A Conflict between Privacy and Freedom of Expression - Assignment Example

I D No Essay on Topic No. 6 “Is privacy a right that can be evoked at the owners will or a privilege that you forfeit when you open the door to media attention?” (Amber Melville-Brown, media lawyer). Discuss, with reference to recent developments in privacy law. INTRODUCTION It is not often that two fundamental rights appear as potential sources of conflict with respect to each other, but if they do, there will always exist an underlying, if not overt, current of tension between them, as a threat to the inherent stability that such rights seek to bring in society. Unfortunately, such is the case as far as one’s right to private life and another’s right to freedom of expression are concerned. In a global context as well as in the domestic legal sphere of countries like the United Kingdom (UK), the aforementioned rights derive their validity mostly from Articles 8 and 10 of the European Convention on Human Rights (ECHR).1 Prior to the introduction of the Human Rights Act (HRA) in 1998, the English scenario in particular didn’t provide any recognition for the said rights, at least not to the extent of accepting their fundamental nature. In this context, mention can be made of the case of Kaye v Robertson2 where the English Court had failed to provide any general remedy for an infringement of privacy under English law. Some statutory exceptions were indeed present, like the Data Protection Act, 1998 and the Harassment Act, 1997, the latter having been successfully applied in cases like Esther Thomas v (1) News Group Newspapers Ltd. (2) Simon Hughes3, which together with certain Common Law doctrines involving trespass, nuisance, breach of confidence and defamation, sought to protect the notion of privacy. However, the extent of the protection provided by them was limited at its best. For example, laws regarding defamation seldom prove to be of any use to a person about whom true but private facts have been published. Several recent cases like Douglas, Zeta-Jones and Northern and Shell plc v Hello4 and the A v B and C5 case have provided the indication that the strife involving media invading the privacy of individuals in particular bring forth to the limelight this confrontation between the aforementioned rights, which obviously leads one to the question as to whether an individual can claim invasion of privacy if he willingly makes himself/herself the focal point of media attention. PRIVACY vis-à-vis FREEDOM OF EXPRESSION It is the media that has been most affected by the popular notion of viewing privacy and freedom of expression as residual and not fundamental rights. Proposals like the Calcutt Report6 have been made to introduce statutory controls to protect individual privacy rights in relation to the press, but probable political ramifications of such a step has always given cold feet to the legislators, with the result being that the highest degree of regulation by which the press continues to be governed remains the Press Complaint Commission’s voluntary code.7 However, the situation is now supposed to be subjected to an overhaul under the HRA. The rights having been introduced under a statutory formula, only the public authorities are so far directly bound to comply with them and with the majority of the media organizations not falling under the said purview, there have been doubts regarding the extent to which the said rights can be actionable horizontally against private parties as well as vertically against public authorities. HRA seeks to provide a remedy to this very quandary, by giving the courts the opportunity to develop ECHR rights between private individuals, as has been seen in decisions like Naomi Campbell v Mirror Group Newspapers Ltd.8 However, what remains to be seen is whether the judiciary is willing to grant such a new horizontal slant to the right to privacy and if so, to what extent. The Strasbourg Court has introduced a relatively recent variable in the equation by providing an interpretation of Art. 8 which seems rather dynamic in nature and at the same time, widening the ambit of the said article by bringing in a whole range of new areas within its scope.9 If one is to determine the circumstances under which the right to privacy can be invoked by an individual, one needs to be familiar with the nature of the said right, which can be categorized, albeit not without a degree of crudeness, into private life, family life, home and correspondence. Herein begins the grey areas involved in the dispute, for till date, no exhaustive definition of ‘private life’ has been reached at. What is beyond dispute is that the notion incorporates elements of personal autonomy and development. Moreover, Article 10(2) also provides additional protection to one’s privacy by allowing an interference with freedom of expression where doing so is necessary for ‘the protection of the rights of others’. In other words, this can be conceived of as the first step towards acknowledging that the right of freedom of expression exists, but not at the cost of violation of one’s right to privacy. Indeed, when one assumes that point of view, it has to be admitted that the said articles seem to be a lot more effective in providing a solution to the aforementioned conflict compared to their early counterparts like the Common law doctrines. Although the ECHR is generally aimed to address interference by governmental authorities, nonetheless the interpretation of law as provided by the Strasbourg Court in landmark decisions like those in Young, James and Webster v United Kingdom10, A v United Kingdom11 and X and Y v the Netherlands12 rather tends to impose a positive obligation on the part of the State to protect its citizen’s right to privacy under certain circumstances. This means that not only the owner of such a right can invoke the same at his will (subject to the aforementioned circumstances), but he can insist on protection by State to prevent any violation of the said right. A strict and literal interpretation of HRA will reveal that Section 6 of the said Act places only a limited obligation on public authorities including the judiciary to ensure compliance of the privacy standards. The rationale behind this section can be extended to the point where failure of a public body to properly utilize the powers conferred upon it in order to protect an individual’s privacy can be construed to be an act bordering on the verge of illegality. The trend of UK courts indulging in activities in a sort of incremental manner has led to the induction of the horizontal effect of privacy laws in the legal system, albeit in an indirect manner. Thus the current position is like this – the ECHR will no doubt influence judicial decisions with respect to privacy, but the judiciary won’t consider going as far as acknowledging the existence of a new line of tort law based on the same.13 Hence in the case of Hellewell v Chief Constable of Derbyshire14, where a photograph was taken from a distance of persons engaged in a private act without taking consent of such persons, the Court didn’t hesitate to hold that it’s the duty of the law to protect what might be reasonably inferred to be an individual’s right to privacy. However, action was taken on that matter in the garb of breach of confidence. Similar approach was considered in the case of A v B and C15. What is significant about such decisions is that they pave the way for a person seeking recourse to the law for breach of his right to privacy even if his consent is taken prior to the act, but later on, the boundaries laid down by such consent have been breached in any manner whatsoever. Today, interactive media incorporates video, music and still photography. When may a producer of interactive media use an individuals name, likeness, or identity without permission? Restrictions on the use of names, likenesses and identities of individuals are governed by the right of publicity and two categories of the right of privacy. In this context, mention must be made of the fact that it is in the interest of the media to find out whether HRA should have a horizontal effect and if so, then what will the nature and scope of such effect. This is because it’ll always be difficult to distinguish between those media bodies that are public authorities and hence subject to Section 6 of the HRA and those that remain outside its purview. The former category will always have to take care lest their positive obligation to protect the right of privacy of the individual remains unfulfilled. In the light of the fact that the aforesaid fundamental right is not a mere privilege to be given up at will and that an individual can always claim that any consent obtained from him in making his so-called ‘private life’ subject to public scrutiny didn’t encompass the occasion that forms the subject-matter of the dispute, such concern seems to be perfectly rational. When the Government, during the debates on HRA, took the view that the Press Complaints Commission (PCC), despite being portrayed as a self-regulatory body without any statutory powers, is in reality a public authority since it undertakes public functions, it simply reflected the growing public concern about the invasion of privacy by the media and the Government’s role regarding the same.16 Efforts have also been made to include media moguls like the BBC and Channel 4 within the same category so as to regulate their activities. Based on their mode of establishment, these organizations are now perceived as bodies performing public functions, unlike other commercial television channels and newspapers. However, one must refer to the fact the question as to whether a media body is a public authority or not is bound to lose some of its significance if the Courts choose to develop the horizontal effects of the rights guaranteed under the HRA into private law to their limit of their logical culmination. While talking about the right to privacy, one must not forget about the right of freedom of expression as mentioned in Art. 10 of the ECHR. The media does perform one of the most important functions in society – that of providing information to the public at large and it must not be denied of its right to continue the same. Doing so will only lead to curtailment of freedom, violation of civic rights of a nation’s citizens and finally, creation of an undesirable police state. In that respect, the approach of UK judiciary has definitely been worthy of criticism, insofar as their deliberate evasion of developing a right to seek information as a logical corollary of Art. 10 is concerned, the said evasion having been instrumental in creating a vacuum which the judiciary tries to fill with resorting to Art. 8, albeit with limited success only. Perhaps this would be the time to remember the saying in The Observer and the Guardian v UK17 – news is a “perishable commodity and to delay is publication, even for a shorter period, may well deprive it of all its value ad interest”. European Courts have time and again acknowledged the special status of the media in this regard, exempting them from constraints like data protection laws and special codes of practice. It is true that such right can’t operate in total disregard of an individual’s right to privacy, but one may be confused as to where to draw the line in cases where a person deliberately seeks the attention of the media? PRIVACY OF CELEBRITY In every complex society, there have been famous people. But only in modern times there exist celebrities. Only in modern times does the society have mass media; and it is the mass media that make it possible for one to be so familiar with famous people and this very familiarity is the essence of the celebrity. The celebrity is thus a product of the mass media. Celebrity culture has evolved hand-in-hand with the media exposure. Every day, the media pour out millions of words and pictures of the stars. Millions of people consume information about celebrities, or are in fact obsessed with them. A celebrity is a person who is both famous as well as familiar, the illusion of familiarity being created by the one-way mirror through which people try to catch a glimpse of the lives of such celebrities. The essence of celebrity is at least a partial loss of privacy– the motto being ‘image is everything’. The celebrity has to struggle to control the publicity without which his/her existence feels threatened, the familiarity, and to keep at least some parts of his or her life truly private. It is a struggle against the public. The biggest stars are pursued by paparazzi or professional photographers in pursuit of celebrities. The term comes from the Italian movie, La Dolce Vita, directed by Fellini, in which Paparazzo was the name of a photographer. There is, in other words, an insatiable, almost prurient interest in the life of the celebrities. It both comes from and strengths the feeling among members of the general public, that the celebrity belongs to them. Occasionally, this results in a real pathology; some people totally lose sight of the distinction between image and reality, they forget that they have been looking through a one-way mirror.18 This can give rise to the kind of behavior called stalking, which is a particular hazard that most of the celebrities have to suffer from. The hunger for information, gossip, news about celebrities, gets converted into a norm that the information, gossip and news have to be provided, one way or another. It isn’t easy to tease out the causal chain. The media make the culture of the celebrity possible. They spread it and they glorify it. Whether this creates or simply feeds a feeling among members of the public that they have a right to know is hard to say. Technology as such does not change social norms. But it changes the conditions under which people live, and that in turn affects their way of thinking, their behavior, ideas, hopes and habits. It instills a powerful feeling that everybody needs and wants and must have all that he can possibly see and hear of the life on the other side of that so-called one-way mirror. The legal system rather faithfully reflects this development – that is, the decline in privacy for famous people; and the emphasis on the right of the public to know. One place where this shift comes out rather clearly is in the evolution of the tort of invasion of privacy. As regards public figures, this tort has had a very short and ineffectual life, even in countries like USA, from where it had originated. Of course, a person may ask about the legitimacy of a subject, the reason behind the public having a right to know about, say, the intimate life of a celebrity. That many people do want this information, and are willing to pay for it, seems quite clear. Thus these cases come close to saying: if a story is about a celebrity, and a newspaper or a TV show feels it is newsworthy, then by definition it is newsworthy. The cases never go quite this far; but they seem to be heading in this direction. The million-dollar question is how should society react to these issues and problems? Some features of the intrusive society are accepted without much ado, like airport searches, in the interests of security, or security-cameras in. Then again, the market for personal information brings about an unprecedented erosion of individual privacy. Some aspects of this invasion of seem to be positively frightening – the notion that everything we say and do can be and is recorded. All this makes people profoundly uncomfortable. Privacy and anonymity are still enormous values, though not to all. There are some people, who embrace the new reality, the world of one-way mirrors, with passion and eagerness. There are celebrities who seem to be all too eager to tell the whole world the most intimate details of their lives, but maybe they can do it armed with the knowledge that the right to privacy is not something that they can give up at will and if indeed, media attempts to cross the limit that they have imposed, they can always take refuge of Art. 8 and the HRA, though how far that’ll help them in the legal battles still remains and perhaps will remain a matter of debate. Several UK cases decided by the Strasbourg Court have sought to address the tension between Articles 8 and 10 and most of them have been dominated by the question as to whether there is a right to privacy in English law and if not, whether such absence constitutes a breach of Art. 8. The Case of Winer v UK19 had the nation acknowledging the balance which must be struck between the two articles and applying a wide margin of appreciation to the state’s exercise of its positive obligations to ensure respect for private life so that even the absence of an actionable right to privacy didn’t show a lack of respect for the applicant’s private life in the circumstances of the case. In Spencer v UK20, on the other hand, indications were given to the effect that claims for breach of confidence can be brought against the media even if prior consent had been given and such claim offers at least a partial protection from violation of one’s right under Art. 8. Such decisions are bound to encourage further development of the Common Law so as to provide a comprehensive actionable remedy in relation to invasions of privacy. CONCLUSION To conclude, the problem that arises in case of a conflict between privacy and freedom of expression is great in magnitude, hence necessitating a way to resolve the competing values encompassed in such rights. With the state of flux that UK law is in at present, there is a requirement for some kind of workable and consistent criteria to assist the judiciary in undertaking such a monumental task. Should they take a hierarchical approach as exists in USA, with right to freedom of expression dominating any right to privacy, or should the rights be endowed with equal status? While engaged in such delicate balancing, the judiciary has to be aware of the equally great problem of dealing with a world of one-way mirror, on the level of personal and private life. The technology of intrusion advances more rapidly than the social technology of containment. We have to ask: how can we preserve human privacy, and human dignity, in times when these values are under ceaseless technological attack. BIBLIOGRAPHY 1. Westin, Alan F., The Dimensions of Privacy: A National Opinion Research Survey of Attitudes Toward Privacy, 1979, University of Michigan. 2. Glasser, Charles J., Jr., International Libel and Privacy Handbook, 2006, Bloomberg Press. 3. Friedman, Lawrence M., The One-Way Mirror: Law, Privacy and the Media, 2004, Research Paper No. 89, Stanford Public Law and Legal Theory Working Paper Series. 4. Stratford, Jemima, Striking the Balance: Privacy v Freedom of Expression under the European Convention on Human Rights, from Developing Key Privacy Rights, Ed. Madeleine Colvin, 2002, Hart Publishing. 5. Nissenbaum, Helen, Privacy as Contextual Integrity, 2004, Washington Law Review Association. 6. Meyer, David D., Justice White and the Right of Privacy: a Model of Realism and Restraint, 1995, Catholic University Law Review, Vol. 52:915.Shepherd, Lois, Looking Forward with the Right of Privacy, 2000, Public Law and Legal Theory Working Paper No. 16, Florida State University College of Law, available at http://papers.ssrn.com/paper.taf?abstract_id=225040, visited on 1.05.2007 7. Hassett, Rob, Rights of Privacy and Publicity in Interactive Media, 2000, available at http://www.internetlegal.com/articles/rightsof.htm visited on 1.05.2007 8. Australian Press Council, Privacy Standards, available at http://www.presscouncil.org.au/pcsite/complain/priv_stand.html, last visited on 2.05.2007 9. John A. Bussian, Paul J. Levine, Invasion of Privacy and the Media; Rights to be let alone, available at http://www.floridabar.org/DIVCOM/PI/RHandbook01.nsf/ 1119bd38ae090a748525676f0053b606/dfc00ac22467b7f5852569cb004cbc2a, last visited 2.05. 2007 10. Your Right to Privacy from the Media, available at http://www.yourrights.org.uk /your-rights/chapters/the-rights-of-victims-and-witnesses-of-crime/your-right-to-privacy-from-the-media/index.shtml, last visited 1.05.2007 Read More