A brief introduction to the concept of privacy under English Law – Parts I, II & III

Below we present a compiled summary of our highly popular introduction to the concept of privacy under English Law, this covers early developments, the integration of private individuals rights,  the widening of the concept and early 21st Century data protection issues: 

Part I

Many doctrines under English law form due to common law, also known as judge-made or case law, where a series of legal cases create and form doctrines or principles which underpin legal rights. Privacy emerged as a notion in common law in the 18th century, developing through cases, until it was legislated in the 20th century under the European Convention on Human Rights, which was integrated into English law by the Human Rights Act 1998.

The emergence of privacy as a notion

The concept of privacy was first referred to in the context of a person’s right to not have their activities in the home imposed upon by the state or others:

“The house of everyone is his castle and fortress, as well for his defences against injury and violence, as for his repose…” – at p.1 Peter Semayne v Richard Gresham 77 ER 194

This approach was affirmed in the case of Entick v Carrington [1765] EWHC KB J98, in which individuals broke into Carrington’s house and conducted an invasive search of the premises, including all his correspondence, pursuant to a warrant for finding libellous material. Finding in favour of Carrington the Court stated that such an action by the State was a gross infringement of his rights:

“The warrant is to seize all the plaintiff’s books and papers without exception, and carry them before Lord Halifax; what? Has a Secretary of State a right to see all a man’s private letters of correspondence, family concerns, trade and business? This would be monstrous indeed; and if it were lawful, no man could endure to live in this country.” – at p.2

The conceptualisation of privacy in early common law judgments

In the 19th century, the concept of privacy as a value underpinning decisions in English cases was conceptualised and extended further. The case of Prince Albert v Strange (1849) 41 ER 1171concerned the application for an injunction to prevent the publication of a catalogue of etchings and analyse them. The catalogue was not intended to be made public. Making the catalogue public, and critiquing the ideas of the creator they presented was seen to engage the right of privacy:

“That there is property in the ideas which pass in a man’s mind is consistent with all the authorities in English law. Incidental to that right is the right of deciding when and how they shall first be made known to the public. Privacy is a part, and an essential part, of this species of property.”

This early formulation of privacy is based upon the premise that it is a concept which attaches to property, in this case, ideas. It is then engaged as a matter of autonomy, in the prevention of or control of that property. However, in finding that the publication of the catalogue should be restrained by an injunction the Court was not particularly consistent in its reasoning:

“In the present case, where the privacy is the right invaded, the postponing of the injunction would be equivalent to denying it altogether. The interposition of this Court in these cases does not depend on any legal right; and, to be effectual, it must be immediate.”

As above the Court referred to “privacy as the right invaded”, characterising it as a standalone right capable of meriting legal protection, as well as a notion or value underpinning its decision. This distinction is crucial and has been much debated, as it raises the question of whether, absent any other right meriting legal protection, an individual’s right to privacy in and of itself can be the basis for legal action.

The formation of actions which provide ancillary protection to privacy

This difficulty with conceptualising privacy, the legal status it carries and its consistent application to cases continued. As a result, a number of causes of action emerged which could be utilised to protect privacy as an ancillary right. Such cases became illustrative of the need to clarify the legal status of privacy under English law.

The seminal case of Coco v A.N. Clark (Engineers) Ltd [1968] FSR 415 provides an example of such a case. The case refined the principles of the breach of confidence action, one of the primary causes of action which can operate to protect the privacy rights of individuals.

The action is permissible where confidential information, which was communicated in a manner importing an obligation of confidence and is used in an unauthorised manner. Crucially, the principles set out in Cocoallow for the protection of an individuals privacy where a pre-existing confidential relationship can be established. However, this contextual protection of privacy left a lacuna which needs to be addressed- what if an individual wishes to protect their privacy absent an associated cause of action? What if the pre-existing cause of action relied upon is ill-fitted to the facts of a particular case?

Kaye v Robertson [1990] EWCA Civ 21 acknowledged this incidental approach and the need for Parliamentary guidance on the issue. In Kaye, a prominent actor was hospitalised following an accident, a matter which caught the attention of a number of news outlets. One journalist for the Sunday Sport, ignoring notices and cautions, entered the hospital where Mr Kaye was recovering, interviewed and took pictures of him purportedly with his consent. When the Sunday Sport looked to publish the interview and a number of photos which had been taken Mr Kaye applied to the Court for an injunction to prevent their publication.

Such cases could be characterised as pseudo-privacy cases- in using a cause of action which was developed to protect another right, their reputation or goodwill, for example, a claimant’s privacy is vindicated:

“It is well-known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person’s privacy. The facts of the present case are a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals.

In the absence of such a right, the plaintiff’s advisers have sought to base their claim to injunctions upon other well- established rights of action. These are:

  1. Libel
  2. Malicious falsehood
  3. Trespass to the person
  4. Passing off.”

Balancing an individual’s privacy against other interests

R v Director of Serious Fraud Office, ex parte Smith [1993] AC 1 provides an earlier case study in balancing an individual’s privacy, which was seen as inextricably connected to the concept of liberty, with other fundamental rights. This approach acknowledges that there are situations in which an individual’s liberty, and therefore, privacy may justifiably be curtailed. This balancing of interests would become a key feature in later privacy cases, particularly involving the press’s publication of personal information:

“[It] is a simple reflection of the common view that one person should so far as possible be entitled to tell another person to mind his own business. All civilised states recognise this assertion of personal liberty and privacy. Equally, although there may be pronounced disagreements between states, and between individual citizens within states, about where the line should be drawn, few would dispute that some curtailment of the liberty is indispensable to the stability of society…”

This balancing exercise raises more questions than it solves (arguably even to this day). The finer points of what information attracts a greater degree of privacy, public interest and how these interests are balanced against each other is still not fully, or sufficently, defined for consistent application to cases.

What is clear from the historic authorities is that defining privacy and distilling its application under English law was not so simple. Whether arising as a standalone legal right, incidentally to the application of another right or as a value underpinning judicial decision making it was clear that there was a great need for clarity around the status of privacy to vindicate those seeking to protect it and manage competing rights.

Part II

More recently, the right to privacy was codified into legislation at European Union level in the European Convention of Human Rights, which provides a higher level interpretive layer of guidance on the application of such rights. However, these provisions required integration into English law via legislation to be effective. In taking the lead from the European authorities Parliament passed the Human Rights Act 1998 (“HRA”) to achieve such harmonisation. Article 8 of the HRA addresses the right to a private life:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Whilst this introduction was of course highly significant for the protection of an individual’s privacy under English law the practical impact can only be seen in the context of the interpretation and application of the right, which courts were obligated to do. As such we take a look at some significant common law decisions below.

The extension of the breach of confidence action

The case of Douglas v Hello! Ltd [2001] 2 WLR 992 concerned an application for an injunction by Michael Douglas and Catherine Zeta-Jones to prevent Hello magazine from publishing photos of their wedding. The nature of the case meant it engaged legislative and common law provisions concerning the protection of privacy rights.

In particular, the case reflects the development of the balancing approach to be taken to the right to privacy (Article 8 HRA) and freedom of expression (Article 10 HRA):

“It goes without saying that this is a case concerned with freedom of expression. Although the right to freedom of expression is not in every case the ace of trumps, it is a powerful card to which the courts of this country must always pay appropriate respect.” – at p.49, the court also noted the application of s.12(3) of the Human Rights Act 1998.

The Data Protection Act 1998 (“DPA”), s.32(1)(b) was also applicable as Hello magazine would have to prove it reasonably believed that publication of the photos was in the public interest. This threshold was reasonably high given the photos of the claimant’s were taken at a private occasion without their consent.

Significantly, it also considered that the facts of the case gave rise to an action for breach of confidence (for more details of this cause of action see Part I). It was in that capacity that the protection of privacy, reinforced by the provisions of the HRA, were considered:

“both academic commentary and extra-judicial commentary by judges over the last ten years have suggested from time to time that a development of the present frontiers of a breach of confidence action could fill the gap in English law which is filled by privacy law in other developed countries.“ – p.61

For the protection of privacy this question was crucial- absent the elements of a breach of confidence action could the tort be extended, in a manner consistent with the HRA, to protect unwanted intrusion into individual’s privacy?

In Douglas the court addressed this question directly in a highly authoritative fashion:

“What a concept of privacy does, however, is accord recognition to the fact that the law has to protect not only those people whose trust has been abused but those who simply find themselves subjected to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.” – at p.126

This acknowledged that the breach of confidence action could be extended to cover the fact of a breach of privacy. In this construction, privacy is couched as an integral part of personal autonomy and is accordingly protected under the freedoms-centric approach taken by English law. A standalone qualified right to privacy did not need to be created for its protection to be consistent with the Convention. The development of pre-existing legal principles was sufficient and advocated by both France and Germany.

Applying this formulation it was considered that the claimant’s had sold exclusive rights to photograph their wedding to OK! Magazine, effectively commercialising their privacy. Notwithstanding this, it was noted that a fact-sensitive approach must be taken to all such cases as the commercialisation of one’s private life does not necessarily forfeit protections. However, the rights to the photographs had been sold to OK! meaning they had more suitable grounds for bringing a claim- the residual rights of Zeta-Jones and Douglas were not sufficient to justify interference in this instance.

Undoubtedly, this precedent is significant for celebrities and public figures who seek to commercialise aspects of their privacy. It is these fact patterns which naturally prompt some of the more explorative, nuanced and fact-sensitive cases which engage and formulate the protection of privacy.

The European Court of Human Rights acknowledged that such positions necessitated a forfeiture of the private sphere (to a degree) in Von Hannover v Germany (2004) 40 EHRR 1:

“public figures must recognise that the special position they occupy in society – in many cases by choice – automatically entails increased pressure on their privacy” – p.6

Wainwright v Home Office [2004] 2 AC 406 confirmed the position advocated in Douglas, noting that there was not yet sufficient authority to establish an extension of the breach of confidence action:

“I do not understand Sedley LJ to have been advocating the creation of a high-level principle of invasion of privacy. His observations are in my opinion no more (although certainly no less) than a plea for the extension and possibly renaming of the old action for breach of confidence.”

The milestone case of Campbell and the misuse of private information

Perhaps the most significant case in this field is Campbell v MGN[2004] 2 AC 457, the groundwork for which had been set in the Douglas case. The case concerned a claim for breach of confidence and the DPA by model Naomi Campbell following an article published in the Mirror showing her leaving a Narcotics Anonymous clinic for the treatment of drug addiction. In Campbell the court, acknowledging the recent extension of the breach of confidence action, re-characterised the tort to cover the misuse of private information:

“The present case concerns one aspect of invasion of privacy: wrongful disclosure of private information… [Privacy] lies at the heart of liberty in a modern state. A proper degree of privacy is essential for the well-being and development of an individual.” – p.12

This was a watershed moment for the recognition of privacy under English law, catalysed by the ECHR and HRA. The application of article 8 required a two-stage test, whether the individual had a reasonable expectation of privacy and if so, whether on balance those rights should be vindicated against other interests:

“It should be emphasised that the ‘reasonable expectation of privacy’ is a threshold test which brings the balancing exercise into play. It is not the end of the story. Once the information is identified as ‘private’ in this way, the court must balance the claimant’s interest in keeping the information private against the countervailing interest of the recipient in publishing it. Very often, it can be expected that the countervailing rights of the recipient will prevail.” – at p.137

The facts at issue in the case provide a helpful case study in the practical application of the above test. For ease the court categorised the types of information at issue:

  1. the fact of Miss Campbell’s drug addiction;
  2. the fact that she was receiving treatment;
  3. the fact that she was receiving treatment at Narcotics Anonymous;
  4. the details of the treatment – how long she had been attending meetings, how often she went, how she was treated within the sessions themselves, the extent of her commitment, and the nature of her entrance on the specific occasion; and
  5. the visual portrayal of her leaving a specific meeting with other addicts.

Significantly, the court stated that all the above information would typically attract a reasonable expectation of privacy, however, Campbell’s celebrity status and conduct had to be taken into account. In a 3-2 decision, the court determined that Campbell’s right to privacy overrode the public interest in the information in categories 3-5 being published. In doing so weight was given to the fact that the treatment of such dependencies was a sensitive matter and, whilst the press was entitled to put the record straight about Miss Campbell’s drug use, the risk of harm to her and other individuals in exposing further information of her treatment was unacceptable. It was noted that “a picture is worth a thousand words” – a yardstick for their propensity to harm which would be much referenced in future cases.

The Campbell case illustrated a new approach to privacy as a value underpinned by the newly formulated action for misuse of private information. In advocating a two-stage test Campbell necessitated a highly-nuanced, fact sensitive and contextual approach to restitution for privacy infringement. Such an approach acknowledged the fundamental nature of privacy as a value but required consistent and objective application to ensure claimants rights were adequately acknowledged safeguarded.

Part III

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.

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. Thus the concept of privacy extended to cover previously difficult to codify elements of personal data- an issue which has become the forefront of contested 21st Century privacy cases.

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