Privacy2002aUKcasereview

30 December 2002

Grietje Baars

‘Ruled by Recluses’ is the name of the report out on 22 November and produced by the Institute of Public Policy Research (ed. Damian Tambini and Claire Heyward, 2002). It says ‘Britain could end up with the worst of both worlds: Courts interpreting the Human Rights Act in a way that only benefits the rich and famous and journalists’ freedom being curbed unnecessarily.’ Whilst the courts now more readily accept the existence of a right to privacy under Article 8 of the European Convention of Human Rights (the “Convention”) and the Human Rights Act 1998, more time is spent debating potential justification for interference with this right, including what exactly is in the public interest. Unlike what seems to be suggested by the IPPR report, recent caselaw (Theakston, Flitcroft, Campbell) suggests courts now have less sympathy for misbehaving celebrities, though Douglas & Zeta Jones, politicians (‘s wives) and a host of sunbathers in various stages of undress (Sarah Cox, Amanda Holden, etc) may find more protection. At the same time in cases concerning national security, and the prevention and detection of crime, justification for interference is now more easily found.

Commentators, like the IPR and others, lament the lack of clear guidelines on privacy law, and argue uncertainty makes it difficult for the press to ‘do their job’. Gerald Kaufman MP, Chair of the Culture, Media & Sport Select Committee, blames the Human Rights legislation for ‘creating a piecemeal and ad hoc privacy law’ (quoted by Tessa Mayes, The Guardian, 9 December 2002). I have selected two quite different cases significant in this development, and one that shows how the Convention’s privacy right and the need for justification of interference, challenges other parts of UK law.

Privacy and the Media

The IPPR report mentioned above urges ministers to introduce a privacy law to protect the public from press intrusion and to uphold the media’s right to investigate legitimate stories. But, whilst most people join in a call on journalists to ‘reaffirm their commitment to providing quality news of genuine importance’ (IPPR Report, as above, IPPR press release, 22 November 2002), one person’s risqué exposé can be several persons’ bread on the table. Editors, the self-regulatory bodies, the judicature, and perhaps in the future Parliament as well, must decide when the public interest of disclosure (ie the press’ freedom of expression, and the public’s right to uncensored news reporting) overrides an individual’s right to privacy.

How does the ‘shock’ and ‘hurt’ of a celebrity weigh up against, on the one hand, their (moral) duty to act responsibly in line with their position or role in public life (Jamie Theakston, Cherie Blair, Garry Flitcroft), and on the other, the press’ duty to ‘expose’ the world for what it is? It is unsurprising that the media’s argument is firmly against any state or judicial interference in the important democratic tool of free press, and they are helped in their argument by the hordes of celebrities and members of the general public eager to ‘bare all’ in reality TV shows.

Whilst celebrities like Catherine Zeta Jones and the Spice Girls fight to be given the opportunity to exploit their carefully cultivated ‘personality rights’ commercially by entering into lucrative exclusive licensing agreements, their popularity depends to some extent on their followers being fed a regular stream of ‘At home in Beckenham Palace: full colour pictures’, ‘What Brooklyn has for breakfast: Inside Exclusive’, etc. The court found Naomi Campbell’s habitual ‘courting’ of the press a factor impeding journalists’ ability to assess what she would or would not regard as intrusive.

Lord Woolf in A v B (see below) seemed to suggest that even healthy newspaper sales can serve the public interest, and it is arguably in both the press’, the celebrities’ and the readers’ interest to keep the underlying fight between freedom of expression and a right to privacy, a lengthy, feisty play fight.

A v B & Anor sub nom Garry Flitcroft v MGN CA [2002] All ER (D) 142 (Mar)

Lord Woolf CJ, Laws and Dyson LJJ

The Court of Appeal reviewed with whether or not the footballer should have been granted an injunction preventing The People from publishing ‘kiss and tell’ stories by two women with whom Garry Flitcroft had had extramarital affairs.

The Court of Appeal led by Lord Woolf, allowed the appeal finding that:

  1. any claim for an injunction against a breach of privacy has to be weighed against the defendant’s right to freedom of expression, the importance of which has been enhanced by s. 12 of the Human Rights Act 1998;
  2. any interference with the press had to be justified, irrespective of whether a particular publication was desirable in the public interest;
  3. in most ‘privacy’ cases the law of confidence should suffice without tort of invasion of privacy,
  4. the existence of a relationship of confidentiality is a question of fact not law;
  5. the situation where the alleged intrusion into privacy was a result of the reporting by a party to the relationship which created the confidentiality was a material factor;
  6. a public figure was entitled to have his privacy respected in appropriate circumstances, but in balancing the respective factors the court should not act as censors or arbiters of taste;
  7. if the balance between privacy and freedom of expression does not point clearly in one direction, interim relief should be refused.

In view of the debate on whether self-regulation of the media ‘works’ it is interesting to note that Lord Woolf said ‘advocates should be discouraged from seeking to rely on individual decisions of the Press Complaints Committee’, but that they should ‘balance the facts’ of each case taking into account the Press Complaints Code of Practice and the useful guidance provided by the Council of Europe Resolution 1165 of 1998.

The more controversial part of Lord Woolf’s judgment is found in his comments on the decision in first instance: ‘That approach ignored the importance to be attached to the free press. … Footballers were role models for young people and undesirable behaviour on their part could set an unfortunate example. Whilst it was right that the claimant had not courted publicity, the fact was that someone in his position was inevitably a figure in whom a section of the public and the media would be interested.’ (All ER, as above)

Lord Phillips, Master of the Rolls, in Naomi Campbell V Mirror Group Newspapers Ltd ([2002] EWCA Civ 1373), qualified this: ‘We do not see why it should necessarily be in the public interest that an individual who has been adopted as a role model, without seeking this distinction, should be demonstrated to have feet of clay. However, where a public figure chose to make untrue pronouncements about his or her private life, the press would normally be entitled to put the record straight, including peripheral details which gave the story credibility.’

G Flitcroft’s application for leave to appeal to the House of Lords has been rejected.

Privacy, the individual and the state

On the other side of the sliding scale of celebrity, whilst Joe Public contentedly leafs through another star-studded copy of the Daily Heat, his own privacy rights are rumoured to be eroded for the purposes of prevention and detection of crime and terrorism and public order and security generally. ‘Britain has one of the worst records in the developed world for protecting the privacy of its citizens’, exclaims the survey of privacy conditions in 50 countries, carried out by Privacy International and the US-based Electronic Privacy Information Center (www.privacyinternational.org/survey/phr2002/ ). The UK is said to display a ‘pathology of antagonism toward privacy’. ‘(T)here is, at some levels, a strong public recognition and defence of privacy… On the other hand, crime and public order laws passed in recent years have placed substantial limitations on numerous rights, including freedom of assembly, privacy, freedom of movement, the right of silence, and freedom of speech.’

Whilst many law abiding citizens with ‘nothing to hide’ welcome measures such as the introduction of surveillance cameras in many public places, others are uncomfortable with the scrutiny resulting from their details, and even genetic information being available to ‘who knows whom’, for ‘who knows what use’..

The case of Marper and “S” (see below) has repercussions for the debate on identity cards and personal information databases (Peter Thornton QC, Doughty St Chambers, All England Legal Opinion, Issue 23, November 2002). It tests the Criminal Justice and Police Act 2001, which gives the police a discretion, for example, to retain, to aid the investigation of crime, DNA samples that would previously, under the Police and Criminal Evidence Act 1984, have had to be destroyed.

On the new police powers under the CJPA, and the possible creation of a national DNA databank, Helena Kennedy QC, chair of the human genetics commission, has commented: ‘Being on a database of potential offenders which might be regularly trawled by the police means that one is on a list of suspects and that surely very subtly alters the way in which the state sees, and we see, our fellow citizens.’ (Steven Morris, The Guardian, March 23 2002) In France and Canada, amongst others, the retention of samples of those acquitted of a crime is outlawed, and samples from juveniles are destroyed once they reach adulthood.

R (on the application of Marper and another) v Chief Constable of South Yorkshire [2002] EWCA Civ 1275

Lord Woolf CJ, Waller and Sedley LJJ

Mr Marper and “S”, a twelve-year-old boy, had, separately, been arrested and charged and had their fingerprints and DNA samples taken. Neither was convicted, and also, neither had a criminal record. Both received letters from the police informing them that pursuant to s. 64 of PACE, as amended by s. 82 of the Criminal Justice and Police Act 2001, their DNA samples would be retained.

The Divisional Court ([2002] All ER (D) 367 (Mar)), with deference to the clear intentions of Parliament, rejected both applications for judicial review of this decision.

Both parties appealed, arguing, inter alia, that (i) the retention of samples and fingerprints constituted an interference with an individual’s personal life (this much was agreed) that was not in accordance with the law, as required by art 8 (2), as there were no identifiable criteria for invoking it and it was not proportionate to the legitimate aim of preventing crime; and (ii) persons who had been investigated for a crime but were no longer subject to proceedings were being discriminated against, contrary to art 14, when their position was compared with that of members of the public who had not been investigated.

Whilst recognising their was strong public sentiment against state practices reminiscent of George Orwell’s “1984”, the Court of Appeal dismissed the appeal, holding:

  1. the interference with an individual’s right under s. 8 (1) caused by the retention of fingerprints and DNA samples is not substantial and can be justified under art. 8.
  2. the adverse effect on the individuals was not out of proportion to the benefit of the public
  3. (Sedley J dissenting) Despite the presumption of innocence, there was a distinction between those who had once been the subject of an investigation and those who had not. This distinction justifies the different treatment.

(Sedley J left the door open for further appeal, quoting fears expressed by Liberty in its intervening submission, on the broad wording of the statute (‘purposes related to the prevention or detection of crime’) and the other information, e.g. with regard to propensity, that it may be possible to gain from DNA in the future.)

Mr Marper has applied for leave to appeal to the House of Lords.

Privacy and discrimination

The case of Mendoza (see below) shows how the accepted fact of an interference with the Convention’s Art. 8 right to respect for private and family life can be used to challenge the legality of discriminatory interference.

This Court of Appeal ruling has been hailed both as an historic judgement for gay rights, with implications for other areas of law, and significant as one of the first cases where the court has used its powers under the Human Rights Act to overturn a House of Lords ruling and reword an act of parliament to make it comply with the European Convention on Human Rights.

Antonio Mendoza v Ahmad Raja Ghaidan [2002] EWCA Civ 1533

Kennedy LJ, Buxton LJ, Keene LJ.

The deceased tenant of a Kensington residence and his partner Antonio Mendoza had lived together since 1972. When the tenant died, the landlord, Ahmad Raja Ghaidan, wanted to end the statutory tenancy, which is subject to rent restrictions.

Mr Mendoza appealed to the West London county court ruling that he, as a family member, was entitled to an assured commercial tenancy at the market rate. But he could not take over the statutory tenancy because the Rent Act barred same sex partners from passing it on.

The Court of Appeal held:

  1. Once the state chose to intervene in a factual area characteristic of those protected by Art. 8 of the Convention, Art 14 of the Convention was engaged if there was relevant discrimination in the mode of intervention.
  2. Deference to Parliament does not assist here, for example, because once discrimination had been established, it was for the discriminator to demonstrate an objective and reasonable justification for the discrimination, which required more than simply relying on Parliamentary discretion
  3. There was no authority for the proposition that discrimination on the grounds of sexual orientation was justified under Art 14 of the Convention
  4. Schedule 1 para 2 of the Rent Act 1977 as construed by the House of Lords in Fitzpatrick [Martin Fitzpatrick (Appellant) v Sterling Housing Association Ltd (Respondent) (1999) HL LTL 28/10/99] violated art. 14. The words “as his or her wife or husband” (intended by Parliament to include co-habitees as well as married couples) had to be read to mean “as if they were his or her wife or husband”.

Mr Ghaidan has petitioned for leave to appeal to the House of Lords.

Looking forward

Recent developments that may have a significant impact on next year’s privacy cases, include the Master of the Rolls Justice Phillips in November calling for continental-style privacy laws that prohibit taking a photograph of a person without their consent (BBC Newsnight, 26 November 2002) and others for a new ‘tort of privacy’ (Hugh Tomlinson QC, Matrix Chambers, editor of Privacy & The Media, The Developing Law, 2002). On 19 December it was announced (perhaps, say some, as a reaction to the media’s treatment of ‘Cheriegate’) that the Parliamentary Committee for Culture, Media and Sport is launching a major enquiry into the media’s intrusion into people’s private lives (Culture, Media & Sport Committee Session 2002/03, press release, 19 December 2002). The committee will also debate the effectiveness of the press complaints commission and the desirability of a replacement body ‘with teeth’ and the introduction of specific privacy laws. It will in fact concentrate on the privacy protection of ordinary members of the public, rather than that of celebrities. This, coupled with Naomi Campbell’s appeal to the House of Lords, Douglas & Zeta Jones’ appeal in January, as well as potential appeals of the decisions above, will guarantee an eventful 2003.