What is a journalist to make of the current state of privacy law? No one could miss the fact that it has become a hot topic in the past few years, but has the position really changed and are there new considerations to take into account when deciding what can safely be published about someone’s private life? Some parts of the media note that no English judge has yet concluded there is a law of privacy as such; indeed, all the high-level courts that have pronounced on the issue recently have stated there is not. But that is not the end of the matter.
There have always been laws that protect private personal information, one of the most significant being the law of confidentiality, but recently the legal scenery has changed. The courts have demonstrated a heightened awareness of the importance of protecting information about a person’s private life since the Human Rights Act came into force in 2000. Before that, the judiciary was familiar with the media’s deployment of legal arguments based on Article 10, which protects the right to freedom of expression.
However, less attention had been paid to Article 8, which protects the right to privacy.
Now, in a string of judgments culminating in the House of Lords’ recent decision in the Naomi Campbell case, the balance (as some would see it) has been redressed. It is clear that English law provides a cause of action for the unjustified publication of private information – a privacy law by another name. The courts have incorporated the values protected by Article 10 and Article 8 into the cause of action for breach of confidence. Those values are of equal importance and both are subject to qualification, so in any particular case it is a question of balancing the rights affected.
So what questions should you ask before splashing information about someone’s personal life across the front page? First, is it information about which the person has a reasonable expectation of privacy? This is tested by considering whether a reasonable person, put in the subject’s position, would consider the information private. If it is private information, is there a countervailing interest that outweighs the subject’s right to privacy, such as a genuine public interest in the disclosure of the information which means the right to freedom of information should prevail? In the Campbell case, all the information published by the Mirror about Campbell’s treatment for drug addiction was private information. However, her public declaration that she was not a drug addict meant she had forfeited her claim as regards the publication of information revealing her lie, while she retained her right to protect the details of her treatment.
The courts’ greater willingness to protect private life is here to stay and journalists will no doubt become increasingly accustomed to working out when the publication of personal private information can, or cannot, be justified.
Katherine Rimell is a consultant in Addleshaw Goddard’s Media Litigation Group