“In my work, privacy and reputation are often the sole reason for my instruction. Whilst there is mostly some other underlying dispute, I am often instructed simply to prevent publication of an image, a snippet of commercial or private information that a publisher may have an interest in but would be damaging or humiliating for my client.
For some, privacy is a slightly indulgent consideration. For others, it is worse than that. Having represented the core participant “victims” at the Leveson Inquiry, I witnessed a range of responses to my clients’ evidence of press abuse, but the evidence of the former News of the World and Mail journalist Paul McMullen will never be forgotten: “Privacy is for Peados” he told a startled Lord Justice Leveson “No one else needs it”.
That view may have been extreme, even in 2011 but for a long-time privacy rights did appear to be limited to the realm of footballers and glamorous figures from the entertainment industry. And, if I’m honest about it, had it not been, I doubt I would have been so interested in it. I began my training contract in 1998, the same time as the Human Rights Act ushered the European Convention on Human Rights into English law and as I qualified as a litigator, I followed the development of the tort of “misuse of private information” emerge from judges striking a balance between the Article 8 right to privacy and the Article 10 right to freedom of expression, but also using the common law jurisprudence on breach of confidence. It was all terribly exciting, not least that most of the cases involved sex, celebrities and the London tabloid newspaper industry at its most feral.
Over a 10-year period from perhaps 2004 to 2014 I rode the wave of an explosion of media litigation that had significant cultural as well as legal significance, most strikingly during the phone hacking scandal. The UK Court built a body of case law establishing an increasingly sophisticated approach to determining privacy cases.
But of the “Western” jurisdictions the UK was late to develop the law of privacy. In the 90s, before the Human Rights Act, the actor famous for his role in the wonderful Allo Allo, Gordan Kaye, lost his claim to prevent the publication of photographs in the Sunday Sport, taken of Mr Kaye in hospital, without consent, having suffered head injuries during a storm. The court acknowledged that it was an outrageous invasion of privacy but was powerless to act.
Since the Human Rights Act countless sensational, if sometimes anonymised cases have established the way in which the court conducts the balancing exercise between the competing rights of privacy and freedom of expression, but only if the claimant can first establish that he/she has a reasonable expectation of privacy in relation to the images or information concerned. Early cases brought by characters such as Naomi Campbell, Michael Douglas, JK Rowling and Max Mosley laid the ground for more recent Supreme Court cases such as PJS and ZXC, which demonstrate the broad extent of privacy protection we now have.
US Privacy law, on the other hand developed, a century before the Gordan Kaye debacle in the UK, with the publication of “The Right to Privacy” in the Harvard Law Review in 1890. It is only more recently and, most famously in the case of the New York Times v Sullivan in the 1960s, that freedom of expression and the First Amendment has taken precedent in media cases.
So, we have to guard against the idea of the concept of “Western” transparency when looking at how the law deals with privacy and confidentiality. Even in Europe, with Articles 8 and 10 of the European Convention on Human Rights as our signposts, privacy law has developed unevenly, not only because of the different legal processes and approaches but because of cultural and political differences, too. The German cases involving Princess Caroline of Monaco, Von Hannover v Germany 1, 2 and 3 tested the scope of privacy law, likewise Axel Springer v Germany. The latter case involved photographs of a famous actor being arrested for possession of drugs at an Octoberfest event and a report of his confession at subsequent court proceedings. The German courts found for the actor but on appeal to the European Court of Human rights, the publisher succeeded in arguing that the German Court’s approach to privacy was too expansive. These cases were hugely influential in the development of the law across Europe.
In France Article 9 of the Civil code has generated a large body of case law. Freedom of expression prevails where there is a public interest to be informed of the information, but not where there is disclosure that concerns the “intimacy of private life” or disregards human dignity. An example of the struggles the court have had was a 2013 case concerning a book which identified a prominent member of the National Front party as homosexual. The publisher successfully defended its right to name the politician, given the party’s standing on gay marriage and family values but made a distinction between the politician and his partner, in whom there was no public interest.
These German and French cases are all concerned with claims that have been pursued after publication. An important distinguishing aspect of privacy law in the UK, which developed from breach of confidence precedents is the remedy of a pre-publication injunction. English media lawyers are now well used to raising the spectre of an injunction and seeking undertakings to prevent the information ever entering the public domain. Such was the effectiveness of injunctions, tabloid newspapers sought to avoid the risk of injunctions by keeping a story secret before publication, ignoring the internationally recognised journalistic step of putting a story to the subject before publishing. I took this issue to Strasbourg on behalf of the wonderfully resilient Max Mosely who sought, unsuccessfully, to impose an obligation on newspapers to contact their subjects first. But the fact remains that pre-publication injunctions are the go-to means of protecting privacy in the UK, with damages rarely considered an adequate remedy once the private information has been revealed. In PJS the Supreme Court ruled that the UK Court should maintain its injunction notwithstanding the fact that the information was widely available from sources outside the jurisdiction.
I can’t claim any great insight into the law or development of privacy or breach of confidence in other jurisdictions, particularly what is described in the title as “the East”. For many jurisdictions the likelihood of meaningful privacy cases against the media is fanciful given the absence of a free press or access to justice. As we have heard in the last section, for many cultures, privacy is central and presents challenges for oversight and any meaningful media.
However, what I can attest to is a dramatic developments in data privacy rights. The law of privacy may have been considered the realm of footballers and celebrities in the UK in the naughties, but in the last decade, due to the proliferation of social media and online gathering of our information, protecting our own privacy (principally in the form of “data”) has become a huge consideration all across the world. We are now less worried about information being published by newspapers than we are about X, Facebook or our rogue neighbours’ blog or our free hotel Wi-Fi.
In the Middle East and beyond, countries are clamouring to establish themselves as world leaders in digitisation and digital technologies and with that comes the need for national infrastructure and data privacy laws. Within the Gulf Cooperation Council countries, Dubai led the way with a comprehensive data protection regime, seeking to follow the principles of the GDPR. Qatar issued the GCCs first national data protection law in 2016.
In Hong Kong there is the personal data (privacy) ordinance and in China there is the Personal Information Protection Law with the wonderfully named Cyberspace Administration of China responsible for supervising data protection and enforcement. I am sure your data is safe with them.
So, I might conclude, it is data, not footballers, that has woken the world up to the need to grapple with privacy rights.”
For further information, please contact Dominic Crossley by email or alternatively call on 020 7465 4300