Overlooked - Liberty

Overlooked: Surveillance and personal privacy in modern Britain 97
the disclosure of an individual’s medical records showing that they had contracted ‘flu in the past
would be highly offensive to the reasonable person (the chances are that it would not be); the issue
here is that medical records are prima facie private and the test should not be used. The test is not
an easy one to employ. It comprises a mixture of the objective and the subjective. The test is
whether the reasonable person of ordinary sensibilities standing in the shoes of the complainant
would find the disclosure highly offensive. This will be a difficult issue to determine and will depend
heavily upon the facts and the relevant history of each case.
The subjectivity element may come into play sooner than at the point of doubt. In establishing
whether a complainant has a reasonable expectation of privacy in the first instance, it will be difficult
to ignore personal attributes, such as a person being particularly guarded or retiring.
There is no black and white test to determine what is private and what is not. Confidential
information does not have the same layered quality that privacy has. Determining what is private is
essentially a matter of fact and degree. Taste and decency can often be influencing factors. In A v
B plc 197 and Theakston v MGN Limited 198 the view was taken that information concerning sexual
relations within stable relationships is more likely to be protected from disclosure than if the
“relationship” were a transient engagement in a brothel. This is despite the fact that the functional
aspect of the information, in effect, information pertaining to sexual relations, is the same 199 . This is
moral, rather than legal, logic and it is far more difficult to apply to any given situation. Is it the case,
then, that the courts are less likely to provide protection from disclosure in respect of information
which is questionable on the grounds of taste and decency Although the courts are not intended
to be arbiters of taste, they do appear, on occasion, to judge within the boundaries of what is
deemed to be socially acceptable 200 .
Perhaps a more appropriate way of identifying where a reasonable expectation of privacy may arise
is to look at the functional and spatial aspect of the information or act in question. Where the theme
is one that is obviously private, such as sexual relations, grief or medical information, and/or takes
place in a sphere to which public access is either prohibited or limited, a reasonable expectation of
privacy is likely to arise. This should be protected, unless some countervailing public interest or other
defence can be raised.
The decision in Von Hannover does not sit well with this formulation. It does seem that the climate
of continual harassment featured heavily in the ECtHR’s finding of an invasion of privacy, although
as noted above this is not the way Von Hannover has been interpreted and applied in subsequent
ECtHR decisions or in the domestic courts. It remains to be seen whether persistent intrusions upon
individuals going about their daily lives in public will be seen to give rise to a reasonable expectation
of privacy where the functional and spatial aspect of the information or act concerned is not private.
197
Ibid. at 161.
298
[2002] EMLR 22.
199
For a contrasting decision see CC v AB [2006] EWHC 3083 (QB), where an injunction was granted to the
applicant – a high-profile sports figure – to prevent the respondent from publicising that fact that the
applicant had had an affair with the respondent’s wife. The respondent made no secret of his desire to exact
revenge on the applicant by divulging details of the affair to the public. His motive impacted on the balancing
exercise undertaken by the court in the sense that it devalued his Article 10 right in the particular context.
200
See “Sex, Libels and Video-surveillance”, Lord Justice Sedley’s Blackstone Lecture to Pembroke College,
Oxford, 13th May 2006. See also Quigley v Zoo Magazine ibid. at 183.