Media lawyers are bracing themselves for the wealth of changes that the Human Rights Act (HRA) will bring to media law. They will have to consider Article 6 (the right to a fair trial); Article 8 (the right to respect private life); and Article 10 (freedom of expression).
The Article 10 right to free expression is strongly protected, but it is not absolute and subject to exceptions. These exceptions must be necessary and proportionate. One exception is the protection of reputation. However, probably the most significant impact on media law will be Article 8 – the right to respect for private life and the effect of Section 12 of the HRA on interim injunctions for breach of confidence.
It appears that the drafting of the HRA would allow a common law right of privacy to develop consistent with the themes of the Convention. There have already been several judicial statements suggesting that the UK courts should recognise a general right of privacy. In Spycatcher, which revolved mainly around breach of confidence claims, Lord Keith said that “the right to personal privacy is clearly one which the law in this field should seek to protect”.
By contrast, in Kaye v Robertson, it was stated that there was no right of privacy in English law, but breach of confidence was not argued in that case. In 1994, Michael Mann QC sitting as a deputy high court judge in Shelley Films v Rex Features doubted whether Kaye v Robertson was right in the light of Lord Goff’s comments in Spycatcher. In the Shelley case, a photograph was taken surreptitiously of a scene on the set of the film Mary Shelley’s Frankenstein and was published in The People newspaper. The claimants applied for and obtained an interlocutory injunction in copyright and confidence against the news agency.
Other decisions show tentative first steps being made towards fully-fledged privacy rules under the common law. In the Princess Diana gym photographs case, Justice Drake also distinguished Kaye and granted an injunction against Mirror Group Newspapers and others to restrain further publication of photographs taken of Princess Diana at a gym from a concealed camera. In 1995, Mr Justice Laws in Hellewell, further suggested that the taking of pictures, without authority, by means of telephoto lens, of a persons engaged in some private act may be an actionable breach of confidence.
The development of privacy protection out of the action for breach of confidence is consistent with the recent Earl Spencer European Court of Human Rights (ECHR) case in 1998. This concerned information about the wife of Earl Spencer being in a clinic for treatment for an eating disorder and alcoholism and also information about her personal and family problems. Such information was published in at least two tabloid newspapers and one newspaper published a photograph of the Countess taken with a telephoto lens while she walked in the grounds of the private clinic.
In Spencer, the Human Rights Commission reviewed the common law development of the law of confidence and considered such cases as Kaye, Spycatcher, Hellewell and Shelley Films and found that, although there was no general right of privacy, there was not the same level of uncertainty as to the remedy of breach of confidence which prevailed at the time of the earlier Winer decision of the Commission, the domestic courts having extended and developed certain relevant principles through their case law by interpretation.
The Commission declined to hear Spencer’s complaint on the grounds that the claimants had not exhausted their domestic remedies. It appears that the Commission effectively approved the continuing extension of the common law protection of the law of confidence and approved of the use of interlocutory injunctions to protect personal privacy.
Section 12 (3) of the HRA has changed the requirements needed to be established in order to obtain an interim injunction restraining publication until trial of confidential matters. The test will now be that the claimant has to establish that he is likely to succeed at trial in obtaining a permanent injunction, which is a higher burden than before.
The emphasis on freedom of expression and what material is already in the public domain may make it more difficult for claimants to obtain injunctions when they have sought publicity about their private lives. However, where such publicity has not been actively sought, it may be less relevant, and there is already unreported authority to that effect. Claimants will have to consider carefully what material has already been or is about to be published.
The effect of the Article 10 Convention arguments can already be seen in a number of recent decisions concerning levels of damages (Elton John, Rantzen) and more recently qualified privilege (Reynolds v Sunday Times). There may further arguments about levels of damages and injunctions.
Section 12(3) of the HRA will not affect the position of prior restraint injunctions in libel as they are generally not available (see Bonnard v Perryman). In Tolstoy v UK, it was held that the final injunction at trial was not a breach of Article 10, but the £1.5m award was disproportionate and a breach of Article 10.
There are a number of recent Norwegian and Austrian Convention cases concerning Article 10 and the laws of defamation in those countries. While not binding, such Convention cases must be taken into account. However, there is a margin of appreciation, i.e. a discretion for member states in deciding how to apply convention principles.
Regulatory bodies such as the PCC, BSC and ITC will be ‘public authorities’ under the HRA. They will have to ensure that procedures comply with the Article 6 requirement for a fair hearing and also the Article 8 requirement of respect for private life, otherwise they may be challenged in court as public authorities. There may also be challenges to those bodies under Article 10.
Mark Thomson is a partner at Schilling & Lom and Partners.
