in his art exhibition – he was going to exhibit them publicly.
Prince Albert obviously thought that this was inappropriate. What the court said was that they agreed. He had a property interest in these etchings, and that the printer, together with the printer’s employee, had received them in confidence. These etchings were his property; the printer had received them in confidence, and the law would protect against a breach of confidence.
This is really the first time we hear that language being used. Prince Albert have property rights in these etchings. The printer had received the etchings and confidence, and the law would act an equity to prevent a breach of confidence.
Now, obviously things did move on from 1849 to the current day, but the equitable area known as ‘breach of confidence’ evolved, and what it covers is unauthorized disclosure of confidential information where a duty of confidentiality exists.
Coco v AN Clark (Engineers) [1968]
1) Has the information the necessary quality of confidence?
- Information that belongs to you in some way; trade secrets/confidential things.
2) Was info imparted in circumstances importing an obligation of confidence?
- There must have been a pre-existing relationship between the parties. Must be clear that the information was given in confidence.
3) Has the information been used to the claimant’s detriment?
- Generally taken to mean that there has been some tangible loss, usually financial, which had either already been caused or would be if the information got out.
4) Defence if the disclosure of information is in the ‘public interest’.
AG v Guardian News Papers (No 2) [1990] SPY CATCHER case.
In its day, in 1990, this hit all of the newspaper headlines. It was about a book written by Peter Wright who had been a MI5 agent. It was a tell it all book revealing state secrets.
He published the book very sensibly in Australia. So, it wasn’t published in this country. It was published in Australia, but the national newspapers, particularly The Guardian, got hold of excerpts and were planning to publish those extracts. The Attorney General sought to prevent that and brought a claim for an injunction to stop the newspapers from putting extracts from the book in their papers.
Now, as I have just described, the traditional parameters for ‘breach of confidence’ were problematic. One of the problems was that there was no prior relationship between the government and the press. So, they had got this information illicitly; they had gotten it from Australia. There was no prior relationship between our government here and the newspapers who were threatening to publish the extracts.
What the court said was that a pre-existing relationship would no longer be essential.
This feeds back into the Coco points which we just looked at on the previous slide. The pre-existing relationship is not essential.
As an alternative, if there is no pre-existing relationship than an obligation of confidence arises whenever you gain information which you either know or ought to know is confidential. Now, obviously in this case these were state secrets.
So, this obligation — this duty of confidentiality — would arise whenever you gain information you know or ought to know is confidential.
However, the government did not win the case. They lost it because that information – the extracts from the book – were widely available in Australia, Scotland, and everywhere else basically. Although the court was prepared to entertain the duty of confidentiality, information is no longer confidential.
So, that just shows a limitation really of the traditional breach of confidence.
Venables v MGN [2001]
Now, just briefly on the facts, because this case is historic… It involved two 10-year-old boys, one of whom was John Venables, who abducted from a shopping centre the little boy in the picture on the slide, Jamie Bulger. Jamie was 2 1/2 at the time they abducted him. What these 10-year-old boys did with him was horrible; they killed him, basically – they mutilated his body, and they left it draped over a train line hoping for a train to come along and sever it. Apparently these boys have been watching some horror films, and effectively they were playacting out some things that they had seen on these films.
The two boys, because they were only 10, went into secure juvenile detention for which they were released when they reached the age of 18. Because obviously this was a particularly heinous thing to have done they were released with new identities. So, when they reached the age of 18 they were released with new names, new places to live, etc.
Unfortunately for John Venables, MGN got to know of his new identity and you place of residence. So Mirror Group Newspapers found out his new identity and where he was going to live. This became known to him by his lawyers, and before the details were published he brought a claim and breach of confidence against them.
Now, this is one of the earliest cases showing the impact and influence of the Human Rights Act 1998, because the court was clearly influenced by Article 8 – John Venables’ right to privacy. This was private information, and they were influenced by the need to give effect to that right. And they did so by relying on the ‘Spy-Catcher case’ — Attorney General v Guardian Newspapers Ltd (No 2) [1990]. The ‘Spy-Catcher case’, which the government lost but it importantly expanded the duty of confidentiality, was what the court used here.
So, effectively the information, they said, was obviously confidential. This new identity, when it got into MGN’s hands, it was obviously confidential. They would have known that disclosing it would put his life in danger.
This information was obviously confidential. To disclose it would put his life in danger. That, they said, gave rise to a duty of confidentiality, using the ‘Spy-Catcher’ dictum.
What the Court granted here was an injunction. We call them today ‘super injunctions’; it was an injunction awarded against the rest of the world – not just MGN. It was put in place against the rest of the world to prevent disclosure of the new identity.
So, the court, relying on this duty of confidentiality, said that they were put in place an injunction to stop the potential misuse of the information which clearly would have been to John Venables’ detriment. The court did so through a super injunction against the rest of the world, including MGN, from disclosing this new identity.
Campbell v MGN [2004]
Briefly on the facts, she was photographed leaving a Narcotics Anonymous meeting in London. She previously had been very public and vocal about condemning drug use, and she had said many times that she had never used drugs.
What the Court of Appeal in this case said was that in light of the Human Rights Act 1998, they felt it was time new approach. So, rather than rely on ‘Spy-Catcher’, and rather than use the traditional way, which as I have already mentioned had its limitations, they felt the following the HRA it was time to forge a new test for use in private information cases.
They came up with a two-stage test to establish that duty of confidentiality.
1) Does the claimant have a reasonable expectation of privacy?
2) Does the claimant’s interest outweighs the defendant’s interests in freedom of expression?
So, part of this test now specifically requires the courts to balance those Article 8 and Article 10 rights.
McKennitt v Ash [2006]
(Reasonable expectation of privacy)
This concerned a singer, McKennitt, and her ‘friend’. They had been friends for some time, but over the course of their friendship McKennitt had revealed quite a lot of information about her past battle with alcohol on the fact that she had been subject to some sexual abuse in the past. She shared a lot of personal details with her friend. The friendship then soured and Ash wrote a book including all of this detail which she threatened to publish.
Effectively the book was full of medical information, sexual information, and it was about to be published. McKennitt brought a claim to try and stop the publication, and again, the same as in Campbell, the court was satisfied that this was obviously private information shared between friends. It was private.
Now, that is the first stage of the test. We will get to the balancing exercise momentarily.
But what if the information is not obviously private? So, some things by their nature – medical information and sexual conduct, for example — the courts seem to think are obviously private. But what about other cases where it may be less clear?
Unfortunately, this remains an area of the law which is a little bit cloudy. There is no clear test.
One of the judges in Campbell said that the test should be: What would a reasonable person of ordinary sensitivities think if the publication is about them?
That was one suggestion, but was not universally accepted. But one of the judges in Campbell said that if it is not obviously private you ask: what would a reasonable person of ordinary sensitivities think if the publication was about them?
Elton John v Associated Newspapers [2006]
(Reasonable expectation of privacy) - what about public figures?
I’m going to start with Elton John because what the courts said was that when you are dealing with a celebrity there is no monopoly on your image. Your image is not private. Merely taking a photograph of a celebrity will not infringe their privacy.
What the court went on to say is that there has to be something more. What that ‘something more’ is is not clear.
Von Hannover v Germany [2004]
and
Murray v Express Newspapers [2008]
(Reasonable expectation of privacy) - what about public figures?
In both of these cases, the celebrity – Princess Caroline in the first case, and J.K. Rowling in the second — was out in public doing normal mundane things, and in each case they had their children with them.
But in both the two other cases — Von Hannover and Murray — it seemed to matter that the children were involved.
It wasn’t just the celebrity; it was the celebrity with their family that was important.
So, effectively, in terms of a reasonable expectation of privacy, and in terms of your celebrity person,…they put themselves out there, so there is no legitimate expectation that prevents you from being photographed. To raise that expectation there will have to be ‘something more’. Both Von Hannover and Murray suggests the fact that you are with family members might be that ‘something extra’.
Theakston v MGN [2002] (pre-Campbell)
(Private information that has become public)
The first case concerned Jamie Theakston, who was a children’s TV presenter. He was photographed going into a brothel, but it was already quite well-known in the media, and people who read newspapers as well, that he did do this from time to time. So, this was about his sexual activity. But the fact that he visited brothels and paid for sex was known. So, although technically this was before Campbell, that information was no longer private.
RockNRoll v NGN [2013]
(Private information that has become public)
Concerned Ned RockNRoll, who is Kate Winslet’s very strangely named husband. Naked pictures of him were posted on a friend’s social media page. The pictures then went viral. what the court said there was that the original posting had been without his consent. So he retained an expectation of privacy in relation to his naked body – his naked image. So, he was able, despite the fact that this was out on social media, to stop News Group Newspapers from reprinting the photographs in their publications.
The case was against a newspaper who had got these images and wanted to use them. So, he did retain an expectation of privacy even though those images were widely available on social media.
Axon v MOD [2016]
(Private information that has become public)
It is one of the more recent privacy cases. This concerned a ship’s captain. Following an equal opportunities investigation, he was effectively removed from his command. This was a military matter. The captain of the ship, following an equal opportunities inquiry, was removed of his command.
Now, that information was leaked by a Ministry of Defence employee to the Sun Newspaper, who published an article, and the headline was: Mutiny On War Ship, Bully Captain Kicked Off.
What the court decided here was that despite the fact that the Sun Newspaper would probably never have known about this without the leak, the Equal Opportunities Inquiry was a matter of public record. So, if they had known where to look, they could have found this information. The problem is that they would not have known where to look without the leak. Effectively, this was not private information. The information was a matter of public record. If you knew where to look you would be able to find the story.
So, even though the Sun had got the tip-off from the leak, this fell outside a legitimate expectation of privacy.
Remember, under Campbell, that is just the first of two stages in this test to establish the duty of confidentiality.
The first stage is: Is there a legitimate expectation of privacy?
I’ve gone through a few remaining problem areas.
If you establish that, the second stage is: you then need to balance the interests of the claimant against the defendant’s freedom of expression.
