Where There Is an Invasion of Privacy by the Media, an Action in Tort is Really only an Option for the Wealthy - Essay Example

?WHERE THERE IS AN INVASION OF PRIVACY BY THE MEDIA, AN ACTION IN TORT IS REALLY ONLY AN OPTION FOR THE WEALTHY. CRITICALLY DISCUSS Instructor Institution Date Introduction Over the years, application of tort law relating to privacy in the UK has proved to be confusing despite the law being fairly simple. Recent events have added credence to this view; the law and its application by the judiciary has come under intense criticism from the media, celebrities, and politicians. In general terms, tort refers to a civil wrong because it is committed by a person against the other (the term “person” includes legal entities like companies). The law of tort and especially that relating to privacy are founded on the belief that each person has certain interests that have to be protected by law.1 These interests can be protected by the court in two main ways; issuing an injunction to the defendant to refrain from interfering with the interest of the complainant, and awarding damages for infringement of protected interest of a particular individual. Recent years have witnessed increasing number of people getting concerned about their reputation and privacy. Therefore, in an event that the reputation and privacy is infringed by writing or untrue speech, damages may be sought in the court of law by the aggrieved party.2 In English law, privacy law considers that individual has a right to informational privacy and the situations in which such right should be protected or disregarded. Specifically, this right to informational privacy protects individuals’ private information against unauthorized disclosure or misuse.3 The media has been the biggest “culprit” of violating the right to privacy of people in the UK. Most cases relating to privacy are usually brought against media companies.4 Recent years have witnessed a rising number of people especially the celebrities and the politicians bringing privacy cases against media companies, as well as seeking injunction from the court to refrain media from interfering with their informational privacy.5 These individuals seek informational privacy on a number of issues such as: communication privacy, health privacy, relationship privacy, and financial privacy among others. Previous and present cases relating to privacy show that most people who opt for tort are the wealthy and there is very small evidence of “non-wealthy” opting for an action in tort in regard to privacy. There has been a raging debated on whether, indeed, where there is an invasion of privacy by the media, an action in tort is really only an option for the wealthy. This debate has been fueled by the increasing evidence of the wealthy opting for action in tort while negligible number of “non-wealthy” opting for the same.6 This paper will discuss this debate with the view of finding out whether it is true or not. Privacy Law in the UK It is important to note that English law has no specific tort to defend privacy. As a result, the courts have had to confront this situation and balance the individual’s privacy rights against the right to freedom of speech which is often “attacked” in most cases relating to privacy.7 The development of protection of human privacy in English Common law has been helped greatly by the UK Human Rights Act 1998 that was incorporated through the European Convention on Human Rights (ECHR). Particularly, Article 8 of the Convention helped in guaranteeing the right to privacy into the English Common law.8 That notwithstanding though, English Common law does not have a freestanding tort of privacy. In the absence of such tort law, a variety of torts linked to inflicting harm to a person intentionally, principles of administrative law relating to proper use of police powers, and equitable remedy of confidence have been used to resolve cases relating to infringement of privacy of individuals.9 As reaffirmed in the case of Wainwright v Home Office, the application of multiple remedies and emphatic and frequent assertions by the judiciary, shows that there is no general tort of privacy in English Common law.10 In this case, the Judges relied on the progressive extension of the breach of confidence action that protects private interests of individuals; they refused to recognize the existence of free-standing and separate tort of privacy. Since there is no specific tort to defend privacy, the judiciary has been developing law on the same incrementally as the ECHR requires of them. However, this requirement by the ECHR denies the judiciary the opportunity to create a tort of privacy that is independent. However, the fact that the English Common law has a history of protecting privacy should not be lost.11 There have been a number of cases where the law has been used to protect personal privacy. For example, the court granted an injunction in the case of Thompson v Stanhope that prevented the publications of letters which had been sent by the widow of Lord Chesterfield.12 Although the tort of privacy applies to both the traditional and emerging privacy issues, English Common law relating to the same covers nearly the same ground it did many decades ago.13 As a result of lack of free-standing tort of privacy, the application of the multiple remedies from existing tort laws has been somewhat confusing. This has drawn intense criticism from various quotas including the media, celebrities, politicians, and even the judiciary itself. Even though lack of specific tort has been cited as the main reason for the confusion, there are a number of other reasons that need to be considered.14 One, the public are confused and misinformed over the multiple laws relating to privacy, thus making compounding the confusion and its application. Two, most of the procedural rules, key cases, and Acts of Parliaments applied in the privacy cases have not been made up by the judges in the recent years, and most of their elements date back to many years back. Such laws and procedural rules may often fail to cover sufficient scope for addressing privacy cases.15 For example, in the case of Malone v Metropolitan Police Commissioner, equitable remedy of confidence proved to be fairly limited in scope to provide direction for the invasion of privacy case.16 Subsequent cases such as in Attorney General v Guardian Newspapers showed that the breach of confidence had certain exemptions that may compromise adequate remedy awarded to the claimant.17 As has been noted, privacy in English law entails protecting misuse of private information. Due to lack of free-standing tort of privacy, this protection is guaranteed through the combination of Human Rights Act 1998 and some elements of breach of confidence. In the English Common law, misuse of private information is a two-stage test, as noted in the case of Murry v Big Pictures (UK) Ltd.18 Misusing of private information can be considered as an infringement to personal privacy if it passes the following test: the claimant must show that he expected a reasonable privacy from the information in question; the defense must prove that the disclosure of such information was justified and give basis of the justifications.19 Therefore, the judging of the case by the court should be according to the law, as well as be proportionate and necessary. The judgment should seek to award damages to the claimant (if it deems so) without undermining the rights of freedom of expression as set out under Article 10 of ECHR.20 The court should balance the rights to privacy with competing rights such as freedom of expression on each case based on the circumstances surrounding the case. Tort of Privacy Option Privacy has gained immense prominence in the recent years as most people prefer to seclude information about themselves or even sometimes secluding themselves from the public limelight. There is an increasing tendency by individuals to selectively reveal details about themselves (revealing the details they deem appropriate and necessary to the public).21 Even though the boundaries of privacy differ among individuals, the bottom-line is that at a given time an individual will desire certain degree of privacy to be accorded to him or her. This appears to be the trend the world over, and especially among the celebrities because people are living in the era of “guarded” reputation.22 The constitutions and laws of most countries are alive to this fact and have provided for some elements of privacy protection; this is informed by the need to accord citizens the legal right to privacy. Therefore, in case an individual feels that his or her right to privacy has been violated in one way or another, they always resort to the court of law to seek for damages against the defendant.23 However, this seems to be an option for the wealthy only as demonstrated by increasing number of celebrities and politicians who prefer it. The ordinary people find it an inhibitive particularly because of extremely high costs involved in such cases.24 Celebrity Cases Celebrities who have had their privacy intruded or fear that it may be intruded in the foreseeable future by the media, often seek the indulgence of the court for their privacy protection and/ or seek damages.25 There are numerous cases involving celebrities’ privacy that have been brought before courts in the UK. One of the most notable is Campbell v MGN Ltd which involved celebrity super-model, Naomi Campbell.26 Campbell issued a writ against the Daily Mirror newspaper on the day that it had published an article against her whose headline read “Naomi: I am a drug addict”. Since the events surrounding the case occurred in 2001, after the Human Rights Act 1998 had come into force, her appeal succeeded by narrow margins.27 The House of Lords in 2004 (the year that she launched the appeal) succeeded against newspaper publisher even though it was not a public authority, and was awarded damages and case cost worth over ?1m. The circumstances in which Campbell case arose and the person in which she appealed against required that she has sufficient resources to win the case. Also, the invasion of privacy by the media is often targeted on the politicians and celebrities rather than the ordinary people. The House of Lords in the case of Campbell took note of this by stating that the media tend to have a symbiotic and close relationship with models, pop stars, footballers, and film stars. Their argument was informed by the view that these celebrities create and seek publicity about some aspects of their lives and publication of their personal information matters to others.28 The tendency of celebrities to seek privacy protection through the court is also evident in the case of Mosley v News Group Newspapers Ltd where the claimant (the president of the international motor-racing federation) was awarded ?60,000 damages.29 The case of Giggs v NGN Ltd/Imogen Thomas provides another example of celebrities use privacy protection is an option of the wealthy.30 This case involved Manchester United’s football star, Ryan Giggs; after the article on his private life had been published, Giggs applied and obtained an order against the media company (News Group Newspapers) to refrain it from making further publication against his purported relationship with Imogen Thomas.31 However, the court denied him damages against the media company. HRH Prince of Wales v Associated Newspapers Ltd also demonstrates how the wealthy find action in tort of privacy as the most preferred option to protect their privacy.32 This case was brought against Mail on Sunday newspaper for invading the privacy of Prince Charles by publishing extracts of his diary. The claimant argued that the publication embarrassed him. The court ruled in favor of Prince Charles and offered an injunction against Mail on Sunday that prevented the newspaper from publishing more extracts from his diary. In the case of Terry v Persons Unknown, it became evident that the wealthy opt for the action in tort of privacy in order to preserve their reputation for commercial reasons.33 In this case, the claimant (a football) was seeking to preserve his reputation so as to avoid losing lucrative sponsorship contracts that he had. Ordinary Cases Although the option of action in tort of privacy is not the most preferred by the ordinary people, a few of them find it a preferred option.34 The case of Wainwright v Home Office is one of the cases that have been brought by ordinary people.35 In this case, two citizens with no financial and social advantages made a claim against the state. Mrs. Wainwright and her son Allan had been strip-searched in a humiliating manner when she had visited her son in prison. Despite the humiliation and invasion into their privacy, they had initially not considered initiating a civil proceeding to seek for damages because they had no financial resources to do so. However, they eventually got public funding that enabled them bring a claim against the Home Office just before the limit period for doing so expires. Invasion into their privacy occurred in 1997 before Human Rights Act 1998 came into force; the House of Lords rejected their claim in October 2003. Ideally, anyone (a nonentity or a celebrity) is entitled to privacy protection especially when faced with humiliation or public distress.36 This is not the case in reality, though as ordinary people find it expensive and of relatively less value to initiate court proceedings when their privacy has been invaded by the media. The case of Peck v United Kingdom provides a good example on this assertion; in this case the claimant was not protected from wider publicity that resulted from an incident. Peck was a disturbed man and had attempted to kill himself in a shopping centre. Unfortunately, the incident had been recorded by a CCTV and was being broadcasted to a wide audience, a scenario which embarrassed him. Costs Involved in Making Claim in Privacy It is no doubt that the major inhibiting factor for the ordinary people in making claims in privacy is cost. The costs are very high; pursuing the claims in courts are not only costly but also time consuming. If cases such as Mosley v News Group Newspapers Ltd are anything to go by, then the cost involved is indeed high. Max Mosley is said to have spent over ?500,000 on actions.37 Also, the fact that Campbell was awarded damages worth over ?1m including the legal costs that she incurred throughout the case shows legal case itself consumed a considerable amount of money. Besides, making of a claim may require the claimant to pay claims court fee before the case starts. In an event that the claimant loses the case, he or she may be forced to pay the legal costs for the defendant; this actually what makes most ordinary people to avoid making claims in privacy.38 Along with that, obtaining injunctions and super- injunctions are expensive and this shows that it may be for the rich. The case involving Ryan Giggs proved that the costs involved in obtaining super- injunctions are high and they are invariably for the rich; getting a super- injunction can costs between ?50,000 and ?100,000, which by any means may be beyond the reach of ordinary persons.39 Injunctions are relatively cheaper but cannot be considered by the ordinary person when he has other competing needs such as food and housing; injunction can cost between ?2,500 and ?3,500. Should the Costs be regulated? As it is now, the costs of making claims in privacy is very high. This high cost inhibits the ordinary people from making such claims because they fear that they may not afford, as well as being concerned about a possible financial loss in an event that the claim fails to be successful. Also, the government has cut hugely the budget on civil legal aid thereby making it more expensive for the ordinary people to make claims in privacy. The government has a new policy that requires most civil claimants to finance their litigation through conditional fee agreements with their attorneys. Since the costs involved are high and may be an impediment to ordinary people’s access to their legal right to informational privacy, it is important that the government regulates costs on making such claim.40 Alternatively, the government can increase its allocation on civil legal aid so as to help ordinary people obtain justice on issues relating to their privacy, just like the wealthy. By doing this, the principle of equality before the law among all citizens would have been achieved.41 Alternative Method of Resolution There seem to be no viable and effective alternative method of resolution of privacy cases. Even though the costs of pursuing such claims are high, the courts remain the best method of resolving such issues. This is because issues relating to privacy are very subjective and court is the only institution that can be “perceived” to give a just and fair outcome. In addition, the there is no free-standing law on privacy in English Common law; the existing laws relating to privacy have been developed by judiciary, thus making it the most competent institution in handling the issue.42 Social Networking Sites It is agreeable that technological advancements have complicated privacy issues especially among the celebrities. Social networking sites such as twitter and Facebook have been cited to be compromising privacy of individuals, and questions have arose on whether they should be regulated or not. Since privacy is very important to individual’s reputation, it is important that it be protected. Therefore, these sites should be regulated in order to protect one of the most fundamental rights to human beings.43 Media Regulation As noted, most claims in privacy have been made against media companies. This has raised the question of whether media should be regulated and the cost efficient way of doing that. The best way of doing this is to request media companies to balance rights to individual’s privacy against publishing information of public interest.44 Conclusion The media tend to have a symbiotic and close relationship with models, pop stars, footballers, and film stars. Celebrities create and seek publicity about some aspects of their lives and publication of their personal information matters to others. As a result of this relationship, they are forced to opt for an action in tort so as to ensure they are always in “good public light”. As noted, high costs are involved in filing and defending the claim against the defendant. Besides, a possibility of very high costs that the claimant may be required to pay to the defendant if he or she fails to defend the claim. Additionally, the British government has cut hugely the budget on civil legal aid thereby denying the ordinary people financial resources required to fund the case proceedings. The government has a new policy that requires most civil claimants to finance their litigation through conditional fee agreements with their attorneys. Moreover, the wealthy find it as the preferred option because they are concerned with preservation of their reputation for commercial reasons. As it is now, this option is not for ordinary people; therefore, the government should regulate the costs, as well as increasing budgetary allocation on civil legal aid. BIBLIOGRAPHY BOOKS Bagshaw R, “Obstacles on the Path to Privacy Torts” in P.B.H. Birks (ed.) Privacy and Loyalty (Oxford: Clarendon, 1997); 468-473. 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June 2011. http://www.lrb.co.uk/v33/n12/stephen-sedley/the-goodwin-and-giggs-show CASE LIST Attorney General v Guardian Newspapers [1988] UKHL 6 Campbell v MGN Ltd [2004] 2 AC 457 Giggs v NGN Ltd/Imogen Thomas [2012] EWHC 431(QB) HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776 Malone v Metropolitan Police Commissioner [1979] Ch 344 Mosley v News Group Newspapers Ltd [2008] EMLR 20 Murry v Big Pictures (UK) Ltd [2008] EWCA Civ 446 Terry v Persons Unknown [2006] EWHC 119 (QB) Thompson v Stanhope (1774) Amb. 737 Wainwright v Home Office [2003] UKHL 53 Read More