Private lives

The Press Complaints Commission (PCC) has added to its body of adjudications with a recent decision against the newspaper TheIndependent over an invasion of privacy (report 73). It decided that the unauthorised disclosure of an actress's pregnancy - known only to her, her agent and the producer of the show in which she was appearing - was 'a serious intrusion into her private life'.



The newspaper originally offered to consider a letter for publication from the complainant in response to the article, saying that while it regretted any distress, the columnist had no reason to believe that the pregnancy was not public information. During the commission's investigation, the newspaper also apologised privately to the complainant and offered to publish an apology. She rejected this, preferring to obtain a formal adjudication from the PCC.



The adjudication gives a clear indication of the seriousness with which the commission will consider the unauthorised disclosure of information of such a personal nature. It stated that 'as a matter of common sense, newspapers and magazines should not reveal news of an individual's pregnancy without consent before the 12-week scan, unless the information is known to such an extent that it would be perverse not to refer to it. This is because of the possibility of complications or miscarriage - something that was sadly a feature in this case - and because it should be down to the individual when to share the news with her family and friends in the early phase of a pregnancy'. While the offers made by the newspaper to remedy the matter post-publication were 'welcome', they were 'not sufficient' as a remedy.



Is this such a surprise? After all, in the case of Campbell v MGN Ltd (2004) UKHL 22, it was made clear that information of a medical or quasi-medical nature was of a sensitivity sufficient to be awarded the protection of the UK's evolving privacy law. But it seems from this adjudication that publishers are not necessarily clear on what can and cannot be published in a legal landscape that is in a state of flux.



Just what does come within the ambit of private information? When is information in the public domain sufficient for it no longer to be confidential and worthy of protection? How can publishers accurately assess what the court will decide on any given set of facts? Lord Woolf stated in A v B plc(Flitcroft v MGN Ltd) (2002) EWCA Civ 337 that 'usually the answer to the question whether there exists a private interest worthy of protection will be obvious'. At the coalface of the publishing industry, when decisions may have to be made rapidly, obvious answers are not always easy to find.



However, by virtue of section 12 of the Human Rights Act 1998, where a court is considering giving any relief concerning an interference with a convention right - such as the right to privacy (guaranteed by article 8) and the right to free speech (guaranteed by article 10) - it must take account of any relevant privacy code. Accordingly, the rulings of the PCC are significant and informative, and the body of decisions being built will add to the judgments of the court to give further clarity to this area of the law.



Indeed, IBC UK and London-based Matrix Chambers recently hosted a privacy master class, chaired by the chambers' Heather Rogers, which sought in its debate on the latest developments in privacy and related media law to add some further clarity. Since Douglas v Hello! Ltd (No 8) (2005) EWCA Civ 595, when the court held that 'the cause of action formerly described as breach of confidence' was the vehicle through which the UK satisfied its obligation of protecting individuals from unjustified invasions into their private life, there have been a number of cases before the courts illustrating that the situations in which privacy can rear its head are many and diverse.



McKennitt v Ash (2005) EWHC 3003 QB concerned disclosures in an unauthorised biography about the Canadian singer-songwriter, Loreena McKennitt, by her former friend and assistant. Mr Justice Eady found for the claimant; the decision is under appeal.



The claimant complained that the book exposed various details of her private life, including those relating to her personal relationships and feelings of grief over the death of her former fiancé in a boating accident. One of the defendant's arguments was that she was entitled to her own right to free speech concerning her relationship with Ms McKennitt and what she had learnt about the claimant as a result.



Mr Justice Eady held that in balancing one's right to tell one's own story against another's right to keep related information private, 'any such revelation should be crafted, so far as possible, to protect the other person's privacy'. Claiming your own right to freedom of expression will not necessarily trump another's right to privacy.



The defendant also argued that some of the information that the claimant sought to protect was already in the public domain; for example, she had spoken about her fiancé's death. But observing that this had been done either to close friends or for the specific purpose of trying to promote water safety, Mr Justice Eady drew a distinction between material that was sensitive private information and that which was a commercial secret. In the latter case, one could adopt a 'one-for-all approach, since information is either secret or it is not'. But this would not necessarily hold true in the former case, since even where there has been some disclosure of information of this nature, 'fresh revelations to different groups of people can still cause distress and damage to an individual's emotional or mental well-being'.



This is an important decision given the modern propensity for 'kiss and tell' type stories. And so significant is it considered by the media that various publishers and media organisations, including Times Newspapers, the BBC and the Press Association, are seeking permission to intervene to stress the media's concerns to the Court of Appeal.



The question of public domain had previously been considered in the successful injunction application brought by the claimants in Green Corns v Claverly (2005) EWHC 958 (QB). This dealt with the publication in a local newspaper of the addresses of homes that provided specialist care services to vulnerable children.



After an angry demonstration by neighbours outside one of the properties, the claimant successfully obtained an injunction to prevent the publication of any more of the homes' addresses on the grounds that publication risked causing serious harm to the children and their carers. This was notwithstanding that the addresses were to a certain extent already in the public domain; they were, for example, known to neighbours. Mr Justice Tugendhat stated that 'there will be cases where personal information about a person (usually a celebrity) has been so widely published that a restraint against repetition will serve no purpose'. However, 'it is not possible in a case about personal information simply to apply Lord Goff's test of whether the information is generally accessible, and to conclude that, it if is, then that is the end of the matter'. Mr Justice Eady's later judgment in McKennitt echoes this.



This summer also saw MBL Seminars, in association with London chambers One Brick Court, running a conference chaired by Tom Shields QC that discussed media law in general and the evolving law of privacy. Andrew Caldecott QC pointed to the extent to which issues still required clarification in the privacy field, including difficulties posed by the actual vocabulary used. 'The law of freedom of speech has been bedevilled from its outset by loose talking,' he said. For example, take the word 'private'; an intimate act in a public place, he said, may not be considered 'private' by the courts and worthy of protection at all, while a 'normal' act in a private place may well be.



He was doubtful too as to the view expressed by the Court of Appeal in A v B that the appropriateness or otherwise of granting an injunction in a privacy case would, in most cases, be clear.



'History suggests the landscape is not always so simple', said Mr Caldecott. While 'it can now be said to be clear that the core threshold test is "reasonable expectation of privacy"' and that both article 8 and article 10 rights start equal, the next proportionality stage - during which the competing rights are weighed to assess the legitimacy of the disclosure where it infringes another's rights - is difficult and 'not as easy as knowing the elephant when you see it'.



This may seem to suggest that the law is unclear and likely to cause problems for those in the industry struggling to ascertain what it can and cannot publish. However, a submission that the law was not sufficiently clear so as to render summary judgment inappropriate was not accepted in one of the cases. The Prince of Wales sued in confidence and copyright over the publication of extracts of what he argued was a confidential journal about an official visit to Hong Kong, which HRH had titled The Great Chinese Takeaway ((2006) EWHC 522 (Ch)).



This journal had had an outing into the public domain to some extent, being sent on a confidential basis to a number of people at the prince's instigation and with his consent. In addition to public domain arguments, Associated Newspapers Limited contended that there was a public interest in disclosure to evidence the prince's activities as a lobbyist, potentially at odds with his duties as heir to the throne.



The court did not buy either argument. Mr Justice Blackburne held that the author had a legitimate expectation of privacy in regard to the journal, that it only contributed to public debate to a minimal extent, and that the claimant's article 8 rights outweighed any public interest proposed by the defendant. The defendant's submission that 'it cannot be said that the law is clear and settled' and that as a result summary judgment was inappropriate was not accepted, and Mr Justice Blackburne granted summary judgment to the claimant.



The law of privacy in the UK is still developing. In practical terms, this may well create some confusion for publishers in relation to what will be considered by the courts to be a justified publication and what will be considered a disproportionate intrusion into private life. But the courts are not willing to accept that this makes it impossible for publishers to appreciate what they can and cannot do. Indeed, the British common law tradition means that the law is constantly evolving; while cases are decided on their facts, regard must be had to all new case law and adjudications of the regulators to keep abreast of the developing law.



Even US President George W Bush has had his knuckles judicially rapped by Federal Court judge Anna Diggs Taylor over the wholesale invasion of privacy of his 'subjects' through the National Security Agency's programme of telephone tapping. I say 'subjects', given the judge's stern reply to Mr Bush's contention that he had the inherent power to authorise the programme: 'There are no hereditary kings in America and no powers not created by the constitution.' The practice - part of the terrorist surveillance programme - was, said Judge Diggs, unconstitutional and an invasion of privacy. The president argues this is justified in his war against terror and the decision is under appeal.



Invasions of privacy will be tolerated by the UK courts in certain circumstances; for example, where they are necessary in the interests of national security and public safety for the prevention of crime. In these uncertain times, the threat of terrorist attacks may be seen as a justification for some invasions of privacy. But that will have to be carefully monitored, and indeed, some already fear that intolerance and mistrust will lead to invasions into private lives for no better reason than the colour of a person's skin.



Whether it is to censure an unauthorised disclosure of sensitive personal information such as a pregnancy, to prevent the revelation of an individual's private thoughts, or to protect against disproportionate invasions of privacy arising out of alleged terrorist threats, the regulators and the courts have a tough job ahead of them in fairly balancing the protection of individual privacy against the public's right to know and the media's right to report, while at all times protecting society as a whole.



Amber Melville-Brown, David Price Solicitors & Advocates, London