Infringement to Right to Privacy - Assignment Example

Public Law Student name Course name Institution Date of submission Student Number Part 1 Infringement to right to privacy Issue Rhys has commenced proceedings in the High Court. He alleges that Cowbridge Echo has infringed his right to privacy. The central legal issue is whether there is a ‘breach of the right to his confidence' as well as whether there is ‘misuse of private information.’ Law Although there lacks common law right relating to privacy, the legislations that relate to breach of confidence is presently extended to an extent to which the privacy claims are accorded greater protection in the UK1. For instance, in the landmark case law of Malone v Metropolitan Police Commissioner (1979)2, the courts in the United Kingdom agreed that police-driven telephone tapping could not be ruled to be illegal since UK had no breach-able right to privacy at common law. Indeed, the right to confidence was extended in a recent case like that of the case law of Douglas and Others v Hello! Ltd (2001)3. Catherine Zeta-Jones and Michael Douglas had made far-reaching security arrangements to make sure that only the friends and family members attended the wedding. They then hired their personal photographers before clarifying that no external photographers would be allowed to take photographs. The two did so as they were actually bound by a contract having sold exclusive rights of the event to the OK! magazine, despite the fact that they reserved the right to select the pictures to be published. However, Zeta-Jones and Douglas were oblivious of the fact that Hello! Magazine photographer had sneaked into the wedding and secretly took photographs that he later sold to Hello! to be published. Zeta-Jones and Douglas swiftly made an application for injunction. The court ruled that given the exceptional character of a wedding in addition to the complex nature of the security hired, the wedding was by nature private and that the images of Zeta-Jones and Douglas were therefore private. The court also ruled that the two had suffered damage and detriment and, such as emotional distress when they realised that their privacy had been invaded. In conclusion, the in the case law of Douglas and Others v Hello! Ltd (2001) 4shows that while the media is not prevented from publishing photographs and tales of the private lives of private citizens, the law still needs them take a rigorous approach while determining the publication of photographs or articles with private information. Similar interpretation is made in the case law of Campbell v MGN Ltd (2004)5, where the ruling showed that using private information that relates to people shifted away from trade information to making claims for 'misusing private information'. In the case study, Lord Nicholls ruled that confidential information and ‘a duty of confidence’ are incongruence, and therefore, the heart of the matter is of a tort of misusing of private information. The court changed its focus from that of the breach of confidence to that of “misuse of private information.” For these reasons, a two-part test exists for determining if there exists a “misuse of private information.” The first test requires determining whether the information is indeed private, to ascertain whether it qualifies for protection by Article 8. The second test requires examining whether Article 8 can give in to Article 10 to ensure balance. The second test was determined in an earlier case law of McKennitt v Ash (2008)6. At any rate, not one of the two Articles should have superiority over the other, as they are both equally qualified. In fact, the ruling on validity needs to be made on a case-by-case basis. Generally, the UK lacks a ‘right to privacy’ law despite the enacting of the Human Rights Act 1998. At any rate, by being a member of the European Convention on Human Rights (ECHR), it still has to comply with Article 8 ECHR that grants individuals a "right to respect for privacy and family life" from the state, dependent on limitations the legislation describes as well as crucial for the functioning of democratic societies7. While there also lacks an independent tort law doctrine that grants a right to privacy, the UK judiciary still managed to come up with the breach of confidence doctrine. It offers restricted rights to privacy. While Article 8 ECHR imposes the right to respect private life, it is actually not a right to privacy. Consistent with the test, Article 8 has to strike a balance with Article 10 that grants the freedom for expression. This is particularly important in the present case scenario as the press is suspected to have breached Rhys and his daughter’s right to privacy. Still, it would be a breach of confidence when the information passed is considered detrimental to the subject of such information as well as when utilised without the individual’s consent. In a case law of Prince Albert v Strange8, it is indicated how the right to confidence can be relied on to protect individual’s privacy. In the case study, the publisher was the defendant. He possessed copies of the Royal Family’s private etchings at home, having obtained them from Prince Albert’s employee. Although right to privacy was still not openly recognised in the UK, the court ruled that Prince Albert had a right to keep private artworks and that the publisher was in breach. Similar ruling was showed in the case law of Campbell v MGN, where a minor group managed to publish Naomi Campbell’s pictures while undergoing a drug rehabilitation meeting. The court ruled that it was an issue of Naomi’s private life, and that her right to privacy had been violated. Application The main questions in the case of Rhys and his daughter are to determine whether the information provided by the photograph is clearly private or not? And when not private, can its expression bring about extensive offence to any reasonable person? Again, when the information is private, can the court apply the balancing test between Article 8 and Article 10 in addition to the information passed to the public domain based on public interest or not? To answer these questions, it is clear that the photographs must have been taken surreptitiously without Rhys and his daughter’s permission9. The information is also private as it also concerns Rhys’s daughter’s education, his hidden perceptions about learning in church schools that he wishes to keep private, as they are in conflict with his claims regarding the benefits of non-religious education over religious education. Hence, the information can bring extensive detriment or damage to his public life, as he has been a “proponent of the benefits of non-religious education.” Regarding the balancing test between Article 8 and Article 10, it is clear that Rhys and his daughter’s right to privacy is more important than the right to freedom of expression. Therefore, it is clearly a breach of confidence. In the present case scenario, it is clear that the information is indeed private as the photograph under dispute shows Rhys and his daughter going to a religious school, something that he wished to keep private. Hence, Rhys can indeed pass the first test. Still, it would be a breach of confidence when the information passed is considered detrimental to the subject of such information as well as when utilised without the individual’s consent. The second test requires examining whether Article 8 can give in to Article 10 to ensure balance. Indeed, Rhys can swiftly make an application for injunction. Given that he is a Member of the National Assembly for Wales and has prominently campaigned against the role that churches schools in the Welsh education system, the photograph is likely to damage his reputation. It may ultimately lead to emotional distress to members of his family, particularly the daughter, as she may want to avoid accompanying his father to any function10. The photograph was also used without his consent. It therefore amounts to misuse of private information. While Article 8 ECHR imposes the right to respect private life, it is actually not a right to privacy. Consistent with the test, Article 8 fails to strike a balance with Article 10 that grants the freedom for expression. This is so as the press has allegedly breached Rhys and his daughter’s right to privacy. Still, it is still a breach of confidence as the information passed is considered detrimental to the subject of such information. It is also utilised without the individual’s consent. Conclusion Cowbridge Echo’s publication therefore amounts to misuse of private information. Rhys can also rely on the right to confidence to protect his privacy. Part 2 Defence Issue Rhys has commenced proceedings in the High Court. He alleges that Cowbridge Echo has infringed his right to privacy. Cowbridge Echo seeks to defend its action by clinging on the right to freedom of expression. The central legal issue is whether Cowbridge Echo can successfully use public interest as defence. Law Cowbridge Echo’s defence is public interest. It appears to be the most practical defence against the right to privacy while in support of the right to freedom of expression. The two are concerned with the Article 8 and Article 10 of the ECHR. In a case law of the Princess Caroline Monaco, the princess failed to protect her right to privacy in the court after a series of her photographs were secretly while she was in France before being published in Germany without her permission. However, the courts held that since she is public figure, her photographs could be taken in public places. Hence, public interest is a defence for right to freedom of expression. The key issue was whether the photos that had been published were of general interest. At common law, it is clear that the court has to make sure there is a balance between the right to privacy and right to freedom of expression. These facts were also demonstrated in the case law of Standard Verlags GmbH v Austria (2006)11, where the court decided that when there is public interest, then the publishers are at liberty to publish private information. Again, as showed in the case law of Mosley v News Group Newspapers Ltd (2008)12, the right to privacy when it comes to issues that the public already know, or something within the public domain, does not apply. This is on grounds that the information is already in the public domain hence there is need for privacy rights. Application Cowbridge Echo’s publication fits within Article 8 and Article 10 of the ECHR. Since Rhys is a Member of the National Assembly for Wales and a staunch campaigner against Church schools, he is a public figure, and where her daughter schools is an issue of public interest. Hence, her photographs could be taken in public places. Conclusion Public interest is a defence for Cowbridge Echo’s right to freedom of expression. The photos published are of general interest. Bibliography Articles van der Bank CM, 'The Right To Privacy – South African And Comparative Perspectives' (2012) 1(6) European Journal of Business and Social Sciences 77,86 Basil Markesinis, Colm O’Cinneide, Jörg Fedtke and Myriam Hunter-Henin, 'Concerns and Ideas about the Developing English Law of Privacy,' (2012) Read More