Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act
| DOI | http://doi.org/10.1111/1468-2230.6605003 |
| Author | Gavin Phillipson |
| Date | 01 September 2003 |
| Published date | 01 September 2003 |
Transforming Breach of Confidence?
Towards a Common Law Right of Privacy
under the Human Rights Act
Gavin Phillipson
This article examines the development of a remedy for unauthorised publication of
personal information that has resulted from the fusion of breach of confidence with
the limited ‘horizontal’ application of Article 8 of the ECHR via the Human
Rights Act. Its analysis of Strasbourg and domestic post-HRA case law reveals
the extent to which confidence has in some areas been radically transformed into a
privacy right in all but name; however it also seeks to expose the analytical and
normative tensions that arise in the judgments between the values of confidentiality
and privacy as overlapping but not coterminous concepts, due in part to the failure
to resolve decisively the horizontal effect conundrum. This judicial ambivalence
towards the reception of privacy as a legal right into English law may, it will
argue, also be seen in the prevailing judicial approach to the resolution of the
conflict between privacy and expression interests which, it will suggest, is both
normatively and structurally inadequate.
Legal protection for privacy against intrusion by the press is now an established
fact, finally remedying the ‘signal shortcoming’ in English law bemoaned by the
judges in Kaye vRobertson,
1
and providing some protection against what Sedley
LJ has termed ‘an increasingly invasive social environment.’
2
As this article will
illustrate, the action for breach of confidence is now being used as the basis for
regular orders by the courts with the clear aim and effect of affording a remedy
against unauthorised publication of personal information by the media. In
engineering this quiet revolution, the courts have fused common law development
with inspiration from Article 8 of the European Convention on Human Rights,
3
which gives a right to respect for private and family life, despite the fact that
newspapers are not ‘public authorities’ and therefore not bound, under the
Human Rights Act (‘HRA’), to act compatibly with the Convention rights.
4
The
case law is now considerable, and some of it, consisting of unreported decisions,
requires some introduction to illustrate the range of circumstances in which the
courts are now giving legal relief against intrusive journalism.
In March 2001, a famous pop singer successfully sought injunctions
preventing publication of pornographic photographs of herself taken at a younger
University of Durham. Earlier versions of this paper were delivered at the launch of the Durham
University Human Rights Centre on 20 October 2001, and in the first seminar of the Centre’s
AHRB-funded series on Judicial Reasoning under the Human Rights Act, held at Allen and Overy
on 31 March 2003. The author would like to thank Lord Justice Sedley, who chaired the first
session and replied to the author in the second, and the participants in both of them for their very
helpful comments in the ensuing discussion. Grateful thanks are also due to the very helpful
suggestions of the anonymous referees.
1[1991] FSR 62, CA, 71, Legalt LJ.
2Douglas and Zeta Jones and ors vHello! [2001] QB 967, 997, CA, Sedley LJ.
3For a pre-HRA analysis of this enterprise, see the author’s ‘Breach of Confidence as a Privacy
Remedy in the Human Rights Act Era’ [2000] 63(5) MLR 660, with H. Fenwick. The author
draws upon the analysis in that article at various points.
4Section 6(1) HRA.
rThe Modern Law Review Limited 2003. (MLR 66:5, September). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
726
age.
5
In Beckham vMGN,
6
the Beckhams obtained an injunction to prevent the
publication of photographs of their home, and in Blair vAssociated Newspapers
7
Cherie Blair was granted a series of injunctions against various parties to prevent
the publication of details of her domestic arrangements, provided by a former
nanny. In Holden vExpress Newspapers Ltd
8
an actress and her husband obtained
an interim injunction to prevent publication of photographs of themselves
relaxing by the swimming pool of a hotel, taken from outside the hotel grounds
using a long-range lens. In Jaqueline A vThe London Borough of Newham,
9
a judge
awarded damages for mental distress against Newham Council, in a case based on
breach of confidence and the Data Protection Act, for using the photograph of a
child, without permission, in a brochure warning of the dangers of AIDS. Most
recently, Angus Deayton obtained an injunction against the Mail on Sunday in
respect of threatened revelations relating to his private life,
10
while Sara Cox
obtained substantial damages from the Sunday People for publishing pictures of
her and her husband sunbathing nude on their honeymoon.
11
More well known are the following decisions: in Venables vNews Group
Newspapers
12
Butler Sloss P granted unprecedented injunctions contra omnes,
based on breach of confidence, preventing publication of any material which
might reveal the identity and whereabouts of Venables and Thompson, the
juvenile killers of Jamie Bulger. She has very recently granted identical
injunctions giving lifelong protection to the identity of Mary Bell and her
daughter.
13
In Mills vNews Group Newspapers,
14
the court found that the
threatened publication of the applicant’s address in the Sun raised a serious issue
of invasion of privacy and breach of confidence, although on the facts relief was
withheld. Jamie Theakston’s fortunes, in seeking to restrain both photographs and
a story giving details of his encounter with prostitutes were mixed: the judge
granted an injunction restraining the use of the photographs, but refused to
restrain publication of the story.
15
In Douglas and Zeta Jones and ors vHello!,
16
the Court of Appeal found that that the proposed publication of surreptitiously
obtained photographs of the couple’s wedding arguably amounted to a breach of
confidence, and, Sedley LJ found, of the couple’s right to privacy;
17
an injunction
was withheld, but Hello! was recently found liable in damages for breach of
confidence by Lindsay J.
18
In AvB Plc,
19
the Court of Appeal overturned
injunctions granted by Jack J
20
preventing women with whom a premiership
footballer had had an affair from publishing details of it in a tabloid newspaper.
5Judgment of MacKay. The case is entirely unreported.
6Beckham vMGN, 28 June 2001, Eady J (unreported).
7Case no HQ0001236 – a number of unreported decisions were delivered in 2001.
8(QBD), 7 June 2001, Eady J, unreported. I am indebted to M. Tugendhat and I. Christie, The
Law of Privacy and the Media (Oxford: OUP, 2002) at 218 for the description of this case.
9(2001) WL 1612596.
10See ‘Newspaper to challenge Deayton gagging order’ Guardian 10 June 2002.
11See Guardian 7 June 2003.
13 X (A woman formerly known as Mary Bell) vSO [2003] EWHC 1101.
16n 2 above.
17 Ibid, 997.
18[2003] EWHC 786 (Ch), 11 April 2003. This decision will be referred to as ‘Douglas II’.
20The judgment of 30 April 2001 in which the initial injunction was granted is unreported. The
subsequent decision on an application by the newspaper concerned to discharge the injunction
Towards a Common Law Right of PrivacySeptember 2003]
727rThe Modern Law Review Limited 2003
Naomi Campbell’s successful claim for damages
21
flowing from a successful action
both in breach of confidence and under the Data Protection Act 1998 after the
Mirror had published details of her treatment for drug addiction with Narcotics
Anonymous, including surreptitiously taken photographs, was likewise over-
turned by the Court of Appeal,
22
though on comparatively narrow grounds.
So much, then for the decisions. The developments above have received a broad
welcome from parts of the academic community,
23
with which the present author
would join. However, while providing an exposition of the doctrinal developments
that the above decisions represent, this article will also essay a critique of certain
emerging trends in the case law to date
24
through examination of the key issues
with which the courts have had to grapple:
25
the horizontal effect of the HRA on
common law; the types of personal information that may now merit protection by
the law; how far information which may be considered partly in the public domain
can yet remain protected; the notion of ‘implied consent’ to publication of
personal information by celebrity or otherwise public figures; the circumstances in
which an obligation of confidentiality may be imposed. The argument will be that,
whilst developments in these areas have led to a potentially radical transformation
of the ability of the confidence action to protect privacy, one may also detect in
many of the judgments a marked degree of equivocation between the values of
privacy and confidentiality, an equivocation which it will be suggested is partly
attributable to a judicial failure to appreciate the significance of the differing
principles underlying these two concepts and partly to what it will be suggested is
the absence of a proper resolution of the role the Convention rights should play in
private law. This uncertainty surrounding the ‘horizontal effect’ conundrum can
also, it will be suggested, be seen in the courts’ approach to the crucial final issue
here discussed: the resolution of the conflict between privacy and expression
interests, respectively protected by Articles 8 and 10 of the ECHR. Here it will be
argued that the predominant approach of the courts fails structurally to afford
privacy the respect it deserves as a Convention right, while remaining uncritically
receptive to the claims of what, in many cases, amounts to markedly ‘low value’
expression.
23See I. Hare, ‘Vertically Challenged: Private Parties, Privacy and the Human Rights Act’ (2001)
5 EHRLR 526; N. Moreham, ‘Douglas and Others vHello! Ltd –the Protection of Privacy in
English Private Law’ (64(5) MLR 767; M. Elliot, ‘Privacy, confidentiality and horizontality: the
case of the celebrity wedding photographs’ (2001) 60(2) CLJ 231; P. Carey, ‘Hello to Privacy’
Ent LR 2001,12(4) 120; J. Coad,‘Privacy – Article 8 – Who NeedsIt?’ Ent LR 2001, 12(8)226;
R. Singh and T. Strachan, ‘The Right to Privacy in English Law’ [2002] 2 EHRLR 129,
149–151.
24It will not deal with the prospects in the case law for the development of a wholly separate tort
of privacy. Decisions since Douglas now show little promise in this respect. In particular dicta of
Woolf CJ in AvB plc strongly steered the lower courts away from considering such a
development: n 19 above at 550B; in the recent decision in Douglas II Lindsay J expressed
strong reservations at the prospect of a new tort of invasion of privacy: n 18 above, para 229.
The possibility of a general privacy tort, going beyond informational protection, as discussed in
Wainwright vHome Office [2002] 3 WLR 405 CA, is outside the scope of this article.
25 The article will not address the courts’ interpretationof the new test for granting injunctive
relief set out in section 12(3) HRA, a matter that has been discussed elsewhere: see, eg Singh and
Strachan, n 23 above, 149–151 and Matrix Media and Information Group, Privacy and the
Media: the Developing Law (London: Orchard Press, 2002) para 4.5 and by H. Rogers and H.
Tomlinson QC, ‘Privacy and Expression: Convention Rights and Interim Injunctions’ [2003]
EHRLR, forthcoming.
The Modern Law Review[Vol. 66
728 rThe Modern Law Review Limited 2003
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