Privacy and Injunctions - Evidence - Parliament

Professor Gavin Phillipson—Written evidence
before any disclosure was made, but without a claimant notification requirement, this is
by no means guaranteed in future similar cases.
16. These cases show that newspapers are quite prepared to publish information even where
there is clear evidence that doing so may lead to a serious risk to a person’s physical
safety or mental health. A notification requirement in English law would help ensure that
the vital interests of such people, including their rights to life and protection from
inhuman treatment, could be protected by a court by injunction, if necessary.
The general balance between free speech and privacy in practice
17. I note that in some of the evidence recently submitted by tabloid editors to the Leveson
Inquiry, it is alleged that the judges have wrongly prioritised privacy ‘over’ or in
‘preference to’ freedom of expression and that as a result, cases of major sexual
misconduct by very senior politicians, like Bill Clinton or Dominique Strauss Kahn, could
perhaps not have been reported in the UK. Both assertions are false, and the second is
obvious nonsense. The basic approach taken in English law to balancing free speech and
privacy is mandated by the fact, noted above, that the Convention does not establish an
order of precedence of one right over the other. This gives rise to a method that can be
termed ‘contextual balancing based on presumptive equality’: essentially, the rights to
freedom of expression and privacy are given presumptively equal status; neither may be
enforced in such a way as to disproportionately damage the other, and which claim wins
out in a given case depends upon an intense focus upon how far the values underlying the
right are really at stake in the particular circumstances. 341 As Lord Hoffman summarised
the approach in Campbell:
There is in my view no question of automatic priority. Nor is there a presumption in
favour of one rather than the other. The question is rather the extent to which it is
necessary to qualify the one right in order to protect the underlying value which is
protected by the other. And the extent of the qualification must be proportionate to
the need. 342
18. Campbell itself was resolved in this way: it was found that Naomi Campbell could not
justify imposing liability for publishing the basic facts of her being a drug addict and
receiving treatment, because of the legitimate public interest in them – something she
had indeed conceded. But equally it was found that the intrusive details relating to the
place and nature of her treatment in Narcotics Anonymous– likely to cause greater
damage to Campbell’s attempts to rehabilitate herself than merely reporting her drug
addiction – could not be justified. Both sides therefore had to give some ground; the case
turned upon working out a way of ensuring the minimum impairment of each person’s
rights. The weight of both rights was assessed in context and a measure of both privacy
and of free expression was retained.
19. It is also of course nonsense to suggest that reportage of Bill Clinton’s sexual misconduct
with Monika Lewinsky could not have been carried out in this country because of our
law of privacy. The courts have in practice adopted a fine balance in cases concerning
sexual (mis)conduct, even though none of them have included figures of anything like the
341 See the summary of the matter in the recent decision of the Court of Appeal in David Murray v Express Newspapers
[2008] EWCA Civ. 446, at para 24.
342 ibid at [55].
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