1.1 How is ‘privacy’ treated in relation to the media?
Privacy is a concept that is not easy to define. Essentially, it can be seen as the right – or at least an expectation – of every individual to be shielded from intrusion into his or her personal life or affairs. The intrusion may happen through physical means or through the publication of material or information. Given that the media often write about people and their activities, including highly personal activities, this area of the law is of considerable relevance to journalists and other media practitioners.
1.2 How does the law deal with privacy?
Some countries (e.g. France) have discrete laws which attempt to define and protect an individual’s privacy. These laws punish the media with fines or imprisonment in the event of any invasion of privacy taking place. Where such laws exist, the media is, not surprisingly, usually particularly careful in what it publishes about individuals. Some commentators have argued that the presence of such strict laws discourages investigative journalism.
In a lot of other countries, especially those which follow English common law, the tradition of having laws that specifically and explicitly recognise the right to privacy does not exist. In these countries, privacy is protected through laws on other subjects such as defamation, breach of confidence, trespass, data protection, and copyright.
1.3 What does international law have to say on privacy?
Recent years have seen the inclusion of protection for individual privacy in international human rights instruments. For example, the European Convention on Human Rights, to which some 47 countries are signatories, has a provision which declares that “Everyone has the right to respect for his private and family life, his home and his correspondence,” subject to certain qualifications. The courts in a number of countries, e.g. the United Kingdom, have used this article to introduce a right of privacy in their own domestic legal systems, with varying degrees of success.
The International Covenant on Civil and Political Rights lays down that:
No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
1.4 How does the law of trespass deal with privacy?
Trespass to property has been one of the earliest legal techniques to be used to protect a person’s property. Under the law of trespass, it an unlawful for anyone to enter another person’s property without permission or reasonable cause. If, therefore, a journalist were to walk into the grounds of a celebrity footballer and take pictures of him against his wishes, the journalist could be prosecuted for trespass.
The law of trespass does not, however, assist property owners if the media was to intrude on their privacy from a public road or from another person’s property which they have lawfully entered. This is often the case when press photographers take pictures of celebrities using telephoto lenses.
1.5 How can the law of defamation deal with privacy?
Defamation has a limited use in the protection of privacy. It can only be used where information that is untrue has been published about someone. However, some well-known figures, e.g. the late London-based publishing tycoon Robert Maxwell, have used the threat of a defamation action to frighten the media from investigating their lives or business affairs.
The threat of a defamation suit can quite potent in countries where the courts have a tradition of either being too plaintiff-friendly or subject to political pressures. In such circumstances, the media might consider it too risky to engage in investigative journalism.
1.6 How can the law on breach of confidence deal with privacy?
Breach of confidence is one of the most commonly used remedies against invasion of privacy, especially in recent years when this area of the law has been extended quite significantly in some countries. In its essence, the law of confidence makes it unlawful for a person to reveal to another person, without authorisation, any information that the former may have received in confidence. Traditionally, three conditions needed to be satisfied for this remedy to be invoked:
1. the information in question must have a quality of confidence;
2. it should have been communicated in circumstances “importing an obligation of confidence”; and
3. there must be an unauthorised disclosure of the information.
The law was progressively liberalised, with the result that two of those conditions came to be modified as follows:
(a) the need for an initial confidential relationship (circumstances “importing an obligation of confidence”) was removed;
(b) ‘confidential’ information was deemed to include ‘private’ information as well.
The test as it stands today is that, where information about someone is disclosed without authorisation to a third party in circumstances where it should have been clear to the person disclosing that it was ‘private’ information, there would be a cause of action. So, if a journalist came upon a picture concerning intimate moments between a celebrity and his wife and he decided to publish the picture without authorisation from either of them, they could sue him for breach of confidence.
1.7 How is breach of confidence treated by the courts?
The experience varies from country to country, but if the English courts are anything to go by (and it is worth remembering that their judgments have high persuasive value in most common law countries), a number of factors are taken into account. The following cases would illustrate the trend.
In A v. B and Another, a footballer, Gary Flitcroft, sought an injunction against a newspaper which wanted to publish an interview given by one of two women with whom he had had an extramarital affair. The court refused to grant the injunction on the ground that the conduct in question did not merit a ban on publication (if the newspaper had sought to publish private information about Mr Flitcroft’s relationship within his marriage, it would have been restrained from doing so).
In Theakston v. MGN, a television presenter tried to stop a newspaper from publishing details, including a photograph, of his visit to a brothel. The newspaper successfully argued that any such ban would amount to an unjustified restraint on its freedom of expression. The court agreed and allowed the story to go ahead, but it injuncted the newspaper from publishing the photograph on the ground that there was no public interest to be served in its publication.
In Campbell v. MGN Ltd, a fashion model, Naomi Campbell, sued a tabloid newspaper which had published a front page story alleging that Miss Campbell was addicted to certain narcotic drugs, that she was receiving treatment for her drug addiction, and that she was attending meetings of Narcotics Anonymous. The paper also gave details of the treatment that Miss Campbell had been receiving, and published a photograph of her leaving a Narcotics Anonymous meeting (which it had obtained through surreptitious means). The court held that the newspaper was justified in publishing information about Miss Campbell’s drug addiction, and the fact that she was receiving treatment for it, including attending meetings of Narcotics Anonymous. This was particularly so, argued the judges, because Miss Campbell had previously lied about her drug addiction, and there was in any case a strong public interest justification for the story. There was however no justification, said the court, for the publication of the details of Miss Campbell’s treatment or of a picture of her leaving the NA meeting. In this case, the court used the term “misuse of private information” as better describing the cause of action traditionally known as “breach of confidence”.
In Douglas v. Hello!, an actor couple, Michael Douglas and Catherine Zeta-Jones, sued a celebrity magazine, Hello!, for publishing pictures of their wedding reception, the rights for which had been granted exclusively to another publication for a hefty fee. The couple had taken elaborate precautions to prevent surreptitious photography at the reception, but Hello! magazine managed to evade those precautions. The court held that the couple’s right to privacy was not reduced by their decision to sell the pictures in question, and that Hello! magazine’s actions had resulted in a breach of their privacy.
1.8 Can the media use a “public interest” argument to publish information that someone may want to keep private?
Yes, this is what happened in the Spycatcher case referred to above. However, sometimes such an argument may fail, as can be seen in the case of X v. Y decided in the UK. Here, a newspaper reporter was supplied with confidential information by a health trust employee which indicated that two doctors working in a hospital or hospitals belonging to the trust were carrying the AIDS virus. Before the journalist could publish an article revealing this information, the hospital trust sought and obtained an injunction restraining publication. The court in this case ruled that the public interest in keeping the information confidential (so as not to deter prospective patients from seeking treatment in the hospital/s) outweighed the public interest in the freedom of the press to report the matter.
1.9 How can the law on copyright deal with privacy?
Copyright can be used effectively in some circumstances to protect individual privacy. For instance, if a newspaper or a television channel used photographs or video clips which belonged to the subject of a story and which it has obtained without his permission, he can (assuming that he is the copyright owner in the picture or video) could sue for copyright infringement.
The usefulness of copyright in protecting privacy was brought home in a case filed by the Prince of Wales, the heir to the British throne, when a newspaper decided to publish extracts from his private diaries in which he had made certain indiscreet observations about the political leaders of China with whom he had interacted during the British handover of Hong Kong to the Chinese government in 1997. The diaries were meant to be circulated to a small number of close friends of the prince, but when the newspaper surreptitiously obtained a copy for publication, he approached a court to restrain it. One of the grounds on which the court granted the injunction was that copyright in the diaries vested in the prince and the newspaper had not obtained permission to reproduce extracts.
1.10 How does the law on data protection deal with privacy?
Data protection is a relatively new area of the law. Essentially, it involves safeguards in the use of personal data, particularly personal data stored in electronic form. Some countries have put in place sophisticated regimes for data protection, but a large number of nations do not have any laws in this area. To that extent, the use of this concept to protect individual privacy is limited.
An example of a fairly advanced data protection regime can be found in the United Kingdom, whose law enshrines the following eight basic principles in relation to personal data (which are defined as “data which relate to a living individual who can be identified – (a) from those data; or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the [person controlling the data]”:
1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless –
(a) at least one of the conditions in Schedule 2 is met, and
(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.
2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.
3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.
4. Personal data shall be accurate and, where necessary, kept up to date.
5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.
6. Personal data shall be processed in accordance with the rights of data subjects under this Act.
7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
8. Personal data shall not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data.
A simple example of how data protection law may affect the media can be seen in the following circumstances. A newspaper publishes a story about someone. That person can, under the law, demand that the newspaper provide him with a copy of all the information it, the newspaper, holds on him. He may also require the paper to publish a correction where the story is inaccurate in any respect.
Data protection laws also affect marketing activities by the media.
1.11 How does the law on harassment deal with privacy?
Most countries have laws which make harassment an offence or a civil wrong. There are several facets to harassment, but from the point of view of the media, “doorstepping” activities or intolerable pursuit of individuals by photographers (“paparazzi”) would be particularly relevant.
Harassment usually requires a persistent course of conduct which causes alarm or distress to the person being harassed. If proved, this sort of conduct can lead to both criminal and civil consequences, viz. a fine/imprisonment and/or damages. There have been numerous cases of high-profile celebrities using the law of harassment to protect themselves from media intrusion.
For example, the actress and model Sienna Miller succeeded in obtaining compensation to the tune of £37,000 in 2008 from the well-known picture agency, Big Pictures Limited, after she alleged that she was being relentlessly pursued by that agency’s photographers. As part of the settlement reached, the agency also undertook not to pursue Miss Miller or doorstep her at her home.
1.12 What is the legal position concerning the use of telephone taps?
This is a complex area, and the laws and practices vary markedly from country to country. As a rule, most democracies have legal safeguards against indiscriminate or arbitrary interception of communication by both government agencies and private parties. Exceptions are always made for interception of communications for national security and other similar purposes, and such interception is, for obvious reasons, carried out without the knowledge of those being targeted.
Typically, there would be a law – passed by the national parliament – which would lay down the conditions under which telephones or other forms of communication can be tapped. These would include: the interests of national security; the prevention or detection of serious crime; and the protection of vital economic interests of the nation. The tapping can only take place if it is authorised by a senior government functionary, e.g. a Cabinet minister, and then only if the information being sought cannot reasonably be obtained by other lawful means. The law would also require the order for tapping to be precise in scope and to be confined to a limited period. Frequently, the working of this legal regime is overseen by a tribunal or a commissioner who would have powers to order the termination of any telephone tap if it fails to comply with the requirements of the law or is otherwise unjustified. More importantly, the law would make all unauthorised interception of communications illegal.
Many countries do not, however, have such strict controls over telephone tapping. Indeed, instances are rife where private communications are routinely intercepted both by state agencies and private parties without official authorisation. Often the targets of such unauthorised interception may be the media, so journalists need to be particularly careful when revealing confidential information over public telephone networks.
Equally, it is possible that journalists themselves may fall foul of the law if they engage in intercepting other people’s communications without authority in pursuit of a story. Since breaking the law can never be justified, any such action will result in criminal sanctions and/or a claim for compensation.
1.13 What about publishing a person’s picture without his or her permission?
There is wide variation in the legal position between countries. Generally speaking, it would be impermissible to photograph a person without his or her permission on private premises, viz. premises to which members of the general public do not have a right of access. In some countries, it is an offence – and/or a civil wrong – to publish the photograph of a person without his or her permission even on public premises. For example, the Canadian Supreme Court has held that the right to one’s “image” is a right protected by that country’s Charter of Human Rights and Freedoms: it consequently held that the publication by a magazine of a 17-year-old girl sitting on the steps of a public building in Montreal was unlawful. However, some exceptions have been recognised to that rule: where a person engages in public activity or where someone’s “professional success depends on public opinion,” he or she would have no ground to complain.
The prohibition against publishing pictures of individuals in public places is enforced even more strictly in France. Here, it is not uncommon for individuals to sue or prosecute the media, for example, for publishing a picture of a crowd in which the complaining individual may be present. A few years ago a male nurse sued a newspaper which printed a photograph of him standing near the French President, Jacque Chirac, because the nurse did not want to be seen with Mr Chirac.
Even in liberal California a law was passed in 1999 under which it was made unlawful for anyone to photograph a person “in circumstances where they had a reasonable expectation of privacy.”
However, in a significant number of other countries, including the United Kingdom, it remains entirely legal for anyone to be photographed in public without their consent. This is seen as a necessary extension to freedom of expression. Where, however, any photograph taken in a public place is either altered in any way or used as part of, say, an advertisement or write-up in a manner that shows the person involved in a disparaging manner, those responsible for the act would expose themselves to an action for defamation.
1.14 Can a broadcaster use images of someone taken from a CCTV camera installed in a public place?
Generally speaking, only with some risk. The perils are highlighted in a case from the UK which involved a young man who unsucessfully attempted, to commit suicide in a public place by slashing his wrists. While moving around a city centre in a distressed state with a knife in his hand, he was captured by CCTV cameras operated by the local authority who, on the basis of the pictures, stopped the suicide. When the local authority subsequently gave the film to a television company which broadcast it, the young man sued on the grounds that his privacy had been invaded. After losing his case in the UK courts, he took his plea to the European Court of Human Rights which agreed with him and ordered the UK government to pay compensation for breach of privacy.
 In France, the invasion of privacy as a civil wrong was recognised as far back as 1858. It became part of the French Civil Code in 1970.
 Art. 8.
 Art. 17(1).
 These conditions were laid down in the case of Coco v. A.N. Clark Engineers Ltd. (1969) R.P.C. 41.
  EWCA Civ 337.
  EWHC 137(QB).
  UKHL 22.
  EWCA Civ 595.
  2 All E.R. 648.
 H.R.H. Prince of Wales v. Associated Newspapers Ltd. (2006) EWCA Civ 1776.
 Data Protection Act 1984.
 Exceptionally, where the national parliament has failed to make a law, the courts may step in and lay down guidelines which the government is obliged to follow. This happened in India where the Supreme Court, in the landmark case of People’s Union for Civil Liberties v. Union of India AIR 1997 SC 568, prescribed an elaborate set of rules for interception of communications.
 See, e.g. Interception of Communciations Act 1985, s. 2 (UK).
 Peck v. UK  36 EHRR 41.