Balancing Freedom of Expression and Privacy Rights

Question 5

The European Convention on Human Rights (ECHR), Article 10 provides for the right to freedom of expression, which also includes the freedom to receive and also to impart information and ideas by broadcasting media. The freedom of expression, especially through the press, serves to impact the information and ideas that are of general interest and that the public is more entitled to receive. On the other hand, Article 8 provides for the right to respect privacy rights. English courts faced the most difficult questions while addressing the common law right to privacy, which was recognised in Campbell v Mirror Group Newspapers.

When does an individual have a reasonable expectation of privacy rights in a public place? Will there be an absolute rule that there is no privacy in a public place? If privacy interest does not depend on the space in which they find themselves, how will we determine their legitimate privacy interest? The next paragraphs will critically examine the judiciary approach to strike a balance between these two competing rights.

Judgment in Campbell v Mirror Group Newspapers demanded a balance between Article 10 and Article 8, having regard to Section 12(4) of the Human Rights Act 1998 (HRA 1988), which provides for taking into account the public interest aspect. The question is how a balance between the two rights could be found and how the rights would react when they are at opposite sides of an argument. Lord Hoffman, in Wainwright v Home Office, stated that English law does not provide for a specific privacy tort. This was similarly observed in Campbell v Mirror Group Newspapers, by Baroness Hale when she stated that English law could not develop the general tort of invasion of privacy. However, equal preeminence was given to both rights in this case. Both of these rights are qualified rights. Article 8(1) protects the right to respect for private life, subject to the condition provided under Article 8(2) to protect rights and freedoms of others. Similarly, Article 10(1) protects the right to freedom of expression, subject to the condition provided under Article 10(2) to protect the rights and freedoms of others. Campbell, thus, provides for balancing between rights to

Appl. No. 6452/74, Sacci v Italy, Decision of 12 March 1976, D.R. 5, p 43.
Council of Europe. Directorate of Human Rights, Case Law Concerning Article 10 of the European
Convention on Human Rights: Human Rights files No. 18 (Council of Europe Publishing 2001).
Campbell v Mirror Group Newspapers [2004] UKHL 22.
N. A. Moreham, ‘Privacy in public places’ (2006) 65(3) The Cambridge Law Journal 606-635.
Campbell v Mirror Group Newspapers [2004] UKHL 22.
Wainwright v Home Office, [2004] 2 AC 406.
Campbell v Mirror Group Newspapers, [2004] UKHL 22.
Margaret Brazier and Emma Cave, Medicine, Patients and the Law (Penguin Books 2007).
K Horsey and E Rackley, Tort Law (Oxford University Press 2015) 434.
Campbell v Mirror Group Newspapers, [2004] UKHL 22.

privacy against the right of the media to impart information to the general public. Similarly, the right of the media to impart information to the public should be balanced against the respect for private life. This is also supported by what Lady Hale stated in PJS v News Group Newspapers Limited. She held that respect has to be provided to the right of private life of celebrities unless disclosure of information (about their sex lives) would genuinely support press’ function as a public watchdog.

The ECHR protects both the right to freedom of expression and privacy rights. The HRA 1998 incorporates ECHR rights in English law. It has these rights to protect, and the judiciary is well placed to that effect. Although the general view was that this privacy rights will not be directly justiciable against the media, press or other private bodies, the argument is that its incorporation in the English legal system provides a drive to make these rights an underlying legal value to be able to express through common law. Even the Data Protection Act 1998 provides significant importance to protection of personal information. Privacy recognises the fact that the relevant law must protect people whose trust is abused and also those subject to unwanted invasion into their personal lives. Privacy can be recognised as a legal principle in itself. This is made possible by the advent of the HRA 1988. Privacy rights under Article 8, upon reliance of positive duty of member states, are applicable between private parties. This was supported by Sedley LJ in Douglas v Hello!Ltd. This case has demonstrated that privacy rights under Article 8 are now an important principle.

Section 6 and Section 12(4) of HRA 1988 place duty on the court in regard to finding a balance between privacy rights and freedom of expression. Section 6 provides that it is “unlawful for a public authority to act in a way which is incompatible with a Convention right”. Section 12(4) requires the court to regard the right of freedom of expression, which is qualified in respect to reputation and rights of others. While striking a balance between privacy rights and freedom of the press, the courts must take into account Code of the Press Complaint Commission and or HRA 1998, Section 12(4)(b) that provides for publication of

The UK Parliament, ‘Judgments - Campbell (Appellant) v. MGN Limited (Respondents)’ accessed ; Campbell v Mirror Group Newspapers [2004] UKHL 22.
PJS v News Group Newspapers Limited [2016] UKSC 26.
N.A. Moreham, ‘Privacy in public places’, (2006) 65 Cambridge Law Journal, 606.
Helen Fenwick, Civil Liberties and Human Rights (Cavendish Publication 2002) 537.
Ibid, 583.
Douglas v Hello!Ltd. [2001] 2 WLR 992, p1027, para 133.
Helen Fenwick, Civil Liberties and Human Rights (Cavendish Publication 2002) 593.

journalistic, literary or artistic material in the public interest. As per clause 3 of the Code, a publication will need to justify intrusion into somebody’s private life if without consent, for example in public interest otherwise it is unacceptable. In Reynolds v Times Newspapers Ltd, the freedom of expression would be supported by HRA 1988, Section 12 and common law should be applied consistent with Article 10. The right to be justified should have a consideration that is compelling and countervailing. The means used should be proportionate to the targeted end and curtailment of the freedom should be reasonably balanced with the purpose the curtailment aims to achieve. Any exception to the freedom of expression should be justified by only a pressing social need. In this case of Reynolds, Lord Nicholls recognised the acknowledged the presumed tension arising out of the interaction amongst the two rights.

The Campbell case brought some clarity as to how to strike a balance between the two rights. Article 8(2), which is reflected in HRA 1998, Section 10(2), recognises circumstances that may justify intrusion into family life. When the interaction between the rights gives rise to conflict, the courts decide the case with intense focus on the facts and determine applicability of each of the rights to those facts. Courts have provided equivalent standings, without giving priority to either right, to both the rights. Similar to Article 8(2), Article 10(2) recognises circumstance where freedom of expression is overridden with the need to protect rights of others. Therefore, assessing privacy rights against the interest in freedom of expression will help the court in striking a balance between the two interests when they are in conflict. If privacy interest outweighs freedom of expression, privacy interest will be protected. This was seen in the case of Mosley v News Group Newspapers, where the court declined to allow ‘public interest’ arguments to prevail over privacy rights to Mosley’s life. However, on the other hand, if there is a public interest, interest in freedom of expression will outweigh the privacy interest, and as such privacy right will give way to freedom of expression.

Helen Fenwick, Civil Liberties and Human Rights (Cavendish Publication 2002) 583.
Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010.
McCartan Turkington and Breen v Times Newspapers Ltd [2003] 3 WLR 1670, p 1686 (HL).
Reynolds v Times Newspapers Ltd. [2001] 2 AC 127.
Sarah Webb and Russell Jones, 'A new right of privacy following the House of Lords decision in Naomi Campbell –v- MGN Limited?' (2004) 2(2) Hertfordshire law Journal 30-40.
Ibid.
Sarah Webb and Russell Jones, 'A new right of privacy following the House of Lords decision in Naomi Campbell –v- MGN Limited?' (2004) 2(2) Hertfordshire law Journal 30-40.
Mosley v News Group Newspapers, [2008] EWHC 1777 (QB).

In the case of Douglas v Hello Ltd, the issue of breach of confidentiality became a privacy action. This case has also made it possible to file other privacy claims, particularly in respect to celebrities and public figures. In respect to right to privacy protection, the breach of confidentiality action has been the mainstay. To sustain this action, duty of confidentiality by the party is necessary. The confidentiality obligation arises when a party receives knowledge of information and knows that this information is confidential. The case of Coco v AN Clark (Engineers) Ltd laid down three requirements in this respect. The information must have the necessary quality of confidence. It must have been imparted in circumstances that attracted an obligation of confidence. It must have been misused to the detriment of the claimant.

Viewing this point from the press perspective, the case of Jersild emphasised on the freedom of the press to exercise its own discretion in presenting journalistic material. This was supported by Fressoz v France, where the court emphasised that Article 10 provides for the journalists to determine the necessity to reproduce material to ensure credibility. This article protects their rights to disclose information on issues that are of general interest upon good faith and on the basis of reliable and accurate information. Freedom of expression has been described as the trump card, which always wins. However, as a balancing act, it is observed that an increasing number of injunctions as a remedy, such as in the case of A v B plc 2003, have been employed for protection of the right to privacy, as provided under Section 37 of the Senior Courts Act 1981.

To conclude, reiterating provision of HRA 1998, Section 12, this section can be considered the starting point to elaborate on the issue of balancing competing interests arising from the two rights. Section 12(3) provides a high threshold test for the court to be satisfied that an applicant will likely establish publication should be restraint. The courts are required to undertake the balancing exercise in this regard. Despite the existence of the threshold where

Douglas v Hello Ltd, [2005] EWCA Civ 595.
K Horsey and E Rackley, Tort Law (Oxford University Press 2015) 443.
Ibid, 445.
Venables& Thompson v News Group Newspapers Ltd., [2001] EWHC 32 (QB).
Coco v AN Clark (Engineers) Ltd, [1969] RPC 41.
Ibid.
Ibid.
Jersild v Denmark (1994) 19 EHRR 1, [1994] ECHR 33, 15890/89.
Fressoz v France (2001) 31 EHRR 28, 60, para 54.
Ibid.
R v. Central Independent Television PLC [1994] Fam 192
A and others v B and another [2011] EWHC 2345 (Comm).
Godwin Busuttil, Free Speech v Privacy- The Big Debate, Preventing Publication of Private Information) When you can and when can cannot (Sweet & Maxwell 2009).
K Horsey and E Rackley, Tort Law (Oxford University Press 2015) 466.

Legislation

The Data Protection Act 1998
The Human Rights Act 1998
The Senior Courts Act 1981

Cases

A and others v B and another [2011] EWHC 2345 (Comm)
Campbell v Mirror Group Newspapers [2004] UKHL 22
Coco v AN Clark (Engineers) Ltd, [1969] RPC 41
Douglas v Hello! Ltd. [2001] 2 WLR 992
Fressoz v France (2001) 31 EHRR 28, 60, para 54
Jersild v Denmark (1994) 19 EHRR 1, [1994] ECHR 33, 15890/89
McCartan Turkington and Breen v Times Newspapers Ltd [2003] 3 WLR 1670, p 1686 (HL)
Mosley v News Group Newspapers, [2008] EWHC 1777 (QB)
PJS v News Group Newspapers Limited [2016] UKSC 26
Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010
R v. Central Independent Television PLC [1994] Fam 192
Sacci v Italy, Appl. No. 6452/74, D.R. 5, Decision of 12 March 1976
Venables & Thompson v News Group Newspapers Ltd., [2001] EWHC 32 (QB)
Wainwright v Home Office, [2004] 2 AC 406

Books

Brazier M and Emma Cave, Medicine, Patients and the Law (Penguin Books 2007)
Busuttil G, Free Speech v Privacy- The Big Debate, Preventing Publication of Private Information) When you can and when cannot (Sweet & Maxwell 2009)
Fenwick H, Civil Liberties and Human Rights (Cavendish Publication 2002)
Horsey K and E Rackley, Tort Law (Oxford University Press 2015)

Journals

Moreham NA, ‘Privacy in public places’ (2006) 65(3) The Cambridge Law Journal 606-635
Webb S and Russell Jones, 'A new right of privacy following the House of Lords decision in Naomi Campbell –v- MGN Limited?' (2004) 2(2) Hertfordshire law Journal 30-40

Reports

Council of Europe. Directorate of Human Rights, Case Law Concerning Article 10 of the European Convention on Human Rights: Human Rights files No. 18 (Council of Europe Publishing 2001)
House of Lords: House of Commons: Joint Committee, ‘Privacy and Injunctions’ HL Paper 273, HC 1443, 12 (2012) accessed ‘Privacy and Injunctions’ HL Paper 273, HC 1443, 12 (2012) accessed