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LA30810 Media Law


Secondly, in the famous words of Holmes J. ... 'the best test of truth is the ... as to confidentiality depending on the individual personalities engaged. ... – PowerPoint PPT presentation

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Title: LA30810 Media Law

LA30810 Media Law
  • Privacy, the Press and Freedom of Expression

National Newspapers Daily, Weekly 4 Weekly
All Adults
Daily Reach - Mon - Sat
Daily Reach - Sunday
4 Weekly Reach
Weekly Reach
Source NRS Jan 06 Jun 06
Universal Declaration of Human Rights
  • Article 19
  • Everyone has the right to freedom of opinion and
    expression this right includes freedom to hold
    opinions without interference and to seek,
    receive and impart information and ideas through
    any media and regardless of frontiers.

European Convention on Human Rights
  • Article 10 (1)
  • Everyone has the right of freedom of expression.
    This right shall include freedom to hold opinions
    and to receive and impart information and ideas
    without inference by public authority and
    regardless of frontiers. This Article shall not
    prevent States from requiring the licensing of
    broadcasting, television or cinema enterprises.

First Amendment to the US Constitution
  • Congress shall make no law respecting an
    establishment of religion, or prohibiting the
    free exercise thereof, or abridging the freedom
    of speech, or of the press or the right of the
    people peaceably to assemble, and to petition the
    Government for a redress of grievances.

Why is freedom of expression important?
  • An essential aspect of liberty, personal
  • A recognition of the importance of communication
    in the development of knowledge, fostering of
    creativity and all forms of art etc.
  • An essential aspect of democracy, the ability to
    participate in society and contribute to public
  • Tolerance and respect for the views of others, a
    balance between stability and change.

2000 2 AC 115, 126
  • Freedom of expression is … intrinsically
    important it is valued for its own sake. But it
    is well recognised that it is also instrumentally
    important. It serves a number of broad
    objectives. First, it promotes the
    self-fulfilment of individuals in society.
    Secondly, in the famous words of Holmes J. … "the
    best test of truth is the power of the thought to
    get itself accepted in the competition of the
    market" … Thirdly, freedom of speech is the
    lifeblood of democracy. The free flow of
    information and ideas informs political debate.
    It is a safety valve people are more ready to
    accept decisions that go against them if they can
    in principle seek to influence them. It acts as a
    brake on the abuse of power by public officials.
    It facilitates the exposure of errors in the
    governance and administration of justice of the
    country …

Blackstone (1830) and Press Freedom
  • The liberty of the press is indeed essential to
    the nature of a free State and not in freedom
    from censure … when published. Every freeman has
    an undoubted right to lay what sentiments he
    pleases before the public to forbid this is to
    destroy the freedom of the press but if he
    publishes what is improper, mischievous, or
    illegal, he must take the consequences of his own

The right to privacy
  • Article 8(1) ECHR
  • Everyone has the right to respect for his
    private and family life, his home and his

Some definitions of privacy
  • The right to be left alone
  • The right to self-determination and personal
  • Anonymity, secrecy and solitude.

Freedom of expression vs privacy
  • Consider the following questions
  • Are these rights complementary or in opposition?

  • If in opposition, where and how should the
    balance be struck?
  • Is there a fundamental clash between the rights
    of the individual and the rights of society?

More questions …
  • What is the role and function of the press in
    reporting facts and issues which may intrude on
    the privacy of the individuals concerned?
  • On what occasions is it justifiable to invade
  • Does/should the same rule apply to all?
  • In particular should there be a different
    standard for those who court publicity or who
    occupy public office and those who inadvertently
    find themselves in the limelight?

  • The press is overstepping in every direction
    the obvious bounds of propriety and decency.
    Gossip is no longer the resource of the idle and
    of the vicious, but has become a trade which is
    pursued with industry as well as with effrontery.

Kaye v Robertson
  • Possible causes of action
  • Libel
  • Malicious falsehood
  • Trespass
  • Passing off

Kaye v Robertson
  • If ever a person has a right to be let alone by
    strangers with no public interest to pursue, it
    must surely be when he lies in hospital
    recovering from brain surgery and in no more than
    partial command of his faculties. It is this
    invasion of his privacy which underlies the
    plaintiff's complaint. Yet it alone, however
    gross, does not entitle him to relief in English
    law. 1991 FSR 62, 70.

The action for breach of confidence
  • The information must be confidential
  • There must be an obligation of confidence
  • There must be an actual or anticipated disclosure
    of the information to the possible detriment of
    the owner.

The nature of confidence
  • Not public property and not public knowledge -
    Saltman Engineering v Campbell
  • something that has been constructed solely from
    materials in the public domain may possess the
    necessary quality of confidentiality - Coco v
  • But confidential ? private …

The nature of the obligation
  • An express obligation of confidentiality
  • A special relationship in other areas of law
    often a contractual relationship but need not be …

  • The law on this subject does not depend on any
    implied contract. It depends on the broad
    principle of equity that he who has received
    information in confidence shall not take unfair
    advantage of it. He must not make use of it to
    the prejudice of him who gave it without
    obtaining his consent.
  • Seager v. Copydex Ltd. 1967 1 W.L.R. 931

  • The courts will restrain breaches of confidence
    … unless there is just cause or excuse for
    breaking confidence …
  • Stephenson LJ in Lion Laboratories v Evans
    1984 2 All ER 417
  • Consider the public interest in keeping the
    confidence vs the public interest in disclosure.

A v B and C Ltd
  • There is no bright line which can be drawn
    between what is private and what is not. Use of
    the term 'public' is often a convenient method of
    contrast, but there is a large area in between
    what is necessarily public and what is
    necessarily private. An activity is not private
    simply because it is not done in public.
  • 2003 2 QB 195, 206 quoting from Australian
    Broadcasting Corpn v Lenah Game Meats Pty Ltd

The CAs guidelines from A v B
  • 1 4 deal with the criteria to be considered in
    deciding whether to allow an interim injunction
  • 5. Any interference with publication must be
  • 6. A new tort of privacy is unnecessary - breach
    of confidence will, where appropriate provide the
    necessary protection
  • 7. Identify whether the private interest at
    issue is worthy of protection

  • 8. Courts should be reluctant to discuss public
    interest issues in borderline cases
  • 9. Duty of confidence arises whenever the party
    subject to the duty is in a situation where he
    either knows or ought to know that the other
    person can reasonably expect his privacy to be
  • 10. Obtaining information by unlawful means does
    not automatically mean that privacy has been
  • 11. The balance between privacy and freedom of
    expression is particularly acute in cases of
    shared confidences

  • 12. A public figure is entitled to a private
    life, but the courts must not ignore the fact
    that if newspapers do not publish information
    which the public are interested in, there will be
    fewer newspapers published, which will not be in
    the public interest
  • 13. Courts are neither censors nor arbiters of
  • 14. Compliance with the PCC Code of Practice is
    only one of number of factors to be taken into
  • 15. Courts should discourage reliance on
    individual decision of the PCC.

A v B and C Ltd
  • … we would not go so far as to say there can be
    no confidentiality where one party to a
    relationship does not want confidentiality, the
    fact that C and D chose to disclose their
    relationships to B does affect A's right to
    protection of the information. For the position
    to be otherwise would not acknowledge C and D's
    own right to freedom of expression.
  • 2003 QB 195, 216.

Theakston v MGN
  • Where did the balance of public interest lie in
  • The fact of the visit to the brothel
  • The details of the sexual activity
  • The photographs?

Theakston v MGN para 58
  • The nature of the relationship, the nature of
    the activity and all the other circumstances in
    which that activity takes place, affect the
    attribution by the law of the quality of
    confidentiality to the acts in question. Indeed
    apparently similar circumstances could
    justifiably lead to different conclusions as to
    confidentiality depending on the individual
    personalities engaged.

Campbell v MGN (CA) para 43
  • The courts are in the process of identifying, on
    a case by case basis, the principles by which the
    law of confidentiality must accommodate the
    article 8 and the article 10 rights. One
    principle, which has been recognised by the
    parties in this case, is that, where a public
    figure chooses to make untrue pronouncements
    about his or her private life, the press will
    normally be entitled to put the record straight.

Campbell v MGN (CA) para 70
  • The development of the law of confidentiality
    since the Human Rights Act 1998 … has seen
    information described as "confidential" not where
    it has been confided by one person to another,
    but where it relates to an aspect of an
    individual's private life which he does not
    choose to make public. We consider that the
    unjustifiable publication of such information
    would better be described as breach of privacy
    rather than breach of confidence.

Campbell v MGN (HL) para 12
  • The case involves the familiar competition
    between freedom of expression and respect for an
    individual's privacy. Both are vitally important
    rights. Neither has precedence over the other.
    The importance of freedom of expression has been
    stressed often and eloquently, the importance of
    privacy less so. But it, too, lies at the heart
    of liberty in a modern state.

Campbell confidence
  • The action for breach of confidence is no longer
    limited by the need for a confidential
  • Duty arises when the receiver knows or ought to
    know that the information is confidential
  • Better now thought of as misuse of private
  • The values in Arts 8 and 10 are part of the
    action for breach of confidence.

The salient issues
  • The fact of the addiction
  • The fact of receiving treatment
  • The fact of attending Narcotics Anonymous
  • The details of her therapy
  • The photographs of her leaving the meetings.

Douglas v Hello! (CA) para 53
  • The court should, in so far as it can, develop
    the action for breach of confidence in such a
    manner as will give effect to both article 8 and
    article 10 rights. … We cannot pretend that we
    find it satisfactory to be required to shoehorn
    within the cause of action of breach of
    confidence claims for publication of unauthorised
    photographs of a private occasion.

Douglas v Hello! (CA) para 83
  • What is the nature of "private information "? It
    seems to us that it must include information that
    is personal to the person who possesses it and
    that he does not intend shall be imparted to the
    general public.

CAs conclusions in Douglas
  • HRA required courts to develop the existing
    action for breach of confidence in a way which
    would give effect to the competing rights under
    Arts 8 and 10
  • The information had to be confidential and either
    imparted under a duty of confidence or plainly
    confidential or private
  • Private information included personal information
    not intended to be made public
  • Special considerations attached to photographs.

Exclusives post Douglas (HL)
  • I see no reason why there should not be an
    obligation of confidence for the purpose of
    enabling someone to be the only source of
    publication if that is something worth paying
    for. Why should a newspaper not be entitled to
    impose confidentiality on its journalists,
    sub-editors and so forth to whom it communicates
    information about some scoop which it intends to
    publish next day?
  • Lord Hoffmann at para 120.

The taxonomy of the law of privacy and confidence
  • There is no tort of invasion of privacy
  • Arts 8 and 10 fall to be protected by breach of
  • The development of Campbell confidence in
    absence of pre-existing duty
  • A tort of misuse of private information?

Peck v UK para 57
  • Private life is a broad term not susceptible to
    exhaustive definition … There is … a zone of
    interaction of a person with others even in a
    public context, which may fall within the scope
    of private life.

CoE Guidelines - Resolution 1165 (1998)
  • a civil action to protect privacy should be
  • editors and journalists should be liable for
    invasions of privacy as they are for libel
  • when false information has been published it
    should be followed by a prominent correction at
  • economic penalties should be imposed for
    systematic invasions of privacy
  • following or chasing persons to photograph, film
    or record them, in an intrusive or potentially
    harmful manner should be prohibited

  • a civil action by the victim should be allowed
    where paparazzi have gained images as a result of
  • interim injunctions should be available if
    privacy is likely to be breached, subject to
    court assessment of the merits of the claim of an
    invasion of privacy
  • the media should be encouraged to self regulate.

Data Protection Act 1998
  • Applies also to information in manual files.
  • Provides rights for data subjects.
  • The key definitions are wide in scope.
  • A distinction is made between non-sensitive and
    sensitive data.
  • Requires data controllers to register the
    purposes of processing of personal data.
  • Sets out requirements for lawful processing the
    data protection principles.

Data Protection Principle 1
  • Fair and lawful processing
  • Based on a requirement of consent to process
    (explicit for sensitive personal data)
  • OR
  • Necessary for one of a list of specific
    activities which are more tightly defined in
    relation to sensitive data.

Sensitive data
  • Political opinions,
  • Racial or ethnic origin,
  • Religious or similar beliefs,
  • Trade union membership,
  • Physical or mental health or condition,
  • Sexual life,
  • Offences or criminal proceedings.

The special purposes
  • S3 DPA98
  • The purposes of journalism
  • Artistic purposes
  • Literary purposes

S32 - the special purpose exemption
  • Processing for special purposes only,
  • With a view to publication of journalistic,
    literary or artistic material,
  • Publication in the public interest,
  • Compliance with data protection rule is
    incompatible with the special purposes.

Campbell v MGN (CA)
  • Does the Act apply to publication of newspapers
    and other hard copies containing information that
    has been subjected to data processing?
  • Does the s.32 exemption only apply up to the
    moment of publication?
  • Does the s.32 exemption apply to publication, in
    so far as this falls within the scope of the
  • Does the s.32 exemption apply on the facts of the