Coco v AN Clark Ltd - Case Study Example

“Courts no longer analyse the action for breach of confidence in the terms of the three-limbed test of Coco v AN Clark (Engineers) Ltd [1969] RPC 41.” (T Aplin, ‘The Development of the Action for Breach of Confidence in a Post-HRA Era’ [2007] IPQ 19 at 44) Discuss this statement in relation to the development of protection for private information and possible future directions for breach of confidence. The concept of a legally recognised right to privacy under UK law remains the subject of complex debate1, compounded by the role of the media as self-proclaimed democratic watchdog, highlighting the tension between defining the parameters of a privacy right in context of established legal presumptions against censorship. Traditionally, whilst English law does not formally acknowledge privacy rights, issues pertaining to privacy have traditionally been dealt with through the law of confidence2. However, Bainbridge comments that the law of breach of confidence has developed on an ad hoc basis and remains narrow in application3. For example, the traditional premise for the law of confidence has assumed a relationship of confidentiality, which fails to cover instances of disclosure of information outside of such a relationship where disclosure may nevertheless be detrimental4. Moreover, the inherent difficulty in protecting valuable information under UK intellectual property law is that information is not protected as conferring property rights per se5, and therefore will only be protected in copyright law if the information satisfies the Copyright, Designs and Patents Act 1988 requirements. Therefore, the role of a claim in breach of confidence is to address this lacuna and the duty of confidence arises in equity on grounds of the equitable maxim “he who has received information in confidence should not take unfair advantage of it6”. The traditional test for establishing a claim for breach of confidence was stipulated in the Coco v AN Clark (Engineers) Limited7 case. However, the Coco case implemented a three part test to establish a claim and as highlighted above the central problem remained with regard to protection of information outside the parameters of a confidential relationship due to the absence of privacy laws in England. Accordingly, since the implementation of the Human Rights Act 1998 (HRA), some commentators have argued that the right to privacy under the ECHR has meant that the three part test in the Coco case is no longer relevant and the focus of this paper is to critically evaluate the above statement of Alpin that “Courts no longer analyse the action for breach of confidence in the terms of the three-limbed test of Coco v AN Clark (Engineers) Ltd”. In doing so, I shall firstly consider the tripartite test in the Coco case and consider whether in the post-HRA era the breach of confidence test remains relevant. The central premise of the breach of confidence principle is Megary J’s judgment in Coco v Clark8, which established the following three part test for a valid claim: 1) The information itself must have the necessary quality of confidence about it; 2) Information communicated in circumstances of confidence; and 3) Unauthorised use of information and detriment9. The first requirement of the case implies a relationship of confidentiality; however the recent decision of the House of Lords in Naomi Campbell -v- Mirror Group Newspapers Ltd10suggests that the confidence duty no longer requires a relationship of confidence. The Campbell decision will be discussed further below, however it is submitted that the approach of the House of Lords clearly lends support to the argument that the courts are moving away from the Coco test in addressing breach of confidence in the post HRA era. Nevertheless, it is submitted that a further discussion of the courts approach to the right to privacy under the ECHR in the post HRA era suggests that the Coco test is not completely obsolete. Rather, it is submitted that the whilst the HRA has fuelled greater judicial discretion in considering privacy rights, the courts remain reluctant to directly address the relationship between Article 8 and Article 10 of the ECHR under UK law. Accordingly, this has resulted in an uncertain legal position, which arguably retains the relevance of breach of confidence. However, if we consider the judicial approach to breach of confidence post HRA, the principles have clearly developed beyond the Coco three limbed test. The issue of a legal right to privacy has primarily come to the fore through discussions of media accountability in reporting, raising questions as to morality in journalism versus the constitutional right to freedom of speech11. The role of the media as an arm of the state of sorts12, acting as an accountability safeguard against individuals in power is vital to sustaining the constitutional objective of the UK as a democracy in substance. However, some argue that the public “right to know defence13” goes beyond the purpose of accountability and effectively grants a licence to the press to invade and dissect the details of an individual’s private life with impunity14. It is precisely these concerns regarding responsible press reporting which have led to a consideration of whether there needs to be a broader, general right to privacy protected within a legal framework. Alternatively, this controversial issue has been further complicated by the law of defamation, which protects an individual’s right to an unblemished reputation. However, it is this very focus that has permitted UK courts and legislators to avoid directly addressing the broader issue of a general right to privacy. Under UK law, claimant in a defamation claim must establish the following15: publication of a statement to a third party; publication identifies the claimant; and the statement is defamatory. The test of what is “defamatory” is what the ordinary reasonable person would think after seeing or reading the publication and meaning is to be determined by a jury. This in itself demonstrates that the purpose of defamation law is to protect an individual’s reputation. Furthermore, the requirement of publication coupled with the staggering costs involved in bringing a claim and establishing that the publication was in fact defamatory suggests that defamation law is intrinsically intended for the protection of people in positions of public authority and power, where reputation is important and funds are available to protect this “reputation”. The average individual cannot afford to bring a claim in defamation law to protect their reputation and the qualified privilege “right to know” defence highlights the limits of defamation law protection in any event. Accordingly, relying on a broad interpretation of defamation law is clearly inadequate to address the wider issues of individual privacy protection. Similarly, whilst the breach of confidence test may address privacy issues to a degree, the Coco decision clearly applies to a limited context. The limitations of the breach of confidence tort are further delineated if consider by analogy with the legal systems of France and Germany, which have distinct causes of action for invasion of privacy. Additionally, a prime example of the UK’s failure to adequately protect privacy is the Kaye v Robertson case.16 In this case, the popular Allo Allo actor Gordon Kaye suffered severe injuries in an accident. While being treated at Charing Cross hospital, two tabloid reporters managed to enter Kaye’s hospital room (despite notices restricting access to family); took pictures of him and recorded an interview despite Kaye’s poor medical state. Notwithstanding attempts by Kaye to get an injunction against publication, the claim failed as there was no specific cause of action in law to prevent such an action. This in itself emphasises the moral justification for a right to privacy, however concepts of morality have always been difficult to enforce due to the ambiguity surrounding its limits. Glidewell LJ commented on the law of privacy in England and asserted that “It is well-known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person’s privacy17”. The lack of justification for privacy in law has been bolstered by the constitutional right to freedom of speech. The media argues that it has a positive duty to report on matters that are in the public’s interest to know. The right to freedom of speech is further supported by the express inclusion of Article 10 of the ECHR under the HRA18. Conversely, the HRA also implements Article 8 of the ECHR, which grants an express right to privacy and it was hoped that the courts would use the HRA to readdress the current imbalance in protecting individual privacy19. However, UK courts have struggled to strike a balance since implementation of the HRA and have failed to adopt a consistent approach to clarify the extent of the Article 8 right to privacy granted under the HRA. On the other side of the spectrum, the judicial trepidation has fuelled legal uncertainty not only in how to apply the ECHR provisions within the current legal framework, but the parameters of the classic principles in the tort of breach of confidence. For example, in the case of Naomi Campbell -v- Mirror Group Newspapers Ltd20, Mr Justice Morland acknowledged that “there would be some merit in recognising that the original concept of breach of confidence has in this particular category of cases now developed into something different from the commercial and employment relationships with which confidentiality is mainly concerned.” This opinion clearly points to the possibility of a privacy right outside the ambit of breach of confidence however it suggests that protection of any such right would ultimately depend on the particular facts of the case. Furthermore, Mr Justice Morland’s views are confusingly expressed in the context of breach of confidence, which is distinct from an actionable right to privacy. Not only does this create further uncertainty, it also ignores the reality that only a privileged minority have funds to test such issues before the UK courts. Additionally, Lord Nicholls suggested the law imposed a duty of confidence when a person received information that they knew would be confidential and that the essence of the tort of breach of confidence within the contemporary framework was the misuse of private information. As such, this would suggest that the strict application of the Coco test is clearly unrealistic in the current environment. To this end, the Campbell decision provides an example of the breach of confidence principle being used to confer privacy rights through the back door without having to deal with the HRA conundrum. This argument is further supported by the fact that the courts demonstrate a preference for preserving the Article 10 right to freedom of speech in their interpretation of the ECHR. For example in the case of A v B & Anor sub nom Gary Flitcroft v Mirror Group Newspapers21, Lord Woolf stated that “the manner in which the two Articles operate is entirely different. Article 8 operates so as to extend the areas in which an action for breach of confidence can provide protection for privacy. It requires a generous approach to the situations in which privacy is to be protected. Article 10 operates in the opposite direction. This is because it protects freedom of expression and to achieve this it is necessary to restrict the area in which remedies are available for breaches of confidence”. Accordingly, the UK courts have taken the view that although the ECHR provides for a right to privacy, any such right is limited by Article 10. However, this interpretation still fails to consider the content and ambit of the Article 8 right to privacy in the first place. On the other hand, a judicial decision that has been cited by some as a welcome step in addressing the current imbalance is the case of Douglas v Hello22 where it was held that the Article 8 right to privacy would prevail where it could reasonably be expected. However, the case was distinguished on its facts and the decision was influenced by concepts of celebrity, personality rights and breach of confidence, which again does not address the wider issue of a general right to privacy. The lack of clarity and dependency on ad hoc judicial decisions is undesirable in addressing the right to privacy and the interpretation of Article 8 has been disappointing in clarifying the legal parameters of privacy protection in the UK23. On the other hand, the practicability of implementing a separate law of privacy is also questionable. If it was introduced under the criminal law, it would clearly contradict the Article 10 right to freedom of speech as journalists would potentially face a constant threat of arrest, leading to limitless claims. Alternatively, a civil law system would arguably only benefit a privileged minority as only the rich could afford to bring an action, which may in turn influence a journalist’s decision in publishing a story thereby undermining the independence of the press. In conclusion, it is evident that the conflict between freedom of speech and the right to privacy is a legal minefield, obfuscated by the reluctance of the UK courts and legislators to clarify the issue. The current reliance on the law of defamation to provide incidental protection to privacy is inadequate to address the broader variances pertinent to the concept of privacy outside the boundaries of an unblemished individual reputation. Furthermore, the uncertainties surrounding the application of the qualified privilege defence also highlights the inherent deficiency of defamation law to protect privacy. The interpretation of the Article 8 right in practice has been disappointing in underlining the reluctance of UK courts to clarify its application. Despite acknowledging the Article 8 right, in practice courts have circumvented the need for clarification by limiting its scope through Article 10. Although some of the obiter judicial opinions hinting at privacy protection in certain circumstances are welcome in demonstrating a degree of flexibility; relying on ad hoc decisions is undesirable to legal certainty. Moreover, the judicial approach to the Article 8 right retains the continued relevance of the breach of confidence tort. However, the approach in Campbell suggests that whilst the Coco test may be appropriate in certain cases, the parameters of the breach of confidence paradigm have been developed to reflect contemporary realities. As such, this would clearly support the argument of the declining importance of the Coco test for breach of confidence. Whilst on the one hand, this is clearly a welcome move in acknowledging the need for legal flexibility, it is submitted that using the breach of confidence framework is not appropriate as substitute for addressing privacy issues, which is an increasing reality as a result of the HRA. Accordingly, I would argue and recommend that UK courts and legislators consider the approach taken by Germany and France and enter into some official discussion and consultation on how to address the concept of a privacy right under UK law by analogy. Incidental protection through breach of confidence and defamation creates continued uncertainty, compounded by ad hoc judicial decisions. Only when a focused taskforce is appointed to address the current inefficiencies can we begin to move towards a clear and consistent approach to privacy rights and the application of Article 8 under UK law. BIBLIOGRAPHY Dame Mary Arden. (1998-1999).The Future of the Law Of Privacy. 9 KCLJ 19. Richard Clayton & Hugh Tomlinson., (2001). Privacy & Freedom of Expression. Oxford University Press Bainbridge, D. (2007) Intellectual Property, Pearson Longman. Jennifer Davis (2007). Intellectual Property Law. 3rd Edition 2007 Oxford University Press Hewitt, P. (1977). Privacy Report, National Council for Civil Liberties, London UK. Journal of Information Science Volume 7 (1983). D Feldman., (1994). Secrecy, Dignity, or Autonomy? Views of Privacy as a Social Value”. 47 Current Legal Problems. Hewitt, P. (1977). Privacy Report, National Council for Civil Liberties, London UK. Journal of Information Science Volume 7 (1983). H Macqueen, C Waelde, & G Laurie (2007). Contemporary Intellectual Property. Oxford University Press. L McNamara., (2007). Reputation and Defamation. Oxford University Press. D Price., (2001). Defamation: Law Procedure and Practice. 2nd Edition. Carol Reuss., (1999). Controversies in Media Ethics. 2nd Edition Allyn & Bacon R. Singh., (1998). Privacy and the Media after the Human Rights Act. EHRLR 712 R. Stone., (2006). Civil Liberties & Human Rights. 6th Edition Oxford University Press. Hugh Tomlinson QC., (2003). Privacy and the Media- The developing Law. Matrix Tugendhat, M., and Christie, I (ed.) (2002) The Law of privacy and the media. Oxford University Press. F. Quinn., (2007). Law for Journalists. Longman All UK legislation at www.opsi.gov.uk and www.statutelaw.gov.uk Websites: www.opsi.gov.uk www.statutelaw.gov.uk www.legifrance.gouv.fr www.hrni.org www.assemblee-nationale.fr www.echr.coe.int Read More