Privacy and Injunctions - Evidence - Parliament

Monica Bhogal and Rachel Donoghue, Berrymans Lace Mawer LLP—Written evidence
balancing exercise between the rights afforded by Article 8 and the rights afforded by
Article 10, neither has priority, and that the balance can only be determined in the
context of a particular case.
In one of the leading privacy cases, Campbell v MGN [2004] UKHL 22, Lord Hope
expressed the view that the rights as such are of equal value in a democratic society.
In another leading privacy case, Re S (A Child) [2005] 1 AC 593, the House of Lords
outlined a five-stage approach to the decision-making methodology. This approach
includes whether in all the circumstances the interest of the owner of the personal
information should yield to the right to freedom of expression.
In our view, the balancing exercise is difficult but necessary and must be determined
on a case-by-case basis.
c. Should Parliament enact a statutory privacy law?
No. Please see response to (a) above.
d. Should Parliament prescribe the definition of ‘public interest’ in statute, or should it be left to
the courts?
No. It should be left to the courts.
Public interest is largely defined by the social mores of the time. It would be very
difficult for Parliament to legislate on this issue. If they did so, it is likely that any such
statute would need to be repealed in due course or amended on a regular basis, so
as to reflect the changing nature of the attitudes of society. Alternatively, any
legislation would need to be drafted widely enough to allow for this, likely rendering
it at the very least of little practical use and more probably open to attack by way of
satellite litigation. Given that the balancing exercise that the courts are required to
undertake demands an intense focus on the particular facts of the case, in our view,
this approach is inextricably linked with the requirement to consider what is in the
public interest in the context of any given case.
e. Is the current definition of ‘public interest’ inadequate or unclear?
Yes, although this is inevitable in light of the rights-based approach to
determining breach of privacy cases.
Disclosure of information on the grounds that disclosure is required in the public
interest is an aspect of the right to freedom of expression. Public interest is not
defined in Article 10 or elsewhere in the Convention, nor has it been (nor, we
submit, can it be) wholly defined in case-law. In our view, what is considered to be
in the public interest must be addressed on a case-by-case basis, in the context of
balancing whichever Convention rights are engaged, and with an intense focus on the
specific facts of the case. In recent decisions, there appears to be a broader
approach to what is in the public interest or public concern, and a move away from
the previously held view that where wrongdoing was alleged, the proper recipient of
the information was the appropriate regulatory body or the police, rather than the
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