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<strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain 87 and in what form, material should be published still holds true. This is a vital component of freedom of expression. It is essential that the courts should not have total, homogenising control over the style and substance of a journalistic work. The idea of control over information and the way in which it is presented is, therefore, entrenched in both freedom of expression and privacy. The majority considered that Campbell’s right to privacy in this case outweighed the Mirror’s right to freedom of expression, deciding that receiving treatment for drug addiction should attract the same level of protection as treatment for any medical condition. Further, divulging details of the treatment had the potential to adversely affect Campbell’s recovery process. The Mirror’s publication of the details of Campbell’s treatment and particularly the accompanying use of a photograph was held to be in breach of confidence as the publication of the material infringed her right to privacy. However, little was said about the DPA element of the claim; the parties had accepted that this claim would follow the outcome of the main claim. Quite radically, where it relates to an invasion of privacy, the breach of confidence action was described by Lord Nicholls as follows: “the essence of the tort is better encapsulated now as the misuse of private information”. It was also firmly established that individuals involved in disputes with other individuals or private bodies can utilise the provisions of Articles 8 and 10, just as those individuals involved in disputes with a public body. This is because the court, as a public body, has a duty to act compatibly with Convention rights. Some mention should be made of photographs. There was a division of opinion in Campbell as to whether a photograph can constitute a more serious invasion of privacy than a verbal description. The majority of the House of Lords considered that a photograph is capable of such impact: as the saying goes, a picture can tell a thousand words. The PCC here, however, does not accept that photographs are innately more intrusive than written material. It considers that it is the nature of the information, and not the way in which it is conveyed, that should be the focus of the determination of whether a breach of privacy has occurred 170 . In 2005, Hello! Magazine appealed against the decision of the High Court in Douglas, as referred to in Page 82 above. The Court of Appeal had little difficulty in concluding that the unauthorised wedding photographs portrayed private aspects of the Douglas’ life and fell within the law of confidentiality, as expanded to cover private information in Campbell. The court determined that the action for breach of confidence was not a tort but an equitable action. This may seem at odds with the position taken in Campbell. Photographs were again singled out for special protection. The court considered that the available defence of showing that information was in the public domain may not apply to photographs because each fresh publication and/or additional viewer may cause fresh distress. The Court of Appeal held that the law of confidence would cover the Douglases commercial interest in the private information contained in the photographs. The law of confidence would protect the opportunity to profit from personal confidential information in the same way as it protects the opportunity to profit from, for example, trade secrets. But the court clarified that the rights in private or confidential information are not transmissible as property rights. The concept of developing image 170 Press Complaints Commission Annual Review 2005.
88 <strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain rights (a right recognised in France, for example) may be something that the courts need to address in the future, as celebrities continue to trade on their images. Unfortunately for OK!, the Court of Appeal decided that any duty of confidentiality attached only to the authorised pictures of the wedding. Accordingly, OK! could not claim for breach of confidentiality in respect of the unauthorised pictures of the wedding. OK! appealed to the House of Lords 171 . Having garnered modest damages for what could now be deemed a virtually unanswerable case for invasion of privacy, the Douglases took no part in the appeal. OK! had neither a claim for invasion of privacy, nor could it rely on any parasitic right arising out of the Douglases rights. Traditional breach of confidence was the subject of the appeal. OK! won the appeal. In a heavily divided judgment, the House held that an obligation of confidence attached to any photographs of the wedding, not just to the authorised photographs. The Douglases were in a position to impose such an obligation of confidence: information about the wedding in photographic format was information of a commercial value over which the Douglases had sufficient control. OK! had paid £1 million for the benefit of this obligation of confidence and the House could find no conceptual or policy reason as to why its interest should not be protected. Hello! argued that once the authorised pictures were published, they were in the public domain and no longer confidential. The Lords considered that it was necessary to look at the nature of the material in question (in this case, information about the wedding where every picture was capable of attracting protection). There may still be benefit in providing protection, even where material has become public. This will depend on the facts of each case. Whilst Campbell and the Douglases were championing their privacy rights in the UK, the Wainwrights were plotting a course that would lead them to the ECtHR. While the case does not concern the media or the disclosure of information about an individual as in Campbell or Douglas, it is highly significant in respect of what the ECtHR said about the level of privacy protection in the UK. A breach of the applicants’ right to privacy was found by the ECtHR, which also noted that Article 8 protected the right to family life (which included visiting a relative in prison). The protection of privacy extended to the safeguarding of physical and moral integrity. Crucially, the ECtHR found that the absence of a general tort of the invasion of privacy in English law had resulted in a breach of Article 13 of the Convention, which provides that an individual who has suffered a violation of a Convention right shall have an effective remedy in a domestic court. The decision in Wainwright may have far reaching implications in relation to the protection of privacy in England. Although Article 13 is not incorporated into the HRA, the English courts are bound by the HRA to take account of Strasbourg jurisprudence when determining questions arising in relation to Convention rights. Wainwright is the clearest signal yet that a tort of the invasion of privacy should now be recognised in the UK. The Public Interest Justification The public interest defence or justification is one commonly employed by the media to justify invasions of privacy. There is no exhaustive guidance as to what may be in the public interest and courts need to approach the question on a case-by-case basis. It is settled that it is in the public 171 [2007] UKHL 21.
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Overlooked - Liberty

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