News and Insights

Fundamental questions around the right to privacy

Some months ago The Sun newspaper, never one to shy away from controversy, published photographs and a video clip of the Queen as a child appearing to perform a Nazi salute, despite the palace having requested it not to do so.

The images allegedly came from the Royal family’s private collection but had somehow found their way in to the hands of the media. The Sun defended its decision to publish, claiming the images were a matter of public interest relating to an issue of national historical importance; attitudes to Nazi Germany in Britain in the 1930s. Conveniently for the newspaper, whose proprietor is well known for its Republican sympathies, it also showed the Royal family in a very poor light.

This raises some fundamental questions around the right to privacy:

• Did the publishing of these images breach the Queen’s right to privacy?
• Would a paper’s ulterior motives make a difference?
• Do the Queen’s subjects have similar rights too?

This is not merely an issue of importance to those in the public eye who can expect to be the subject of comment. Everyone is being watched. Technologies such as mobile phone tracking, facial scanning, cookies, free Wi-Fi, CCTV and the internet have made it very hard to stay under the radar of organisations whose  business model is not to sell comments about you, but to try and sell things to you. Channel 4’s new programme ‘Hunted’, questions whether it is possible for ordinary members of the public to go ‘off-radar’ and cover the tracks of their digital footprint. Given it is almost impossible to remain anonymous across the internet, and those photos, tweets and posts are never truly ‘private’ or instantaneously deleted, it will be interesting to see whether those people are able to avoid detection and, if successful, how they maintain their anonymity.

Managing the tension between two basic rights

As is often the case the law provokes interest when it has to manage conflicting priorities: on one hand the individual’s right to privacy and on the other his or her right to freedom of expression, as enshrined in English law by the Human Rights Act 1998.  Article 8 of the ECHR guarantees the right to a private life and Article 10 the right to freedom of expression. Because both rights have their counterparts in the Human Rights (Jersey) Law of 2000 a consideration of the position in England sheds light on the position in Jersey also.

Article 12 of the ECHR was included to enable the Courts to use their discretion in handling this conflict and a two stage test has been developed by case law; firstly a threshold test and then a balancing test.

The first test considers whether the information concerned is in principle protected by Article 8 as information about which the claimant has a “reasonable expectation of privacy”. If that is found not to be the case, the claimant’s complaint about the use of such information will fail.

The second test, once the court has established a reasonable expectation of privacy, aims to balance the claimant’s Article 8 rights against the defendant’s Article 10 rights to freedom of expression.

The courts have not so far laid down any presumptions as to which right will normally prevail, and instead consider each case on its particular facts in all the circumstances.

The unhappy claimant has no specific cause of action in English or Jersey law based on “invasion of privacy”. Instead, such complaints are now made by bringing an action for “breach of confidence” (which since 2004 has not required as a starting point any sort of initial confidential relationship between the parties in dispute) or an action asserting the “misuse of private information” which has recently been recognised as an actionable wrong in its own right.

Breach of confidence

In the past few years a number of high profile cases have developed the law on privacy. A string of celebrities have sought to have their identities (and, in some cases, the identities of others) protected by anonymously obtaining injunctions forbidding the publication of information, while others have obtained super-injunctions which not only prevent the publishing of certain information, but also forbid mention of the very existence of the orders not to publish.

In early 2010, then England football captain John Terry applied for an anonymised injunction against unknown persons to prevent disclosure of the details of an affair with a team mate’s ex-girlfriend. The injunction was not granted. It was held; no notice was given to any newspaper when it should have been, the information was not considered particularly sensitive as Terry had discussed the matter during an interview, and the primary objective appeared to be to protect Terry’s commercial image, rather than his privacy. Terry was subsequently removed as England captain with the then England manager stating that the position of captain includes acting as a role model for others.

Later in 2010, fellow footballer Rio Ferdinand failed in his claim against the Daily Mirror for breach of privacy, following the publication of a story relating to a 13 year relationship with a woman during the run up to his England captaincy, and concerning a time when he was married. Due to Ferdinand’s role as England captain, and because he had given an interview during 2006 claiming to be a “reformed character” and a “family man”, the court held the publication was in the public interest as the captaincy was “a job that carried with it an expectation of high standards” which were expected to be maintained on and off the pitch.

Misuse of private information

Case law has assisted in developing the application of misuse of private information.

In the Jersey case of Cole v. Chief Officer of States of Jersey Police [2007], the plaintiff brought an action for misuse of private information/breach of confidence because the States of Jersey police disclosed his criminal record to a potential employer, without his explicit consent. The Data Protection (Jersey) Law 2005 provides that a criminal record is classed as “sensitive personal data”, the processing of which requires the data subject’s “explicit consent”. Consent is considered as “explicit” if it was clear and detailed, with no room for any confusion. In this particular case, the claimant wrongly assumed the UK Rehabilitation of Offenders Act applied in Jersey, so that old convictions would be treated as spent. His consent therefore was not clear consent without any room for confusion.

It was held by the court that the position in Jersey is the same as in the UK:

1. a duty of confidence was imposed whenever a person received information that he knew, or ought reasonably to have known was to be regarded as private; and
2. for a successful claim of misuse of information, the claimant must show an unauthorised disclosure of private information without his consent.
3. Although unauthorised disclosure may, in certain cases, be justified by a countervailing public interest requiring disclosure, that was not so in this case. The criminal record in question related to offences that were committed 17-19 years prior to the employment application and were not sufficiently serious offences to warrant disclosure in the public interest.

The principles set out in 1 to 3 above were established in the English case of Campbell v. MGN [2004], when Naomi Campbell successfully sued The News of the World Corporation for misuse of private information, namely an image of her leaving a Narcotics Anonymous meeting. On applying the principles of the misuse of private information, it was stated that such matters will be dealt with on a case by case basis at the courts’ discretion.

In An Advocate v. Chief Officer of States of Jersey Police [2011] an advocate refused to provide consent to the disclosure of a police interview transcript to the Law Society for the purposes of a disciplinary investigation, following complaints made to the Law Society relating to his conduct.

However, the court held that the police were entitled in the public interest in the administration of justice to disclose the transcript to the Law Society, as the police believed it would be relevant to the Society’s disciplinary investigation. In addition, there was the clearest possible public interest in ensuring that all advocates at all times behaved in accordance with the high standards expected of them.

The balancing act

Following a rush of super and anonymised injunctions, a committee was established to produce a report focussing on procedural aspects of the granting of such injunctions and the principle of open justice. The report did not deal with the substantive issues such as how to strike the balance between freedom of expression and the right to privacy. This was considered to be a question for Parliament and the courts. The Prime Minister has also aired his concerns that the judiciary have in the past circumvented the democratic political process and used human rights legislation to introduce a privacy law by the back door.

Recently, the use of super-injunctions has slowed, with official statistics showing that in 2014 only one was granted against a media organisation. What is still apparent though is that access to such protection is more readily available to those who are able to pay the high costs involved. The average person is not able to explore such options, leaving the rich with more control over their privacy than other citizens.

Although in most cases it is the rich and famous who benefit from exercising their “extended privacy rights”, bizarrely last month the West Midlands Police Force decided not to release the names of several convicted murderers and rapists they were hunting, claiming the release of such information would be a breach of their human rights. The offenders have been on the run for more than a decade in some cases.

The decision has caused an outcry, with local politicians accusing the force of misusing the data protection law. Others have claimed the actions of the police protect the criminals instead of the victims. Whatever the reasons, the decision has not been popular with politicians, local residents, or former officers and is viewed as a backwards move.

So, has “the Queen’s privacy” been breached?

Some will maintain that publishing both the still images and video clip was a breach of the Queen’s right to a private family life, particularly as the images were obtained from a private collection, and will argue that the publication adds nothing to the publics’ historical knowledge. Others, and most media outlets, will uphold that the publication was correct under Article 10, and that the images were of public importance. Some even say that all images held in private by the Royal family should be released to the public, so a clear understanding of the Royal family’s conduct during the build-up to WWII can be thoroughly understood.

One conclusion would seem to be that if you assume responsibilities, or have them thrust upon you as monarch, as England football captain, or merely as an Advocate, your right to privacy is qualified by a public interest in understanding any hypocrisy of misconduct on your part. Only the expensive business of an anonymised or super-injunction might help you if the court feels the material facts contain little of genuine public interest.