Justifications and Defences

This chapter identifies and considers the answers available to claims for breach of privacy brought against the media. The aim is to provide a systematic description of the defences and justifications available to defendants. Some are of general application, whatever cause of action is invoked. These are considered in Section B. Otherwise, the approach adopted is to group the various causes of action by which privacy may be protected, and the defences and justifications that may be invoked, according to the different aspects of privacy for which protection may be sought.

Practice and Procedure

In privacy cases lawyers often need to advise at speed on a number of practical and procedural issues. Claimants and defendants will need advice on whether to pursue regulatory or legal routes; if the latter, who can and should sue or be sued; in which court or courts; what causes of action can be relied on; what interim orders to seek and how; and a host of other issues. This chapter identifies and offers practical guidance on some important procedural issues in these areas. It seeks to provide, or show where in this work to find, answers to these simple questions: who, where, what, and how? The chapter does not set out to cover the entire procedural process, but focuses instead on issues most likely to be of interest in relation to privacy claims.

Remedies and Sanctions

This chapter considers the legal remedies that may be available to those who complain that an invasion of their privacy has occurred or is threatened by the actions of the media, as well as touching briefly on the criminal sanctions that may be applicable. Regulatory remedies under the Data Protection Act are considered in Chapter 7 and the remedies available from the media regulators in Chapter 14. Whether a remedy is sought before or after publication, and whether the complaint relates to the content of an actual or proposed publication or the method by which personal information has been obtained, it is likely that any relief granted will affect the exercise of the right to freedom of expression enshrined in Article 10 of the European Convention on Human Rights (ECHR). In such circumstances s 12 of the Human Rights Act 1998 (HRA) applies. The interpretation given to this important statutory provision by the courts is considered in Section C, but this chapter begins by looking at Parliament’s intention in enacting s 12. This is not necessarily to suggest that courts should have regard to such material as an aid to construction under the rule in Pepper v Hart but rather to explain the legislative background to this highly relevant provision.

Privacy, the Internet, and Social Media

The ascendancy of social media poses acute challenges for privacy. While Facebook, Twitter, YouTube, LinkedIn, and other similar services can confer major advantages on users in terms of access to information, ease of communication, and opportunities for network-building, the ordinary concomitant is a significant surrender of personal privacy. This is because participation generally entails the disclosure of, and the ceding of control over, one’s personal data. In order to join the community and enjoy the benefits of membership, a person must establish at a minimum an online contact point and identity (eg in the form of a Facebook account or Twitter profile), typically by transferring some version of his or her actual, real-world, identity to the internet. Many, of course, go much further than this, sharing online—arguably ‘oversharing’—any manner of private information concerning themselves, often with complete strangers. In most cases to do so will prove harmless, but from time to time individuals may make themselves a target.

Copyright, Moral Rights, and the Right to One’s Image

UK copyright is a right created by statute and is now contained in the Copyright, Designs and Patents Act 1988 (CDPA). Copyright is mainly regarded as a means of protecting the economic interests of creators of original works. However, it has a significant role to play in protecting privacy interests. Private correspondence and diaries are obvious examples of material that may attract copyright protection in the domestic sphere. In the commercial context, examples include corporate memoranda, other documents, and recordings containing confidential information. Copyright subsists in various descriptions of ‘works’, such as ‘literary works’, ‘films’ and ‘sound recordings’ and there may be more than one copyright work in any article. For example, a recording may include a ‘literary work’ as well as a ‘sound recording’ for copyright purposes. A copyright work may contain private information or the work may be unpublished and therefore private in that sense. Copyright is apt to protect privacy interests, because it gives the copyright owner the legal right to prohibit reproductions, ie copying, as well as other means of dissemination.

Misuse of Private Information

This chapter is concerned with the cause of action known as misuse of private information. The cause of action, though closely related to traditional breach of confidence, is separate and distinct from it, and protects different interests. It is claims for misuse that are likely to be of greatest significance in most media privacy cases, but practitioners should not overlook the fact that there are overlaps between this and traditional breach of confidence.

Context and Background

The law of privacy has come a long way since the Human Rights Act 1998 (HRA) came into force in October 2000. Before then, the prevailing view was that there was no right to privacy at common law and that it had ‘so long been disregarded here that it can be recognised only by the legislature’. Instead, indirect, piecemeal protection of privacy was afforded through existing causes of action where the facts of individual cases permitted it. Despite judicial dicta leaving the question open, this appears to have remained the position at least until the HRA came into force.

Breach of confidence

This chapter is concerned with claims for what is commonly known as breach of confidence. Until quite recently, reliance on the cause of action for breach of confidence has been one of the two main ways in which claims to protect or vindicate privacy have been pursued in English law. The other, much less significant in practice, is reliance on statutory rights such as those afforded by the Data Protection Act 1998. Today, as a result of the House of Lords’ decisions in Campbell v MGN Ltd and Douglas v Hello! Ltd, it is possible to differentiate between two different kinds of claim: (i) traditional breach of confidence actions; and (ii) claims for misuse of private information. The first of these kinds of claim will be discussed in this chapter. The second, misuse of private information, is a cause of action which has developed in the present century originating in, becoming separate and distinct from, breach of confidence. It will be addressed separately in Chapter 5.

The Privacy Codes

Alongside the legal framework which regulates the media’s activities, a system of regulation operates to uphold standards of journalism and programme-making and to provide at least a partial remedy for those whose privacy has been invaded by the media. Different bodies currently regulate different branches of the media. Ofcom (the Office of Communications) regulates the content of all television and radio programmes in the United Kingdom except that the BBC retains sole jurisdiction in relation to certain matters broadcast on BBC channels funded by the licence fee. The Independent Press Standards Organisation (IPSO) has recently taken over as principal regulator of the newspaper and magazine industry (although a new body, the Independent Monitor for the Press (Impress), has also recently been formed). IPSO replaced the Press Complaints Commission (PCC) in September 2014, with which has now ceased to exist, having regulated the print media industry since 1991. These bodies adjudicate upon complaints with reference to codes of practice which media falling within their regulatory remit are required to comply. The Ofcom Broadcasting Code, drawn up and regularly reviewed and revised by Ofcom, is the primary broadcasting code relating to the broadcast of television and radio programme content in the United Kingdom.

Privacy in European, Civil, and Common Law

The purpose of this chapter is to examine some of the external sources that influence the shape and scope of the protection of privacy in English law. Those influences are diverse. They include the jurisprudence of the European Court of Human Rights (ECtHR) and other institutions of the Council of Europe, European Union instruments, international human rights obligations, foreign common law jurisdictions, and European civil law. All of these sources form part of the multifaceted context in which English privacy protections are developing.