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<strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain 85 harassment. However, the ECtHR has since applied those principles to cases which have not involved any element of harassment 167 , and this wide interpretation of Von Hannover has been adopted in domestic law by the Court of Appeal in McKennit v Ash 168 . Significantly the ECtHR said that Member States might have, along with a duty to provide remedies in respect of breaches of privacy, positive obligations to prevent breaches of privacy. The concept of the “margin of appreciation” under European law will still be relevant. When the ECtHR determines whether interference with a Convention right is necessary, proportionate and meets a pressing social need, it will allow the domestic courts a measure of discretion in their initial assessment. This is because domestic courts are thought likely to be better placed to make this judgement. Critics of the decision in Von Hannover have pointed out that Princess Caroline was pictured in public and in situations that could hardly be described as private. Hers was not a Peck situation. The ECtHR has, therefore, effectively declared a willingness to protect, in certain circumstances, public acts that take place in public. The media might ask where one draws the line between public acts that can be protected and those that cannot. The privacy that is being protected is elusive in definition. The media inevitably see this as an unwarranted restriction on what has long been its territory. If the press is open to censure on such wide grounds it may be that they will be less inclined to fill its role as public watchdog in situations where a clear public interest cannot be shown. Von Hannover, which as already noted has been adopted and applied in domestic law, represents a restrictive formulation of where the balance between freedom of expression and privacy should be struck, particularly in its analysis of what is in the public interest, which will be explored in further detail below. The Misuse of Private Information One of the most significant privacy cases to come before the English courts is Naomi Campbell v Mirror Group Newspapers Ltd. 169 . This case concerned two articles published by the Mirror newspaper about Campbell’s drug addiction and treatment. At a previous interview during which the subject of drug addiction was discussed, Campbell had unequivocally denied using drugs. The information contained in the articles was divided into five categories by the court. They were: (a) the fact that Campbell was addicted to drugs; (b) the fact that she was receiving therapy for her addiction; (c) that the treatment was at Narcotics Anonymous; (d) details of the treatment; and (e) a photograph showing Campbell leaving a Narcotics Anonymous meeting. Campbell accepted that she could not claim redress in respect of the publication of the first two categories of information, as she had previously lied to the public about taking drugs and the press were, therefore, entitled to correct the misleading image that she had presented to the public. In respect of the last three categories of information, Campbell claimed that the publication infringed 167 See e.g. Sciacca v. Italy (2006) 43 EHRR 20. 168 [2006] ECWA Civ 1714. 169 [2004] 2 AC 457.
86 <strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain her right to privacy and was therefore a breach of confidence. She also claimed that the publication was in breach of the DPA. At first instance Campbell was successful on both heads of claim. It was held that details regarding Campbell’s attendance at Narcotics Anonymous possessed the necessary quality of confidence, and Campbell was entitled to keep them private. The court considered that even self-publicists should be entitled to keep some information private. Further, the information disclosed was held to be sensitive personal data under the DPA. The Mirror could not avail itself of the exemption under section 32 of the DPA because it did not apply post-publication. The Mirror appealed and the Court of Appeal reversed the decision, considering that the information contained in categories (iii) – (v) was merely peripheral to the first two categories. It held that, where publication of confidential information was justifiable in the public interest, reasonable latitude as to the way in which information was presented should be given to the publisher. If this method of presentation were restricted, this would constitute an unnecessary inhibition on freedom of expression. The Court of Appeal also held that the publication came within the exemption set out in section 32 of the DPA, even though it appeared from the wording of the Act that the exemption would apply only before material is published, hence the wording “with a view to publication”. The Court reached this construction of section 32 after referring to Hansard, and because it could see that the narrow interpretation adopted by the trial judge would mean that there would be no defence to a DPA claim in most cases where the complaint was made about the publication of personal information. Campbell was given leave to appeal to the House of Lords and won the appeal by the narrowest majority: their Lordships were split three to two. The divide illustrates the inherent difficulty faced by the courts in determining claims relating to the invasion of privacy. Indeed, it conveys the fundamental complexity of the question of how far a right can be restricted for the purpose of according due protection to a conflicting right. Nonetheless, their Lordships went some way towards tackling the vexed question of how privacy should be protected under English law, grappling with the murky position under existing precedents, Strasbourg jurisprudence and the delicate mechanics of Article 8 and Article 10. A framework intended to govern privacy claims was advanced. The court must determine whether Article 8 has in fact been engaged. The first question to be determined is this: does the complainant have a reasonable expectation of privacy in respect of the material disclosed If the answer is no, then the court need go no further. If the answer is yes, the court must secondly conduct a balancing exercise between Articles 8 and 10. In weighing up their relative importance, the court must recognise that neither right has pre-eminence over the other. What has been seen as the presumptive primacy of freedom of expression has now been removed from this evaluation. Analysis of the comparative importance of each right within a fact-specific framework should take place. Interference with either right must be necessary and proportionate – the court must consider the benefit of protecting one right against the potential detriment caused by limiting the other. In effect, the consequences or significance of interference with either right must be weighed against each other. This is a delicate test – freedom of expression and privacy are not blunt, black and white concepts: some material is without doubt private, just as some news should without doubt be reported. However, this is not always the case. There are different types of freedom of expression, as well as grades of privacy. That the reporter should have a degree of latitude in decisions regarding what,
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