The law relating to privacy and the media has now gone too far and seriously threatens freedom of expression.’ Discuss this statement in the light of recent case law and recent developments in social media. PDF

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The law relating to privacy and the media has now gone too far and seriously threatens freedom of expression.’

Discuss this statement in the light of recent case law and recent developments in social media.

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The law relating to privacy and the media has now gone too far and seriously threatens freedom of expression.’ Discuss this statement in the light of recent case law and recent developments in social media.

Freedom of speech is under threat from the UK's "creeping privacy law".1 This statement is rather interesting and debatable because Britain like most other liberal democratic countries focuses on the scope of freedom of speech rather than the importance on whether this freedom should be protected. Privacy law in the UK may be continuously developing to achieve an impartial approach but the current situation of privacy law in the UK seems to be, privacy law taking over freedom of speech in terms of its nature and accountability. The first part of my essay will discuss whether the courts in the United Kingdom have been able to provide a sufficient balance between freedoms of speech relating to privacy since the development of the Human Rights Act 1998. Therefore, discussing whether the law relating to privacy and media has gone too far by seriously threating freedom of expression will be dealt with in this part. Consequently, the second part of my essay will move on to apply privacy law within a social media context. I will also give reasons as to why the media enjoys leaving people in such a neurotic state; and why on the other hand people enjoy buying tabloids that expose others private matters. It is often argued that English law does not recognise a right to privacy as such2. The law of privacy distributed a relatively low form of protection in the UK back in the 19th century and the most significant illustration of this point is the case of Kaye v Robertson.3 In this case Mr. Kaye had suffered serve injuries after a major car accident and Sunday Sport had taken advantage of this by interviewing him in his private hospital room. They also took pictures of him and published them. Mr. Kaye, relied on causes of action in libel, trespass to the person, passing of and malicious falsehood.4 It was accepted that his rights could not be protected for breach of privacy. Lord Justice Glidewell demonstrated that there was no breach of privacy because clearly the English law did not recognise such thing. The Court of Appeal did not recognise a claim on breach of confidence in Kaye v Robertson,5 and therefore it was left open for other cases in English law as to whether there was a right to privacy. Nevertheless, the law however has moved on from Kaye v Robertson6, because common law is continuously working to adapt new social needs, I will elaborate this further in my essay. 1Laura Oliver, Leading lawyer says UK privacy law is threat to editorial freedom (2008) http://www.journalism.co.uk/news/leading-lawyer-says-uk-privacy-law-is-threat-to-editorialfreedom/s2/a540488/ accessed 24 March 2012 2 Hugh Tomlinson, Privacy and the Media (Matrix Chambers Ltd, 2002) 4 -6 3 Kaye v Robertson [1991] FSR 62 4 Hugh Tomlinson, Privacy and the Media (Matrix Chambers Ltd, 2002) 4 -6 5 Kaye v Robertson [1991] FSR 62 6 Kaye v Robertson [1991] FSR 62

The introduction of the Human Rights Act is believed to push and stimulate the preexisting slow developing tort law in to a highly favoured new tort of privacy law at common law. Douglas v Hello7 is the case where the judges sitting at the Court of Appeal had come to realise that the protection of a private right is necessary and that it may in fact be the time the law moved on and elaborated breach of confidence, in to something where individuals can actually have something to rely on, in other words striving to bring a protection of privacy at common law. Sedley LJ made this point clear and precise by illustrating that ‘the claimants had a right to privacy which English law will today recognise and where appropriate protect.’8 In contradiction to the case of Douglas v Hello,9 the judges in Wainwright v Home Office,10 sought to argue that there was no common law tort of invasion of privacy. As Lord Woolf CJ, demonstrated ‘the Human Rights Act certainly cannot be relied on to change the substantive law by introducing a retrospective right to privacy which did not exist at common law.’11 The judges in this case debated on whether a new tort for invasion of privacy would be considered necessary. Simultaneously to Lord Woolf, Mummery LJ Foresaw, expressed his views by indicating that there are ‘serious definitional difficulties and conceptual problems in the judicial development of a block buster tort, vaguely embracing such a potentially wide range of situations.’12 Most simply Mummery LJ, suggested that privacy is an area of law which involves a wide range of cases and these cases are closely linked to policy considerations and therefore the social balance of privacy should not be in the hands of judges but rather they should be attained by the parliament. This brings me to the question as to whether the tort of invasion of privacy is sufficiently accountable and available. As mentioned in the case law above, there can be distinct views about the accountability and the sufficiency of a tort of invasion of privacy. The first distinct view, was delivered in the judgment of Wainwright,13 as previously mentioned, there is no common law tort of invasion to privacy and the courts being prevented from developing one. Simultaneously, Douglas v Hello14, argues that a new tort is required and is now available and is continuously developing provided by the assistance of the Human Rights Act. However, the case worth taking note of is A v B plc (Flitcroft v MGN Ltd),15 the doctrine in this case was that there was absolutely no need to develop a new tort because, breach of confidence will provide necessary protection in situations where privacy is involved. I

7 Douglas v Hello! Ltd [2005] EWCA Civ 595 8 Olha O. Cherednychenko, 9 Douglas v Hello! Ltd [2005] EWCA Civ 595 10 Wainwright and another (Appellants) v Home Office (Respondents) [2003] UKHL 53 11 Hugh Tomlinson, Privacy and the Media (Matrix Chambers Ltd, 2002) 4 -6 12 Hugh Tomlinson, Privacy and the Media (Matrix Chambers Ltd, 2002) 4 -6 13 Wainwright and another (Appellants) v Home Office (Respondents) [2003] UKHL 53 14 Douglas v Hello! Ltd [2005] EWCA Civ 595 15 A v B plc (Flitcroft v MGN Ltd). [2002] EWCA Civ 337

am of the opinion that the judgment in Douglas v Hello,16 is the most assuring and

convincing view to take when compared to the other two. This is because even before the Human Rights Act, the courts were deliberately working to develop a tort of invasion to privacy grounded on breach of confidence.

problem, it developed in a way to protect ones private life, both by Article 8 ‘the right to protect private life’ and Article 10 ‘right for freedom of expression.’ However, this law that provides protection under Article 8 to protect ones private life and Article 10 on the other hand aiming to protect freedom of expression, evidently contradicts with each other. There are two reasons for this. The first reason is that there is no clear and precise definition as to what privacy amounts or limits to and therefore, it s left in the hands of judges to decide which article prevails over the other. The second reason is that the law of privacy that has developed in a way to protect a persons private life under Article 8 either by newspapers, magazines or even trough means of social media, disregards the fact that the person publishing the news whether by social media or newspapers on the other hand is also facing an infringement of their rights, namely Article 10, the freedom of expression. Surly if one party has a right to private life, the other party has freedom of expression and it is unclear where the courts draw the borderline. Article 8 of the European convection of Human Rights, integrated with the Human Rights Act 1998, is one leading legislation that us the general public can depend or in other words rely on. The majority of the cases discussed in relation to privacy concern the publication of confidential information mainly by newspapers such as in the case of Clayton v Clayton17 or Campbell v Mirror Group Newspapers Ltd.18 In the Campbell case, the claimant was a well know celebrity, that had pictures taken of her whilst she was leaving a clinic. Although, Campbell mislead the public in demonstrating that she has not taken drugs, publishing the details of her treatment for her drug addiction with secretly taken photographs amounted to an interference with the right to respect for her private life. The High Court invoked a test to balance her right for private life under Article 8 and the newspapers right for freedom of expression under Article 10, by determining whether it was reasonable Campbell to expect privacy, and whether allowing Campbell’s appeal would result in an interference with the freedom of expression under Article 10. The publication of the fact that Campbell had taken drugs and was seeking treatment was justified but the information about her photos taken was unjustified. The court found that Campbell’s rights under Article 8 outweighed the Mirror Newspapers freedom of expression under Article 10. It can be seen that neither Article 8 nor Article 10 has supremacy over each other in cases concerning privacy and I therefore think both Article 8 and Article 10 need to be balanced comprehensively. 16 Douglas v Hello! Ltd [2005] EWCA Civ 595 17 [2006] EWCA Civ 878 18 [2004] UKHL 22

This brings me to the second part of my essay. Given the rise to technology in the 21st century, social media has become a very powerful marketing institution. Social networking has become one of the biggest ways of spreading news across the world, as more than 800 million active users are currently using Facebook or Twitter19. This is in fact frightening in terms of privacy; because not only do the social networking sites abuse privacy to life but also newspapers, most commonly tabloids and magazines tend to publish what one may think is highly entertaining to read. However, people involved in the situation, having their life publicized find it humiliating and devastating. The prevention of private matters is one that needs to be considered expressively, as it is very interesting to notice that it is in fact the general public, providing both good and bad news for the media by giving them something to dwell upon for weeks, and this is often exposed in exaggeration. It is the general public who buy into the magazines and newspapers; therefore it is the public that help fund this marketing institution. It is us who enjoy listening to others confidential stories; it is us that find stories such as adultery amusing. So, who is the one to blame, is it the media that is too often demanding to capture pictures and publish news of ones private life or is it the general public being too passionate in terms of reading upon unconfidently published stories. .

19 The Economist, Facebook has become the third-largest nation (2010) accessed 13 March 2012

Br i n i n ga na c t i o ni npr i v a c yi sr a t h e re xp e ns i v ea n dt i mec o n s u mi n g , a n da s ma n yoft h ec a s e sme n t i o ne di nmye s s a y , t h ema j o r i t yo ft hes u c c e s s f ulc a s e s c o nc e r n e dwe a l t h yc e l e b r i t i e s .There still seems to be uncertain questions and complexities in the area of privacy law and to me the question is whether solving this complex and inconsistent area of privacy law would be solved by introducing new legislation?...