UK: A Right to Privacy?

The recent, much anticipated, judgment of the court in Douglas and Others v Hello! Limited and Others [2003] EWHC 786 provides welcome clarification of the position in respect of the development of a right of privacy under English law.

The facts of the case related to the wedding of Michael Douglas and Catherine Zeta-Jones (the Douglases), two well-known film stars, in November 2000. The Douglases sold exclusive photographic rights of the event to OK! magazine. However, soon after the wedding it transpired that a photographer had eluded stringent security measures and surreptitiously taken photographs which were then bought for publication by a rival magazine to OK!, Hello! The Douglases and OK! sought and obtained an injunction to restrain publication, but the Court of Appeal subsequently lifted the injunction. The Douglases pursued their claim in damages for, inter alia, breach of confidence, breach of the Data Protection Act 1998, and under a possible privacy law.

The trial judge, Mr Justice Lindsay, noted the threefold test required to establish a successful claim in confidence (set out in Coco v AN Clark (Engineers) Limited [1969] RPC 41), namely that (1) the information must have the necessary quality of confidence about it, (2) the information must have been imparted in circumstances importing an obligation of confidence, and (3) there must be an unauthorised use of that information to the detriment of the party communicating it.

Lindsay J also noted that a number of recent domestic cases, which all included significant consideration of the modern law of confidence in relation to personal confidence, represented a fusion between the pre-existing law of confidence and rights and duties arising under the Human Rights Act 1998 (HRA) (which effectively incorporates the majority of the European Convention on Human Rights (ECHR) into UK law).

Amongst the general principles which the judge derived from these cases was that breach of confidence was an established cause of action whose scope needed to be evaluated in the light of obligations falling upon the court under section 6 of the HRA (which requires public authorities, including the court, to act in a way which is compatible with ECHR rights). That could be achieved by regarding the rights conferred by Articles 8 (the right to privacy) and 10 (the right to freedom of expression) of the ECHR as absorbed into the action for breach of confidence. It would be necessary for the courts to identify on a case by case basis the principles by which the law of confidentiality must accommodate these Articles, on the basis that a balance between the conflicting interests had to be struck.

Applying this law to the facts of the case when applying the threefold test described above, the Judge concluded that:

1. the photographs of the wedding reception did have the necessary quality of commercial confidence about them, as demonstrated by the bidding war between OK! and Hello! for exclusive rights to the official photographs, the private character of the event, and the elaborate and costly plans implemented to maintain exclusivity.
2. the surrounding facts were such that a duty of confidence should be inferred, as demonstrated by the fact that Hello! indicated to paparazzi photographers in advance that they would pay well for the photographs and knew the reputation of the paparazzi for being able to intrude, and the unauthorised pictures themselves plainly indicated that they were taken surreptitiously.
3. the claimants had suffered detriment from the publication by Hello! in the form of distress, expenses which would otherwise have been unnecessary, and potential loss of syndication revenue.

In applying the balancing test between freedom of expression and confidentiality, the Judge had particular regard to the fact that the Press Complaints Commission Code was breached by Hello! and concluded that the right to freedom of expression of Hello! was overborne by the rights of all the claimants under the law of confidence. On this basis, Hello! was liable to all three claimants in damages, in a sum to be assessed at a later hearing.

Lindsay J accepted that a powerful case could be made for the existence of a domestic law of privacy. However, he considered that another view was tenable, as was demonstrated by the recent Court of Appeal judgment in Wainwright v Home Office [2002] 3 WLR 405 in which it was held that there had been no general law of privacy before the HRA and the HRA had no retrospective effect.

The judge concluded that the existing law did not point to any need for the creation of new law in areas in which protection and enforcement were already available. As the Douglases were protected by the law of confidence, there was no "hole" in English law under the facts of this case which needed to be filled.

Lindsay J added that the broad nature of the subject of privacy and the ramifications of any free-standing law in the area meant that Parliament was better placed than the judges to deal with its development.

The judge also awarded the Douglases compensation for damage and distress under the Data Protection Act 1998. This was on the basis that the unauthorised wedding pictures were personal data, the Hello! defendants were data controllers, and therefore the publication of the pictures in England was processing by Hello! which was bound by the Act's requirements. The level of damages under the Act is expected to be fixed at a subsequent hearing but has been described in the judgment as "nominal". If you would like a copy of our e-bulletin which focuses on this issue, please click here.

Lindsay J’s judgment provides welcome clarification of the role played by the HRA within the tort of breach of confidence and also of the position in respect of the existence of a domestic law of privacy.

In particular, the judgment demonstrates the important role played by Articles 8 and 10 of the ECHR within the action for breach of confidence, and the need for the courts on a case by case basis to apply a balancing test between these two Articles. In this respect, it is interesting to note the judge’s view that no "presumptive priority" should be given to freedom of expression when it is in conflict with another ECHR right, nor where the conflict is with rights under the law of confidence.

However, the door to the establishment of a self standing right to privacy should not be considered closed: a domestic right to privacy may only be awaiting a case where no existing cause of action protects a deserving claimant.

Article by Andrew Lidbetter, Nusrat Zar and Kate Brimsted

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