The Annihilation of the Right to Privacy by the Court of Appeal

The Human Rights Act 1998 incorporated Articles 8 and 10 of the European Convention On Human Rights.

Article 8 - The 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 the law and is necessary in a democratic society in the interest of national security, public safety 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 freedom of others.

Article 10 - Freedom of expression:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authorities and regardless of frontiers….
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 and impartiality of the judiciary.

Section 12 of the Human Rights Act 1998
Freedom of Expression

1. This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
2. If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied:
   1. that the applicant has taken all practicable steps to notify the respondent; or
   2. that there are compelling reasons why the respondent should not be notified.
3. No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
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 (a) the extent to which (i) the material has, or is about to, become available to the public, or (ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code.

The Press Complaints Commission Code of Practice is a relevant code. Clause 3 is entitled Privacy. Clause 3(1) provides:

3(1) Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual's private life without consent.

3(II) The use of long lens photography to take pictures of people in private places without their consent is unacceptable. Note - Private places are public or private property where there is a reasonable expectation of privacy.

This is a clause which is marked as "subject to exception" where the exception can be demonstrated to be in the public interest. Under the heading of "The public interest" the Code provides:

1. the public interest includes:
   1. detecting or exposing crime or serious misdemeanour;
   2. protecting public health and safety;
   3. preventing the public from being misled by some statement or action of an individual or organisation.
2. In any case where the public interest is invoked, the Press Complaints Commission will require a full explanation by the editor demonstrating how the public interest was served.
3. There is a public interest in freedom of expression itself. The Commission will therefore have regard to the extent to which material has, or is about to, become available to the public.
4. In cases involving children editors must demonstrate an exceptional public interest to over-ride the normally paramount interests of the child.

Douglas -v- Hello [2001] 2 All ER 289

Lord Justice Sedley held at para 133 that the rights to privacy and freedom of expression were balanced. He said "In other words, you cannot have particular regard to art 10 without having equally particular regard at the very least to art 8".

Later, he added, at 135, "The European Court of Human Rights has always recognised the high importance of free media of communication in a democracy, but its jurisprudence does not - and could not consistently with the convention itself - give art 10(1) of the convention the presumptive priority which is given, for example, to the First Amendment in the jurisprudence of the United States' courts. Everything will ultimately depend on the proper balance between privacy and publicity in a situation facing the court."

In deciding whether s12 of the Human Rights Act tipped the balance in favour of freedom of expression Lord Justice Keene, in Douglas, said at para 150 that:

"The subsection does not seek to give a priority to one convention right over another. It is simply dealing with the interlocutory stage of proceedings and with how the court is to approach matters at that stage in advance of any ultimate balance being struck between rights which may be in potential conflict."

"That does not conflict with the convention, since it is merely requiring the court to apply its mind to how one right is to be balanced, on the merits against another right, without building in additional weight on one side."

Under s2 of the Human Rights Act, the court is required to take into account any relevant Strasbourg jurisprudence in determining a question that has arisen in connection with a convention right.

As Lord Justice Buxton observed in Wainwright -v- The Home Office [2001] EWCA Civ 2081:

"And I have no doubt that in being invited to recognise the existence of a tort of breach of privacy, we are indeed being invited to make the law, and not merely to apply it.

Diffidence in the face of such an invitation is not, in my view, an abdication of our responsibility, but rather a recognition that, in areas involving extremely contested and strongly conflicting social interests, the Judges are extremely ill-equipped to undertake the detailed investigations necessary before the proper shape of the law can be decided." (Para 94)

"The interests of democracy demand that such enquiry should be conducted in order to inform, and the appropriate conclusions should be drawn from the enquiry by, Parliament and not the courts."

In a well-known article published in 1996 EHRLR Lord Bingham said:

"If for whatever reason legislation is not forthcoming, I think it almost inevitable that cases will arise in the courts in which the need to give relief is obvious and pressing; when such cases do arise, I do not think the courts will be found wanting."

During the Parliamentary debate on the Human Rights Act Lord Irvine, the Lord Chancellor, said:

"I believe that the true view is that the courts will be able to adapt and develop the common law by relying on existing domestic principles in the laws of trespass, nuisance, copyright, confidence and the like to fashion a common law right to privacy."

In Peck -v- UK ECHR 28/1/2003 the UK Government underlined in argument that privacy was an area of the law which was heavily dependent upon policy considerations and consequently it was an area that had been and would continue to be developed by the courts.

Annihilation?

1. Deny it exists

In Wainwright -v- The Home Office Lord Justice Mummery held that "This claim fails, as there is no tort of privacy. Instead there are torts protecting a person's interest in the privacy of his body, his home and personal property. There is also available the equitable doctrine of breach of confidence for the protection of personal information, private communications and correspondence." Later he said "As to the future, I foresee serious definitional difficulties and conceptual problems in the judicial development of a "blockbuster" tort … a more promising and well trod path is that of incremental evolution, both at common law and by statute … 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."

Although Buxton LJ took the view that had the events occurred after the introduction of the Human Rights Act 1988 the Claimants would have a strong claim to relief under Section (1)(a) of the Human Rights Act by reason of a public authorities breach of Article 8 he went on to find that "that does not however engage a private law right in tort".

He also found that the court was precluded from finding that there was a tort of privacy at common law in the face of binding Court of Appeal of authority to the contrary such as Kaye -v- Robertson. In short he said "It is still the law of England that there is no tort of invasion of privacy."

2. Fudge it

A -v- B (a company) and another 2002 2 All ER 545 guideline 6

It is most unlikely that any purpose will be served by a judge seeking to decide whether there exists a new cause of action in tort which protects privacy. In a great majority of situations, if not all situations, where the protection of privacy is justified, relating to events after the Human Rights Act came into force, an action for breach of confidence now will, where this is appropriate, provide the necessary protection.

3. Ensure that High Court Judges don't develop a law of privacy by themselves

Guideline 6 continues:

"This means that at first instance it can be readily accepted that it is not necessary to tackle the vexed question of whether there is a separate cause of action based upon a new tort involving the infringement of privacy."

Guideline 7 of A -v- B & C:

"Furthermore in the majority of cases the question of whether there is an interest capable of being the subject of a claim for privacy should not be allowed to be the subject of detailed argument. There must be some interest of a private nature which the claimant wishes to protect, but usually the answer to the question whether there exists a private interest worthy of protection will be obvious. In those cases in which the answer is not obvious, an answer will often be unnecessary. This is because the weaker the claim for privacy the more likely that the claim for privacy will be outweighed by the claim based on freedom of expression …"

4. Fudge the question of a public interest defence

Guideline 8 from A -v- B (a company) and another:

"The same is true in cases in which the public interest in publication is relied on to oppose the grant of an injunction. We have already made clear that even when there is no public interest in a particular publication, interference with freedom of expression has to be justified. However, the existence of a public interest in publication strengthens the case for not granting an injunction. Again in a majority of situations whether the public interest is involved or not will be obvious. In the grey area cases the public interest, if it exists, is unlikely to be decisive. Judges should therefore be reluctant in the difficult borderline cases to become involved in detailed argument as to whether the public interest is involved. In the borderline case the application will usually be capable of being resolved without deciding whether there is a public interest in publication. In any event, the citation of authority is unlikely to be helpful. The circumstances in any particular case under consideration can vary so much that a judgment in one case is unlikely to be decisive in another case, though it may be illustrative of an approach."

5. A Court of Morals and a Country of role models

Guidelines 11 and 12 from A -v- B

11. More difficult is the situation where the alleged intrusion into privacy is as a result of the reporting of the information to a third party by a party to the relationship which creates the privacy. This is a material factor in situations where two people have shared a sexual relationship outside marriage. If one wishes to exercise his or her article 10 rights that must impact on the other's right to maintain confidentiality. For example the information may relate, as in this case, to a situation where there is a sexual relationship between two parties and one of the parties informs the media about the relationship without the consent of the other party. Here the conflict between one party's right to privacy and the other party's right of freedom of expression is especially acute. In situations where the parties are not married (when they are, special considerations may arise) the fact that the confidence was a shared confidence which only one of the parties wishes to preserve does not extinguish the other party's right to have the confidence respected, but it does undermine that right. While recognising the special status of a lawful marriage under our law, the courts, for present purposes, have to recognise and give appropriate weight to the extensive range of relationships which now exist. Obviously, the more stable the relationship the greater will be the significance which is attached to it.

12. Where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances. A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his or her actions will be more closely scrutinised by the media. Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media. Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can be rightfully expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you have less ground to object to the intrusion which follows. In many of these situations it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls. The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest. The same is true in relation to other parts of the media. On the difficult issue of finding the right balance, useful guidance of a general nature is provided by the Council of Europe Resolution 116 5 of 1998. We set out paragraphs 6, 7, 8, 9, 10, 11 and 12 which are in these terms:

"6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people's private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy.

7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.

8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people's privacy, claiming that their readers are entitled to know about public figures.

9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.

10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed by the European Convention on Human Rights: the right to respect for one's private life and the right to freedom of expression.

11. The Assembly reaffirms the importance of every person's right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value.

12. However the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media.

6. Some fancy footwork?

Lord Phillips MR in Campbell -v- MGN [2002] EWCA Civ 1373

40. We wish, however, to make some brief observations about this, because we believe that it has been misunderstood by some. When Lord Woolf spoke of the public having "an understandable and so legitimate interest in being told" information, even involving trivial facts, about a public figure, he was not speaking of private facts which a fair minded person would consider it offensive to disclose. That is clear from his subsequent commendation of the guidance in striking a balance between article 8 and article 10 rights provided by the Council of Europe resolution 11.65 of 1998.

41. For our part we would observe that the fact that an individual has achieved prominence on the public stage does not mean that his private life can be laid bare by the media. We do not see why it should necessarily be in the public interest than an individual who has been adopted as a role model, without seeking this distinction, should be demonstrated to have feet of clay.

7. Equating bedroom secrets with public interest and the right to freedom of expression

Guideline 4 of A -v- B

4. The fact that if the injunction is granted it will interfere with the freedom of expression of others and in particular the freedom of the press is a matter of public importance. This well established common law principle is underlined by section 12(4). Any interference with the press has to be justified because it inevitably has some effect on the ability of the press to perform its role in society. This is the position irrespective of whether a particular publication is desirable in the public interest. The existence of a free press is in itself desirable and so any interference with it has to be justified. Here we would endorse the approach of Hoffman LJ in R -v- Central Independent Television Plc (1994) Fam 192 at p.201-204 where he said:

"publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which 'right thinking people' regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute … the principle that the press is free from both government and judicial control is more important than the particular case."

But Lord Justice Hoffman's much quoted remark in that case "freedom of speech is a trump card which always wins" was qualified by the proposition of matters lying "outside the established exceptions or any new ones which Parliament may enact in accordance with its obligations under the Convention."

5. The fact that under section 12(4) the court is required to have particular regard to whether it would be in the public interest for the material to be published does not mean that the court is justified in interfering with the freedom of the press because there is no identifiable special public interest in any particular material being published. Such an approach would turn section 12(4) upside down. Regardless of the quality of the material which is intended to publish prima facie the court should not interfere with its publication. Any interference with publication must be justified.

In Redmond-Bate -v- BPP 1999 7 BHRC 375 the Divisional Court quashed the conviction of a Christian fundamentalist street preacher who was arrested for breach of the peace when passers-by gathered in a group to heckle. Lord Justice Sedley observed "free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having."

Mr Justice Mackay in A -v- B 2 March 2001 said:

"Any woman retains autonomy over her body. She is entitled to stipulate the uses to which pictures of it can be put. If that stipulated limit, which I find she probably did impose in this case, is not honoured, then those who later acquire those images, as I understand the law, cannot continue to use what they have acquired from the copyright owner and vendor once they are on notice that this sale was in breach of confidence and/or the result of an invasion of her lawful right to privacy."

He also added:

"Secondly, I have to look to the extent to which it is or would be in the public interest for the material to be published. No-one has taken up any of my time arguing that point. Some members of the public will be interested in looking at these pictures. That does not mean that there is any scrap of public interest in their publication."

Chappell -v- TCN Channel Nine The claimant was a well known cricketer who sought an interlocutory injunction to restrain the broadcasting of imputations concerning misconduct in his private life. Granting the injunction, Mr Justice Hunt rejected the submission that the private life of a public figure is always the subject of legitimate public interest. He held that the private conduct of a public figure was in the public interest only if either the public figure makes his private activity a matter of public interest himself, for example, if he publicly pretends to adhere to high standards of morality in his private life but privately does otherwise, or when the private activity has some bearing upon his capacity to perform his public activities.

In P.G. and J.H. -v- The United Kingdom ECHR 25/9/2001 the court held:

"Private life is a broad term not susceptible to exhaustive definition. The court has already held that elements such as a gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by article 8. Article 8 also protects a right to identity and personal developments and the right to establish and develop relationships with other human beings and the outside world." And as Sir David Eady observed in his speech given at Gray's Inn on 12 December 2002:-

"There is no longer, if there ever was, a generally agreed code of sexual morality. Marriage no longer appears to have the particular status it used to be accorded. We are not courts of morals. Nowadays many people particularly young people, lead lives which in the old days would have been called "promiscuous". Now it is simply known as "sexually active" or "fun-loving" lifestyle. If a sportsman or model does not presume to preach to the general public, why should he or she have imposed upon them by anyone, let alone judges or tabloid journalists, the standards which used to be applied from behind the twitching curtains of suburbia half a century ago - on pain of prurient exposure?"

A Public figure defence was discussed in the Court of Appeal in Reynolds -v- Times Newspapers where the court said:

"(Such a defence) would mean, in effect, that newspapers could publish more or less what they liked, provided they were honest, if their subject happened to be within the definition of a "public figure". We think this would lead to great injustice. Furthermore it would be quite contrary to the tradition of our common law that citizens are not divided into different classes. What matters is the subject-matter of the publication and how it is treated, rather than who happens to be the subject of the allegations."

8. A complete failure to understand the nature of personal information?

Guideline 13 from A -v- B:

"In drawing up a balance sheet between the respective interests of the parties courts should not act as censors or arbiters of taste. This is the task of others. If there is not a sufficient case for restraining publication the fact that a more lurid approach will be adopted by the publication than the court would regard as acceptable is not relevant. Whether the publication would be attractive or unattractive should not affect the result of an application if the information is otherwise not the proper subject of restraint.

The Law of Privacy and the Media at paragraph 10.62:

"The closest the Strasbourg jurisprudence comes to this approach is in acknowledging that the right to freedom of expression is "applicable not only to information and ideas that are favourably received or regarded as inoffensive but also those that offend, shock or disturb the state or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no democratic society." However, this has usually been relied on in cases of artistic expression or hard-hitting news stories. There is no Strasbourg authority which supports the proposition that there is a public interest in "gossip of a trivial nature" for information which the public have an "understandable" (in the sense of prurient curiosity) interest in receiving. Despite the importance which the European institutions attach to the right to freedom of expression they always consider the content of the publication concerned and what its "informational value" consists of. Hence the decreasing importance attached to speech depending on whether it is characterised as political, artistic or commercial. Where the content amounts to a gross invasion of privacy the European Commission has had no difficulty in considering severe penalties (including imprisonment) for the publisher concerned to be a proportionate interference with his right to freedom of expression. Such publications are considered to have little or no informational value worth protecting."

9. Another mountain to climb

You can sue someone for libel if what they say about you is defamatory. But apparently, as far as privacy is concerned, it is not sufficient to establish that your privacy has been invaded, you will also have to establish that "disclosure or observation of information or conduct would be (highly) offensive to a reasonable person with ordinary sensibilities." Campbell -v- MGN (The court doubted whether the distinction between what is offensive and what is highly offensive was very meaningful in practice).

The Court of Appeal in Campbell also found "We consider that the media can fairly be expected to identify confidential information about an individual's private life which, absent good reason, it will be offensive to publish."

10. No privacy in a public place

Campbell, paragraph 56 "In summary, it is not obvious to us that the peripheral disclosure of Ms Campbell's attendance at Narcotics Anonymous was, in its context, of sufficient significance to shock the conscience and justify the intervention of the court. On the contrary, we have concluded that it was not."

In PG and JH -v- UK the European Court held at paragraph 57:

"There are a number of elements relevant to a consideration of whether a person's private life is concerned in measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant though not necessarily conclusive factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means at the same public scene (eg a security guard viewing through closed circuit television) is of a similar character. Private life considerations may arise however once any systematic or permanent record comes into existence of such material from the public domain."

Paragraph 58

In the case of photographs, the Commission previously had regard, for the purpose of delimiting the scope of protection afforded by article 8 against arbitrary interference by public authorities, to whether the taking of the photographs amounted to an intrusion into the individual's privacy, whether the photographs related to private matters or public incidents and whether the material obtained was envisaged for a limited use or was likely to be made available to the general public."

Lord Woolf accepted this in R -v- Loveridge (2001) EWCA Crim 973 where he said:

"… in any event, secret filming in a place to which the public has free access can amount to an infringement even where there is no private element to the events filmed. Secret filming is considered objectionable, because it is not open to those who are the subject of the filming to take any action to prevent it R -v- Broadcasting Standards Commission ex parte BBC (Liberty intervening) 2003 All ER 989.

See now Peck -v- UK.

11. Errors of detail and confidence

In Campbell -v- MGN it became clear that there were some errors of detail in the article. The Trial Judge, Mr Justice Morland, referred to these inaccuracies as "errors of detail" and described as absurd the newspaper's suggestion that this robbed the information of confidentiality. However, the Court of Appeal said

"It seems to us that the inaccuracies related to a substantial proportion of the peripheral information that was given about Ms Campbell's attendance at Narcotics Anonymous meetings. They had, however, insignificant impact on the story as a whole because the details faded into insignificance compared to the central fact that Ms Campbell was receiving treatment for drug addiction."

"In summary, we differ from the Judge in that we have concluded that the publication of information of which Ms Campbell complains was not, in its context, sufficiently significant to amount to a breach of duty of confidence owed to her."

12. The Form of reporting

In A -v- B Lord Woolf said at paragraph 48:

"Once it is accepted that the freedom of the press should prevail, then the form of reporting in the press is not a matter for the courts but for the Press Complaints Commission and the customers of the newspaper concerned."

Peck -v- The United Kingdom.

In this case, back in 1995, Mr Peck was suffering from depression. He walked down Brentwood High Street with a kitchen knife in his hand and he attempted suicide by cutting his wrists. He stopped at a junction and leaned over a railing facing the traffic with a knife in his hand. A CCTV camera filmed his movements but the disclosed footage did not show him cutting his wrists.

The local council released still photographs from this footage without specifically masking Mr Peck's face. The local weekly newspaper used a still photograph of the incident as did another newspaper, Anglia Television broadcast the footage in its news programme about the CCTV system. It masked Mr Peck's face but the ITC found that Mr Peck was nevertheless easily recognisable to anyone who knew him from the footage.

In upholding Mr Peck's complaint, the European Court noted that the PCC had no legal powers to prevent publication of material, to enforce its rulings or to grant any legal remedies to him. It rejected the argument that because the incident took place in public, publication in permanent form of the photographs and footage did not amount to a breach of privacy. It noted that although Mr Peck was in a public street he was not there for the purposes of participating in any public event and he was not a public figure. It decided that disclosure by the council of the relevant footage constituted a serious interference with Mr Peck's right to respect for his private life.

The Right to Lie

It was said in Campbell that publication of the photograph and of the fact that Ms Campbell was attending Narcotics Anonymous was justified to correct the public misstatement of fact made by her that she was not taking drugs.

The Court of Appeal also found at paragraph 48:

"We do not consider that the information that Ms Campbell was receiving therapy from Narcotics Anonymous was to be equated with disclosure of clinical details of medical treatment."

In P -v- D 2002 NZLR 591 2 February 2000 a newspaper journalist informed the claimant that he was preparing a newspaper article about the claimant and had information that the claimant had been treated at a psychiatric hospital. The claimant, although he remains anonymous, was, apparently, a public figure.

The court held that a claim in confidence failed. It decided:

1. A successful claim for breach of confidence (apart from contract) required:

1. information with the necessary quality of confidence;
2. imparted in circumstances importing an obligation of confidence; and
3. unauthorised use to the detriment of the party communicating it.

The information as to P had the necessary quality of confidence but was not shown to be imparted in circumstances importing an obligation of confidence because it could have been received from a person not under an obligation of confidence eg a member of the public. Accordingly there was no breach of confidence.

2. The tort of breach of privacy (however) was established by public disclosure of private facts which were highly offensive and objectionable to a reasonable person of ordinary sensibilities but subject to the nature and extent of legitimate public interest in disclosure of the information. Such factors balance the right to freedom of expression and the right to privacy. Publication of information that a person had been treated in a psychiatric hospital committed the tort of breach of privacy because:

1. the information was a private fact;
2. the intended publication was public disclosure;
3. disclosure would be highly offensive and objectionable to a person of ordinary sensibilities in P's position and
4. there was minimal public interest in disclosure because P's mental health did not affect P's occupation, character, credibility or competence.

The court quoted with approval a judgment in Tucker -v- News Media Ownership Limited which said:

"The gist of the action, unlike defamation, is not injury to character or reputation, but to one's feelings and peace of mind. The gravaman of the action is unwarranted publication of intimate details of the plaintiff's private life which are outside the realm of legitimate public concern, or curiosity. It follows in such circumstances as a matter of logic, that if a person's right of privacy has been, or is to be violated, it is no defence that what was, or is to be published, is correct or published without malice". Quoting from P's affidavit:

"I will be devastated if the Sunday Star-Times or any other publication were allowed to print material such as that referred to in the defendant's letter. Were such information or rumour … published I believe my family would be caused serious stress and harm … such is the value I put upon my privacy and my family that I would be prepared to cease my occupation if I felt that my continued occupation would expose the most private and sensitive parts of my life to media exposure. I also believe that publication would have a serious effect on my own confidence and my ability to free myself from rumour, speculation and innuendo.

Lord Justice Sedley explained in London Regional Transport -v- The Mayor of London "(the answer) lies in the methodical concept of proportionality. Proportionality is not a word found in the text of the convention: this is the tool - the metwand - which the court has adopted (from 19th century German jurisprudence) for deciding a variety of convention issues including, for the purposes of the qualifications to articles 8 to 11 what is and is not necessary in a democratic society. It replaces an elastic concept with which political scientists are more at home than lawyers with the structure enquiry. Does the measure meet a recognised and pressing social need? Does it negate the primary right or restrict it more than is necessary? Are the reasons given for it logical? The contribution that the Jurisprudence of the European Court of Human Rights can make towards an answer is, in my view real.

Post Script: We are pleased to record that the House of Lords in Naomi Campbell v. Mirror Group Newspapers has overturned the decision of the Court of Appeal and that the many defects of the decision of the Court of appeal have now been remedied.

Nigel Tait
Partner