Kirsty Hughes

A Behavioural Understanding of Privacy and its Implications for Privacy Law

This article draws upon social interaction theory (the work of Irwin Altman) to develop a theory of the right to privacy, which reflects the way that privacy is experienced. This theory states that the right to privacy is a right to respect for barriers, and that an invasion of privacy occurs when a privacy barrier is penetrated. The first part of the paper establishes the position of the authors theory in the existing scholarship. The second part of the paper expands upon the theory to explain the nature of privacy barriers and the way that the authors theory manages a number of specific privacy issues, including threats to privacy, attempted invasions of privacy, unforeseeable interferences with privacy and waiving the right to privacy. The final part of the paper demonstrates the impact that this approach to privacy could have upon judicial reasoning, in particular Article 8 European Convention on Human Rights.

Publishing Photographs Without Consent

Paul Weller is a famous British musician with a career spanning nearly 40 years; first as the front man of The Jam, and from the ’90s onwards as a highly successful solo artist. Weller’s status as a musician is iconic, perhaps best encapsulated in his nickname ‘The Modfather’. Despite his fame Weller is a relatively private man; whilst he gives interviews in relation to the release of new material and tours, he does not publish lifestyle stories in celebrity magazines such as Hello! or Ok!. Moreover, he has been particularly concerned about the publication of photographs of his children. Weller v Associated Newspapers Ltd related to the publication of photographs of three of Weller’s children on the Mail Online. The photographs depicted a family day out shopping in Los Angeles, California. On the day in question Weller was out with his daughter Dylan (aged 16 years) and his twin children John Paul and Bowie (aged 10 months). There were seven photographs published, each capturing pictures of the children’s faces. No effort was made by the photographer or by the Mail Online to pixelate the images. The photographs captured a sequence of events, including the Wellers walking down the street and Dylan sitting outside a café. Initially Paul Weller was unaware of the photographer, but when he realised that his family was being photographed he asked the photographer to desist. The photographer promised to do so, but later returned whilst Paul was inside the café, at which point the photographer took a close-up photograph of Dylan holding one of the twins. Dylan became distressed at this intrusion. Legal proceedings were brought on behalf of the children (not on behalf of Paul Weller) in the United Kingdom, based on the law of misuse of private information and the Data Protection Act 1998. It was accepted that the Data Protection proceedings replicated the misuse of private information proceedings and thus Dingemans J focused on the law of misuse of private information. In conducting his analysis the judge applied the two-stage test that is commonly used in such proceedings, namely (i) was there a reasonable expectation of privacy, and (ii) where does the balance fall between privacy and freedom of expression applying the criteria set out in Von Hannover v Germany (No 2)? He held that the children had a reasonable expectation of privacy vis-à-vis the

Photographs in Public Places and Privacy

In the last few years, the European Court of Human Rights (‘the Court’) has considered a number of cases relating to photographs taken in public places, and it is now clear that the jurisprudence has evolved significantly since the early cases in which no protection was afforded to the privacy interests of those photographed. The most recent cases (Reklos and Davourlis v Greece and Egeland and Hanseid v Norway) have extended the protection afforded by Article 8 of the European Convention on Human Rights (ECHR) so that the right is engaged at the stage at which photographs are taken.1 The author argues that whilst this development was necessary, there are a number of problems with the Court’s approach and that further guidance from the Court is essential.

Privacy: Theoretical and Legal Issues

This article is a revision of the previous edition article by R. Garison, volume 18, pp. 12067–12070,

THE LIMITS OF FREEDOM OF INFORMATION AND HUMAN RIGHTS, AND THE POSSIBILITIES OF THE COMMON LAW

ACCOUNTABILITY, transparency, and freedom of information are essential to democracy. These values are not absolute; hence the law is used to demarcate how much transparency, access, and freedom are allowed. The Freedom of Information Act 2000 (FOIA) provides a mechanism for accessing information held by public authorities. It has been heavily criticised for not providing sufficient access due to its wide exemptions and section 53 veto power. Nevertheless, it was thought that, where citizens seek information, they should use FOIA. In Kennedy v The Charity Commission [2014] UKSC 20, [2014] 2 W.L.R. 808, the Supreme Court found that this may not always be the appropriate method. The Supreme Court held, by a majority of 5:2, that Kennedy should not have pursued his claim under FOIA; instead he should have sought disclosure via the Charities Act 1993 (“Charities Act”) and judicial review. The majority took this opportunity to criticise the overuse of human rights, and to emphasise the significance of the common law and its role in ensuring accountability and transparency.

Balancing Rights and the Margin of Appreciation: Article 10, Breach of Confidence and Success Fees

Nearly seven years after the House of Lords held that the Daily Mirror acted unlawfully when it published details of Naomi Campbell’s drug rehabilitation treatment and a photograph of the model outside a Narcotics Anonymous clinic,1 the European Court of Human Rights has had its say on the matter.2 Campbell had been awarded £3,500 damages by the domestic courts and she served cost bills of over a million pounds on the newspaper. One of the reasons for the size of Campbell’s cost bills was that her lawyers had used a Conditional Fee Agreement (CFA) for her appeal to the House of Lords. The CFA guaranteed that her lawyers would receive their base costs plus a success fee of 95 per cent of the base costs for her solicitors and 100 per cent of the base costs for her barristers. MGN took proceedings to Strasbourg on the grounds that the domestic courts had violated Article 10 of the European Convention on Human Rights (ECHR) both in relation to the finding of a breach of confidence and in relation to the costs order made against MGN. In MGN v United Kingdom the European Court of Human Rights rejected the first argument, but it found that MGN’s liability for the success fees violated Article 10. This commentary looks at the Court’s analysis of these two issues, and reflects on the Court’s approach to balancing competing rights and its use of the margin of appreciation. It suggests that MGN resolves some, but not many, of the questions about this area of law, and that it also raises further questions of its own.

Privacy Injunctions: No Obligation to Notify Pre-Publication

Imagine that your wife and children, friends, neighbours and the rest of the world have seen, or may have seen, images of you engaged in sexual acts; and that they have read, or may have read, details of your sexual preferences; would £60,000 remedy the violation of your privacy? The question is not whether the sum should be higher, but whether money can ever remedy the loss. Can damages ever fully vindicate the right to privacy, or should we ensure that the claimant has an opportunity to prevent publication in the first place? Should newspapers be legally obliged to notify the claimant before the story is published, or is this an unjustifiable interference with freedom of expression? These questions underpinned the litigation in Mosley v United Kingdom.1 The proceedings derived from an incident in 2008 when former tabloid newspaper, the News of the World, published an ‘exclusive’ front-page article detailing the sexual antics of former head of Formula 1, Max Mosley. The newspaper reported that Mosley had engaged in sado-masochistic orgies with prostitutes, it published photographs of these activities, and it broadcast footage of the events on the News of the World website. Whilst some of the allegations made by the newspaper, including the very serious allegation that there was a Nazi theme to the orgy, were found to be false, the broad thrust of the story was true. Mosley sued the newspaper, relying on the law of breach of confidence, and won. He was awarded a landmark sum of damages—the aforementioned £60,000—yet, in awarding damages Eady J remarked that ‘no amount of damages can fully compensate the Claimant for the damage done. [The claimant] is hardly exaggerating when he says that his life was ruined.’2 Mosley has subsequently described the impact of the incident as follows: