Law of Confidence Provides Insufficient Privacy

On 28th January 2003 the European Court of Human Rights gave judgment in Peck v The United Kingdom. It is a case that may have profound implications for the development of the law of confidence in the United Kingdom and provide fresh impetus for the creation of a separate tort of infringement of privacy.

In 1995 the Applicant was caught on CCTV walking alone in the town of Brentwood with a knife in his hand. He subsequently attempted suicide, although this was not seen on camera. Subsequently Brentwood Borough Council (the "Council") produced a press release including still photographs taken from the CCTV footage. Still photographs and the CCTV footage were then provided to local newspapers, Anglia Television and the BBC who published them and included them in television broadcasts. When broadcast by Anglia Television and the BBC, the face of the Applicant was obscured but it was nevertheless still possible to identify him. The BBC also broadcast a number of trailers including the coverage without any attempt to mask the Applicant’s identity.

The Applicant made complaints to the Broadcasting Standards Commission ("BSC") in respect of the BBC broadcast, the Independent Television Commission ("ITC") in respect of the Anglia TV broadcast and the Press Complaints Commission ("PCC") in respect of the press publicity. The BSC held that there had been an unwarranted infringement of the Applicant’s privacy. Anglia TV accepted that there had been a breach of the ITC code. The PCC rejected the Applicant’s complaint on the grounds that the events took place in a town high street that was open to public view.

The Applicant also applied for judicial review of the Council’s decision to disclose the CCTV footage. After a full hearing in the High Court, that application was rejected. The Applicant then lodged an application against the United Kingdom in the European Court of Human Rights claiming that the disclosure and subsequent publication and broadcast of the CCTV footage was a disproportionate interference with his private life contrary to Article 8 of the European Convention on Human Rights ("ECHR") and that UK law did not provide him with an effective remedy in respect of that interference contrary to Article 13 of the ECHR.

The Decision

The Court held that there had been breaches of both Articles 8 and 13. The Applicant had been in a public street but he was not participating in a public event, nor was he a public figure. The subsequent broadcasts and publications, insofar as they insufficiently masked his identity, resulted in the relevant moment being viewed to a degree "surpassing that which the applicant could possibly have foreseen when he walked in Brentwood" in 1995.

So far as the failure to provide an effective remedy was concerned, the court noted that at the relevant time:

1. Judicial review did not provide an effective remedy since the threshold at which the Court could find the disclosure by the Council irrational was "so high that it effectively excluded any consideration by it of the question of whether the interference with the Applicant’s right answered a pressing social need or was proportionate to the aims pursued …";
2. The lack of legal power of the various media commissions to award damages meant that these bodies could not provide an effective remedy; and
3. The law of confidence did not provide an effective remedy. Particularly problematic was the fact that once material was in the public domain its re-publication could not constitute a breach of confidence.

The facts of this case occurred prior to the implementation of either the Data Protection Act 1998 ("DPA") or the Human Rights Act 1998 ("HRA"). The question therefore arises whether UK law has sufficiently developed since 1995 to provide the applicant with an adequate remedy.

It would appear that the disclosure of material by the Council and its subsequent publication would be processing that fell within the ambit of the DPA. It would also prima facie appear not to be processing in accordance with the data protection principles set out in the Act. However, section 32 of the DPA provides an exception to compliance with the relevant data protection principles in connection with journalism where the data controller reasonably believes that publication is in the public interest. The Court of Appeal recently considered these issues in Campbell v Mirror Group Newspapers (see our report on 17th October 2002), but the exact scope of this "public interest" exception is still unclear.

Of perhaps greater significance is the HRA and in particular its impact on the developing law of breach of confidence. This is an area of some controversy. In the Court of Appeal’s decision in Douglas v Hello, Sedley LJ suggested that a separate right of privacy should now be recognised in UK law. However, the other judges in that case did not rule on this issue and in the subsequent case of A v B (the Flitcroft case), Woolf LJ poured cold water on the usefulness of such a separate tort. According to Woolf LJ, in "the great majority of situations, if not all situations" the law of confidence would provide a remedy. This was particularly so given that "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".

Notwithstanding the strident manner in which Woolf LJ expressed himself, it is difficult to see, even after the implementation of the HRA, how the English law of confidence would give the Applicant any remedy in this case. Accordingly, the ECHR’s judgment is likely to give fresh encouragement to those who argue that the English common law can and should give birth to a fresh tort of breach of privacy.

© Herbert Smith 2003

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