Freedom of expression and right to privacy is now regulated under Article 10 and Article 8 of the European Convention on Human Rights, now incorporated into domestic law under the Human Rights Act 1998.However, sometimes the right is limited by such legal restrictions as are ‘necessary in democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the rights and freedoms of others’[1]
The perfect balance between Article.10 and Article.8 has always been a complex one and it becomes more complex where the claimant is a public figure but some principles are emerging. Desmond Browne QC Argued that the law on privacy should provide equal protection to both private citizens and celebrities. Neither the right to privacy nor the right to freedom of expression has presumptive pre-eminence over the other. A balance has to be struck, applying the European doctrine of proportionality.[2]
This issue was first raised in the post-Act era by the High Court in the case of A v. B plc and another[3].In this case the court confirmed that the law of confidence could apply to information regarding a sexual relationship outside marriage[4], and granted an injunction prohibiting the press from disclosing details about the extra-martial relationship of a professional footballer, despite the defendant's plea that such disclosure was in the public interest. In Jack J's judgment, the law of confidentiality could apply to facts concerning the existence of a sexual relationship whether within or outside marriage and found that as there was no public interest in the publication of the details, and the information was not already in the public domain, the claimant was likely to succeed at full trial. In particular the Judge made the distinction between information in the public interest, and information that the public would be interested in receiving, the latter interest not being sufficient to justify an interference with what the Judge felt was a substantial interference with the claimant's private life. However, on appeal to the Court of Appeal[5], the decision at first instance was overturned. Lord Woolf CJ held that there was a significant difference between the confidentiality that attached to sexual relations in transient relationships, and that attached to sexual relations within marriage or other stable relationships. His Lordship also considered that it was relevant that the claimant was a public figure: such a person must expect and accept that that his actions would be more closely scrutinized by the media and that even trivial facts could be of great interest to readers and other observers of the media. In such circumstances the public had an understandable and so a legitimate interest (italics added) in being told the information, and the courts should not act as censors or arbiters of taste merely because the publication had given amore lurid account of the details than the court found acceptable.The courts continued this pro-speech approach in Theakston v. MGN Ltd.[6]
Steve Foster in another article[7] had put limelight on some crucial cases regarding this conflicting issue. First, the courts have refused to accept that public figures forgo their right to privacy simply because of their status. In Campbell v MGN Ltd[8], the defendant newspaper had revealed details of Naomi Campbell’s drug habit, including photographs of her leaving the clinic. The House of Lords accepted that she had a legitimate expectation of privacy with respect to her treatment for drugs and protected her from disclosure of unconscionable details of such and by a 3-2 majority, held that on the facts there had been an unjustifiable interference with her right to private life.
However, the decision still recognized that public figures should expect less protection of their privacy than other individuals, and that the public had a genuine interest in the private life of public figures.[9]
This principle was then questioned by the decision of the European Court of Human Rights in Von Hannover v Germany[10].At first instance, the German Federal Constitutional Court granted an injunction against further publication of a number of photographs in which she appeared with her children, but the Constitutional Court nevertheless regarded her as a public figure and held that she had to tolerate the publication of photographs of herself in a public place, even though they showed her in scenes from her daily life, rather than engaged in her official duties. However, when it went to European Court, it held that the publication of the various photographs of her in her daily life fell within the scope of her private life as covered by art.8, but that the decisive factor in such a case was the contribution that the published photographs and articles made to a debate of general interest and the court stressed that criteria that had been established by the German courts in distinguishing a figure of contemporary society “par excellence” from a relatively public figure were not sufficient to ensure the effective protection of the applicant's private life and in the circumstances she should have a legitimate expectation that her private life would be respected.[11]Foster also stated that the decision had an instant impact on the domestic courts and in McKennit v. Ash.[12]
Ashley Roughton in her article[13] highlighted that McKennitt was decided by a slightly differently constituted court to Countryside Alliance and although Buxton L.J. was in both constitutions, he gave the leading judgment in McKennitt and contributed to the judgment in Countryside Alliance.
Moreover, in the recent case of CC v AB[14], Court of Appeal ruled that any interference with freedom of the press had to be justified, and could not be limited because there was no identifiable public interest in the material being published. The court distinguished between confidentiality which attached to sexual relations within marriage ‘or other stable relationships’ and the confidentiality which attached to transient relationship.[15]
However, if the information relates to a matter of political or constitutional importance, then it is likely to be regarded as of public interest. For example, if a politician's private activities impinge on the performance of his public functions, then the public will have a prima facie right to know, and it should only be deprived of that information if the claimant's privacy claim outweighs freedom of expression and the public's right to be informed. This would apply to other officials whose functions affect the public, and in the recent case of Browne v Associated Newspapers[16], it was accepted that there was a public interest in publishing details of the affair between the chief executive of BP and a young man in so far as they related to claims that he had misused his position and an alleged misuse of the company's facilities.
Robert Stevens in his article[17] pointed on issue of privacy for children and It was stated that in the course of proceedings under Children Act 1989 in the High Court, the Judge may, in the interests of the welfare of the child and in order to protect his privacy under art.8, issue an injunction or make an order prohibiting the identification of the child not simply to the extent set out in s.97(2) of the 1989 Act, but for a period beyond the end of the proceedings (eg, until the age of 18).Re S(A Child)[18] also held that where there was a conflict between the child's art.8 rights to privacy and the art.10 rights of the media neither article took precedence over the other and, where there was a conflict, there had to be “an intense focus on the comparative importance of the specific rights being claimed in the individual cases is necessary.” The justification for interfering with or restricting each right must be taken into account and, finally, the proportionality test must be applied to each.
In conclusion, it could be said that there should not be any strict legal doctrine of precedence and each case should be dealt individually according to it’s fact. In my opinion, Re S(A Child) was decided correctly and Desmond Browne also opined in favour of providing decision in proportionality principle. Another issue I disagree that public figures should expect less right to privacy, this should not be the case because they are not alien and should have an ordinary private life like other individuals. However, freedom of expression can be upheld when the public figures have any bad habit like drug addiction, smoking etc. or commit any criminal offence because people sometimes follow them as role model and therefore they have a legitimate expectation to know about these matters and need to be aware about these bad characteristics. Along with this, I also argue that the protection of their privacy right which deals with their private matters (i.e. random photographs of their private life by paparazzi photographers) should be stopped.
[3] [2001] 1 WLR 2341
[5] [2002] 3 WLR 542
[6] [2002] EMLR 22
[9] Steve Foster (2007) ‘Protecting Privacy from Press Intrusion: Redefining Private Life and the Public Right to Know’, Justice of the Peace
[10] [2005] 40 EHRR 1
[11] Steve Foster (2007) ‘Protecting Privacy from Press Intrusion: Redefining Private Life and the Public Right to Know’, Justice of the Peace).
[12] McKennit v. Ash [2005] EWHC 3003 (QB), and Prince of Wales v. Associated Newspapers [2006] EWHC 522 (Ch), upheld by the Court of Appeal, below: (2006) The Times, December 28. See also Jagger v. Darling [2005] EWHC 683
[14] [2007] EMLR 11
[15] constitutional and administrative law, Hilaire Barnett, 5th edition, ch.21, pg.586
[16] [2007] 3 WLR 289
[17] Robert stevens (2007) ‘To Publish or Not to Publish — That is the Dilemma’, Justice of the Peace
[18] [2004] UKHL 47, [2005] 1 AC 593
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