Privacy

3rd December 2015

What is Privacy?

‘Privacy is the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.’

Alan Westin – Privacy and Freedom (1967)

‘The right to be let alone’

Louis SamuelBrandeisWarren

Is Privacy an Anomaly?

Vint Cerf Omer Tene

Possible criticisms of Privacy

1. A rather quaint, prudish value.2. Privacy might conceal domestic oppression in the home.3. Potentially weaken detection of criminals.4. Could impede the free flow of information.5. Could impede business efficiency leading to higher costs.6. Privacy should not trump other rights.7. Withheld unflattering information could be a form of deception.

(R. Wacks – Privacy)

Kaye v Robertson (1991)

(Flickr.com) (BBC)

Kaye v Robertson (1991)

“It is well known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person's privacy. The facts of the present case are a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals.” (Lord Justice Glidewell)

Human Rights Act 1998

Entered into force 2nd October 2000.The Act meant it was no longer necessary for UK citizens to apply to The European Court of Human Rights in Strasbourg to enforce their rights under the European Convention on Human Rights 1950.

European Convention on Human Rights

Article 8 (1) Everyone has the right to respect for his/her private

and family life, his/her home and his/her correspondence.

(2) There shall be no interference by a public authority with the exercise of this right such as is in accordance with the law and is necessary in a democratic society in the interests 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 freedoms of others.

Section 12 Human Rights Act – Freedom of Expression

Section 12 applies where a court is considering granting relief which might impact on the right to freedom of expression.

Section 12(3) provides that no such relief shall be granted to restrain publication before trial unless the applicant is likely to establish that publication should not be allowed.

Section 12(4) A court must have particular regard to the Convention right freedom of expression.

Campbell v Mirror Group Newspapers(2004)

Misuse of private information – Two-step test1. Was the information private? Was there a

reasonable expectation of privacy in the applicable circumstances? Objectively viewed.

2. The balancing exercise between Article 8 and Article 10.

Campbell v MGN (2004)

PhotographsBaroness Hale (para. 154) – ‘The activity photographed must be

private. If this had been, and had been presented as, a picture of Naomi Campbell going about her business in a public street, there could have been no complaint. She makes a substantial part of her living out of being photographed looking stunning in designer clothing. Readers will obviously be interested to see how she looks if and when she pops out to the shops for a bottle of milk. There is nothing essentially private about that information nor can it be expected to damage her private life.’

Von Hannover v Germany (2004)

BUT...........

Von Hannover v Germany (no. 2) (2012)

Murray v Big Pictures(2008)

Reklos & Davourlis v Greece (2009)

Infringement of Article 8The ECTHR stated, ‘..a person’s image revealed his or her unique

characteristics and constituted one of the chief attributes of his or her personality.’ ‘....the effective protection of the right to control one’s image presupposed, in the present circumstances, obtaining the consent of the person concerned when the picture was being taken and not just when it came to publication.’

The Beckhams

(celebrity.yahoo.com)

Weller v Associated Newspapers (2015)

(INFphoto)

Mosley v News Group Newspapers (2008)

Paul Dacre – 2008 Speech to the Society of Editor’s Conference

‘...inexorably, and insidiously, the British Press is having a privacy law imposed on it, which – apart from allowing the corrupt and the crooked to sleep easily in their beds – is, I would argue, undermining the ability of mass-circulation newspapers to sell newspapers...’.

‘The law is not coming from Parliament – no, that would smack of democracy – but from the arrogant and amoral judgements – words I use very deliberately – of one man.’

Paul Dacre Speech (continued)

‘I am referring, of course, to Justice David Eady who has, again and again, under the privacy clause of the Human Rights Act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places.’

‘Now some revile a moralising media. Others, such as myself, believe it is the duty of the media to take an ethical stand. Either way, it is a choice but Justice Eady – with his awesome powers – has taken away our freedom of expression to make that choice.’

Paul Dacre Speech (continued)

‘If the News of the World can’t carry such stories as the Mosley orgy, then it, and its political reportage and analysis, will eventually die.’