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PRIVACY

Other countries view of privacy ECHR Article 8 Right to private and family life, home and correspondence but exceptions: Peck v U.K. ECHR [2003] Von Hannover v Germany (2004) Definition Wacks: It is a matter of balance as to what is to be revealed and what is kept private. Informational Self-Determination. Campbell v Mirror Group Newspapers Ltd [2004] Lord Hoffman metaphorically an invasion of my territory, a violation of the castle of my personality. Subjective Test R v BSC ex p. BBC [2001] Hale L.J.: Notions of what an individual might or might not want to be kept private, secret or secluded are subjective to that individual. The infringement consists of depriving the person filmed of the possibility of refusing consent. Lord Woolf: The fact that it is secret prevents those who are being filmed from taking any action to prevent what they are doing being filmed Originally no right of privacy: Kaye v Robertson [1991]Glidewell L.J. If ever a person had a right to be left alone by strangers with no public interest to pursue, it must surely be when he lies in hospital recovering from brain surgery and in no more than partial command of his faculties. It is this invasion of his privacy which underlines the plaintiffs complaint. Yet it, alone, however gross, does not entitle him to relief in English law. The facts of this case are a graphic illustration of the desirability of parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals. Press Complaints Committees CODE R v Khan (Sultan) [1994] AC 558 Lord Nolan: a strange reflection on our law if a man who had admitted his participation in the illegal importation of a large quantity of heroin should have his conviction set aside on the grounds that his privacy has been invaded. (Regulation of Investigatory Powers Act 2000). Wainwright v Secretary of State for Home Department [2003]

Events occurred before HRA 1998 in force. Mummery L.J. (C/A):formidable definitional difficulties and conceptual problems in the judicial development of a blockbuster privacy tort vague embracing such a potentially wide range of situations. Lord Hoffman (H/L)There seems to me a great difference between identifying privacy as a value which underlines the existence of a rule of law and privacy as a principle of law in itself. Wainwright v U.K. In A v B plc [2002] Woolf L.J. warned against a free standing tort of privacy. Incremental change. A more promising and well trod path is that of incremental evolution, both at common law and by statute (e.g. s.3 of the Protection from Harrassment Act 1997) of traditional nominate torts pragmatically crafted as to conditions of liability, specific defences and appropriate remedies, and tailored to suit significantly different privacy interests and infringement situations. Mummery L.J. in Wainwright. Spencer v U.K.[1997] Lord Irvine: the judges are pen-poised regardless of the incorporation of the convention to develop a right of privacy to be protected by the C/Lrelying on trespass, nuisance, copyright, confidence and the like. Misuse of Private Information based on reasonable expectation of privacy which outweighs rights of freedom of expression. Reasonable expectation based on whether a person of ordinary sensibilities would have suffered substantial offence if they had been in the position of the victim. Lord Hope in Campbell. Douglas v Hello! Ltd (No.1)Sedley LJ.: English law will recognise, and, where appropriate, protect, a right of personal privacy, grounded in the equitable doctrine of breach of confidence, which accords recognition to the fact that the law has to protect not only those whose trust has been abused but those who find themselves subject to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy. Keene LJ.:The nature of the subject matter or the circumstances of the defendant's activities may suffice in some instances to give rise to liability for breach of confidence. Whether the resulting liability is described as being for breach of confidence or for breach of a right to privacy may be little more than deciding what label is to be attached to the cause of action, but there would seem to be merit in recognising that the original concept of breach of confidence has in this particular category of cases now developed into something different from the commercial and employment cases with which confidentiality is mainly concerned. C/A referring to Venables & Thompson v News Group Newspapers [2001] A remarkable feature of this decision was the nature of the information alone gave rise to

the duty of confidence regardless of the circumstances in which the information might come to the knowledge of the person who might publish it. She also refers to Douglas v Hello [2005] (Douglas III)C/A which she says the first important case after Campbell where judges acknowledged it was no longer necessary for information to be imparted in confidence (although it must itself be confidential in nature) and referred to the right as formerly described as a breach of confidence Does Campbell indicate a separate tort of breach of privacy? Fenwick claims that Campbell has given the U.K. a tort of privacy whether it is called breach of confidence or whether the law of confidencelike a mother swollen with the child of privacyhas given birth and the umbilical cord cut. Jack J in A v B Fenwick seems to imply that the written piece (including details of the treatment) was not the breach of privacy but the photographs were??? Lord Hope and Lady Hale considered that the distressing nature of the photographs was a vital agreement. However dicta acknowledged possibility of general rule of privacy as confidentiality arose out of the nature of the material: The development of the law of confidentiality since H.R.A. 1998 came into force has seen information described as confidential not where it was confided by one person to another, but where it relates to an aspect of an individuals private life which he does not choose to make public. We consider that the unjustifiable publication of such information would better be described as breach of privacy rather than breach of confidence. She quotes Keane L.J. in Douglas Whether the resulting liability is described as being for breach of confidence or for breach of a right to privacy may be little more than deciding what label is to be attached to the cause of action. PHOTOGRAPHS Hellewell v Chief Constable of Derbyshire [1995] Laws J. If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my mind, as surely amount to a breach of confidence as if he had found, or stolen, a letter or diary in which the act was recounted and proceeded to publish it. In such a case the law would protect what might reasonably be called a right of privacy although the name accorded to the cause of action would be breach of confidence. Creation Records Ltd v New Group Newspapers [1997] Can demonstrations be photographed? X v U.K. (1973) Von Hannover v Germany [2004] In the present case there is no doubt that the publication by various German magazines of photographs of the applicant in her daily life either on her own or with other people falls within the scope of her private life.

This included the photographs of the applicant in the various German magazines showing her in scenes from her daily life, thus engaged in activities of a purely private nature such as practising sport, out walking, leaving a restaurant or on holiday. David Murray v Big Pictures [2008] Reklos and Davourlis v Greece (2009) Wood v Commissioner of Police for the Metropolis [2009] Public Office Plon (Societe) v France (2004) Can events in PUBLIC be private? Semi private protected: HRH Princess of Wales (1993) Douglas & Others v Hello!Ltd & Others [2005] Brooke L.J. acknowledged this was not a private weddingin the normal sense of the words but as it consisted only of the invited and the exclusion of all others it was private in the circumstances. Is a Street public? Campbell v Mirror Group Newspaper [2004] (1) Is the information obviously private? (2) Would disclosure give rise to substantial offence due to nature of information? (3) Balance between articles 8 and 10. (4) Is disclosure in public interest? Lord Hope: the taking of photographs in a public street mustbe taken to be one of the ordinary incidents of living in a free community. However here different as specifically aimed at her (other peoples faces blanked out). Lady Hale: The activity photographed must be private. Lady Hale: Contest between a prima donna celebrity against a celebrity exploiting tabloid newspaper Each in their time has profited from the other. Both were assumed to be grownups who know the score. However she doubted the public interest in poring over the intimate details of fashion models private lives. Lord Carswell: A delicately balanced decision Max Mosley v News Group Newspapers [2008] CC v A & B [2006] PUBLIC FIGURES ISSUE as to whether PUBLIC figures have sacrificed right to PRIVATE life?

Woodward v Hutchins [1977]those who seek and welcome publicity of every kind on their private lives so long as it shows them in a favourable light are in no position to complain of an invasion of their privacy by publicity which shows them in an unfavourable light. A v B & C [2002] Lord Woolf If you have courted public attention then you have less ground to object to the intrusion which follows. A v B [2005] Eady J An important consideration when assessing the backroundis that the claimant has himself made public through the media a great deal of information that might usually be considered as falling within the protection afforded to private or personal information. X & Y v Persons Unknown [2006] Now test is probably whether there is a sufficient public interest in the material If the celebrity choose to make an aspect of his/herl ife public then public interest in knowing whether this is truthful or not. Campbell v Mirror Group Newspapers Ltd [2004]Lord Hoffman: She and the press have for many years fed upon each other. She has given them stories to sell their papers and they have given her publicity to promote her career. That does not deprive her of the right to privacy in respect of areas of her life which she does not chose to make public. Von Hannover v Germany [2004] The court viewed as private any function which was not itself a public duty. Loreena McKennitt v Ash [2006] Eady J: a trend has now emerged towards acknowledging a legitimate expectation of protection and respect for private life on some occasions and in relatively public circumstances. This implies that protection is no longer restricted to confidentiality. the mere fact that a celebrity falls short, from time to time, like anybody else, could not possibly justify exposure in the supposed public interest of every peccadillo or foible cropping up in day-today life. C/A on freedom of expression: Ash had no story to tell that was her own as opposed to Loreenas. As Loreena was not a public figure there was no public interest to justify exposing her private life. BALANCE between freedom of expression (by press) (Article 10) and individual privacy (Article 8) and controlled by concept of proportionality and necessary in a democratic society. ARTICLE 10 FREEDOM OF EXPRESSION 1. Everyone has the right to freedom of expression. This right shall include the freedom to hold opinions and to receive and impart information and ideas without interference

by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. Exceptions: 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority or impartiality of the judiciary. ARTICLE 8 RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with law and is necessary in a democratic society 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. ECHR Nilsen v Governor of Full Sutton Prison [2004] PUBLIC INTEREST in disclosure may overrule confidentiality: At first U.K. approach to give freedom of expression priority Venables v News Group Newspapers Ltd (Fam Div) [2001]Butler Sloss The onus of proving the case that freedom of expression must be restricted is firmly upon the applicant seeking relief. The restrictions sought mustbe shown to bejustifiable as necessary to satisfy a strong and pressing social need, convincingly demonstrated, to restrain the pressand proportionate to the legitimate aim pursued. Distinction between: (a) Exceptions to rights which must be construed narrowly. and (b) Competing rights where each such be given equal rights. A v B plc [2002] where equal weight given as both rights were fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order since they are of equal value. Lord Nicholls said in Campbell that both freedom of expression and respect for another persons privacy are vitally important rights. Neither has precedence over the other. Lady Hale. She said that the correct balancing approach involves looking first at the comparative importance of the actual rights being claimed in each particular case, then the justification for interfering with or restricting each of these rights, and applying the proportionality test to each.

Re S (a child) (identification: instructions on publication) [2004] The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence or or trumps the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical analysis to be decided upon the basis of rival generalities. An intense focus upon the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in terms of proportionality is carried out. McKennitt v Ash Eady J said there was a a significant shift taking place so that even where there was a genuine public interestsometimes such interests will have to yield to the individual citizens right to the effective protection of private life. Private life includesa social dimension. CC v A & B [2006] Conditional Fee Agreements Campbell v Mirror Group Newspaper [2004] Grant of injunctions where interests of state involved Crown servants Media disclosure must harm the public interest. A.G. v Guardian Newspapers Ltd [1990]Lord Keith: Such disclosure might tend to harm the PUBLIC interest by impeding the proper attainment of proper GOVERNMENT ends and the relevations of defence and intelligence servants seem certainly to fall in that category. Balance Public interest in KNOWING & discussing v. need to protect the state. Commonwealth of Australia v John Fairfax & Sons Ltd Mason J: finely balanced where it is difficult to decide whether the publics interest in knowing and expressing its opinion outweighs the need for confidentiality of conflicting considerations but normally disclosure of national security, relations with other states & the ordinary business of government should be RESTRAINED. A.G. v Jonathan Cape [1975] A.G. v Guardian Newspapers Ltd (No 2) [1990] LIFE-LONG obligation of secrecy for security/intelligence services. Is damage necessary for injunction against the media? Lord Advocate v Scotsman Publications Ltd [1990] INIQUITY Gartside v Outram (1856) Lord Goff: no confident of a crime or fraud. Allegation of iniquitous behaviour of secret service was justified if credible allegation from a reasonably reliable source.

A.G. v Guardian Newspapers Ltd (No. 2) [1990]Scott J: the press has a legitimate role in disclosing scandals by government. An open democratic society requires that that be so. If an allegation is made by an insider that, if true, would be a scandalous abuse by officers of the crown of their powers and functions the duty of confidence cannot be used to prevent the press reporting the allegation. Lord Griffiths: there must, at least, be a prima facie case that the allegations have substance. Remedies Injunctions Interim Injunction H.R.A. 98 S.12(2) Interim injunction normally only to be granted after the newspaper is given an opportunity to make representation H.R.A. 98 S.12(3) Interim injunction should not be granted unless court satisfied claimant likely to be able to show that publication will not be allowed at the full hearing. Sun Printers v Westminster Press Court must take account of: (a) The importance of the Convention right to Freedom of expression. (b) The extent to which the information is already known. (c) Public interest of material. (d) Any privacy code Cream Holdings v Banerjee H/L [2004] Lord Nichols: No single rigid standard governing all applications for interim restraint orders. The principal purpose was to buttress the protection afforded to freedom of speech at the interlocutory stage. It sought to do so by setting a higher threshold for the grant of interlocutory injunctions against the media. H.R.A. 1998 S.4 The court must have particular regard to the importance of the Convention right to freedom of expression AND: Where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to:(1) The extent to which: (c) the material has, or is about to become available to the public. (d) It is, or would be, in the public interest for the material to be published; (2) Any relevant privacy code.

Douglas v Hello! Ltd (No.1) [2000] Morritt: Particular regard means that court should give it specific and separate consideration. Freedom of Expression Attorney General v Times Newspapers Ltd (HL) [1991] Observer and Guardian Newspapers v U.K. [1992] Injunction against one is against all! Cost of injunctions As a condition for the granting of an interim injunction the person seeking the injunction has to give a cross-undertaking in damages that is, an undertaking that he will pay any damages to the defendant if, at trial, it is held that the interim injunction should not have been granted. Other remedies 2. Order to reveal source 3. Delivery up / Destruction / Modification 4. Damages / aggravated damages 5. Account of profit A.G. v Blake [2001] H/L