Privacy Law

Question 1

What is Article 8 of the European Convention on human rights?

Answer 1

This states that everyone has the right of respect to their private life, their home and their correspondence.

Question 2

What has case law developed in terms of article 8?

Answer 2

In alleged cases where privacy has been breached use criterion to decide if article 8 rights are engaged - that is whether there may have been a breach of those rights.
This criterion asses whether there is of was a REASONABLE EXPECTATION TO PRIVACY.
Location can be a player but equally so can nature of the event or the situation.

Question 3

What can a judge do to protect privacy?

Answer 3

Make an injunction to forbid publication of the material.

Or if it has already been published order the publisher to pay damages or injunct further publications

Question 4

How can article 8 interact with health?

Answer 4

Case law has established that there is normally such a reasonable expectation of privacy as regarding information concerning including mental health.

Question 5

What is the case law regarding health? (CCTV)

Answer 5

Peck V UK:
It was ruled by the European court of human rights that the broadcasting my TV companies of CCTV footage of a mans suicide attempt in a public street in which footage he was recognisable breached his privacy rights under article 8 because the incident concerned his health.
In this footage broadcasters made an unsuccessful attempt to blur his face. The footage showed him being stopped by police. It was released by the council to showcase their new CCTV cameras and how it had saved his life.

Question 6

What is case law regarding health? (Drugs)

Answer 6

Naomi Campbell V Mirror Newspapers:
In this case the House of Lords ruled that:
Even though Campbell accepted that the Mirror acted in the public interest to expose her use of drugs the newspaper had breached her privacy by exposing too much detail of her narcotics anonymous therapy including a photograph of her leaving the premises used by the NA group so making it hard for her to continue the therapy.
The House of Lords therefore ruled that publication of this detail of her therapy and that picture breached her rights under article 8.

Question 7

How does article 8 interact with sexual relationships?

Answer 7

Case law has established that there is normally such a reasonable expectation of privacy as regards information concerning sexual relationships including those that are already adulterous or involve the use of prostitutes.

Question 8

What is the case law surrounding sexual relationships?

Answer 8

Mosely V Newsgroup Newspapers:
The high court ruling was that exposure by the news of the world newspapers using footage and recordings gained undercover as his participation in adulterous sexual activities in an orgey with prostitutes was a breach of his privacy.
For this activity there was no public interest justification. Therefore the high court ruled under article 8.

Question 9

How does article 8 interact with children?

Answer 9

Because of their immaturity, emotional vulnerability are more likely to be regarded by courts as needing protection in civil privacy law than adults are.
Article 8 specifically refers to family life so that a child has a reasonable expectation to privacy irrespective of location and so their privacy can be breached if they are filmed or photographed without parental consent even in a public space.

Question 10

What is the case law regarding children?

Answer 10

Weller V associated news:
The high court judge ruled that publication of photos taken of Paul Wellers children and published on Mail online showing the expressions on their faces during a family afternoon our with their farther with material which also identified them by their name breached their privacy rights in that they had a reasonable expectation of privacy because of the nature of the family occasion even though they were in a public space and their was no relevant debate of public interest.

Question 11

How does article 8 relate to undercover of Longshot?

Answer 11

In a privacy lawsuit 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 means they are more likely to succeed in a privacy lawsuit because they may have reasonably expected the situation was private.

Question 12

How does article 8 relate to a history of harassment?

Answer 12

A person who has been repeatedly harassed by photographers 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 right by limiting the human rights to social interaction.

Question 13

What is the case law concerning a history of harassment?

Answer 13

Princess Caroline of Monaco V Germany:
In 2004 the European court of Human Rights ruled that even though as regards photographs Princess Caroline complained about she was without doubt pictured in public places she nevertheless had in the circumstances which lead to the case a right to privacy so therefore it was ruled under article 8.
However PUBLIC PLACES ARE NOT NORMALLY PRIVATE FOR ADULTS UNLESS IN A CASE OF HARRASSMENT.

Question 14

How does proportionality relate to article 8?

Answer 14

Media organisation can avoid a law suit by not publishing some detail concerning part of an image or footage.

Question 15

What is clause 6 of the Editors Code?

Answer 15

All pupils should be free to complete their time at school without intrusion.
They must not be approached without with out schools approval.
Children under 16 must not be interviewed without consent.
Children under 16 must not be paid for material involving their welfare unless it is clearly in the child’s interest.
Editors must not use a guardians fame as justification.

Question 16

What is article 10/public interest?

Answer 16

The court if it rules that the claimants article 8 rights are engaged because there was a reasonable expectation of privacy they will then consider if those rights are overridden because the material should be published in the public interest.
The public interest justification was recognised in UK law before UK fully adopted the convention but this justification can now be expressed as being among article 10 rights.
When considering this the court will assess:
The extent to which the publication has contributed or will contribute to the debate of general interest to society.
How well known the claimant is known.

Question 17

Under the Editors Code what does it mean regarding to subject of public interest?

Answer 17

Detecting or exposing crime.
Protecting public health or safety.
Protecting the public from being mislead.
Disclosing an organisations failure to comply to any obligation to which they are subject.
Disclosing a miscarriage of justice.
Matter of public debate.
Disclosing concealment.

Question 18

What does section 8 of OFCOM public interest say?

Answer 18

To reveal or detect crime.
Protect public health and safety.
Exposing misleading claims.
Disclosing incompetence.

Question 19

What does the editors code say about hospitals and similar situations?

Answer 19

Normally permission must be sought from the institutions management to pursue enquires in non-public areas. This means such permissions must be sought to visit a patient to interview, film or photograph them. Clause 8

Question 20

What does OFCOM say about hospitals and similar situations?

Answer 20

Permissions must normally be sought from management to film or record - both say you must seek management approval even if the patient has approved. Section 8

Question 21

What does the editors code say about harassment in persistent pursuit?

Answer 21

Clause 3 says that it is unacceptable.

Question 22

What does OFCOM say about harassment in persistent pursuit?

Answer 22

If an individuals privacy is being infringed and they ask that filming, recording or live broadcast be stopped the broadcasters should stop. Section 8.

Question 23

What is subterfuge, misrepresentation and deception?

Answer 23

A journalist who when working on a story fails to identify themselves as a journalist is misrepresenting themselves and using subterfuge.
If they make clear they are a journalist but disguises their real intention they are employing subterfuge and misrepresenting with intention.

Question 24

What does the editors code say about subterfuge, misrepresentation and deception?

Answer 24

Clause 10 - should not be normally used.

Question 25

What does OFCOM say about subterfuge, misrepresentation and deception?

Answer 25

Should not be normally be used.

Question 26

What does the editors code say about covert filming/recording?

Answer 26

Clause 10 - that hidden cameras and clandestine listening devices should not be normally used.
Public interest exception with Prima Facie Evidence.

Question 27

What does OFCOM say about covert filming/recording?

Answer 27

Section 7 - covert surreptitious filming or recording should not be normally used.
Section 8 - surreptitious filming or recording which infringes someone’s privacy should only be used if nessacerry to the credibility or authenticity of the programme.
Public interest exception with Prima Facie Evidence.

Question 28

What does the editors code say about recording phone calls?

Answer 28

To record a call when a journalist is one of the parties taking part is not classed as an activity needing public interest justification.

Question 29

What does OFCOM say about recording phone calls?

Answer 29

If it is being recorded for broadcast you need to tell them unless warranted under public interest and it is illegal to intercept.

Question 30

What does the Editors Code say about intrusion into grief or shock?

Answer 30

Clause 4 - Cases involving grief and shock, enquires and approached must be made with sympathy and discretion and publication handled sensitively.
There is an ethical ban on breaking someone’s death or injury directly to the family or identifying them in what is published before their family knows.

Question 31

What does OFCOM say about intrusion into grief or shock?

Answer 31

Section 8 - Should not be filmed.

Question 32

What is said in the codes about accuracy?

Answer 32

Clause 1 of Editors code and Rule 5.1 - 5.3 of OFCOM. There is an ethical obligation to be accurate.