Overlooked - Liberty

Overlooked: Surveillance and personal privacy in modern Britain 103
the media. Naomi Campbell fought her claim against the Mirror in the House of Lords on a CFA. The
Mirror challenged the ruling that it should be liable to pay the success fee on the ground that the
liability for the uplift was so disproportionate that it infringed its rights of freedom of expression 209 .
The Lords found that the payment of the success fee was compatible with the Mirror’s Article 10
rights. This was despite the fact that Campbell clearly could have afforded to pursue the litigation
using her own funds.
The possibility of having to pay a success fee may have a chilling effect on the media. It may choose
to settle a claim even if it has a legitimate defence, rather than incur liability for the success fee.
Indeed, it may even choose not to run a story if there is a risk that it may result in litigation and liability
for a success fee. The existence of the success fee clearly has the potential to restrict the media’s
freedom of expression, particularly in the case of smaller publications. Thus, the reality is that it may
impact on Article 10 and Article 6 rights.
Conclusion
Recent decades have heralded a new climate for privacy protection from media intrusion in England
and Wales. The courts have formulated the reasonable expectation of privacy test and balanced
Articles 8 and 10. With the emergence of the balancing test has come the recognition that freedom
of expression does not have presumptive authority over an individual’s right to privacy. This shows
an appreciation of the importance and utility of both rights. The balancing exercise is key to the
resolution of the tension between the two. It also plays a vital role in sustaining the value of each
right. Strike the balance too far one way (whichever way that is), and there is not only a risk of
damage to the right that is restricted, but also a danger of devaluing the right that prevails.
Analysis of the issues at a micro level can only ever be enriched by clarification at a macro level. At
the latter level, it is clear that the invasion of privacy as a cause of action needs now to be
distinguished from the action for breach of confidence. Privacy is a constitutional right which
protects personal dignity; confidence is an equitable action that protects information and
relationships. Whilst the use of confidence to contrive the protection of privacy has provided
welcome redress in some cases, it may undermine both rights. It has led to the protection of private
information from media disclosure. However, it has left a gap in the protection against intrusions that
do not lead to the disclosure of material.
Acknowledgement of the right as one that is distinct from the law of confidence will enable coherent
development. Whether it be pre or post publication, the media needs clearer guidance as to when
the disclosure of information will be considered to infringe another’s right to privacy. It would be a
worrying situation for free expression to be restricted simply because the law of privacy is blurred.
The interplay between freedom of expression and privacy shows that these rights are not necessarily
in diametric opposition. Whilst the protection of one right may limit the other, both are underpinned
by values of control and independence. Both share a public and a private utility. Society needs a
clear, fair and effective reconciliation of these rights.
209
[2005] UKHL 61.