What could you do if a tabloid magazine took a photo of you in public and published it without your permission? Do you have a right to privacy that can be protected, or is the press free to print whatever it likes?
Privacy and free expression are two of our most important rights, both guaranteed by the Human Rights Convention:
- Article 8 – Guarantees the right to respect for our private and family life,
- Article 10 – Protects our right to free expression.
Sometimes, these two rights come into conflict. If, for example, a journalist took your photo and published it without your consent, you could argue that your right to a private life had been infringed. However, they might say that preventing them from publication violated their right to free expression. So whose rights should prevail?
Before the Human Rights Act
Until quite recently, there was little to guard against press intrusion. Although you could bring a claim if a newspaper had published something defamatory about you, there was no specific protection for invasion of privacy, and the Government allowed the press to regulate itself through the Press Complaints Commission. This sometimes meant that individuals suffered but had no remedy.
In January 1990, for example, ‘Allo ‘Allo actor Gordon Kaye suffered extensive brain injuries when a billboard collapsed onto his car during a storm. While he was recovering, two journalists disguised as doctors gained access to his hospital room and took several photos of Kaye lying in his bed looking dazed and confused. Kaye remembered nothing of the incident because of his injuries, and sought an injunction to prevent the images from being published.
He was unsuccessful. The court found that despite this gross invasion of privacy, the press’s right to free expression trumped any privacy rights that Kaye might have had. He was not entitled to any ‘relief in English law’.
Campbell v MGN – A balancing act
With the enactment of the Human Rights Act, people in the UK gained the power to enforce their rights under the Human Rights Convention in British courts. This included the right to a private life set out in Article 8. Individuals and courts began to use Article 8 to protect themselves against invasions of their privacy.
In Douglas v Hello!, Michael Douglas and Catherine Zeta-Jones sought an injunction against Hello! Magazine to prevent them from publishing photos of their private wedding. They were unsuccessful in stopping the photos from being published, but the court did order Hello! to pay damages on the basis that they should have realised that the event was private.
Then came the key case of Campbell v MGN. This involved a series of articles with photos claimed to be of Naomi Campbell standing outside a Narcotics Anonymous meeting, accompanied by headlines such as “Naomi: I am a drug addict”. Campbell successfully argued that this violated her right to privacy. The court said that if a journalist takes photographs of a person who has a reasonable expectation of privacy, publishing those photos may amount to a misuse of private information.
Although Ms Campbell brought her claim for ‘breach of confidence’, she relied on arguments under Article 8 of the Human Rights Convention and this enabled the Court to extend the principles of breach of confidence to cover misuse of private information.
So who is protected?
Many of the famous invasion of privacy cases are about celebrities, but the right to a private life protects all of us.
If a court agrees that the published information was private, they’ll carry out a balancing exercise to decide whether the person’s Article 8 rights should win out over the Article 10 rights to freedom of expression. When a newspaper argues that their Article 10 rights should take precedence, they have to show that it was in the public interest to publish.
Children are afforded particular protection. The court has held in a number of cases that children have a special expectation of privacy that is rarely outweighed by the interests of the press. In Murray v Express Newspapers, the court held that JK Rowling’s 18-month son had a reasonable expectation of privacy when a photograph was taken of him in his pushchair on the footpath. Similarly, in Weller v Associated Newspapers, the children of Paul Weller had an expectation of privacy when they and their father were harassed by a photographer in public.
Read more about free expression and privacy:
- Read about why the rights to privacy and free expression matter.
- Press freedom is facing an unprecedented threat in 2017.
- Pippa Middleton, and how the Human Rights Act protects privacy in practice.