PRIVACY AND HUMAN RIGHTS

Privacy law in the UK  The action for misuse of private information has grown out of the older equitable claim for breach of confidence.  Up until 2000 UK didn’t have a law specific to privacy  Different in other countries  France protects privacy more ‘ French Civil Code 1970  US privacy loses to First Amendment (Bill of Rights)  SWEDEN 1766 Freedom of the Press Act (oldest piece of freedom of info act)

“REASONABLE EXPECTATION OF PRIVACY” LEARN THIS PHRASE

ART 8 v ART 10

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

BALANCING EXERCISE  Court must have an ‘Intense focus’ on the circumstances  Re S (A Child)[2005]1 AC 593  Is there a reasonable expectation of privacy  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.

Harry naked pics Sun used defense that they were already out in the public domain. US papers, online etc. “Public figure in a private sphere?”

“Red Carpet rule”  How the courts draw the line between what’s public and private  Matters concerning the  “extramarital bed”  “death bed”  Or “hospital bed” are out of bounds as far as freedom of expression.

Q 1- “reasonable expectation of privacy”

‘After the intrusion’ claims  Peck  Filmed by CCTV cams as he tried to commit suicide by slashing his wrists with kitchen knife. Video was published with some blurred areas, pics not blurred. PRIVATE IN PUBLIC  Campbell  Daily Mirror published images of her coming out of a rehab clinic  Murray  Long lens photos published by Sunday Express of JK Rowling and husband, pushing baby in a pram PROTECT CHILREN FROM INTRUSIVE MEDIA ATTENTION  Mosley  NoW articles about S&M Nazi orgy with clandestine video taken by a reporter posing as a hooker  Rio Ferdinand  Sunday Mirror story with Rio Ferdinand’s ex telling all about their relationship. HER Art 10 rights won and the public interest of knowing what England captain was up to as a role model.

‘Prior Restraint’ claims  a v b plc (Flitcroft case)  Interim injuction regarding married footabllers extramarital affairs.  The law of confidentiality should afford the same protection to sexual relationships outside marriage as to sexual relationships within marriage  Jagger v Darling  Elizabeth Jagger CCTV footage having sex behind a night club in Soho. WON INJUNCTION V PHOTOS because of data protection breach, not because of expectation of privacy.  CC v AB  Suicidal wife of cheating husband tried to prevent husband of cheating wife from publishing info about extra marital affair INJUCTION GRANTED  McKennitt v Ash  Singer got an injunction against parts of a book written by friend about her life. Unofficial biography  Hutcheson (formerly KGM)  Father in law of Gordon Ramsey applied for interim injunction v Sun, Mail, Mirror (who didn’t want to publish it) about his second secret family FAILED

“Bottle of Milk” test - Campbell

Q 2- Celebs and privacy 1. Princess Caroline VonH 2. Douglas 3. Naomi Campbell 4. Elizabeth Jagger 5. McKennitt 6. Murray (Rowling) 7. Mosley 8. Ferdinand

Art 8 v Art 10  Pics showed personal relationships and day to day life and activities: horseriding, playing tennis.  ECHR decided were private  Pics of Caroline with dad in St Moritz  Article centered on her father, Prince Rainier of Monaco and deteriorating health  Manner of public interest due to his official role as head of state Caroline Von Hannover 1Caroline Von Hannover 2

Attitude of ECHR  Von Hannover 3  Pictures of Caroline’s summer home in Africa  Newspapers just have to prove articles (not photos) add to a debate of general interest  AXEL SPRINGER v GERMANY  articles about the arrest and conviction of a well known television actor for the possession of drugs  ECHR ruled that German courts had violated Art 10

Axel Springer / 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

Q 3- Privacy in open space

Prior Restraint  Under HRA claimant MUST notify the proposed publisher of material  e.g. newspaper so that arguments against injunction can be made  McLaren v NGN Newspapers Ltd [2012] EWHC 2466  Former England manager wanted to stop publication of NEW affair story  He had spoken publicly about a previous affair and sold his story to newspapers  Courts considered him a “role model” and saw public interest in publication

Mosley argument  Once it’s out, it’s out  Subject should be notified prior to publication of material  Only REAL method of protecting privacy  Current remedy of damages after intrusion insufficient

Q 4 – remedies A & B

Going too far? Effective?  Does it restrict Article 10 rights too much? OR  Does it provide the correct protection for privacy?  Super injunctions “waste of time” spoiled by the Twitterati? (cannot even talk about an injunction being granted)

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 now very low.  Use of “Right to be forgotten”

Q 5 – FOOTBALL