The guidance comes following the case of Bridges in which the Court of Appeal criticised the South Wales Police Forces use of live facial recognition software. TPP has covered the Bridges appeal in depth.
In a case which reinforces and is underpinned by the principle of open justice, the court has found that an interim hearing concerning the airing of a BBC programme about an MI5 agent who was allegedly “a dangerous extremist and misogynist” should be heard in public.
“The BBC wants to broadcast a programme about an individual, “X”. The programme is to include the allegations that X is a dangerous extremist and misogynist who physically and psychologically abused two former female partners; that X is also a covert human intelligence source (variously referred to as a “CHIS” or an “agent”) for the Security Service (“MI5”); that X told one of these women that he worked for MI5 in order to terrorise and control her; and that MI5 should have known about X’s behaviour and realised that it was inappropriate to use him as a CHIS.”
“The programme is to include the allegations that X is a dangerous extremist and misogynist who physically and psychologically abused two former female partners; that X is also a covert human intelligence source …; that X told one of these women that he worked for MI5 in order to terrorise and control her; and that MI5 should have known about X’s behaviour and realised that it was inappropriate to use him as a CHIS.”
The Guardian has a piece suggesting, following the judgment of the UK Supreme Court this week in ZXC, that privacy laws could be rolled back by replacements to the Human Rights Act.
Following the judgment in ZXC a government spokesperson has stated: “A free press is one of the cornerstones of any democracy. The government recognises the vital role the media plays in holding people to account and shining a light on the issues which matter most. We will study the implications of the judgment carefully.”
Whilst political sources are usually careful not to criticise judges, the balance between freedom of expression and privacy rights of individuals is a contentious area, drawing critical voices from both sides of the debate. TPP advocates balance between the two competing rights.
It should be noted that whether someone has a reasonable expectation of privacy in respect of information regarding a criminal investigation pre-charge is still a highly fact-sensitive and nuanced approach. The court has set a general presumption. But it reflects a careful case-by-case approach in which all the circumstances of a case are taken into account.
The finding in ZXC does not to say there cannot be a case where criminal investigations pre-charge can be made public by the press. This involves a balancing of privacy rights against freedom of expression- the second limb of the well-entrenched test. Its notable that this second limb was not at issue in ZXC.
Therefore, ZXC serves to reinforce pre-existing caselaw, particularly following the Cliff Richard case, in finding that pre-charge details of a criminal investigation fall within ones reasonable expectation of privacy. This then needs to be rebutted by freedom of expression, and one would posit, public interest arguments.
The suggestion from the Government that “there should be a presumption in favour of upholding the right to freedom of expression, subject to exceptional countervailing grounds, clearly spelt out by parliament” is a dangerous one.
As the ZXC judgment rightly points out- neither privacy rights nor freedom of expression takes precedence over the other. The rights have, importantly, always been couched as equally weighted. Both rights are fundamental to a democratic society.
The government wading into such a sensitive process is concerning. Not least by touting criticised approaches to reforming the Human Rights Act. The safeguarding of an individuals privacy, allowing for autonomy, is as fundamental to a democratic society as a free press.
Examine the cases and a fact-sensitive highly nuanced approach to balancing the competing fundamental democratic rights of privacy with freedom of expression readily emerges.
Judges are acutely sensitive to this fact in striving to independently adjudicate complex matters of fact and law. The Meghan Markle case is one of the recent examples of where the balance between privacy and expression has been bought to debate in the public consciousness. The Brett Wilson’s Media Law Blog comes to the defence of privacy and the judiciary- an approach which TPP endorses.
To circle back around- ZXC has ensued a fresh wave of criticism in an area which has typically been at the cutting edge of this debate- the rights of those suspected of criminal activities. And, I add with emphasis here, at pre-charge stage without applying the second limb of the two-stage test.
Again the law makes a the critical distinction here. Open justice and public interest rightly hold sway at a post-charge stage.
And even in these circumstances balancing competing rights comes into play. In the right to be forgotten cases of NT1 and NT2, the right to privacy has evolved and reinforces the right to be forgotten where “the right to be left alone” presents itself.
And, as the court rightly observes in ZXC, where factors to be considered are drawn into lists, such as the Murray factors, these are non-exhaustive. This serves contextual approach serves as “a legitimate starting point”- it affords judges the leeway to take into account fact-sensitive nuances in cases and balance the countervailing rights. Because that is what is takes to safeguard both fundamental rights.
For those interested in this debate I highly recommend Hugh Tomlinson QC’s article in the Guardian: Privacy law: what’s the way ahead?
Judgment has been handed down by the UK Supreme Court in the appeal in the case of Bloomberg v ZXC. The court has found for the respondent, refusing the appeal.
The case has significant implications for the law of privacy. It endorses the finding in the Cliff Richard case and provides crucial precedent on the reasonable expectation of privacy suspects of crime can expect. TPP will have further coverage of the judgment shortly. See the judgment here.
“The courts below were correct to hold that, as a legitimate starting point, a
person under criminal investigation has, prior to being charged, a reasonable
expectation of privacy in respect of information relating to that investigation and that
in all the circumstances this is a case in which that applies and there is such an
In Hyderabad, Telengana, a case has been bought against the police concerning the use of facial recognition software, Aljazeera reports.
Inforrm covered a wide range of data protection and privacy cases in 2021. Following my posts in 2018, 2019 and 2020 here is my selection of most notable privacy and data protection cases across 2021:
- Lloyd v Google LLC  UKSC 50
In the most significant privacy law judgment of the year the UK Supreme Court considered whether a class action for breach of s4(4) Data Protection Act 1998 (“DPA”) could be brought against Google of its obligations as a data controller for its application of the “Safari Workaround”. The claim for compensation was made under s.13 DPA 1998. The amount claimed per person advanced in the letter of claim was £750. Collectively, with the number of people impacted by the processing, the potential liability of Google was estimated to exceed £3bn.
Lord Leggatt handed down the unanimous judgement in favour of the appellant Google LLC:
“the claim has no real prospect of success. That in turn is because, in the way the claim has been framed in order to try to bring it as a representative action, the claimant seeks damages under section 13 of the DPA 1998 for each individual member of the represented class without attempting to show that any wrongful use was made by Google of personal data relating to that individual or that the individual suffered any material damage or distress as a result of a breach of the requirements of the Act by Google.”
The case has been heralded for its central importance in determining the viability of data protection class actions. The case drew wide coverage from Pinsent Masons, Hill Dickinson, Clifford Chance, Bindmans and Stewarts.
- HRH The Duchess of Sussex v Associated Newspapers Limited  EWHC 273 (Ch) and  EWCA Civ 1810.
In February 2021 Meghan, Duchess of Sussex, won her application for summary judgment against the Mail on Sunday. Warby LJ said there were “compelling reasons” for it not to go to trial over its publication of extracts of a private letter to her estranged father, Thomas Markle. He entered judgment for the Duchess in misuse of private information and copyright. There was a news piece on Inforrm and a piece by Dominic Crossley.
Associated Newspapers was granted permission appeal and the appeal was heard on 9 and 11 November 2021 with judgment being handed down on 2 December 2021, The Court, Sir Geoffrey Vos MR, Sharp P and Bean LJ, unanimously dismissed the appeal on all grounds, stating:
“Essentially, whilst it might have been proportionate to disclose and publish a very small part of the Letter to rebut inaccuracies in the People Article, it was not necessary to deploy half the contents of the Letter as Associated Newspapers did. As the Articles themselves demonstrate, and as the judge found, the primary purpose of the Articles was not to publish Mr Markle’s responses to the inaccurate allegations against him in the People Article. The true purpose of the publication was, as the first 4 lines of the Articles said: to reveal for the first time [to the world] the “[t]he full content of a sensational letter written by [the Duchess] to her estranged father shortly after her wedding”. The contents of the Letter were private when it was written and when it was published, even if the claimant, it now appears, realised that her father might leak its contents to the media.” 
- Australian Competition and Consumer Commission v Google LLC (No 2)  FCA 367
The Federal Court of Australia found that Google misled some users about the personal location data it collected through Android devices between January 2017 and December 2018.
The Court found that, in providing the option, “Don’t save my Location History in my Google Account”, represented to some reasonable consumers that they could prevent their location data being saved on their Google Account. In actual fact, users need to change an additional setting, separate, to stop their location data being saved to their Google Account.
- Hájovský v. Slovakia  ECHR 591
Mr Hájovský placed an anonymous advert in a national newspaper offering payment to a woman in return for giving birth to his child. An investigative reporter posed as a candidate interested in surrogacy, replied to the advert and secretly filmed the ensuing meetings. These were later complied into a documentary. A national tabloid also covered the story using stills of footage and taking a critical stance of the applicants’ actions. Both stories revealed the applicant’s identity. This prompted the applicant to bring an action against the media groups for violation of his privacy under Slovakian law.
The Slovakian courts dismissed the application on the basis that the article contributed to a matter of public interest- the debate around surrogacy for payment and in any event the publishing of the advert had brought a private matter, the applicant’s wish to have a child, into the public domain.The ECtHR found in favour of the applicant. In doing so it reiterated the well-established balancing approach vis a vi privacy and freedom of expression as per Von Hannover and Axel Springer. In this instance the court found that the applicants right to privacy had been violated and that the Slovakian courts has erred in their approach to balancing the competing rights. In doing so the court make key observations about the privacy implications of photographs.
- Warren v DSG Retail Ltd  EWHC 2168 (QB)
This case concerned the viability of claims for breach of confidence and misuse of private information against data controllers who have suffered cyber-attacks. In dismissing the claims for breach of confidence and misuse of private information Saini J found that both causes require some form of “positive conduct” by the defendant that is lacking where the cause of the private information being leaked is a cyber-attack.
6. ES v Shillington 2021 ABQB 739
In this case the Alberta Court of the Queen’s Bench awarded damages under new “public disclosure of private fact” tort. The case concerned the making public of images of the claimant engaging in sex acts with the defendant- these had been shared during a romantic relationship between 2005 to 2016 where the parties had two children together. The parties had a mutual understanding that the images would not be shared or published anywhere. However, the defendant then proceeded to share the images online, including those involving the sexual assault of the claimant.
Delivering judgment for the claimant, Inglis J accepted their submissions that a new “public disclosure of private information” tort should be recognised as a separate cause of action from existing common law statutes.
Inforrm has a case comment.
- Hurbain v Belgium ( ECHR 544)
A case in which an order to anonymise a newspaper’s electronic archive was found not to breach the applicant publisher’s right to freedom of expression. This case reflects an important application of the right to be forgotten under article 8 of the Convention. The applicant, Patrick Hurbain, is the president of the Rossel Group which owns one of Belgium’s leading French-language newspapers, Le Soir, of which he was previously Managing Editor. The article in question concerned a series of fatal car accidents and named one of the drivers, G, who had been convicted of a criminal offence for his involvement in the incidents. G made a successful application for rehabilitation in 2006.
However, Le Soir created a free, electronic, searchable version of its archives from 1989 onwards, including the article at issue. G relied on the fact that the article appeared in response to a search on his name on Le Soir’s internal search engine and on Google Search. He explained that its availability was damaging to his reputation, particularly in his work as a doctor. The newspaper refused the application by stated it had asked Google to delist/deindex the article.
In 2012 G sued Mr Hurbain as editor of Le Sior and was successful domestically. Mr Hurbain then lodged an application with the Strasbourg Court complaining that the anonymisation order was a breach of Article 10. In balancing the article 8 and 10 rights in the case the Strasbourg Court found in favour of G.
Informm had a case comment.
- Peters v Attorney-General on behalf of Ministry of Social Development  NZCA 355
The New Zealand Court of Appeal provided guidance in respect of the tort of invasion of privacy in this high-profile case. In 2017, the Ministry for Social Development (“MSD”) realised that Mr Peters, MP and leader of the New Zealand First Party, had overpaid New Zealand Superannuation (“NZS”). Due to errors NZS had been paid at the single rate when it should have been paid at the partner rate. Mr Peters immediately arranged for the overpaid amount to be repaid.
In August 2017 several reporters received anonymous calls in respect of the overpayment. To pre-empt any publicity, Mr Peters released a press statement addressing the incident. He also issued a claim for infringement of the tort of invasion of privacy against several MSD executives. The High Court found the MSD executives were proper recipients of information and thus the claim failed. The Court of Appeal dismissed Mr Peters’ appeal. For an invasion of privacy claim to succeed there is a two “limb” test:
- the existence of facts in respect of which there was a reasonable expectation of privacy; and
- that the publicity given to those private facts would be considered highly offensive to an objective reasonable person.
The Court agreed that limb one was met on the facts. However, the Court found that Mr Peters did not have a reasonable expectation of protection from disclosure of this information within MSD and from MSD to the relevant Ministers and select staff. As the claimant could not prove that any of defendants had released information to the media. The appeal was dismissed. The case affirmed the removal of the requirement for there to be widespread disclosure and the potential for the removal of the requirement that disclosure be highly offensive.
- R (Open Rights Group and the 3 million) v Secretary of State for the Home Department and Others  EWCA Civ 800,
A case concerning “the lawfulness” immigration exemption found in paragraph 4 of Schedule 2 of the Data Protection Act 2018. This exemption allows those processing personal data for immigration control purposes to refuse to comply with the data subject rights guaranteed by the GDPR to the extent that complying with those provisions would prejudice those purposes. The Court of Appeal found that this exemption was not compliant with Article 23 of the GDPR.
- Biancardi v. Italy  ECHR 972
The ECtHR found that an order that the editor of an online newspaper was liable for failing to de-index an article concerning criminal proceedings did not breach Article 10 of the Convention. The case concerned an application for the delisting of an article concerning a fight involving a stabbing in a restaurant which mentioned the names of the those involved including the applicant V.X.
Suneet Sharma is a junior legal professional with a particular interest and experience in media, information and privacy law. He is the editor of The Privacy Perspective blog.
An appeal against the finding for summary judgment for her misuse of private information and copyright claim.
The appellant was granted permission appealed the elements of the case on seven grounds:
i) The new evidence issue: Whether the new evidence provided by each of the
parties should be admitted.
ii) The nature of the attack issue: Whether the judge mistakenly failed to
recognise the significance and importance of the People Article’s attack on Mr
iii) The reasonable expectation of privacy issue: Whether the judge adopted a
flawed analysis of the factors undermining the Duchess’s alleged reasonable
expectation of privacy.
iv) The appropriate test issue: Whether the judge wrongly stated the test, by
suggesting that the defendant had to justify an interference with the claimant’s
right of privacy, when the proper approach was to balance the competing article 8 and 10 rights.
v) The right of reply issue: Whether the judge wrongly applied a strict test of
necessity and proportionality to Mr Markle’s right of reply to the People Article.
vi) The public interest/article 10 copyright issue: whether the judge failed
properly to evaluate the interference with article 10, saying that it would be a
rare case in which freedom of expression would outweigh copyright.
vii) The fair dealing copyright issue: whether the judge wrongly relied on his
privacy analysis to reject the fair dealing defence to breach of copyright, bearing
in mind the limited scope of the copyright in the Letter and the wide scope of
the concept of reporting current events.
The Sir Jeoffery Vos decided against the defendant on all grounds dismissing the appeal, in a unanimous judgment, stating summarily:
Essentially, whilst it might have been proportionate to disclose and publish a very small part of the Letter to rebut inaccuracies in the People Article, it was not necessary to deploy half the contents of the Letter as Associated Newspapers did. As the Articles themselves demonstrate, and as the judge found, the primary purpose of the Articles was not to publish Mr Markle’s responses to the inaccurate allegations against him in the People Article. The true purpose of the publication was, as the first 4 lines of the Articles said: to reveal for the first time [to the world] the “[t]he full content of a sensational letter written by [the Duchess] to her estranged father shortly after her wedding”. The contents of the Letter were private when it was written and when it was published, even if the claimant, it now appears, realised that her father might leak its contents to the media.p.106
The BBC cites that the firms’ database has over 10bn images. The ICO has issued a provisional notice to stop further processing of the personal data of people in the UK and to delete any such data following alleged serious breaches of the UK’s data protection laws.
In a joint investigation with the Australian Information Commissioner (“AIC”) the ICO concluded that the data, some scraped from the internet, was being processed, in the case of UK persons, unlawfully in some instances.
Clearview AI Inc’s services were being used on a free trial basis by some law enforcement agencies. This has been confirmed to no longer be the case.
The ICO’s preliminary view is that Clearview AI Inc appears to have failed to comply with UK data protection laws in several ways including by:
- failing to process the information of people in the UK in a way they are likely to expect or that is fair;
- failing to have a process in place to stop the data being retained indefinitely;
- failing to have a lawful reason for collecting the information;
- failing to meet the higher data protection standards required for biometric data (classed as ‘special category data’ under the GDPR and UK GDPR);
- failing to inform people in the UK about what is happening to their data; and
- asking for additional personal information, including photos, which may have acted as a disincentive to individuals who wish to object to their data being processed.
Information Comissioner Elizabeth Denham commented:
“I have significant concerns that personal data was processed in a way that nobody in the UK will have expected. It is therefore only right that the ICO alerts people to the scale of this potential breach and the proposed action we’re taking. UK data protection legislation does not stop the effective use of technology to fight crime, but to enjoy public trust and confidence in their products technology providers must ensure people’s legal protections are respected and complied with.
Clearview AI Inc’s services are no longer being offered in the UK. However, the evidence we’ve gathered and analysed suggests Clearview AI Inc were and may be continuing to process significant volumes of UK people’s information without their knowledge. We therefore want to assure the UK public that we are considering these alleged breaches and taking them very seriously.”
This is one of the largest fines issued under the GDPR to date. Clearview now has the opportunity to respond, both in the UK and Australia (the AIC has found breaches of Australian privacy laws).
It’s unsurprising that its database, said to have included images scraped from social media, has drawn the attention of regulators. Facial recognition services have been at the forefront of recent data analytics scrutiny and data protection enforceability.
It is a rare case where an application for a interlocutory injunction succeeds despite an article on the subject already being published. Such was the case in PJS, one of the most significant English law cases concerning privacy law to date.
The leading judgment was handed down by Lord Mance. It concerned the grant of an injunction to keep details of an extra marital affair between a claimant of great renown being published by the press.
Lord Mance observes the fact that privacy is a zonal right justifying protection, differing in character from the right of confidentiality. The esteemed judge highlights previous cases at paragraphs 58 and 59 of the judgment, endorsing the well entrenched approach from the Court of Appeal.
He characterises privacy, rightly, as extending beyond the bounds of confidentiality. In doing so ones private life becomes a space that should remain, in certain circumstances, free from intrusion.
However, claims based on respect for privacy and family life do not depend on confidentiality (or secrecy) alone... “unwanted access to private information and unwanted access to [or intrusion into] one’s … personal space”Lord Mance at p.58-59
Concluding Lord Mance opined on the capacity of the internet to change perceptions of privacy. He acknowledged that the courts need to remain cognizant of this. In doing so he affirmed the findings of previous caselaw, gave credence to commentators and noted the implications of tweeting and blogging:
I also accept that, as many commentators have said, that the internet and other electronic developments are likely to change our perceptions of privacy as well as other matters – and may already be doing so. The courts must of course be ready to consider changing their approach when it is clear that that approach has become unrealistic in practical terms or out of touch with the standards of contemporary society. However, we should not change our approach before it is reasonably clear that things have relevantly changed in a significant and long-term way. In that connection, while internet access became freely available in this country only relatively recently, almost all the cases listed at the end of para 59 above were decided since that happened, and many of those cases were decided after blogging and tweeting had become common.Lord Mance at p.70
Whether an individual has a reasonable expectation of privacy that outweighs the public interest in cases where there has been an investigation, but no charge, by the police is an imminent case before the Supreme Court in the case of ZXC v Bloomberg LP.
The case is before the UK Supreme Court on 30 November and 1 December next week and was cited by Hariharan in his analysis of the proximity between privacy and reputational harms.
The Court of Appeal judgment can be found here. The Court found that there could be a reasonable expectation of privacy in the fact of a police investigation. This builds upon notable caselaw such as the Cliff Richard case.