In March 2002 Lord Woolf gave judgment in Garry Flitcroft’s unsuccessful attempt to stop publication of details of his extramarital affairs (A v B [2002] EMLR 21), declaring: “In the great majority of situations, if not all situations, where the protection of privacy is justified, an action for breach of confidence now will, where this is appropriate, provide the necessary protection… it is not necessary to tackle the vexed question of whether there is a separate cause of action based upon a new tort involving infringement of privacy.” Even if that were true at the time, it is certainly not true now.
There is no actionable right of privacy under English law. The area of privacy is regulated by law and by the codes of the Press Complaints Commission (PCC), the Independent Television Commission (ITC) and the Broadcasting Standards Commission (BSC). None of the regulatory bodies can restrain publication, make awards for costs or damages, or order delivery up. But the codes have a hidden punch. Section 12(4) of the Human Rights Act requires the courts in freedom of expression cases to pay particular attention to any relevant privacy code. Although the regulatory bodies may lack teeth on their own, breach of their provisions has been described as ‘the trump card’ for claimants in court, allowing them to bring breach of privacy principles into a confidentiality action.
