Privacy and Human Rights The action for misuse of private information has grown out of the older equitable claim for breach of confidence. 7/22/2019

CONFLICT OF ARTICLES Neither Art 8 nor Art 10 has precedence – start out equal Court must ask: Is the information private & protected by Art 8? If ‘no’ then no claim If ‘yes’ then court must carry out balancing exercise 7/22/2019

BALANCING EXERCISE Court must have an ‘Intense focus’ on the circumstances See Re S (A Child)[2005]1 AC 593 Is there a reasonable expectation of privacy? See Murray [2009]Ch.481 WHO is the claimant –adult? Child? Is there a ‘public interest’ in the material being published? In cases where prior restraint sought court can consider the motive of the claimant. e.g. ‘Terry’ 7/22/2019

‘After the intrusion’ claims Peck Campbell Murray Mosley Rio Ferdinand Weller 7/22/2019

‘Prior Restraint’ claims a v b plc (Flitcroft case) Jagger v Darling CC v AB McKennitt v Ash Terry (previously referred to as LNS) v Persons Unknown 2010 Hutcheson (formerly KGM) 7/22/2019

Attitude of European Court of Human Rights Von Hannover v Germany (1) - note comments regarding photographs in public Compare with view of HL in Campbell - ‘Bottle of Milk’ Test NOW consider the ECtHR view in Hannover 2 & 3 and Springer 7/22/2019

Axel Springer AG/ Von Hannover No.2 Whether the information contributes to a debate of general interest How well known is the subject of the material? The prior conduct of the person Content, form & consequences of the report Circumstances in which photos taken 7/22/2019

Prior Restraint Under HRA claimant MUST notify the proposed publisher of material e.g. newspaper so that arguments against injunction can be made Look at recent judgments e.g. McLaren v NGN Newspapers Ltd [2012] EWHC 2466 Many others available online 7/22/2019

Mosley argument Subject should be notified prior to publication of material Only REAL method of protecting privacy Current remedy of damages after intrusion insufficient 7/22/2019

Is this going too far? Does it restrict Article 10 rights too much? OR Does it provide the correct protection for privacy? Mosley argument rejected by ECtHR 7/22/2019

WHERE TO NOW? For some recent musings and clarification on the law read… ‘How private is private’ by Mr Justice Eady (online) Should the law continue to be developed by courts or legislation? Number of applications for injunctions recently been very low but..are they increasing again? 7/22/2019