Week 4: Privacy Flashcards
Article 8 of the European Convention on Human Rights
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- no public authority may breach this right unless there is an overriding justification in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the rights and freedoms of others.
what is breach of privacy?
Privacy can be breached by an intrusive act of gathering of private information.
of someone who is in a situation where they have a reasonable expectation of privacy
such as:
intrusive photography, filming or recording,
which in itself distresses the subject and was without their consent,
and by publication without their consent of the information gained,
including any image;
IPSO - Clause 2 *privacy
i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.
ii) Editors will be expected to justify intrusions into any individual’s private life without consent. In considering an individual’s reasonable expectation of privacy, account will be taken of the complainant’s own public disclosures of information and the extent to which the material complained about is already in the public domain or will become so.
iii) It is unacceptable to photograph individuals, without their consent, in public or private places where there is a reasonable expectation of privacy.
Are we able to freely report on affairs, co-habitation etc. involving celebrities these days?
It is rare for a media organisation to be able to demonstrate that a claimant in such a case did not have a reasonable expectation of privacy,
not only in relation to what happened within the relationship, but also over the fact that there was a relationship.
Naomi Campbell case study
In 2004, the Daily Mirror had published a story about supermodel Naomi Campbell receiving therapy from Narcotics Anonymous for drug addiction.
There were photos of her emerging into the street after leaving a session.
Campbell won a privacy claim in the House of Lords under Breach of Article 8 privacy rights, breach of confidence and infringement of the Data Protection Act 1998.
She was awarded damages for distress and injury to her feelings.
Children and privacy
- Children in the UK are presumed to have privacy rights and their rights are given higher protection than those of adults.
- Use of their images in the media without parental consent and in situations where they have a reasonable expectation of privacy therefore amounts to a misuse of private information.
- If photos are taken of kids whose parents are celebrities then this also poses a security risk
- the fact a child has celebrity parents is not a valid defence for journalists who publish pictures of the child without parental consent
Defences and remedies?
Defences:
Article 10 of European Convention on Human Rights
Public interest
Remedies:
the remedies for a breach of privacy are damages or an interdict.
an interdict can be imposed either to prevent a breach or prevent its repetition, e.g. by re-publication.
Article 10 of European Convention on Human Rights
- Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority
- but there are times this right can be restricted and that is when it is
in the interests of national security, or public safety, for the prevention of disorder or crime, for the protection of health or morals,
Other ways to prevent being sued for breach of privacy?
You could obscure or pixelate the face of a vulnerable person to hide his/her identity or otherwise protect some element of privacy,
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.
what will the court consider in case when weighing up article 8 versus article 10?
the court will also consider how well-known the pursuer is – e.g. does he/she ‘play a role in public life’, a definition which goes beyond a political role – which may mean they have a reduced right to privacy in some circumstances
the court will also consider the prior conduct of the pursuer – for example, has he/she compromised his/her own privacy by seeking publicity previously
does the information/image show he/she is hypocritical/has projected a false public image previously?
The court will also consider how harmful publication was or would be for the pursuer and his/her family, and whether it was or is proportionate for any, some or all the information to be published.
Sir Cliff Richard’s case study
his house was searched when he was accused of sexual assault
The singer won damages from the BBC in 2018 for breach of privacy after they recorded his home being raided by police in an investigation that he had abused a boy
the BBC filmed the raid live on tv with a helicopter
While the investigation was dropped, Richard’s reputation has been “forever tainted”,
IPSO Clauses relating to privacy
Clause 3 – Harassment Clause 4 – Intrusion into grief Clause 5 – Reporting suicide Clause 6 – Children Clause 8 – Hospitals Clause 10 – Clandestine devices and subterfuge
Max Mosley case study
In 2008 Max Mosley won his privacy action against News of World.
He was awarded 60k in damages after the tabloid accused him of taking part in a “sick nazi orgy”
The judge ruled that Mosley had a “reasonable expectation of privacy” in relation to his sexual activities no matter how unconventional
There was no public interest or other jurisdiction that justified the clandestine recording
What factors are they likely to take into account in court when dealing with a breach of privacy case?
In privacy proceedings the method by which the information was obtained will be considered by the court.
So 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 case because he/she may reasonably have expected the situation was private.
Location of a story: even if it is a public place, the situation may still be a sensitive one
If the person is distressed, mentally ill, or being medically treated after an accident in a public place, such as a road, and that there normally will be a reasonable expectation of privacy
