1. Privacy and Human Rights
The action for misuse of private information has grown out of the older equitable claim for breach of confidence.
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2. 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
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3. 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’
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4. ‘After the intrusion’ claims
Peck
Campbell
Murray
Mosley
Rio Ferdinand
Weller
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5. ‘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)
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6. 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
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7. 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
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8. 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
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9. Mosley argument
Subject should be notified prior to publication of material
Only REAL method of protecting privacy
Current remedy of damages after intrusion insufficient
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10. 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
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11. 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?
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