0

THE HUMAN RIGHTS ACT 1998 - which came into force on October 2, 2000 - brings the European Convention on Human Rights into English law.

As far as the Press is concerned the Act has a particular impact on:

* Freedom of expression for the media (Article 10)
* The right to privacy for individuals (Article 8)

both of which are in conflict with each other

FREEDOM OF EXPRESSION is dealt with in two areas of the Act.

SECTION 12 of the Act applies to the factors a court must take into account when considering whether to grant an injunction stopping information being made public.

1. If the newspaper is not present or represented at the hearing then an injunction can not be granted unless the court is satisfied:

a. The person applying for the injunction has taken every practicable step to notify the newspaper about the hearing
or
b. There are compelling reasons why the newspaper should not be notified.

2. No injunction should granted unless the court is satisfied that the applicant is finally likely to be able to establish that publication should not be allowed.

3. During it all the court must have regard to:

a. the importance of the newspaper's right to freedom of expression
b. the extent to which it is in the public interest for the material to be published

while at the same time keeping in mind any relevant issue of privacy.

ARTICLE 10 of the Act reinforces the right to publish information without interference from public authorities and regardless of national frontiers. But it points out that freedom of expression may be subject to restrictions which are either:
a. Prescribed by law or
b. necessary in a democratic society for ( among others) :

* National security
* Public safety
* Prevention of disorder or crime
* Protection of health or morals
* Protection of the reputation or rights of individuals
* Prevention of the disclosure of information received in confidence
* Maintenance of the authority and impartiality of the judiciary

The European Court of Human Rights - whose precedents English courts are now obliged to take into account - has repeatedly stated that freedom of expression occupies a special status under the Convention. The European court considers it an essential underpinning of a democratic society and a basic necessity for the development of each and every individual. Because of this special status any restrictions on freedom of expression are subjected to very close scrutiny and (Sunday Times v UK) the necessity of any restriction must be convincingly established. because the European Court has recognized the special responsibility of the Press as the 'watchdog of society'.

 The incorporation of Article 10 will especially affect domestic law on:

* Privacy
* Defamation
* Prior restraint
* Disclosure of journalists' sources
TOP

PRIVACY ISSUES
Article 8 of the Act states that everyone has the right to respect for his private and family life, his home and his correspondence and warns that there should be no interference with this right by a public authority except when the interference is in accordance with the law and is necessary in the interests of national security, public safety etc. It should be noted that Article 8 refers to a public authority and not, say, a newspaper.
But the European Court have imposed an important secondary duty on individual states - an obligation to take positive action to ensure that the rights to privacy in Article 8 are effectively protected.This could mean that the state had a duty to protect individuals from invasions of privacy from, for example, newspapers.

1990: GORDON KAYE: Law of Confidence

Kaye's privacy had been invaded when journalists tricked their way into hospital to obtain an 'interview' from the semi-comatose actor who had been badly injured in a car accident. But there was no 'privacy' law in England and no breach of the English law of confidence because there was no recognised relationship (like doctor/patient, lawyer/client) between Kaye and the intruders to impose an obligation to keep confidential the words which Kaye had spoken.

 TOP

2000: HUMAN RIGHTS ACT:

Gave primacy to everyone's right to freedom of expression but stated that the right had sometimes to be balanced with:

• an individual's right of respect for private and family life (not a right to "privacy" as such)

• Information obtained as a result of a breach of confidence.

• The Act also established the framework under which injunctions for prior restraint could be applied for.

 TOP

2000: MICHAEL DOUGLAS and Catherine Zeta Jones: Injunction. Law of Confidence.

"The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim. We have reached a point at which it can be said that the law trecognises and will appropriately protect aright of petrsonal privacy." - Lord Justice Sedley, one of three judges hearing the Douglases' unsuccesful appeal against the lifting of an injunction. (The other two judges did not share that view.).........................(NOW SEE FINDING OF 2003 HIGH COURT TRIAL BELOW)

 TOP

2000: VENABLES & THOMPSON: Injunction. Law of Confidence

The killers of James Bulger had been threatened by the toddler's father.

Dame Elizabeth Butler-Sloss, president of the Family Division of the High Court, granting an injunction to prevent their whereabouts being known, said:

"Under the umbrella of confidentiality there will be information which may require a special quality of protection."

The disclosure of Venables and Thompson's whereabouts would infringe their right to privacy, right to life and the prohibition of torture. (all articles of the Human Rights Act)
 (See also below: 2003: Mary Bell and teenage daughter. Lifelong anonymity)

TOP

2002: JAMIE THEAKSTON: Injunction. Law of Confidence.

Judgement: A prostitute owes no duty of confidentiality to clients.

Human rights tussle: Theakston's privacy (Art 8) v prostitute's and paper's freedom of expression (Art 10). Conclusion: Article in the public interest therefore freedom of expression wins.

 TOP

2002: GARY FLITCROFT. Injunction. Law of Confidence

Court of Appeal ruled that a High Court judge, Mr Justice Jack, had been wrong to ban a Sunday newspaper from publishing interviews with two women who had affairs with Flitcroft, a married professional footballer.

They reversed his judgement which stated that the law of confidentiality could apply to relationships outside marriage.

The Lord Chief Justice, Lord Woolf, said that where a couple in a sexual relationship were not married the fact that only one party wanted to keep the information confidential, while not extinguishing the other's right, does undermine that right.

The more stable the relationship, the greater would be the significance attached to it by the court. But the court should not protect brief affairs of the sort the footballer enjoyed with the two women, when the women wanted to talk about them. Banning the two women from telling their stories for publication was an interference with their freedom of expression.

The Court of Appeal also reversed the judge's assessment that there was insufficient public interest in the story to over-ride Flitcroft's right to confidentiality.

Lord Woolf said: " In our view to grant an injunction would be an unjustified interference with the freedom of the press. Once it is accepted that the freedom of the press should prevail, then the form of reporting in the press is not a matter for the courts but for the press council and the customers of the newspaper concerned."

Mr Justice Jack had rejected the paper's argument that there was a public interest in the articles, which he described as "salacious details".

But Lord Woolf said: "Ignoring, as one must, the literary quality of what it was proposed to publish, it is not self-evident that how a well-known premiership footballer... chooses to spend his time off the football field does not have a modicum of public interest."

Lord Woolf said that public figures were entitled to have their privacy respected and were entitled to a private life. But they had to recognise that their public position subjected their actions to closer scrutiny by the media.

"Whether you have courted publicity or not, you may be a legitimate subject of public attention.

He said the courts should not ignore the fact that if newspapers did not publish information in which the public were interested, there would be fewer newspapers, which would not be in the public interest.

 TOP

2002: NAOMI CAMPBELL: ACTION FOR DAMAGES: Law of Confidence. Right to privacy. Data Protection Act.

Claimed damages from the Mirror for publishing a story and picture of her attending a drugs self-help group. Campbell disturbed that someone close to her was disclosing private information. Maintained visits to clinic were part of her private side. Campbell won in the first instance on breach of confidence i.e. details of her private life (the actual drug treatment) were revealed by someone with an obligation of confidence. Lost on appeal and ordered to pay the Mirror's costs estimated at £350,000.

The following is taken from an article by Charles Boundy (Media Guardian 21/10/02):

There were three main legal planks to the Campbell argument against the Mirror; confidentiality, privacy and data protection.The law of confidentiality is a long-standing part of our common law which seeks to protect ideas and actions communicated in confidence.

The second, personal privacy, is a co-product of centuries of international human rights legislation culminating in our Human Rights Act 1998, which adopts the European Human Rights Convention. It is worth noting that Article 8 gives the "right of respect for private and family life" - not a right to "privacy" as such.

The third plank is of more recent origins, formulated in the Data Protection Act, also of 1998. Section 2 of this act particularly recognises the need for greater protection of what is characterised as " sensitive personal data", a category that includes information relating to a person's physical or mental health or condition and, thus, drug addiction and its treatment.

On the other side are freedom of expression and public interest, long seen and underpinned as an essential bulwark of democracy.

The three stumps of the Campbell case were clean bowled in the Court of Appeal by a straight delivery of public interest.

The court held that the Mirror's report and photographs were a " legitimate, if not an essential, part of ...(demonstrating) that Ms Campbell had been deceiving the public when she said that she did not take drugs."

The law of confidence, said the court, could not be used as a defence to prevent the record being put straight where a public figure chooses to tell untruths.

The Data Protection Act also contains an express public interest exemption which the court decided applied pre- and post-publication.

Finally, and heralded by some of those who have not always been its champions, the self-regulation of the press complaints commission (PCC) was seen to be exonerated in the process. Order seems to have been restored.

NB. But the judge at the previous hearing appears to have been influenced by the fact that the photographs in question were obtained surreptitiously, in apparent breach of data protection principles and the PCC code of conduct. Moreover, Campbell should not be discouraged from owning up to and seeking treatment for her addiction.

 TOP

 2003: MICHAEL DOUGLAS and Catherine Zeta Jones: High Court Action. Privacy. Law of Confidence.

Background: The wedding of Michael Douglas and Catherine-Zeta Jones at the Plaza Hotel in New York in November 2000. Guests were forbidden to take pictures after the couple sold exclusive rights to OK! magazine. But a paparazzo smuggled himself in and secretly photograophed the bride and groom and sold the shots to OK's rival Hello! An injunction was initially granted banning Hello! from publishing the snatched pictures but this was later lifted and Hello! published the pictures. After this the Douglasses issued a writ for £2.5 million damages.

The action was decided in the Douglases' favour through the existing law of confidence with the couple's further claim that there had been an invasion of privacy rejected.
Mr Justice Lyndsey said in this respect: "So broad is the subject of privacy and such other ramifications of any freestanding law in the area that the subject is better left to Parliament."
He predicted that if Parliament did not act soon then the courts might, in appropriate cases, have to create a law on a piece-meal basis.

The judgement: The court had to balance the rights of the Douglases - the confidentiality of the information in the pictures - against Hello's right to freedom of expression and the public's right to know.

Mr Justice Lyndsey's decision that the wedding was a private event was the cornerstone of the success of their claim for breach of confidence. The fact that the couple had previously welcomed publicity at other events did not lessen their right to complain about the intrusion into their private wedding and the financial consequences of that intrusion.

The judge said that information about some people's private lives had become a highly lucrative commodity for some sections of the media.

Protection was to be given to public figures against such intrusion although people in public life had to expect greater scrutiny than others.

The judge analysed the right ot confidence enjoyed by the couple as a hybrid variety involving personal and commercial confidence. He relied on concepts familiar in trade secrets cases in finding that the Douglases' rights in confidence had been breached as had those of OK!.

The finding that there had been a breach was based on the Douglases having a valuable commercial commodity ( the pictures), the equivalent of a trade secret, the value of which depended upon its content at first being kept secret and then being made public in ways controlled by the couple.
(Comment: This represented a significant extention to existing law and could possibly be relied on in future by publishers seeking to protect exclusive features against 'spoilers' in other papers.)

The judge considered the existing law of confidence in the light of the Human Rights Act , balancing Article 8 - right to privacy - against the opposing right to freedom of expression (Art 10). In doing so he was obliged to take into account the provisions of the Press Complaints Commission's code of conduct and the extent of Hello!'s compliance with it.

The code outlaws the use of long-lens photography unless it is deemed to be in the public interest. (see S3 "Privacy" of the PCC code) The judge read that section to mean - inescapably - that the surreptitious use of short lenses in private places was "at least equally unacceptable" as using long lenses.
(Comment: This would seem to indicate that a breach of the PCC code in this area of privacy will indicate a breach of the law of confidence unless there are pressing public-interest considerations.)

 TOP

2003:MARY BELL AND DAUGHTER. Injunction granted. Right to privacy and family life under Article 8 Human Rights Act.

The child-killer Mary Bell and her teenage daughter won a High Court injunction which guarantees them anonymity for life.

Dame Elizabeth Butler-Sloss, president of the family division, made the order forbidding disclosure of the identities and whereabouts of the two women to protect their right to private and family life under article 8 of the Human Rights Act 1998.

Dame Elizabeth said that she was satisfied that Bell's fragile mental state and other factors, such as her age (10) at the time of the killings, justified the interference with the right to free expression under Art 10 of the Act.

She accepted evidence that mother and daughter were at considerable risk of press intrusion and harrasment and public stigma if their identities were disclosed. They had been forced by press intrusion to relocate five times and to change identities three times.

Dame Elizabeth said the media had not opposed the injunction and the attorney general and the official solicitor supported it.

2003:ELLIS V CHIEF CONSTABLE OF ESSEX
Criminal's right to respect for privacy and family life under Art 8 HRA

The claimant, Gary Ellis, 27, had numerous convictions for offences of dishonesty and car-related crime. Essex Police proposed to "name and shame" him in a picture-poster campaign as a means of reducing burglary and car crime. Ellis claimed that this would involve interference with his - and that of his parents, his ex-partner and his child's - right to respect for private and family life under Article 8 of the HRA.

The High Court found that the name-and-shame scheme need further appraisal before a decision could be taken as to whether its possible benefits were proportionate to the intrusion into an offender's right to respect for his private and family life.

In considering the selection of an offender for such a scheme it would be important to bear in mind that the offender's family, and in particular any children, also had rights to respect for their privacy and family life.

TOP

2003: DISC-JOCKEY SARA COX GETS £50,000 DAMAGES FOR INVASION OF PRIVACY

Sara Cox, the Radio 1 DJ, won a human rights case against the People for invading her privacy by publishing naked pictures of her and her husband on a private beach during their honeymoon. Cox's lawyers sued the paper under Article 8 of the Human Rights Act. The settlement agreed in the High Court means that she will receive £50,000 in damages. The case had special significance because Cox was the first person to have first won an apology from the paper through the Press Complaints Commission ( 63 words long at the top of page three) and had then gone on to sue in the courts. In setting such a precedent she opens the way for other complainants to win apologies or PCC adjudications and then seek further redress in the courts.

It should be noted, however, that the case sets no legal precedent because it was settled between the two parties before the court needed to make a ruling. The case does, however, provide a pointer to the way the law is perceived to be moving. The People would have been unlikely to have settle a year before the action was due to reach trial unless it thought Cox's claim was likely to succeed.

TOP

DEFAMATION

Defamation proceedings inevitably interfere with freedom of expression and so must be justified as necessary and proportionate on a case-by-case basis. But, unlike English law, The European court has in the past differentiated between private individuals and politicians and stated:

"The limits of acceptable criticism are wider as regards a politician as such than as regards a private individual" ( Lingens v Austria)

 TOP

PRIOR RESTRAINT

Article 10 does not prohibit prior restraint but it makes clear that injunctions should only be granted after the most careful scrutiny. (See Article 10 notes above )

The court accepts that news is a perishable commodity and that to delay its publication even for a short time might deprive it of its value

TOP

DISCLOSURE OF JOURNALISTS' SOURCES

The convention provides strong protection for for journalists who refuse to reveal the source of their information:
" Protection of a journalists sources is one of the basic conditions for press freedom. Without such protection sources may be deterred from assisting the press in informing the public on matters of public interest. An order to disclose cannot be compatible with article 10 unless it is justified by an overriding requirement of the public interest." (Goodwin v UK).

In that case a journalist was fined £5000 for refusing to disclose the source of his information about a private company's confidential financial report. The European Court decided that the order to disclose his sources was not supported by sufficient reasons because the interest of the company in unmasking a disloyal employee was not necessary and was disproportionate.

 TOP

ACCESS TO INFORMATION

Freedom of expression under Article 10 specifically includes freedom to receive and impart information and ideas without interference and regardless of frontiers but this does not confer a right of access of information.

In Gaskin v UK, Gaskin attempted to obtain disclosure from Liverpool Council of the records relating to his childhood in council care. The European Court found that the right to receive information under article 10 prohibits restrictions on the receipt of information. It does not, however, oblige public authorities to disclose information against their will.