UK: Privacy Law: Acquiring ´Real Taste, Real Body´

2002 has seen the Daily Mirror proclaimed Newspaper of the Year. The paper has also been in the vanguard of the development of privacy with it defending the notable cases of Flitcroft¹, Campbell² and Theakston³. Angus Deayton's name could also be added to the list. While privacy was in its infancy at the beginning of 2001 following Douglas -v- Hello!⁴ and Venables -v- News Group Newspapers Limited⁵, this year's crop of privacy cases and, in particular, Flitcroft, has seen the law surrounding privacy settling down: adopting the Theakston beer slogan, it's acquiring 'real taste, real body'.

The Lord Chief Justice in Flitcroft set out his guidelines for judges to follow (as summarised later). These helpfully pull together the strands that have emerged since Douglas. Editors and their advisers will be well advised to remind themselves of the guidelines when considering a story to which they apply or when threatened with an injunction.

A number of important points emerge from the guidelines, as well as there being one notable omission.

Despite the vociferous calls for a free-standing law of privacy, it is now well established that, generally, any claim for privacy will need to be brought within the law of confidence. That puts to one side the scope for other claims, more of which below. Flitcroft follows the majority of the Court of Appeal in Douglas (Sedley LJ being the exception) and the President, in Venables. However, what the Court of Appeal has emphasised is that there is no requirement for there to be a relationship of confidentiality in order that a person's privacy be protected. Sedley LJ in Douglas described the need for such a relationship as "artificial". As long as a person knows, or should have known, that the other person has a reasonable expectation of privacy, the Courts will take the view that a duty of confidence arises. The Naomi Campbell case provides a good example in that her attendance at the Narcotics Anonymous sessions could, in the first instance, have only been known by others attending the courses or those working for NA. Such individuals knew, or should have known, that Campbell had a reasonable expectation of privacy when attending the sessions. Perhaps beginning with Douglas, but undoubtedly culminating in Flitcroft, the Court of Appeal has extended the boundaries of protection afforded under the law of confidence: out goes the need for information to be confidential in nature and in comes a reasonable expectation of privacy that private information will be protected. Also out goes the need for there to be an obligation of confidence and in comes the objective test of whether someone knew or should have known.

Part of the rationale of issuing guidelines in Flitcroft was a recognition that each case would end up being decided on its own facts. What amounts to private information is a good example of why guidance is more appropriate than a rule. In most cases, whether there exists a private interest worthy of protection will be obvious. An act will not be deemed to be private simply because it is not done in public (see Theakston). The Lord Chief Justice adopted the reasoning of an Australian judge when he quoted:

"There is no bright line which can be drawn between what is private and what is not … The requirements that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private."⁶

Treatment for drug addiction (Campbell), medical history and condition (Deayton), private wedding photographs (Douglas) and topless photographs of an actress in a hotel garden (Holden) are examples information which can be said to be private. In contrast, having sex with a prostitute and the details of the sex acts (Theakston) were found not to be private. Flitcroft's extra-marital affairs were described as being "at the outer limits of relationships which require protection of the law".

In the past, there has been some confusion as to whether the Court is required to decide between two conflicting principles (the right to privacy and freedom of expression) and whether there is a need for the media to show some public interest reason why publication should be allowed. Flitcroft and Theakston clarify, if any clarification was needed, that the burden is on the claimant to show why the right to freedom of expression should be interfered with and that there is no need for the media to show a public interest in publication.

In Theakston, the judge (Ouseley J) said:

"… it requires a strong case to restrain the media from publication of information and although the right to confidence and, indeed, the right to privacy are recognised exceptions within Article 10(2), the onus of proving that freedom of expression must be restricted, is firmly upon the claimant who seeks such a restriction".

The Lord Chief Justice regarded the relevance of public interest - or lack of it - in a story's publication to be of little help in most cases. Borderline cases were likely to be resolved without recourse to consider the public interest in publication. Of course, where there is a public interest, the media's hand is strengthened. On the facts in Flitcroft, the Lord Chief Justice found that, although Flitcroft had not courted publicity, the fact was that someone of his position was a role model and inevitably a person in whom a section of the public and media would be interested. This perhaps blurs the edges of what is in the public interest and what is interesting to the public. The edges are further obscured by the Lord Chief Justice's comment that:

"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".

This approach, which appears a little confused, should be seen in the context of the Lord Chief Justice's adoption of Sedley LJ's view that to flout Clause 3 of the Press Complaints Commission's Code would be to almost certainly ensure that the media compromised its right to publish (see the Flitcroft Guidelines).

A difficult area exists where one party to the confidential information wishes to exercise their right to freedom of expression and the other wishes to maintain his/her privacy. Of course, the obvious area is that of sexual relations.

It is clear from Flitcroft and Theakston that regard must be had to the nature of the relationship. The more permanent, the more inclined the Court will be towards granting an injunction. In Flitcroft, the Lord Chief Justice recognised the gap between the footballer's permanent relationship with his wife and his transient relationship with his girlfriends, C and D. Visits to a brothel are at the other end of the spectrum to marital relationships.

The desire of the prostitute in the Theakston case to tell her story strengthens the arguments for publication, but it was not determinative. The fact she was allowed to tell her story - warts and all - but prevented from publishing the photographs taken to blackmail Jamie Theakston demonstrates as much.

The prohibition on publication of photographs in Theakston also highlights that the Court is willing to draw boundaries on what can be published. While content to allow the prostitute to tell her story, the Court would prevent the "peculiarly humiliating and damaging" photographs being published in circumstances where Theakston had not given his consent to the photographs, where the photographs had been taken in a private place and where there was an element of blackmail.

The approach is consistent with decisions of the PCC where it has upheld complaints (notably Pirie -v- News of the World) where the level of detail descended to in a 'kiss and tell' article went beyond the general. In Jacqueline Pirie's case, she had put into the public domain information concerning who she was seeing but not detailed sexual information. Consideration as to the extent of the information to be included in any piece will be something for editorial consideration.

A notable omission from the Flitcroft Guidelines concerns Section 12(2) of the Human Rights Act 1998 which states that when a party applies for an injunction against the media, no relief will be granted unless the Court is satisfied that:

1. the applicant has taken all practical steps to notify the respondent; or
2. there are compelling reasons why the respondent should not be notified.

While there are numerous examples of applications being made with notice to the media, there are also examples where it would appear only lip service is being paid to the provisions of s 12(2). In the recent case of the black IVF twins born to a white couple, following publication of the story, an injunction was obtained without notice. There may have been compelling reasons but, in relation to a story of such obvious public interest, it is an example where the Court should be very slow to make an order without requesting the media to attend or requiring the claimant to notify the media and give it an opportunity to appear if it so wishes.

This point is underlined where 'without notice' applications are made where it is the intention of the claimant and obvious to the Court that the injunction will not only be served on the named defendant but other media organisations as well. If the right to freedom of expression is to be curtailed in this way - and remembering that the onus is on the claimant to justify the interference - then should the Courts ensure it is the ordinary rule that the media must be given the opportunity to attend? Not only does s 12(2) support this approach but the obligations on an applicant and his advisers to be 'full and frank' with the Court underlines the obligation.

At a recent application on behalf of a well-known television celebrity for an order against The Mail on Sunday, an order was made preventing publication of certain information. The application was made without notice. The interference with the right to freedom of expression was compounded by the order preventing the Defendants having sight of the evidence and submissions in support of the application unless they applied to the Court for permission. Not only was the order served on The Mail on Sunday, other newspapers were also served and equally restrained. Of course, the evidence should not be disclosed to allow publication - the order would prevent that in part - but the media should be entitled to see the evidence and submissions for the sole purpose of considering whether to apply to lift the injunction. This is an issue with which the Court has not as yet fully grappled. It is hoped it will. It must only be in exceptional circumstances that an application preventing publication should be made without the media being notified. Even then, the evidence and submissions should be made available for the media to consider its legal response.

As yet, there is no body of cases in which damages have been awarded so as to provide suitable guidance. In Campbell, the judge awarded £3,500 for breach of confidence and infringement of the Data Protection Act 1998, to include £1,000 for aggravation. However, the judge also found Campbell to have lied and this may have had a downward effect on damages. In Holden, The Express settled, paying £20,000 to Amanda Holden and the same to her husband, Les Dennis. The Holden case will undoubtedly be cited by claimants' solicitors in support of claims for damages. It certainly sets a reasonable tariff, particularly when it is borne in mind that posed glamour photographs of Miss Holden are readily available on the web. It is hoped that the trend set by Campbell rather than Holden will hold sway. Either way, damages will be greatly outweighed by costs.

For as much as attention focuses on privacy and high profile celebrity claims, it is necessary for the media - and indeed claimants - to keep a weather eye on the growing number of other potential avenues. Data Protection highlighted in Campbell - and in respect of which the Court of Appeal's judgment is expected shortly - is an obvious possible cause of action. However, copyright, contract, Protection from Harassment Act 1997, Regulation of Investigatory Powers Act 2000 and various regulatory Codes are all potential claims under the general umbrella of privacy. Insurers will need to ensure their policies properly reflect the breadth of possible claims, as will the insured. Meanwhile, inventive advisers for claimants will be the ones who best serve their clients.

- It must be recognised that privacy generally arises on interim applications for an injunction where there is a need to establish that after a full trial, it is likely that an injunction would be granted.

- The fact that an injunction may provide a claimant with the only remedy of any value must be weighed against a defendant's rights of freedom of expression.

- Consideration must be given to s 12 of the Human Rights Act 1998.

- As for the 'likely' test, likelihood of success at full trial might be slightly higher than the 'real prospects of success' test in American Cyanamid, but the difference is so small that in most cases it will be irrelevant.

- It is for the claimant to justify why there should be an interference with the right of freedom of expression. It is not for the defendant to show a public interest reason to justify publication.

- No purpose served in judges searching for a new cause of action. In most, if not all cases where privacy is to be protected, an action for breach of confidence will be appropriate.

- There must be some interest of a private nature worthy of protection. Limited time should be spent considering if the information is private. In some cases, it will be obvious. In others, it will be less so, in which case the claim for privacy will be weakened in comparison to the right to freedom of expression.

- Where there is public interest in publication, this strengthens the case for not granting an injunction. Judges should be 'reluctant' to entertain detailed argument on public interest points in borderline cases.

- The existence of - or lack of - a confidential relationship should not give rise to a problem. "A duty of confidence will arise whenever the party subject to the duty is in a situation where he either knows or ought to know that the other person can reasonably expect his privacy to be protected."

- Where there is intrusion in a situation where a claimant can reasonably expect his privacy to be respected then that intrusion will give rise to a claim for breach of confidence unless the intrusion can be justified. The use of unlawful means is a factor to be considered by the judge in exercising his discretion.

- In circumstances where the confidential information is shared between two parties, the fact that one party wishes to exercise his right to freedom of expression does not extinguish the other party's privacy but it does undermine it.

- Public figures are entitled to a private life. That right is circumscribed by such things as their position, being a role model and courting publicity.

- The Court is not a censor on taste. Whether the publication will be attractive or otherwise is immaterial to the application for an injunction.

- S 12(4) requires account to be taken of any relevant privacy code. "A newspaper which flouts clause 3 of the [PCC] Code is likely … to have its claim to … freedom of expression trumped by … [the claim for] privacy" (Brooke LJ, Douglas -v- Hello! @ #94)

- Advocates should be discouraged from relying on individual decisions of the PCC.