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Does the ECtHR protect our privacy? Or are the press free to write whatever they like?
Asserting that the rights of the press to freedom of expression are beneficial for society is easy. Nonetheless, it is equally as easy to identify how often the press have acted in a blatant disregard for individuals’ right to privacy. Successfully balancing these rights is a difficult task, yet it is even more crucial in light of the Leveson Inquiry. There are domestic and international laws to guide the courts in this exercise; however, they are not flawless. Further, when applying these laws, the courts do not always get the balance right in practice.
Under Art.10(1) of the European Convention on Human Rights (ECHR) and the Human Rights Act 1998 (HRA), freedom of expression involves ‘seeking, receiving and imparting information or ideas’, regardless what medium is used, even if this offends (Handyside v UK). This formulation of the right promotes individual liberty, contributes to mental wellbeing, and fosters a healthy democracy with public debate (R v SSHD ex p Simms). Lord Bingham explained: ‘The proper functioning of a modern participatory democracy requires that the media be free, active, professional and enquiring’ (McCarten Turkington Breen v Times Newspapers). This is because people could not sufficiently ‘participate in the public life of their society … if they are not … informed about’ important matters, usually by the press (McCarten Turkington Breen v Times Newspapers). Consequently, the press are well protected under Art.10 ECHR and HRA. States have a positive obligation to ensure that the press can operate freely and if this is restricted in some way there must be ‘careful scrutiny of the proportionality of the measures’ used (Bergens Tidende v Norway).
Nevertheless, the press have responsibilities too. For instance, in EU law, there are ‘exemptions and derogations … for the processing of personal data carried out solely for journalistic purpose' (Council Directive (EC) 95/46). Unfortunately, there is no clear, universally accepted definition of a journalist. The Court of Justice for the EU’s test for this is the best we have (Tietosuojavaltwtettu v Satakunnan Markkinaporssi); however, this has been heavily criticised (by Lanagan, for example). This is problematic because we must know who is a journalist to know who has the privileges and responsibilities that come with this status. This is especially important when it comes to investigative journalism, for example. Although it may stand ‘up for the public interest’ (Lord Inglewood), the press do not always respect individual’s privacy when doing it (Paul Wragg). Despite the press not being a public authority, the European Court of Human Right (ECtHR) indicated that domestic courts can use the individual horizontal effect of s.6(3) HRA to protect individuals’ right to privacy against the press (Spencer v UK).
Some argue that if you have nothing to hide you have nothing to fear, so good people don't need their privacy protecting at all (Daniel Solove). However, this is a weak argument; everybody has something to hide. Nevertheless, there is no ‘tort of privacy’ in English law (Kay v Robertson). Before 2004, there was only the tort of ‘breach of confidence’, which ‘suffers from a number of defects as a “privacy protection” tort’ (Matric Media and Information Group). There needed to be wider protections for privacy rights.
There is a right to privacy, though, found in Art.8(1) of the ECHR and HRA, which tells us: ‘Everyone has the right to respect for his private… life…’ This seems simple, but privacy is ‘perplexing’ and ill-understood, and there is no agreed legal definition (Raymond Wacks). This needs improving; how can privacy be properly protected if there is not an agreement on what it includes?
Still, the ECHR and HRA have helped to improve the protection of privacy. In Campbell v MGN Ltd, Campbell’s case did not fit within the breach of confidence tort. Therefore, the court recognised a new tort of ‘misuse of private information’, meaning there no longer is a ‘need for an initial confidential relationship’ for a successful claim. The new test was: first, there must be a ‘reasonable expectation of privacy’ within the meaning of Art.8; second, the Art.8 rights must be balanced against the defendant’s Art.10 rights. Art.8 even ‘imposes a positive duty on [States] to ensure that other citizens do not unduly infringe’ individuals’ privacy rights (Richard Stone). Murray v Express Newspapers applied Campbell, stating that the first stage ‘takes account of all the circumstances of the case…’ This has been criticised because it is too broad: ‘it ultimately directs the court to appeal to its own instincts in ruling whether the claimant had an expectation of "privacy"’ (Amedeo Cappuccio). However, this is pragmatic, and a definite improvement on previous protections for privacy.
Despite some initial problems, the rights of the press to freedom of expression and the right of individuals to privacy are starting to be seen with equal merit. This is good; the right to privacy is vital for everybody as ‘an aspect of human autonomy and dignity…’ (Campbell v MGN LTD). Therefore, it should be afforded high value by the courts, especially in light of the strong position the press are in with regard to the right to freedom of expression.
Nevertheless, both rights can be limited because they are qualified rights under the ECHR and HRA. Assessment criteria for the legality of any restrictions of freedom of expression are found in Art.10(2); they must be prescribed by law and in accordance with a legitimate aim, which is necessary in a democratic society (Murphy v Ireland). This final stage includes an assessment of proportionality. These restrictions must be ‘strictly construed’ (Pentikänen v Finland), but States get some flexibility because of the margin of appreciation afforded to them (Autronic AG v Switzerland). The HRA goes even further than the ECHR in emphasising that ‘the restrictions of … Art.10 rights should be approached with great caution’ because of s.12, which was included to ensure the Convention rights would not ‘be used too eagerly by the courts against the media' (Stone).
The criteria for limitations that must be applied when limiting the right to privacy under Art.8(2) are the same as those under Art.10(2), just with some different interests that could make restrictions necessary in a democratic society. It has been said that any protection of privacy against the press ‘must operate so as to interfere with freedom of expression to the smallest … extent compatible with providing proper protection for privacy...’ (Matrix). This approach does not seem to afford enough value to privacy. In fact, if ‘the private sphere’ were better protected, then it would improve citizens’ abilities to exercise their rights to freedom of expression (Cappucio).
Unsurprisingly then, the biggest difficulties for the courts do indeed arise when individuals’ rights to privacy collide with the press’ right to freedom of expression. In theory the response is simple: ‘Neither Article has … precedence over the other where the two are in conflict’, instead their importance must be assessed in each situation (Re S (A Child) (Identification: Restrictions on Publication)).The proportionality test becomes especially important here. This is important as it ensures fairness. However, there are many tensions that arise in practice when the courts try to balance the two rights; for example, whether privacy can and should be claimed in regards to events that occur in public or are already detailed in the public domain (N.A. Moreham). Perhaps the most contentious issue, though, is what protection public figures - especially celebrities - get in relation to their private lives.
This issue arose in Campbell. The test applied by the House of Lords was how someone of ‘ordinary sensibilities’ would have reacted if such information were published about them. After balancing Art.8 and Art.10 rights, there was held to be a breach of Art.8. Baroness Hale took the best approach, reasoning that ‘all of the information about Miss Campbell’s addiction and attendance at NA [was] private ... because it related to an important aspect of [her health]…’ Not all the judges agreed, nevertheless, health is now one of the established areas that are likely to always be private. The fact that Campbell is a celebrity should not be the overriding factor; she still has a private life that must be respected.
Campbell was confirmed by von Hannover v Germany, where the ECtHR held that there was a violation of her Art.8 rights because Germany had not fulfilled its positive obligations to protect her from publication of unauthorised photographs of her. The Court balanced Art.8 with Art.10, stressing that ‘a fundamental distinction needs to be made between reporting facts—even controversial ones—capable of contributing to a debate in a democratic society … and reporting details of the private life of an individual…’ In this case, the photographs did not ‘contribute to any debate of general interest to society despite the applicant being known to the public.’ This validates that ‘simply because a person is in a general sense a “public figure”, this doesn't mean that it is legitimate to publish any photographs of them' (Stone). The Court balanced the rights well in here; it ensured strong protection for Art.8 rights, but also offered a ‘strong defence of the role of the press in democratic society…’ This approach should be followed in domestic cases, making sure there is also a case-by-case assessment.
UK courts have not always followed this approach, though. For instance, Mosley v News Group Newspapers Ltd shifted the balance too far against the press. Consequently, Melville-Brown predicted that ‘the media is likely to continue to feed the public's appetite for investigate articles that expose confidential information about the … sexual shenanigans of celebrities…’ This prediction is accurate, especially with regards to footballers. In Ferdinand v MGN it was stated that Ferdinand’s ‘public position as a footballer ... will need to be considered … closely in the context of the balancing exercise…’, especially as he has ‘projected an image of himself’ that the public had an interest in knowing it was false because he is a ‘role model’. It is dubious whether footballers - and other celebrities - should be classed as role models and thus have less protection for their privacy when they do not live up to this standard. It is unjustifiable to do so because ‘the purported failures often concern aspects of life beyond the fields of activity for which the public figures are known’ (Earl Spurgin). Anyway, do we not have better people for young people to look up to?
It seems that the protection afforded to celebrities’ right to privacy is less than that of the average citizen, even though ‘classification of all celebrities as general purpose public figures [is] without a legitimate basis' (Robin D. Barnes). In doing this courts are not properly performing their function of safeguarding individuals’ rights.
In conclusion, the balance of individuals’ right to privacy and the press’ right to freedom of expression seems to be satisfactory in theory, especially since the enactment of the ECHR and HRA. Applying the rights, the courts have made some good decisions with pragmatic outcomes; however there are still many difficult areas where there is no agreement on the correct approach to be taken. As the laws develop, things are improving, though. Nevertheless, still more value needs to be afforded to individuals’ rights to privacy, no matter who that individual is.