A brief introduction to the concept of privacy under English law – Part III

For context please see Part’s I and II of our analysis.

Eraser Picture

From the hallmark case of Campbell and the development of breach of privacy as an action, it is clear that the integration of privacy as a concept in English law is still in its formative years. In Part III we consider some of the significant cases post-Campbell to date, bringing into relief key issues and developments in privacy law, many of which are ongoing or merit further consideration by the courts. In particular, the broad nature of an individual’s reasonable expectation of privacy becomes clear (covering issues of children’s privacy and biometric data retention) and the degree to which this can be qualified against other rights is explored.

The pronounced impact of Campbell

The case of Associated Newspapers Limited v His Royal Highness the Prince of Wales [2006] EWCA Civ 1776 concerned the publication of eight handwritten journals kept by Prince Charles documenting his overseas trips between 1993 and 1999. Consequently excerpts of the journals were given by an employee of the Prince to newspaper and made public despite the knowledge of a contractual duty of confidence, giving rise to an action for breach of confidence and misuse of private information.

The court highlighted the inter-related nature of confidential and private information, as in this instance, the facts of a case often engage both. Consequently, guidance was merited as to their status vis a vis each other and their consequential application:

“Whether a publication, or threatened publication, involves a breach of a relationship of confidence, an interference with privacy or both, it is necessary to consider whether these matters justify the interference with Article 10 rights… A balance has to be struck. Where no breach of a confidential relationship is involved, that balance will be between Article 8 and Article 10 rights and will usually involve weighing the nature and consequences of the breach of privacy against the public interest, if any, in the disclosure of private information.” – at p. 65

Interestingly, the application of the law of confidence could be applied cumulatively following the establishment of the right to privacy in the contents of the journals. The public interest in duties of confidence being observed, especially in the case of employees was also a weighty factor in favour of the claimant’s arguments:

“Thus, even if one ignores the significance of the fact that the information published had been revealed to Ms Goodall in confidence, we consider that the judge was correct to hold that Prince Charles had an unanswerable claim for breach of privacy. When the breach of a confidential relationship is added to the balance, his case is overwhelming.”- at p.7


The development of children’s right to privacy under Article 8 and the nuances of the Campbell test

Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446, concerned an action under Article 8 made by the Murray’s (Mrs Murray being better known as JK Rowling) on behalf of their child, David, to prevent a series of photographs taken of them as a family out in public from being published. The appeal by the Murray’s to the Court of Appeal was to establish that David had a reasonable expectation of privacy in these circumstances. This mandated analysis of the distinction between the right to a private life of parents and their children. In doing so the court provided guidance in applying the test formulated in Campbell, focusing upon the application of limb one, a reasonable expectation of privacy:

“the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.” – p.36

This guidance helped establish a framework for the highly nuanced fact-sensitive approach which has become pervasive in cases where Article 8 is engaged. It objectively considers all the circumstances of a case to determine, whether, in all the circumstances and as a question of fact, a claimants reasonable expectation of privacy is engaged.

In Murray, the issue of children’s reasonable expectation of privacy was a novel one. The court found that children have a right to privacy separate from their parents and this was the right at issue. In finding that David had a reasonable expectation of privacy the court confirmed that this right was a weighty one- “the law should indeed protect children from intrusive media attention, at any rate to the extent of holding that a child has a reasonable expectation that he or she will not be targeted in order to obtain photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child.”

A key issue in the application of Article 8 is reflected in Murray– that of correctly identifying, quantifying and balancing findings of fact enabling the weighing of competing rights against one another. In the absence of an entirely objective framework errors are unavoidable. Undertaking highly complex fact sensitive analysis is entrenched in judge’s roles as decision makers and errors are mostly “ironed out” on appeal or by subsequent cases.

For example, the judge in the lower court in Murray determined that David did not have a reasonable expectation of privacy which, on the Court of Appeal’s findings, failed to place due weight upon his right to privacy rather than his parents. Being highly fact sensitive and still in its very formative stages privacy law was, and still is, prone to such deviations in findings of fact.

Naturally, the second limb of the Campbell test, balancing the individual’s right to privacy against competing interests (such as freedom of speech), is more prone to this issue. In determining the relevant factors applicable to a case the court needs to be exhaustive. Also there is an assumption that the importance of each factor are comparable relative to one another, sufficient to quantify which right has the most significance. This is compounded by the fact that the importance of the right to privacy and freedom of speech themselves vary depending upon the context in which they are engaged. Consider for example, the relative weight of one’s right to privacy in sensitive medical information as opposed to a recent divorce. Both may attract a reasonable expectation of privacy but in may instances the degree of intrusion into ones private life will vary.

This lack of objective reference points for the court lends itself to inconsistency and uncertainty around the protection the law affords when balancing these competing rights. Although using past cases as a point of reference and general principles as yardsticks can greatly assist the court, each case, by necessity, engages a “no man’s land” to differing degrees.

In concluding that both limbs of the Campbell test were satisfied the court allowed the appeal, reinstating the claims under Article 8 and the Data Protection Act 1998 due to errors of fact.


Privacy spotlighted

This issue was not long untouched by the courts- in Mosley v News Group Newspapers Ltd [2008] EMLR 20 the judge Eady J. provided useful guidance to assist in the application of Campbell’s second limb. Eady J’s thorough analysis of the facts in Mosley serves this purpose in and of itself. Further, Eady J distilled the second limb of Campbell, “the judge will often have to ask whether the intrusion, or perhaps the degree of the intrusion, into the claimant’s privacy, was proportionate to the public interest supposedly being served by it”.

Additionally, the case considers the correct characterisation of an action for breach of privacy and therefore, the nature of the damages which may be awarded. In particular, the point at issue was whether breach of privacy was qualified as a tort (or wrongful act) under English law, such that the case could qualify for exemplary damages.

This issue engaged conflicting caselaw, contrasting comments made in Campbell and Wainwright. Ultimately, Eady J. concluded that it would be more appropriate for an appellate court to make a final determination of this issue, a later matter which is of great significance to the development of privacy law.

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Privacy and public authorities – the lawful retention of data and Article 8

Given the growing body of common law focusing on the nuances of privacy it was just a matter of time before data retention practices came under scrutiny, particularly in relation to highly invasive biometric data such as fingerprints (“Samples”). In 2004 the National Police Database (“NPD”), pursuant to the Association of Chief Police Officers “Exceptional Case Procedure for Removal of DNA, Fingerprints and PNC Records” (“ACPO Guidelines”) and s64(1A) of the Police and Criminal Evidence Act 1984 (“PACE”), allowed for the indefinite retention of such data. Whilst PACE stated that Samples “may be retained” the ACPO guidelines were strict, mandating that Samples “must be retained save in exceptional circumstances”. This practice was challenged by judicial review on the grounds that it contravened Article 8. The House of Lords found that such practices did interfere with individuals’ right to a private life under Article 8(1) but could be justified per Article 8(2) as a proportionate means of achieving the legitimate aim of the detection and prevention of crime.

The question here was one of degree- the taking of samples and their blanket indefinite retention clearly violated Article 8(1). However, the court considered that a less invasive, more nuanced system of retention would undermine the usefulness of the database, thereby compromising the aim it sought to achieve. Further, introducing such discretion would expose the police force to judicial review of their decisions, placing further strain on the force’s resources.

Perhaps unsurprisingly the matter was appealed to the ECHR which, in S and Marper v United Kingdom (2008) 48 EHRR 1169 (“Marper”), ruled that the indeterminate retention of data on the NPD under the ACPO Guidelines could not be justified under Article 8(2):

“that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.”

This highlights the qualified nature of the right to a private life afforded by Article 8 and how this qualification is interpreted, applied in practice and its broad impact upon English law. The ruling necessitated a swift policy and legislative response from the Government, which released the White Paper, “Keeping the Right People on the DNA Database”, on 7 May 2009 but did not address the key issue of indeterminate retention.

Ultimately, the Supreme Court attempted to reconcile domestic law with the Marper case in R (GC) v Commissioner of Police of the Metropolis [2011] UKSC 21 (“R (GC)”) and provide an appropriate remedy to claimants. The result catalysed the policy change required for the vindication of individuals’ privacy in this instance.

In this case the two claimants disputed their Samples being retained for an undetermined period, which was justified by the ACPO Guidelines, underpinned by s.64(1A) PACE. The court reasoned that it could interpret the wording of s64(1A) in a way that would be consistent with article 8 due to its qualified nature. The same could not be said for the ACPO Guidelines due to their directive that Samples be retained indefinitely as a norm. On this basis retaining claimant’s Samples was considered unlawful.

R (GC) represented the culmination of a body of European and UK caselaw increasingly scrutinising the retention of sensitive personal data, acknowledging the importance of the control of such information as integral to safeguarding individual’s privacy. This reflects the values underpinning significant data protection legislation in the UK. The impact of the case can be seen in R v The Commissioner of Police of the Metropolis 2012 EWHC 1681 (Admin) where the court applied R(GC) to the Guidance on the Management of Police Information and Code of Practice (the “Policies”) on the retention of custody photographs. A breach was found the basis that the Policies mandated that photographs be stored for a minimum of six years, which constituted an unjustifiable disproportionate interference with the claimants article 8 rights. Consequently, the court directed the Commissioner of Police to exercise their statutory authority to amend the Policies in a matter of months, removing the mandatory minimum and further clarifying what retention practices were lawful.


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