UK: The Right To Privacy: A Right Without A Remedy

Last Updated: 9 October 2009
Article by Claire Cartwright-Hignett

The identities of Baby P's killers have recently been disclosed officially. The court order prohibiting such disclosure was lifted because it ceased to be necessary. The sad fact is that the order was ineffective to prevent bloggers from disclosing the identities months before the courts had deemed it appropriate to do so.

Baby P's siblings are innocent and yet they have, by implication, been named alongside Baby P's killers. Each sibling has their own right to privacy which incorporates a right to control their identity. Public disclosure of their identities constitutes a breach of their right to privacy. The damage they suffer is immediate, irreparable and enduring.

Disrespect for the court order prohibiting disclosure of Baby P's killers meant that the identities of the wrongdoers and, implicitly, the identities of Baby P's siblings, were spread over the internet whilst an order restraining disclosure was in place. This has two effects:

  • First, the siblings' connections with Baby P's tragic death have been immortalised on the internet. The internet is for life, and so the siblings may well be subject to a lifetime of ridicule, scorn and bullying despite their innocence.
  • The court order was rendered ineffective as was the siblings' rights to privacy. The courts are meant to be the arbitral charged with objectively balancing competing interests of disclosure or privacy. They have been rendered powerless as against the court of public opinion in which morals, anger, frustrations and personal opinions of the few could change the willingness of the courts in future to grant orders which are desperately needed but ineffective.


Two years after the tragic death of Baby P, the identity of his killers has been officially revealed.

Publication of the identities of Baby P's mother and her partner, both of whom have been held responsible for Baby P's death, was initially prohibited by a court order. This restriction was imposed to protect Baby P's siblings and to ensure that his mother and her partner were not prejudiced in a separate, contemporary criminal trial. The court order has now been lifted on the basis that the other criminal trial had been concluded and Baby P's siblings had all been put into care.

The court order restrained the mainstream newspapers and magazines from publishing the identities, but was rendered ineffective in practical terms by the prolific blogging that has become part of modern society. The pre-emptive disclosure of the identities made a mockery of the law. Baby P's killers were tried under pseudonyms but the jury were still requested not to search the internet for clues as to the true identities for fear that they would discover their true identities and that their opinions would then be prejudiced.

The focus has, perhaps inevitably, been on the identity of Baby P's mother and her partner. However, the identity of Baby P's siblings is inextricably linked to that of the wrongdoers. Here, as in other situations, it appears that the public policy of maintaining open criminal trials and the importance that the public see justice being done has overshadowed the rights of those innocently caught up in the crime.

Baby P's siblings' rights to privacy and identity

Each of Baby P's siblings has an individual right to privacy pursuant to Article 8 of the European Convention of Human Rights. This right to privacy is distinct from that of the child's parents and other siblings (see the Court of Appeal's recent judgment in David Murray v. Big Pictures). The Article 8 right to privacy incorporates a right to control one's identity.

There are a multitude of issues which a court must take into consideration and balance when deciding whether the identities of those innocently involved in a crime should be publicly disclosed. The accused themselves have a right to a fair trial under Article 6. Each of the persons involved has an individual right to privacy. Public interest demands that justice is seen to be done. The importance of such considerations is heightened when the story is widely and publicly known and where children are involved.

By committing a crime, the guilty parties effectively waive their right to privacy, and therefore their right to prevent disclosure of their identity. This is not the case with the innocent siblings. Their interests, as children, should be considered as being of paramount importance. The disclosure of their identity, implicit if not explicit, exposes them to ridicule, bullying or worse as a result of their innocent connection with the horrific crime.

  1. Interferences with an innocent parties' right to privacy are justified as necessary and in the public interest if justice is seen to be done.

    The courts seek to balance the competing interests of parties involved in situations similar to that surrounding the tragic death of Baby P. The courts have previously indicated that, whilst the disclosure of the identity of innocent persons caught up in the commission of crimes will amount to a breach of privacy, the breach will be justifiable as being pursuant to the public interest of seeing justice to be done.

    The courts have suggested that the incidental disclosure of the identity of innocent parties is a "necessary evil". However, publications of identity more often than not occur on the internet and are enduring. The innocent have to live with the consequences of others actions for the rest of their lives. There is a paradox here: the wrongdoers, however, are on occasion (and the Baby P case looks to be one such occasion) afforded a new identity upon leaving prison. The innocent are not afforded such a luxury.

    Once the identities have been disclosed, no financial sum can adequate provide compensation to the innocent parties. The same is true in respect of any breach of privacy, as was recognised by Eady J in Mosley v. Associated Newspapers.
  2. The real decision as to whether innocent parties should remain anonymous is now being made in the court of public opinion rather than in the courts.

    The law is lagging behind the technology which is now part of everyday life. Court orders are rendered ineffective in the wake of prolific dissemination of restricted identities by bloggers.

    The proper forum for sensitive decisions which entail a balance being struck between competing interests is the courts. A fair balance is rarely struck in the court of public opinion where decisions are inevitably driven by morals, opinions and prejudice which can lead to unduly extensive infringement of privacy rights. This leaves children and other innocent parties such as Baby P's siblings with a right to privacy and a right to control their identity, but with no remedy. Their fundamental human right to privacy is rendered ineffective.

    The fact that courts are no longer a part of decisions as to whether innocent parties should be granted anonymity also leaves the innocent exposed to unmonitored breaches of privacy. Although courts have indicated that the interference with an innocent party's right to privacy can be justified as being in the public interest, they might still, for example, allow publication of a narrative of the story but prevent publication of a photograph. Photographs have been recognised as more intrusive than narratives.

Innocent parties have rights available to them but no remedies, rendering their rights ineffective. It is crucial that the law makes rapid movements towards redressing this situation which otherwise renders the innocent guilty of crimes in which they played no part.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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