One assumes that, when the Sun or News of the World reporters were gathering material on the peccadillos of X-Factor contestants, football stars and Formula One bosses, Article 8 of the European Convention on Human Rights was somewhat distant from their minds. This, after all, is the one that says: “Everyone has the right to respect for his private and family life, his home and his correspondence.”
So when Lord Justice Leveson during his inquiry into phone-hacking and related matters asked of former News of the World chief reporter Neville Thurlbeck: “Did anybody or did you give any thought to the Article 8 rights of the women?” meaning those in the Max Mosley affair, the answer was a little slow in coming but predictable: “There was no discussion about that.”
Why would there be? After all, why let Article 8 of the European Convention on Human Rights get in the way of a good story?
But in fact Mr Thurlbeck showed the concept of privacy law was not wholly alien to him: “I would say the ‘kiss and tell’ story is now largely dead as a genre. In the last three years, we’ve taken great note of privacy matters.” There were now two questions asked of a story: “That was the second question after ‘is it true’: ‘is it intruding into privacy?’”
So does Britain have a privacy law, albeit one that has never passed through Parliament? The answer must be yes, largely thanks to the ECHR, though we have arrived at it by roundabout means. A related issue, at this time of agitation for a British Bill of Rights based on the English common law, is: would common law have created a privacy law unaided? The answer is probably no.
A case we can use to test the impact of the ECHR in the area of privacy is Malone v Metropolitan Police Commissioner (No 2), 1979, decided in quite different ways by the English courts and the European Court of Human Rights in Strasbourg. This was a police phone tapping case. Malone hoped that English law would have advanced sufficiently to recognise the illegality of unregulated phone-tapping. In the event the court recognised no such thing, with Megarry VC discovering no law against phone-tapping and no principle of privacy upon which he could build such a law. “If the principles of English law … pointed firmly to such a right existing, then I think the court should not be deterred from recognising the right”.
Off to Strasbourg, then, where in Malone v UK the European Court of Human Rights court found the principle clearly set out in Art 8 and ruled that a lack of any legislation on phone-tapping in Britain meant the UK could not claim any of the justifications in Art 8(2) (that any interference with the right to privacy should only be if it is “in accordance with the law and is necessary in a democratic society in the interests of national security etc”). Britain was in breach. The court declared resoundingly: “The Convention protects the community of men; man in our times has a need to preserve his identity, to refuse the total transparency of society, to maintain the privacy of his personality.”
The court’s ruling prompted the UK government to enact such a phone-tapping law, the Interception of Communications Act 1985, which laid out when it was legitimate to undertake phone-tapping – but it was prompted by the pressure emanating from the Convention right to privacy, not common law.
It remained the case, though, that English law did not recognise privacy as a justiciable concept except in terms of breach of confidence. Hence Glidewell J declared as late as 1991 in Kaye v Robertson:
“It is well known that in English law there is no right to privacy and accordingly there is no right of action for breach of a person’s privacy. The facts of the present case are a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals.”
As a result a friend of the actor Gorden Kaye failed in this case to stop pictures of the ’Allo ’Allo! star seriously injured in hospital being published by the Sunday Sport.
‘The Human Rights Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties’ Convention rights’ – Baroness Hale
So where did Britain’s privacy law come from? Enter the Human Rights Act 1998. This, by implication (see wording below), requires courts, as public authorities, to act in conformity with the Convention, not in the sense that an individual can simply go to court to get their article 8 rights (they are binding only on the state and its offshoots) but in the sense that UK law should be interpreted by courts, as far as is possible, to be in conformity with the ECHR.
We move on to the Naomi Campbell case, Campbell v Mirror Group Newspapers, in which the Mirror had published pictures of the supermodel near a drug rehabilitation centre she was attending. In the House of Lords (now UK Supreme Court) Baroness Hale made the link between common law and ECHR law thus: “The 1998 [Human Rights] Act does not create any new cause of action between private persons [as opposed to the state and private persons]. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties’ Convention rights” – meaning balancing Article 8 and Article 10 on freedom of expression. The cause of action is common law confidence – that no one should make illegitimate use of private material gained in a confidential situation. This had previously only covered matters where there was a pre-existing relationship of confidence – man and wife, master and servant, employee and employer. But in Campbell, the court extended the notion of confidence to the photographer despite there being no pre-existing relationship or duty to the model.
So now a photographer must ask himself this question: I’ve spent the best part of a week, hidden in a hedge, clutching my long lens and I’ve got a snap of someone who would rather I hadn’t. Do I owe her a duty of confidence?
The answer under common law would have been no. Publish and be damned (and lauded by your editor). But bring in the influence of the ECHR and suddenly you have a UK privacy law – the photographer knows in his heart that the picture is confidential; since the photographer possesses it, he has only one obligation – to keep it private. The ECHR, designed to enhance individuals’ rights against the state, has thus added to the rights between private individuals and organizations – it’s called “horizontality” and is explained here.
In the days when Rupert Murdoch and his crew were still a force in this land and had the privilege of prime ministerial protection extended to them, David Cameron was rather cross about judges apparently creating privacy law: “What’s happening here is that the judges are using the European convention on human rights to deliver a sort of privacy law without parliament saying so … we do need to have a proper sit back and think: is this right, is this the right thing to happen?” One wonders what he feels now as the Leveson Inquiry revelations come tumbling out.
Note: This piece does not deal with Scottish law, which does have a concept of confidentiality and is, of course covered bythe ECHR. There seems to have been no legal case establishing Campbell principles in Scotland as yet. Scots celebrities would be more likely to sue in England given media coverage would cover both countries.
Other posts on privacy:
Human Rights Act S. 6:
Acts of public authorities
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(3) In this section “public authority” includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.