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<strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain 89 interest for the media to prevent the public from being misled by the remarks or actions of public figures (see Campbell, above). It is also in the public interest for the media to expose crime or protect public health or safety. Is it, however, in the public interest for the public to know about an individual’s private life solely on the basis that they are a public figure or otherwise famous The position under privacy case law was somewhat confused until recently when the ECtHR in Von Hannover held that a fundamental distinction needed to be drawn between material capable of contributing to a debate of general interest to society, relating to, for example, politicians and the exercise of their functions, and details of the life of an individual who does not exercise any official functions. The court effectively made the distinction between what is in the public interest and what is merely interesting to the public. A disclosure will be in the public interest if it contributes to a debate of general interest. This might be argued to be rather a restrictive definition of the public interest. It would certainly put paid to the proliferation of popular kiss and tell stories and articles relating intimate details about celebrities’ private lives. The obvious difficulty with the public interest justification lies in the interpretation of debate of general interest. Construing it too narrowly runs the real risk of restricting investigative journalism if the media, keen to avoid censure, stick to “safe” subjects. This in turn will threaten the press’ role as public watchdog and may potentially mean that subjects of significance to the public will go unreported. In McKennitt v Ash 172 the claimant, a Canadian folk singer, brought an action against her former friend and business partner to prevent her from publishing a tell-all book about her private life, containing information about her business affairs, relationships and emotional well-being. The defendant claimed that the book was in the public interest because it showed that the claimant did not, in her own life, abide by the “rules” she had published on her official website. At trial, the court held that, in order for the public interest justification to be brought successfully to bear in situations such as this, a high degree of misbehaviour on the part of the claimant should be shown. On appeal, the position taken by the ECtHR in Von Hannover was adopted; it was confirmed that it was necessary to draw a distinction between the vital role of the press as public watchdog and its publishing of news about figures who cannot legitimately be described as public figures in the proper sense. In HRH Prince of Wales v Associated Newspapers Limited 173 Prince Charles claimed for breach of confidence when hand-written journals were supplied to the defendant by a disloyal employee in breach of a contractual duty of confidence. The journals were published by the defendant, which was held to be a clear breach of confidence. The Court of Appeal agreed that the journals were clearly confidential and private. The court added a further dimension to the public interest justification, stating that the test to apply when considering whether to curb the defendant’s freedom of expression is not simply to ascertain whether disclosure of the information is in the public interest, but also whether it would be in the public interest for the duty of confidence to be breached 174 . 172 [2005] EWHC 3003 and [2006] EWCA Civ 1714. 173 [2006] EWHC 522 and [2006] EWCA Civ 1776. 174 Contrast this decision with that of Beckham v Gibson (Unreported, April 29) (Ch D). An injunction to prevent the Beckhams’ nanny from revealing private details about the couple’s life was refused on the ground that the story would be in the public interest. This seems contrary to the reasoning in both Von Hannover and Campbell. It may be that the thinking was that the couple have benefited extensively from their image as a happily married couple. It appears that even express duties of confidentiality might not be effective in some circumstances.
90 <strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain When the public interest justification is accepted, it presents a powerful defence to an invasion of privacy, even in respect of the most sensitive material. When Michael Stone, convicted of the murders of Lin and Meg Russell, sought to restrain the publication of a report regarding his care, treatment and supervision, the High Court ruled that, although it would constitute an invasion of his privacy, the report should be made available to the public 175 . This was because there was a clear public interest for the public to know about his care and treatment under health professionals, which would not be served by limited disclosure. Further it was noted that the publicity surrounding Stone was a result of his criminal acts and that much of the information was already in the public domain. Other Defences Other defences to invasions of privacy by the media include consent and waiver. Ideally, consent should be written and relate expressly and substantially to the intrusion complained of and/or to the information disclosed. Oral consent will have to be proved by the defendant on the balance of probabilities. An argument of implicit consent, particularly in respect of the publication of sensitive personal data, is unlikely to be effective 176 . Waiver shares some overlap with implied consent. Broadly, it will arise where a person has effectively forfeited their right to privacy in respect of matters that they themselves have publicised. It is not a simple test to employ and does not mean that, where an individual has chosen to publicise certain aspects of their private life, free rein will be given to the media to publish all material that it can uncover in relation to those aspects. This overly simplistic “zonal” approach was specifically rejected by the Court of Appeal in McKennitt. The extent to which the individual has commoditized their private life for their own benefit will be relevant to the reasonableness of their expectation of any retained element of privacy, but it is to be borne in mind that selective disclosure of one’s private information is an exercise of one’s Article 8 rights, and does not impliedly authorise further disclosures by others. This is perhaps significant in relation to celebrities who rely on the media to sustain their careers, without which they would be little-known to the general public. Remedies Remedies for invasions of privacy include an injunctive relief and damages. Clearly the former will be the preference of the complainant. Under section 12 of the HRA a pre-publication injunction will not be granted unless the applicant can show that they are “likely” to succeed in preventing the publication at trial. It has been held that a court must be satisfied that, in all the circumstances, the complainant’s chances of success should be sufficiently favourable to justify an injunction 177 . There was considerable doubt and speculation over how this section would be applied. It seems to be viewed as a provision favouring free speech. In the Court of Appeal hearing, which followed the trial of Douglas v Hello, it was suggested that the courts should be more willing to grant injunctions in privacy cases because damages will often be an inadequate remedy. Damages awarded in privacy claims so far have been low, tipping the scales at around a few thousand pounds, although settlements of £50,000 plus have been achieved. The position is 175 Stone v South East Coast Strategic Health Authority [2006] EWHC 1668. 176 See chapter 9, “The Law of Privacy and the Media” edited by M. Tugendhat QC and I. Christie, Oxford University Press 2002. 177 Cream Holdings Limited v Bannerjee [2005] 1 AC 253.
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