Overlooked - Liberty

Overlooked: Surveillance and personal privacy in modern Britain 73
Introduction
7. Privacy and the Media
This chapter looks at the relationship between privacy and freedom of expression in the context of
the media. Privacy is an important right; it is an aspect of human dignity. But freedom of expression
and particularly expression by the media are cornerstones of pluralistic democracy. These two
powerful human rights are often in conflict, the resolution of which can mean the limiting of one right
in favour of the other.
We begin by looking at the ways in which privacy is currently protected from media intrusions by
legislation and regulation, from the Human Rights Act 1998 to the Data Protection Act 1998, and
the industry’s regulators, Ofcom and the Press Complaints Commission. We then examine how
case law has evolved in this area to further protect invasions of privacy by the media.
The second section in this chapter examines the shortfalls present in the current landscape of
privacy protection, analysing how effective legislation and regulation have been in addressing the
right to privacy, and how well they strike a balance between this and freedom of expression. We
then evaluate the development of case law, with particular emphasis on whether the recalibration of
the traditional breach of confidence action is apt in this area.
In the third and final section of this chapter we explore the ways in which the current position might
be reformed to better strike the balance. Should Parliament legislate for privacy in the media field, or
is it better for the courts to develop the law in this area We also look at potential reform of the
regulatory system and the availability of legal aid and/or conditional fee agreements for privacy claims.
Before embarking on any exploration of privacy and the media, the concept of privacy itself requires
examination. The idea of what is private, and as such worthy of protection, is difficult to capture. The
right to privacy might be translated as the right to be let alone, or the right not to suffer unwarranted
intrusion by the world at large. This right is essentially predicated upon the value of personal identity,
and the desirability that this should in some respects be insulated from the outside world. A right to
privacy protects fundamental aspects of the self: autonomy, individuality, integrity. This right is an
essential component of our humanity. The private zone is the point from which we manage our own