June 26, 2016
Don’t mention the war
It may surprise you to read that under English law and unlike in the USA, there is no absolute right to keep personal information confidential. However, over the years, case law has developed to a point where, under certain circumstances, a person has the right to keep certain information private.
The starting point for privacy law in the UK is the tort of confidence which states that confidential information must be kept private, even in the absence of a confidentiality agreement. The problem with confidentiality law in a privacy context is that it requires the existence of a particular kind of relationship between the two parties where an obligation of confidence exists. The information must also have the necessary quality of confidence (essentially not public knowledge and of some intrinsic value). There also needs to be unauthorised use of the information to the detriment of the person communicating it.
What has happened over the years is that the Human Rights Act (HRA) has been swallowed by the law of confidence and a hybrid has been created which is known as the tort of misuse of private information. HRA states that everybody has the right to respect for their private and family life. At the same time, the Act also states that everyone has the right to freedom of expression. Whilst both rights are undoubtedly good ideas, they don’t sit particularly comfortably beside each other.
What is private information?
In order to determine if the information is private, the question to ask is whether the person making the complaint has a reasonable expectation of privacy. In 2002, the Court of Appeal rejected an anonymity claim by footballer, Garry Flitcroft on the grounds that he was a celebrity who had “courted” the attention of the public and was therefore open to a greater level of such scrutiny than the general public or even other “celebrities”. He, therefore, did not have a reasonable expectation of privacy.
Shifting the balance
Over the years, the balance seems to have shifted towards being in favour of the celebrity. However, the question remains whether, in all the circumstances, the interest of the owner of the private information should give way to the publisher’s right of freedom of expression.
You may well have heard the word ‘injunction’ being referred to. An injunction is an order of the court which prevents somebody from doing something. A particularly interesting incarnation of the injunction is the so-called ‘super injunction’. This prevents the mere existence of the injunction from being acknowledged publicly. In the world of celebrity culture, reputation is key and if I were allowed to say that Mr X had obtained an injunction against newspaper Y, that may be enough to damage his reputation. As the saying goes, there is no smoke without fire.
The privacy debate centres on whether the privacy of the individual, even if they are a celebrity, is justified at the expense of a free press. How much are we entitled to know about a pop star’s bedroom antics? What about their financial affairs? Whichever side of the fence that you stand, it seems likely that the courts will be considering privacy claims for some time to come.
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