Towards a Right to Privacy
There are some who will have taken a sadistic pleasure in the failure of the recent attempt by the News of the World’s undercover reporter Mazher Mahmood, the ‘fake sheikh’, to prevent George Galloway from publishing photographs of him on the internet. But those who are keen to see privacy protected by law were making a mistake if they cheered or jeered at the court’s refusal to protect Mahmood from the kind of exposure to which his paper regularly subjects others. The real coup would have been if the court had accepted his counsel’s argument that the unwanted publicity violated Mahmood’s right to respect for his private life and Mahmood v. Galloway had become authority for a free-standing right of privacy.
The protection of privacy was largely left by the common law to the law of trespass. If, as Lord Camden said in the North Briton case, the eye cannot trespass, the answer was to build a wall. If you had no property you had no privacy. The law was no better advanced when in 1990 the actor Gorden Kaye, who was seriously ill in hospital when journalists conned their way into his room, tried to get some redress. His counsel conceded, and the court evidently accepted, that there was no simple right of privacy in English law, though the materials were ready to hand from which to deduce one. Kaye ended up with a finding against the defendants of malicious falsehood, about as irrelevant to what had happened as one could imagine.
The doctrine of breach of confidence affords protection to those who can establish some proprietary or moral claim to the disclosed material or information. Prince Albert was able on this basis to restrain the publication of an unauthorised catalogue of his and Queen Victoria’s etchings. His great-great-great grandson has recently been able by the same means to halt the unauthorised publication of his private diaries. But the protection of confidential information is not a right of privacy.
As the case for a domestic bill of rights gained ground during the 1990s, I was not the only person expressing scepticism of its value to any other than the powerful. It was still unclear in any event whether the European Convention’s requirement of respect for private life bound anybody but the state. And experience – especially of libel litigation – suggested that it was those with the longest purses, the loudest voices and the sharpest elbows who would be at the head of the human rights queue. Advocates of the change – the shrewder ones at least – accepted this but argued that through the doors the powerful opened would come more modest people whose human rights mattered at least as much.
Sure enough, in November 2000, the month after the Human Rights Act came into effect, Michael Douglas and Catherine Zeta-Jones arrived in the Court of Appeal, seeking to hold the emergency injunction granted to them and to OK! magazine to stop OK!’s rival Hello! from publishing unauthorised photographs of the Douglases’ wedding in New York. Although the court, of which I was a member, discharged the injunction for other reasons, it seemed to me (and I said) that it would be respectably arguable when the case came to trial that, whatever the situation turned out to be under the Human Rights Act and the Convention, the Douglases had a right to privacy which had been violated, because the common law had developed to a point where it could protect personal privacy without having to construct an artificial relationship of confidence between the parties.
Within a few weeks, Elizabeth Butler-Sloss, the president of the Family Division, basing herself in part on our decision, granted worldwide injunctions to prevent the tabloid press from carrying out its threats to expose the identities and whereabouts of the two boys who had killed the toddler James Bulger and were now about to be released. Nothing in her decision turned on a confidential relationship – there was none – between the youths and the press: what mattered was the nature of the information and the risk it posed to their privacy and safety. Sceptics like myself who had feared the emergence of a human rights oligopoly fell silent.
But when, in 2003, a paradigmatic opportunity to acknowledge a true privacy right came before the House of Lords, it was turned down. In January 1997, before the Human Rights Act came into force, Mrs Wainwright and her handicapped son were illegally and demeaningly strip-searched on a prison visit. In what had to be, because of the date on which it happened, a claim at common law, the son was able to recover some damages for battery; but the real wrong done to both of them was the violation of their personal dignity and autonomy, the core values of a privacy right. The House of Lords, in a decision which would have brought tears of joy to the eyes of Francis Cornford, whose satire on university politics, Microcosmographia Academica, had almost a century earlier advanced the axiom that one should never do anything for the first time, declined to allow such a claim to enter the common law. Adopting the common law’s curious reverse chronicity, the House rejected the ‘invitation to declare that since at the latest 1950 there has been a previously unknown tort of invasion of privacy’. The result was that it remained the case that only where by some artifice of reasoning a violation of privacy could be allocated to a relationship of confidence would the common law intervene.
It was not the Human Rights Act but the common law which let the Wainwrights down. But hard on the Wainwrights’ heels came invasions of privacy which postdated 2 October 2000, when the Human Rights Act came into force. In dealing with these, the courts have recognised that the act requires us to bring the Convention values into our law – not only the privacy value contained in Article 8, but the free expression value contained in Article 10. The problem has been how soon, how much and how far.
It was while the Wainwrights’ case was pending in the House of Lords that the Court of Appeal lifted an injunction granted to a footballer, Garry Flitcroft (widely known as Garry Who?). Flitcroft, a married man with two young children, had had affairs with two women who had sold their stories to the Sunday People. The salacious article which the lifting of the injunction allowed the Sunday People to publish, and which the court had seen in draft, had no news value at all. As for the customary claim, which the court seems to have accepted, that the revelations served the high purpose of exposing the flaws in a young persons’ role model, one has to wonder what our moral custodians imagine goes on in young people’s minds. Possibly – just possibly – a certain number of boys want to grow up playing football like Garry Flitcroft. Is the revelation in the family’s Sunday paper that he has been sleeping with a lap-dancer going to make them switch to, let us say, Wayne Rooney as their preferred role model? Or is it going to suggest to them that the great thing about being a professional footballer, or any other kind of media star, is that you can sleep with just about anyone?
The Court of Appeal held that this was not the court’s business. ‘The fact that a more lurid approach will be adopted by the publication than the court would regard as acceptable,’ it said, ‘is not relevant.’
It is entirely right that the court has no role as a censor of taste. The right to give offence is a precious component of freedom of expression. But was the question one of taste, or was it whether the substantive content of the article was such as to outweigh Flitcroft’s privacy rights? It might well be that a revelation that a professional footballer had been gambling on his own team’s fixtures would carry such weight. It is less obvious that how he performs in bed (or, in Flitcroft’s case, elsewhere) with a woman who is not his wife does so, even if it makes him – in the paper’s lofty prose – a serial love rat.
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[*] The Information Commissioner’s present remit includes the protection of personal privacy, but it is the data controller, not the individual, whom the law requires him to treat as the victim of the unauthorised disclosures.