Guidance on the Law of Privacy

Introduction
The law of privacy in Scotland, and the UK generally, has changed greatly since the adoption of Articles 8 & 10 of the European Convention of Human Rights (ECHR) into Scots and English law with the enactment of the Hunan Rights Act 1998. While it can be said that there is no freestanding “right to privacy” in the UK as there is in the USA, the conflicting provisions of Article 8 (the right to a private life) and Article 10 (the right to freedom of expression) have created a legal framework which journalists and others working in the media need to be aware of. The purpose of this Guidance Note is to look at these provisions and provide the reader with a summary of the law relating to privacy in Scotland as it currently stands.

The Right to Privacy: General
Article 8(1) of the ECHR recognises the need to respect the individuals’ right to private and family life, while Article 8(2) recognises that an individual’s private life can suffer intrusion to protect the rights and freedoms of others. In the same way, Article 10(1) recognises the right of freedom of expression, while Article 10(2) limits this right were it negatively affects the rights of an individual/group of individuals. It is quite apparent, therefore, that these rights will conflict where news media report on the private lives of public figures/celebrities.

In the leading case of case of Von Hannover v Germany (which concerned the publication of pictures of the daughter of Prince Rainer of Monaco going about her daily business in German tabloid newspapers), the European Court took the view that there is an obligation upon the state to adequately protect the individual’s right to control the use of their own image and details of their private life from unnecessary scrutiny in a world of communicative media that allows the rapid dissemination of private images and information to a large section of the public. While the Court recognised that the press play an important democratic role in upholding freedom of expression, in this instance the publication of the pictures appear to have contributed nothing to any societal debate or satisfy anything other than the curiosity of readers in the private lives of others. As such, the publication of the pictures was deemed a breach of Article 8.

The principles of this case have were brought into English law through the famous Naomi Campbell v MGN decision. Here, the House of Lords decided that the publication of an article and pictures relating to Naomi Campbell’s therapy for drug abuse was a breach of Article 8. The reasons for this were fourfold:

1. The details of her drug therapy gave rise to a “duty of confidentiality” (where a person receives information he knows or ought to know should be fairly and reasonably regarded as confidential in nature);
2. The publication of that information went beyond the level of disclosure necessary to add credibility to a legitimate story, resulting in MGN surpassing the journalistic margin of appreciation allowed to a free press;
3. Although the photographs taken of Campbell were in a public place, the context in which they were used and linked to the articles added to the overall intrusion in her life;
4. Looking at the publication as a whole and in view of all available circumstances, Campbell’s right to private life under Article 8 outweighed the newspapers right of freedom of expression under Article 10.

As a result of this decision, the following questions must be answered when publishing material regarding an individual’s private life:

* Does the publication of “private” material in question result in a prima facie “breach of confidence”?
* Can that information be regarded as being already present in the ‘public domain’?
* If there is the publication of “private” material, can this be justified?

Private Information
The there are two tests which can provide guidance as to what is regarded as “private” information relating to an individual. The first is that laid down by Lord Hope in Campbell which provides that information is “private” where:

1. The party subject to the duty [of confidentiality] is in a situation where he knows or ought to know that the other person can reasonably expect is privacy to be respected [to be read in view of the relevant facts]; and
2. Disclosure of the information about the individual (“A”) would give substantial offence to A, assuming that A was placed in similar circumstances and was a person of ordinary sensibilities.

The second test is that of Megarry J in Coco v A N Clark (Engineers) which provides that information is confidential where the information has;

1. The necessary quality of confidence about it;
2. Been imparted in circumstances importing to an obligation of confidence; and
3. Been used in an unauthorised manner to the detriment of the party who originally communicated it.

These tests show that it is not only the content of material which that decide whether or not it is private, but also if its use if authorised, the environment in which is it is transmitted and whether its use is likely to be to the detriment of the party involved. For example, the publication of information which provides details on someone’s true identity would not be regarded as private, as it is not inherently confidential, except were the individual’s identity needs to be protected for their own safety, e.g. in the case of the James Bulger murderers Thompson & Venables V News Group Newspapers.

Public Domain
In discerning whether a duty of confidentiality arises, it must be considered if information has already been divulged in the ‘public domain’. The Human Rights Act case of Attorney General v Guardian Newspapers (No.2) suggests that the duty of confidentiality does not arise where information can already be regarded as circulating in the ‘public domain’. It is important to note, however, that the Court’s do not treat personal information like business information in that once information has been released on one occasion no future duty of confidentially exists.

In the post – Human Rights Act and post – Campbell decision climate, the relevant test of confidentiality vis-a-vie the ‘public domain’ is that laid down by Eady J in McKennitt v Ash:

“It does not necessarily follow that because personal information has been reveled impermissibly to one set of newspapers, or to readers within one jurisdiction, that there can be no further intrusion upon a claimant’s privacy by further revelations”

And as such, “there is a need to assess whether on not the information in question is so generally accessible that, in all circumstances, it cannot be regarded as confidential”.

Therefore, the question of whether or not private information already in the ‘public domain’ carries a burden of confidentiality is one of ‘fact and degree’ depending on the facts and circumstances of the particular case, for example the incidence of Price Harry being reported on an Australian website did not mean that the information was, in actuality, widely disseminated within the UK or the international community generally.

Justification for the Publication of ‘Private’ Information
In Campbell, Lord Hope laid out the following test in relation to the publication of private information:

“The tests which the court must apply are familiar ones. They are whether publication of the material pursues a legitimate aim and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy ...neither Article 8 nor Article 10 has any pre–eminence over the other in the conduct of this exercise.”

Thus, it can be said that where an article, or material within it, is unnecessary, in view of the relevant fact, and the purpose of its inclusion is either salacious or not discernible in view of the public interest, then a Court will regard it as breaching Article 8, as with the photographs in Campbell.

Conclusions
With the enforcement of Articles 8 and 10 within the UK and in light of the Campbell judgement, applied in the Scottish Courts by X v BBC, there is a need for the media to be aware of potential breaches of Article 8 when reporting on peoples private lives. By way of summary the crucial questions to ask before publishing material are, therefore:

* Is the article in the broader public interest?
* Is the nature of the information such that an ordinary individual would wish it to remain private?
* Was the information received in such a way as to imply a bond of confidentiality?
* Have the individual/s concern authorised the publication of the information tacitly or expressly?
* Would the publication of the information be to the detriment of that individual?
* If the information is already in the public domain, how long ago was it released? What is the nature of the information? What jurisdiction was it released in? Are there any special circumstances surrounding the individual? How wide was the original dissemination of the information?