Balancing Privacy & Freedom: Confidentiality vs. Expression, Schemes and Mind Maps of Law

Download Balancing Privacy & Freedom: Confidentiality vs. Expression and more Schemes and Mind Maps Law in PDF only on Docsity! 1 PRIVACY – THE SWINGING PENDULUM Richard Spearman QC Misuse of private information In A v B plc [2003] QB 195, Lord Woolf CJ explained that the court, as a public authority, was able to fulfil its duty under section 6 of the Human Rights Act 1998 Act “by absorbing the rights which articles 8 and 10 protect into the long- established action for breach of confidence” [4]. He went on to say “There is a tension between the two articles which requires the court to hold the balance between the conflicting interests they are designed to protect. This is not an easy task but it can be achieved by the courts if, when holding the balance, they attach proper weight to the important rights both articles are designed to protect. Each article is qualified expressly in a way which allows the interests under the other article to be taken into account” [6]. In Campbell v MGN Ltd [2004] AC 457 Lord Nicholls said “The time has come to recognise that the values enshrined in Articles 8 and 10 are now part of the cause of action for breach of confidence … and are as much applicable in disputes between individuals or between an individual and a non-governmental body such as a newspaper as they are in disputes between individuals and a public authority” [17]. Also, on the basis that information about an individual's private life is more naturally described as “private” rather than “confidential” Lord Nicholls said that “The essence of the tort is better encapsulated now as misuse of private information” [14]. In keeping with sections 2, 3, 6 and 12 of the Human Rights Act 1998: “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. In considering the nature of those rights, account should be taken of the Strasbourg jurisprudence. In particular, when considering what information should be protected as private pursuant to Article 8, it is right to have regard to the decisions of the European Court of Human Rights” (Douglas v Hello! Ltd (No 3) [2006] QB 125, Lord Phillips MR at [53]). Thus, Articles 8 and 10 are now “the very content of the domestic tort that the English court has to enforce” (McKennitt v Ash [2008] QB 73, Buxton LJ at [11]). However, (see Douglas v Hello! Ltd (No 3) [2006] QB 125, Lord Phillips MR at [53]), implementation of Article 8 rights has been achieved by the less than satisfactory means of requiring the Court to “shoehorn” within the cause of action of breach of confidence claims for misuse of private information (in that case, claims concerning publication of unauthorised photographs of a private occasion). Numerous commentators – both academics and judges speaking or writing in an extra-judicial capacity - have expressed varying degrees of criticism and concern about the efficacy of judicial attempts to expand and distort the cause of action for 2 breach of confidence in order to provide a basis for privacy claims. In part, these views focus on the inadequacy of the incremental (case by case) evolution of an existing cause of action to cater for what would otherwise be the failure of the law to provide protection against invasions of privacy in a host of different factual situations; and in part on the suggested desirability of maintaining a distinction between breach of confidence on the one hand and privacy on the other. The incremental approach plainly tends to result in uncertainty, delay and costs. As Buxton LJ observed when comparing Campbell v MGN Ltd [2004] AC 457 and Von Hannover v Germany [2005] 40 EHRR 1, “Had the House had the benefit of Von Hannover's case a shorter course might have been taken” (McKennitt at [39]). This is particularly so because “Put shortly, the precedential rules of English domestic law apply to interpretations of Convention jurisprudence”: McKennitt v Ash [2008] QB 73, Buxton LJ at [62]; Kay v Lambeth LBC [2007] 2 AC 465. Therefore , even where it seems clear that a decision of a higher English court has been superseded by a later decision in Strasbourg, it is for the Supreme Court and not the lower courts to give effect to that later decision. This is in spite of the fact that (see R (S) v Chief Constable of South Yorkshire Police [2004] 1 WLR 2196, Lord Steyn at [27]): “… [on] the question of objective justification under Article 8(2) the cultural traditions in the United Kingdom are material … the same is not true under article 8(1). Expressing the unanimous view of the House in R (Ullah) v Special Adjudicator [2004] 3 WLR 23, 39-40, para 20 Lord Bingham of Cornhill observed that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. He added: ‘It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.’ The question whether the retention of fingerprints and samples engages Article 8(1) should receive a uniform interpretation throughout member states, unaffected by different cultural traditions. And the current Strasbourg view, as reflected in decisions of the Commission, ought to be taken into account”. Accordingly, when, in Murray v Big Pictures Ltd [2008] 3 WLR 1360, the Court of Appeal was asked to rule on whether there was a tension between the decision of the House of Lords in Campbell v MGN Ltd [2004] AC 457 and that of the European Court of Human Rights in Von Hannover v Germany [2005] 40 EHRR 1, the Court focussed on providing an exegesis of the decision in Campbell (see [21]-[35]), which it then applied to the presumed facts of that case. The Court did not consider it necessary to analyse Von Hannover in any detail: “Suffice it to say that, in our opinion, the view we have expressed is consistent with that in Von Hannover … we have little doubt that, if the assumed facts of this case were to be considered by the ECtHR, the court would hold that David had a reasonable expectation of privacy and it seems to us to be more likely than not that, on the assumed facts, it would hold that the article 8/10 balance would come down in favour of David” [59]-[60]. 5 S and Marper v UK (Nos 30562/04 and 30566/04) [2009] 48 EHRR 50 at [66]-[67]: “The Court recalls that the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 III, 35 EHRR 1, and Y.F. v. Turkey, no. 24209/94, § 33, ECHR 2003 IX, 39 EHRR 34 ). It can therefore embrace multiple aspects of the person's physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I, BAILII: [2002] ECHR 27 ). Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8 (see, among other authorities, Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001, 33 EHRR 10, I with further references, and Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003 I, 36 EHRR 41 ). Beyond a person's name, his or her private and family life may include other means of personal identification and of linking to a family (see mutatis mutandis Burghartz v. Switzerland, 22 February 1994, § 24, Series A no. 280 B; and Ünal Tekeli v. Turkey, no. 29865/96, § 42, ECHR 2004 X (extracts), 42 EHRR 53 ). Information about the person's health is an important element of private life (see Z. v. Finland, 25 February 1997, § 71, Reports of Judgments and Decisions 1997 I, 25 EHRR 371). The Court furthermore considers that an individual's ethnic identity must be regarded as another such element (see in particular Article 6 of the Data Protection Convention quoted in paragraph 41 above, which lists personal data revealing racial origin as a special category of data along with other sensitive information about an individual). Article 8 protects in addition a right to personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz, cited above, opinion of the Commission, p. 37, § 47, and Friedl v. Austria, judgment of 31 January 1995, Series A no. 305-B, opinion of the Commission, p. 20, § 45, 21 EHRR 83). The concept of private life moreover includes elements relating to a person's right to their image (Sciacca v. Italy, no. 50774/99, § 29, ECHR 2005-I, 43 EHRR 20). The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8 (see Leander v. Sweden, 26 March 1987, § 48, Series A no. 116, 9 EHRR 433). The subsequent use of the stored information has no bearing on that finding (Amann v. Switzerland [GC], no. 27798/95, § 69, ECHR 2000-II, 30 EHRR 843). However, in determining whether the personal information retained by the authorities involves any of the private-life aspects mentioned above, the Court will have due regard to the specific context in which the information at issue has been recorded and retained, the nature of the records, the way in which these records are used and processed and the results that may be obtained (see, mutatis mutandis, Friedl, cited above, §§49-51, and Peck v. the United Kingdom, cited above, § 59).” Reklos & Davourlis v Greece (No. 1234/05) [2009] EMLR 290, [2009] ECHR 200: “A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development and presupposes the right to control use of 6 that image. Whilst in most cases the right to control such use involves the possibility of an individual to refuse publication of his or her image, it also covers the individual’s right to object to recording, conservation and reproduction of an image by another person. As a person’s image is one of the characteristics attached to his or her personality, its effective protection presupposes, in principle and in circumstances such as those of the present case, obtaining the consent of the person concerned at the time the picture is taken and not simply if and when it is published. Otherwise an essential attribute of personality would be retained in the hands of a third party and the person concerned would have no control over any subsequent use of that image” [40]. The Court observed that, since he was a minor, the child’s right to protection of his image had been in the hands of his parents. Their consent had not been sought at any point, not even with regard to the keeping of the negatives, to which they objected. The Court noted that the negatives could have been used at a later date against the wishes of those concerned. The Court concluded that the Greek courts had not taken sufficient steps to guarantee the child’s right to protection of his private life, in breach of Article 8. No confidence in iniquity - and no reasonable expectation of privacy either? The ambit of the public interest defence to claims for breach of confidence was summed up in Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109 (“Spycatcher”) by Lord Goff of Chieveley at 282: “The third limiting principle is of far greater importance. It is that, although the basis of the law's protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply, as the learned judge pointed out, to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure. Embraced within this limiting principle is, of course, the so called defence of iniquity. In origin, this principle was narrowly stated, on the basis that a man cannot be made “the confidant of a crime or a fraud”: see Gartside v Outram [1857] 26 LJ Ch 113, 114, per Sir William Page Wood V-C. But it is now clear that the principle extends to matters of which disclosure is required in the public interest: see Beloff v Pressdram Ltd [1973] 1 All ER 241, 260, per Ungoed-Thomas J, and Lion Laboratories Ltd v Evans [1985] QB 526, 550, per Griffiths LJ. It does not however follow that the public interest will in such cases require disclosure to the media, or to the public by the media. There are cases in which a more limited disclosure is all that is required: see Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892. A classic example of a case where limited disclosure is required is a case of alleged iniquity in the Security Service.” Although citation of pre-HRA authorities was deprecated in A v B plc [2003] QB 195, examples of a cases in which disclosure to the world at large has been held to be justified in the public interest, include, in addition to Lion Laboratories Ltd v Evans [1985] QB 526, Initial Services Ltd v Putterill [1968] 1 QB 396, where the Court of 7 Appeal held that the exceptions to the implied obligation of an employee not to disclose information or documents received in confidence extended to any misconduct of such a nature that it ought in the public interest to be disclosed to one who had a proper interest to receive it, which might include the press. Lord Denning MR at 405 (citing Annersley v Anglesea (Earl) [1743] LR 5 QB 317n; 17 State Tr. 1139) explained that exposure of wrongdoing should not be prevented, even if it is in breach of confidence, because “no private obligations can dispense with that universal one which lies on every member of society to discover every design which may be formed contrary to the laws of the society to destroy the public welfare”. In Cream Holdings Ltd v Banerjee [2006] 1 AC 253 the principal events related to tax evasion. Although the case involved a commercial confidence – arguably a “societal interest” rather than a Convention right for the purposes of Article 10(2) – there is no indication that the Courts approached this any differently from an Article 8 right. The House of Lords, reversing the majority decision of the Court of Appeal, agreed with the dissenting judgment of Sedley LJ that these events were clearly matters of serious public interest such that restraint by interim injunction was inappropriate. Reasonable expectation of privacy – examples of factual considerations In Woodward v Hutchins [1977] 1 WLR 760 the Court of Appeal discharged an interim injunction obtained by some popular musicians against their former press relations agent: (1) Bridge LJ expressed the principle in wide terms (at 765): “It seems to me that those who seek and welcome publicity of every kind bearing upon their private lives so long as it shows them in a favourable light are in no position to complain of an invasion of their privacy by publicity which shows them in an unfavourable light.” (2) Lord Denning MR adopted a stricter approach (at 763-764), placing the emphasis on the public interest in correcting a false image if it had been fostered: “If a group of this kind seek publicity which is to their advantage, it seems to me that they cannot complain if a servant or employee of theirs afterwards discloses the truth about them. If the image which they fostered was not a true image, it is in the public interest that it should be corrected. In these cases of confidential information it is a question of balancing the public interest in maintaining the confidence against the public interest in knowing the truth..... In this case the balance comes down in favour of the truth being told, even if it should involve some breach of confidential information. As there should be “truth in advertising”, so there should be truth in publicity. The public should not be misled.” In Theakston v MGN Ltd [2002] EMLR 398 Ouseley J (at [68]) considered that the comments of Lord Denning MR and Bridge LJ applied to the case of a television presenter who had courted publicity as a man sexually attractive to many women, and had not objected to those with whom he had sexual relations discussing publicly 10 However, and especially in privacy cases, the question of whether the material is in the public domain involves careful analysis of (1) the information’s accessibility, and how general it is; (2) the extent to which the information has, or is likely to have been, or continues to be, accessed in consequence of that accessibility; and (3) the extent to which the information can be said to have lost the necessary quality of confidentiality in light of (1) and (2) taking account of, amongst other things, the extent of further harm that may be caused by continued or further publication. The need to adopt a more purposive examination of public domain in order to give effective protection in cases of confidence or privacy has repeatedly been recognised in subsequent cases. Thus, in A v M (Family Proceedings: Publicity) [2000] 1 FLR 562, Charles J held that children would be likely to suffer harm if allegations which had already been made public were repeated, stating at p565: “… the repetition of material that has been place in the public domain can be damaging to a child”. In Venables and Thompson v News Group International [2001] Fam 430, Butler Sloss P continued injunctions for the protection of the identity of Venables and Thompson under the doctrine of the law of confidence, notwithstanding the risks of material becoming public by reason of acts committed outside England and Wales resulting in information being placed on the internet. She imposed a further proviso in the injunctions to protect the special quality of the new identity, appearance and addresses of the claimants or information leading to that identification, even after that information had entered the public domain to the extent that it had been published on the internet, or elsewhere such as outside the UK. She did so on the basis that the injunctions could prevent wider circulation of that information through the newspapers or television or radio. In Re X and Y (Children) [2004] EMLR 607 Munby J gave consideration to whether there was jurisdiction to restrain publication of material in the public domain, concluding at [48]: “There was a certain amount of debate before me as to whether the court also has jurisdiction to restrain the re-publication of information which is already in the public domain. In my judgment the court plainly has jurisdiction to make such an order. That seems to me necessarily to follow from the general principles articulated in Re S”. Munby J then went on in any event to consider the particular meaning of “public domain” in this context, and the distinctions between information that is well-known or currently in the minds of people generally, and that which is merely accessible and the varying factors which will affect the nature of the accessibility of such information. In Green Corns Ltd v Claverley Group Ltd [2005] EMLR 748 Tugendhat J reviewed these and other authorities. Having stated that it was not possible in a case about personal information simply to apply Lord Goff’s test of whether the information is generally accessible, and to conclude that if it is, then that is the end of the matter, he concluded at [81]: “… the information as to the addresses which is sought to be restrained is not in the public domain to the extent, or in the sense, that republication could have no significant effect, or that the information is not eligible for protection at all. The information as to the addresses linked with information as to the business 11 of the applicant and thus to the likely disabilities and other characteristics of the occupants of the addresses brings together matters which together amount to new information which was previously accessible to the public only in a limited and theoretical sense. Publication or republication risks causing serious harm to the children and carers who occupy, or are to occupy, the addresses concerned. The extent to which the material has or is about to become available to the public is not, on the evidence of this case, a reason for withholding the injunction sought.” In Douglas v Hello! Ltd (No 3) at [105] the Court of Appeal said: “In general, however, once information is in the public domain, it will no longer be confidential or entitled to the protection of the law of confidence, though this may not always be true …The same may generally be true of private information of a personal nature. Once intimate personal information about a celebrity’s private life has been widely published it may serve no useful purpose to prohibit further publication. The same will not necessarily be true of photographs. Insofar as a photograph does more than convey information and intrudes on privacy by enabling the viewer to focus on intimate personal detail, there will be a fresh intrusion of privacy when each additional viewer sees the photograph and even when one who has seen a previous publication of the photograph, is confronted by a fresh publication of it.” The correct approach towards balancing competing Convention rights The Court must carry out the parallel analysis mandated by the House of Lords in Re S [2005] 1 AC 593 (Lord Steyn at [17]): “First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.” Accordingly, there are “two key questions which must be answered in a case where the complaint is of the wrongful publication of private information. They are first, whether the information is private in the sense that it is in principle protected by Article 8 (ie such that Article 8 is in principle engaged) and, secondly, if so, whether in all the circumstances the interest of the owner of the information must yield to the right to freedom of expression conferred on the publisher by Article 10” (Murray v Big Pictures Ltd [2008] 3 WLR 1360, Sir Anthony Clarke MR at [27]). As the structure of Articles 8 and 10 of the Convention are the same, the like considerations apply to Article 8(2) as apply to Article 10(2). In this regard, the House of Lords in R v Shayler [2003] 1 AC 247 summarised the approach to be adopted in relation to Article 10 (2) as follows (Lord Bingham at [23]): “It is plain from the language of article 10 (2), and the European Court has repeatedly held, that any national restriction on freedom of expression can be consistent with article 10 (2) only if it is prescribed by law, is directed at one or more of the objectives specified in the article and is shown by the state concerned to be necessary in a 12 democratic society. “Necessary” has been strongly interpreted: it is not synonymous with “indispensable”, neither has it the flexibility of such expressions as “admissible”, “ordinary”, “useful”, “reasonable” or “desirable”: Handyside v United Kingdom (1976) 1 EHRR 734, 754 para 48. One must consider whether the interference complained of corresponded to a pressing social need, whether it is proportionate to the legitimate aim pursued and whether the reasons given by the national authority to justify it are relevant and sufficient under article 10(2): The Sunday Times v United Kingdom (1979) 2 EHRR 245, 277-278 para 62.” Further, in Shayler Lord Hope said at [56]: “The principle of legality requires the court to address itself to three distinct questions. The first is whether there is a legal basis in domestic law for the restriction. The second is whether the law or rule in question is sufficiently accessible to the individual who is affected by the restriction, and sufficiently precise to enable him to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law. The third, is whether, assuming that the these two requirements are satisfied, it is nevertheless open to the criticism on the Convention ground that it was applied in a way that is arbitrary because, for example, it has been resorted to in bad faith or in a way that is not proportionate.” An interference with the right to respect for private life cannot be said to be “necessary in a democratic society” unless: (a) relevant and sufficient reasons are given by the national authority to justify the restriction; (b) the restriction on protection corresponds to a “pressing social need”; and (c) it is proportionate to the legitimate aim pursued. See the decisions of the European Court of Human Rights cited and applied by Lord Bingham in Shayler in the passage cited above. In a concurring speech in Shayler [61], Lord Hope elaborated on the meaning of proportionality in this context and concluded that the following three stage test should be applied: (a) whether the objective to be achieved - the pressing social need - is sufficiently important to justify limiting the fundamental right; (b) whether the means chosen to limit that right are rational, fair and not arbitrary; and (c) whether the means used impair the right as minimally as possible. The same approach can be applied to conflicts with other rights, such as Article 6. The relevance of a confidential relationship As Bingham LJ observed in Spycatcher (at 217H to 218B-C): “In the ordinary case where an employer, principal or other confider sues to restrain the disclosure of confidential information confided in a commercial context, the role of the court is very limited. It will consider whether the information was and remains confidential, whether it was imparted or acquired in circumstances giving rise to a duty of confidence and whether there has been a breach or threatened breach of the duty. If those ingredients of the cause of action are established, and in the absence of an iniquity defence, a restraint on disclosure would ordinarily be imposed unless the confider would be adequately compensated by damages which the other party could pay. There would in such a case be no public interest in favour of disclosure which 15 In Leempoel v Belgium (App. No. 64772/01, 9 November 2006) the Court said: "In matters relating to striking a balance between protecting private life and the freedom of expression that the Court had had to rule upon, it has always emphasised … the requirement that the publication of information, documents or photographs in the press should serve the public interest and make a contribution to the debate of general interest … Whilst the right for the public to be informed, a fundamental right in a democratic society that under particular circumstances may even relate to aspects of the private life of public persons, particularly where political personalities are involved … publications whose sole aim is to satisfy the curiosity of a certain public as to the details of the private life of a person, whatever their fame, should not be regarded as contributing to any debate of general interest to society." In Standard Verlags GmbH v Austria (No 2) (No 21277/05) [2009] ECHR 853 the Court observed at [52]-[53] that even in the case of a public political figure “idle gossip about the state of his or her marriage or alleged extra-marital relationships … does not contribute to any public debate in respect of which the press has to fulfil its role of “public watchdog”, but merely serves to satisfy the curiosity of a certain readership (see, mutatis mutandis, Von Hannover, [65])” and that “while reporting on true facts about a politician's or other public person's private life may be admissible in certain circumstances, even persons known to the public have a legitimate expectation of protection of and respect for their private life”. In the result, the correct balance between competing rights very often depends on the extent to which there is a public interest in the disclosure of private information. See, for example: (1) Lord Hoffmann in Campbell at [56] and [60]:“Take the example I have just given of the ordinary citizen whose attendance at NA is publicised in his local newspaper. The violation of the citizen's autonomy, dignity and self-esteem is plain and obvious. Do the civil and political values which underlie press freedom make it necessary to deny the citizen the right to protect such personal information? Not at all. While there is no contrary public interest recognised and protected by the law, the press is free to publish anything it likes. Subject to the law of defamation, it does not matter how trivial, spiteful or offensive the publication may be. But when press freedom comes into conflict with another interest protected by the law, the question is whether there is a sufficient public interest in that particular publication to justify curtailment of the conflicting right. In the example I have given, there is no public interest whatever in publishing to the world the fact that the citizen has a drug dependency. The freedom to make such a statement weighs little in the balance against the privacy of personal information…The relatively anodyne nature of the additional details is in my opinion important and distinguishes this case from cases in which (for example) there is a public interest in the disclosure of the existence of a sexual relationship (say, between a politician and someone whom she has appointed to public office) but the addition of salacious details or intimate photographs is disproportionate and unacceptable. The latter, even if accompanying a legitimate disclosure of the sexual relationship, would be too intrusive and demeaning.” 16 (2) Jameel (Mohammed) v Wall Street Journal Europe Sprl [2007] 1 AC 359, Baroness Hale at [147]: “The public only have a right to be told if two conditions are fulfilled. First, there must be a real public interest in communicating and receiving the information. This is, as we all know, very different from saying this is information which interests the public - the most vapid tittle-tattle about the activities of footballers’ wives and girlfriends interests large sections of the public but no one could claim any real public interest in our being told all about it.” (3) Mosley v News Group Newspapers Ltd [2008] EMLR 679, Eady J at [131]: “When the courts identify an infringement of a person's Article 8 rights, and in particular in the context of his freedom to conduct his sex life and personal relationships as he wishes, it is right to afford a remedy and to vindicate that right. The only permitted exception is where there is a countervailing public interest which in the particular circumstances is strong enough to outweigh it; that is to say, because one at least of the established "limiting principles" comes into play. Was it necessary and proportionate for the intrusion to take place, for example, in order to expose illegal activity or to prevent the public from being significantly misled by public claims hitherto made by the individual concerned (as with Naomi Campbell's public denials of drug-taking)? Or was it necessary because the information, in the words of the Strasbourg court in Von Hannover at [60] and [76], would make a contribution to "a debate of general interest"? That is, of course, a very high test. It is yet to be determined how far that doctrine will be taken in the courts of this jurisdiction in relation to photography in public places. If taken literally, it would mean a very significant change in what is permitted. It would have a profound effect on the tabloid and celebrity culture to which we have become accustomed in recent years.” Examples of sufficient public interest in the public being informed In London Regional Transport v Mayor of London [2003] EMLR 4 the Court of Appeal held that there was a public interest in enabling the general public (and especially the travelling public in London) to be informed of serious criticism from a responsible source of the value for money evaluation of the proposed public-private partnership involvement in the London Underground; and that this outweighed the preservation of commercial confidentiality in an interim report prepared by a firm of accountants which was based on commercially sensitive and confidential information that had been disclosed by private-sector bidders subject to express confidentiality agreements. An injunction to restrain the publication of a redacted version of that report—which, although interim in form, would in practice have irreversible consequences—was, therefore, refused. In Jockey Club v Buffham [2003] QB 462 Gray J held that questions of the integrity and fairness of bookmaking to the betting public; the relationship of bookmakers to trainers and racing stables; and the effectiveness of the Jockey Club’s regulatory role over the sport and industry of horseracing, were questions of proper and serious interest and concern to the public and, in particular, to the very many hundreds of thousands of people interested in horseracing, very many of whom will place bets from time to time. Accordingly, he ruled that the BBC should be allowed to 17 broadcast information relating to such matters notwithstanding that it had been obtained from a “whistleblower” who divulged it to the BBC in breach of express contractual obligations. Public interest in the public not being misled Where a public person chooses to present a false image and make untrue pronouncements about himself or herself, the press will normally be entitled to put the record straight: see Campbell v MGN Ltd [2003] QB 633 at [43] - cited with approval in the House of Lords at [2004] 2 AC 457, [24] and [82]. This principle is consonant with the public interest considerations that arise in defamation claims, as to which see, for example, Reynolds v Times Newspapers Ltd [2001] 2 AC 127, Lord Nicholls at 201: “Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely”. See also Lord Hobhouse at 238: “There is no human right to disseminate information that is not true. No public interest is served by publishing or communicating misinformation. The working of a democratic society depends on the members of that society, being informed not misinformed. Misleading people and the purveying as facts statements which are not true is destructive of the democratic society and should form no part of such a society. There is no duty to publish what is not true: there is no interest in being misinformed. These are general propositions going far beyond the mere protection of reputations”. Article 8 and the protection of reputation It is now well established that protection of reputation is a right which is covered by the right to respect for private life under Article 8: Lindon v France [2008] 46 EHRR 35 at O-I18, p799; Affaire Radio France v France [2005] 40 EHRR 706 at [31]; Chauvy v France (2005) 41 EHRR 29. In Lindon v France [2008] 46 EHRR 35 in a concurring opinion, Judge Loucaides stated at O-I11, p800:“The main argument in favour of protecting freedom of expression, even in cases of inaccurate defamatory statements, is the encouragement of uninhibited debate on public issues. But the opposite argument is equally strong: the suppression of untrue defamatory statements, apart from protecting the dignity of individuals, discourages false speech and improves the overall quality of public debate through a chilling effect on irresponsible journalism. Moreover, such debates may be suppressed if the potential participants know that they will have no remedy in the event that false defamatory accusations are made against them. The prohibition of defamatory speech also eliminates misinformation in the mass media and effectively protects the right of the public to truthful information. Furthermore, false accusations concerning public officials, including candidates for public office, may drive capable persons away from government service, thus frustrating rather than furthering the political process. The right to reputation, having the same legal status as freedom of speech, as explained above, is entitled to effective protection so 20 defendant's right to freedom of expression (afforded in such a case by the defence of qualified privilege) prevails over the claimant's rights. It is for consideration whether the determination of such conflict between the rights of the parties may require the approach set out for resolving that conflict, in a different context, in Re S [at §17] …” Recovering damages for harm to reputation in a privacy claim In Mosley v News Group Newspapers Ltd [2008] EMLR 679, Eady J accepted that claims for misuse of private information and claims for defamation were analogous in certain respects, such as “it is reasonable to suppose that damages for such an infringement may include distress, hurt feelings and loss of dignity” [216] and “It must be recognised that it may be appropriate to take into account any aggravating conduct in privacy cases on the part of the defendant which increases the hurt to the claimant's feelings or "rubs salt in the wound"” [222]. However, Eady J held that pecuniary compensation for harm to reputation could only be recovered in a claim for defamation, and could not be recovered in a claim for misuse of private information: “Because both libel and breach of privacy are concerned with compensating for infringements of Article 8, there is clearly some scope for analogy. On the other hand, it is important to remember that this case is not directly concerned with compensating for, or vindicating, injury to reputation. The claim was not brought in libel. The distinctive functions of a defamation claim do not arise. The purpose of damages, therefore, must be to address the specific public policy factors in play when there has been "an old fashioned breach of confidence" and/or an unauthorised revelation of personal information. It would seem that the law is concerned to protect such matters as personal dignity, autonomy and integrity” [214]; and “I am conscious naturally that the analogy with defamation can only be pressed so far. I have already emphasised that injury to reputation is not a directly relevant factor, but it is also to be remembered that libel damages can achieve one objective that is impossible in privacy cases. Whereas reputation can be vindicated by an award of damages, in the sense that the claimant can be restored to the esteem in which he was previously held, that is not possible where embarrassing personal information has been released for general publication. As the media are well aware, once privacy has been infringed, the damage is done and the embarrassment is only augmented by pursuing a court action” [230]. It is suggested that this analysis may be open to reconsideration. Once it is recognised that the right to reputation is an Article 8 right, in the event that misuse of private information concerning someone results in harm to that person’s reputation, why should s/he be unable to recover damages to compensate him/her for that harm? An award of general damages to an individual in a defamation claim is traditionally said to perform three functions: to provide consolation for distress and injury to feelings, to repair harm to reputation, and to vindicate reputation. It appears to be accepted that damages in a privacy claim also serve the first of these functions. There appears to be no reason why such damages should not also serve the second purpose - on the basis that the claimant is being compensated for harm to a reputation that 21 s/he deserves to have, not in the sense that what has been published is untrue, but in the sense that what has been published ought never to have been published at all. It would seem ironic if the claimant could not recover damages under the third limb on the reasoning that s/he cannot be restored to the esteem in which s/he was previously held. It may be, however, that the answer is simply to award more generous damages in privacy claims under the first limb, in order to take account of the upset and indignity caused by a loss of reputation that cannot be vindicated by damages. Exemplary damages in claims for misuse of private information The availability of this remedy was also considered, and rejected, by Eady J in the Mosley case. Following a careful analysis of the law at [172]-[194], Eady J summed up and responded to the arguments of the claimant and the defendant, in turn, at [195] “it would be inconsistent to acknowledge the possibility of exemplary damages for libel but not for invasion of privacy, since both causes of action are directed to protecting rights under Article 8. So it may be, but claims for exemplary damages in libel (albeit awards are very rare) have long been recognised. As Lord Reid pointed out, it is a different matter to make an extension by judicial intervention” and at [196] “since a claim for invasion of privacy nowadays involves direct application of Convention values and of Strasbourg jurisprudence as part of English law, that it would be somewhat eccentric to graft on to this Convention jurisprudence an alien anomaly from the common law in the shape of exemplary damages – not apparently familiar in Strasbourg. I agree with that submission”. Eady J then ruled at [197] that “exemplary damages are not admissible in a claim for infringement of privacy, since there is no existing authority (whether statutory or at common law) to justify such an extension and, indeed, it would fail the tests of necessity and proportionality”. It is suggested that this, again, may be open to reconsideration. The categories of causes of action in respect of which exemplary damages may be awarded are not closed (see Kuddus v Chief Constable of Leicestershire [2002] AC 122) – although the ease with which such a remedy could be extended to claims for misuse of private information may depend on whether they are properly regarded as claims in tort. Further, necessity and proportionality cut both ways: the court would only make such an award if it was considered to be necessary and proportionate on the concrete facts of any particular case. A greater objection may be the uncertainty of whether the availability of such a remedy is “sufficiently accessible to the individual who is affected by the restriction, and sufficiently precise to enable him to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law” (see Shayler at [56]), but this would be resolved by a decision on the matter, which would not now have to be by the Court of Appeal. Famous people’s sex lives: from Theakston to Terry via McKennitt and Mosley In Theakston v MGN Ltd [2002] EMLR 398 and A v B plc [2003] QB 195 the Court did not confine itself to considering the type of information which was sought to be protected, and the intrusion which would result from publication of it, and instead attached importance to the transient nature of the sexual relationships. 22 This approach may have been influenced (1) by the consideration that earlier case law recognised confidences rooted in marriage and long term relationships (see Argyll v Argyll [1967] 1 Ch 302, Ungoed-Thomas J at 317G, 322B-D, 329F-334C; Spycatcher, Lord Keith at 255D-256C; Lord Goff @ 281B-282F; and Stephens v Avery [1988] 1 Ch 449, Sir Nicolas Browne-Wilkinson V-C at 454-456) and (2) because participation in the relationships was considered to be “misbehaviour”. The Court of Appeal in McKennitt v Ash [2008] QB 73 appears to have endorsed the first point: “In the preceding paragraph I deliberately and not merely conventionally described the latter as a relationship of casual sex. A could not have thought, and did not say, that when he picked the women up they realised that they were entering into a relationship of confidence with him. Small wonder that Lord Woolf said, A v B at [45]: “Relationships of the sort which A had with C and D are not the categories of relationships which the court should be astute to protect when the other parties to the relationships do not want them to remain confidential” [30]”. It is, perhaps, ironic that the decision in A v B should be said to be correct when tested by reference to traditional breach of confidence considerations, when elsewhere in McKennitt the Court appears to suggest that the decision in A v B is undependable because it did not apply Convention law. This second point is relevant in light of the argument that (1) people like the claimants in those two cases are public figures who can be deemed to be role models and (2) there is a public interest in exposing misbehaviour by such people. Thus Lord Woolf CJ said: “Where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances. A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his actions will be more closely scrutinised by the media. Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media. Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention” [11(xii)]. The statement that “Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media” has been repeatedly criticised as confusing what the public are interested in as a matter of curiosity with what is in the public interest. This may be a misunderstanding, because as the Court of Appeal pointed out in Campbell at [40] “When Lord Woolf CJ spoke of the public having "an understandable and so a legitimate interest in being told" information, even including trivial facts, about a public figure, he was not speaking of private facts which a fair-minded person would consider it offensive to disclose. That is clear from his subsequent commendation of the guidance on striking a balance between article 8 and article 10 rights 25 itself, conclusive of the question whether or not it is in the public interest that it be discouraged. There is no suggestion that the conduct in question in the present case ought to be unlawful, or that any editor would ever suggest that it should be. But in a plural society there will be some who would suggest that it ought to be discouraged. That is why sponsors may be sensitive to the public image of those sportspersons whom they pay to promote their products. Freedom to live as one chooses is one of the most valuable freedoms. But so is the freedom to criticise (within the limits of the law) the conduct of other members of society as being socially harmful, or wrong. Both the law, and what are, and are not, acceptable standards of lawful behaviour have changed very considerably over the years, particularly in the last half century or so. During that time these changes (or, as many people would say, this progress) have been achieved as a result of public discussion and criticism of those engaged in what were, at the time, lawful activities. The modern concept of public opinion emerged with the production of relatively cheap newspapers in the seventeenth century. Before that there was no medium through which public debate could be conducted. It is as a result of public discussion and debate, that public opinion develops”. It is suggested that this is a serious point, and one that is more straightforward than arguments based on the concept of role models. Perhaps, however, the difficulty is to know its limits. Without criticism and debate about the conduct of other members of society, that conduct is likely to go unchecked; and that may not be in the public interest; and it may not be possible to have a debate which is either informed or which catches public attention without naming individuals. But what degree of sacrifice of the privacy interests of those individuals is necessary and proportionate for these purposes? And what about other public interests which may be positively damaged by that debate or by the manner in which it is conducted? For example, if footballers and television presenters are to be exposed to criticism in this fashion, the same must also (presumably) apply to politicians and judges: but will that benefit the public by improving standards of behaviour or harm it by driving talent away? The importance of injunctions in this area of the law Where Article 10 is engaged, section 12 of the Human Rights Act 1998 applies. This includes the following: “12. - (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression… (3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. (4) The court must have particular regard to the importance of the Convention right to freedom of expression 26 and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to- (a) the extent to which- (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code.” As to section 12(3), the correct approach appears from decision of the House of Lords in Cream Holdings Ltd v Banerjee [2005] 1 AC 253, Lord Nicholls at [22]-[23]: “… section 12(3) makes the likelihood of success at the trial an essential element in the court's consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success 'sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ('more likely than not') succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.” There are two main reasons in practice why many privacy cases never progress beyond the injunction stage: (1) for the claimant, an injunction is often the only effective remedy; conversely, for a defendant, if an injunction is granted that is often effectively determinative of the matter, as few stories are of sufficient interest and importance to be worth publishing months later and/or to justify the expenditure of trial costs; and (2) because the test at the interim stage involves an appraisal of the merits, it may be taken by the parties as a good indication of the likely result at trial. 27 The legal framework of privacy injunctions Injunction against persons unknown The basis for claiming this form of relief is Bloomsbury Publishing Group Ltd & Anr v News Group Newspapers Ltd & Ors [2003] 1 WLR 163, in which an Order was sought against “the person or persons who have offered the publishers of 'The Sun', the 'Daily Mail', and the 'Daily Mirror' newspapers a copy of the book Harry Potter and the Order of the Phoenix by J K Rowling or any part thereof and the person or persons who has or have physical possession of a copy of the said book or any part thereof without the consent of the claimants”. The Chancellor decided that he had jurisdiction to make such an order and that it was appropriate to do so on the facts of that case. Those facts involved a need to prevent – for a short time, and until the book reached the general public by lawful means - the contents of the fifth book in the Harry Potter series from being sold and revealed to the public by one or more of a number of individuals who could not be identified (the Second Defendant(s)) who appeared to have been involved in stealing a copy from the publishers or dealing with such a copy. The judgment records (at [17]) the submission of Counsel for the Claimants that “an order in the form sought cannot cause confusion because anyone to whom it is shown will know immediately whether or not it is descriptive of and therefore directed to him or her”, and at [21] the Chancellor said that “The crucial point … is that the description used must be sufficiently certain as to identify both those who are included and those who are not”. Private hearing Although the general rule is that a hearing is to be in public, the Court has express power to order that a hearing, or part of it, may be in private if (among other things) (i) publicity would defeat the object of the hearing or (ii) it involves confidential information and publicity would damage that confidentiality or (iii) the Court considers this to be necessary in the interests of justice: see CPR 39.2(3)(a), (c) and (g). Anonymity The Court has jurisdiction to make an Order for anonymity in accordance with section 11 of the Contempt of Court Act 1981 and CPR 39.2(4) – and see, also, CPR 5.4 - and under the inherent jurisdiction. Such an Order is often argued to go together with a substantive injunction seeking (a) the protection of private information and (b) prevention of publicity concerning the existence of the proceedings and the claimant’s interest in them (sought on the basis that to allow such publicity would encourage speculation about the subject matter of the action, which would be intrusive in itself and may well light on the very class of secret which actually exists). If anonymity is not ordered, the fact that the claimant has had to seek relief against the defendants may become a story in its own right and/or lead to speculation as to what secrets the claimant has been concerned to protect. It is typically argued that it would be unfair to the claimant that, as the price of protecting information s/he is entitled to protect, s/he should be exposed to invasive speculation of this sort. 30 exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice.” It is apparent from R v Legal Aid Board ex p Kaim Todner [1999] QB 966 that an exception to the open justice rule is justified only if it is necessary in the interests of justice: see per Lord Woolf MR at 976H, delivering the judgment of the Court. The Court said (at 977E): “The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public's confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties' or witnesses' identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve.” In Ex p Guardian Newspapers Limited [1999] 1 WLR 2130 the Court of Appeal adopted “as our own” the following proposition put forward by Mr Michael Tugendhat QC (as he then was) (see [25], [39]): “Mr. Tugendhat submitted that the first of the reasons given in Ex parte Kaim Todner [1999] Q.B. 966, 977 should be stated more broadly. Open justice promotes the rule of law. Citizens of all ranks in a democracy must be subject to transparent legal restraint, especially those holding judicial or executive offices. Publicity, whether in the courts, the press, or both, is a powerful deterrent to abuse of power and improper behaviour.” Injunctions sought without notice In accordance with section 12 (2) of the Human Rights Act 1998: “If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied— (a) that the applicant has taken all practicable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified”. This accords with general principles as to the circumstances in which it is legitimate to seek an order without notice. The position is the same under CPR 25.3. 31 The Practice Direction to CPR 25 CPR PD 25 §9 provides: "9.1The following provisions apply to orders which will affect a person other than the applicant or respondent, who: (1) did not attend the hearing at which the order was made; and (2) is served with the order. 9.2 Where such a person served with the order requests – (1) a copy of any materials read by the judge, including material prepared after the hearing at the direction of the judge or in compliance with the order; or (2) a note of the hearing, the applicant, or his legal representative, must comply promptly with the request, unless the court orders otherwise". In keeping with the decision of Eady J in X v Persons Unknown [2007] EMLR 290 at [18]: “where a litigant intends to serve a prohibitory injunction upon one or more [media publishers], in reliance on the Spycatcher principle, those individual publishers should be given a realistic opportunity to be heard on the appropriateness or otherwise of granting the injunction, and on the scope of its terms”. However, it appears that this is limited to other publishers within the jurisdiction who the claimant knows to have a specific interest in the story: see WER v REW [2009] EMLR 304 at [18]. The debate about “super-injunctions” It is against this background that claimants apply for, and not infrequently obtain, injunctions which have some or all of the following features: (1) they are sought without notice to anyone (for example, because the defendant is a “person unknown”, or because s/he is said to be likely to frustrate the order if given notice); (2) the injunction is served on media third parties with the intention of binding them in accordance with the “Spycatcher” principle; (3) not only are the proceedings brought in an anonymised form, but the injunction restrains publication of both specified information and, in addition, “the existence of these proceedings and the claimant’s interest in them”; (4) CPR PD §9 is disapplied by “ordering otherwise”. It is entirely understandable that the media should strongly protest against such orders, which appear to run counter to elementary principles of fairness and open justice. On the other hand, claimants may have genuine reasons for seeking such orders, to the extent that if some or all of the above protections are not available they may not seek relief at all. For example, (1) to give prior notice to potential media 32 third parties may risk (a) secrets that are sought to be protected being made known to those who do not already know of them and/or (b) the damage being done before any order can be obtained and/or (c) considerable exposure to costs; (2) to allow publication of the claimant’s interest in the proceedings, or possibly even of the fact of the proceedings themselves, may give rise to speculation and further intrusion; and (3) serving papers in accordance with CPR PD §9 may give rise to serious invasion of the claimant’s privacy and/or a risk of use or publication of the secret(s). One particular feature of the debate is the impact which such orders may have on reporting proceedings in Parliament. However, any exception which allows such reporting also presents problems for the claimant, and, indeed, is open to abuse. Amendments to the Family Proceedings Rules For a general discussion, see Spencer v Spencer [2009] EMLR 469; Re Child X (Residence and Contact – Rights of media attendance – FPR Rule 10.28(4)) [2009] EMLR 489. Rule 10.28(4) of the FPR, which forms part of Rule 10.28 which came into force on 27 April 2009, does not contain any wording which allows the Court to direct that the media should be excluded on the grounds that the Article 8 interests of the parties (as opposed to those of the child) so require. It would therefore appear that, in this context, the Article 8 interests of adult parties can only be relied upon as a basis for seeking exclusion of the media if the presence of the media has such an impact on their Article 8 rights that “justice will otherwise be impeded or obstructed”. See Re X at [45}: “Put in terms of the Convention, the position seems to me to be as follows. The restrictions i.e. the grounds for exclusion under Rule 10.28 (4) are in broad terms Article 6 compliant. Paragraph (a) (i) is within the legitimate aim of protecting the interests of juveniles and grounds (a) (ii) (iii) and (b) are legitimised under the heading of "special circumstances where publicity would prejudice the interests of justice". It is to be noted in passing that nothing is included in the Rule to provide for exclusion of the press where the Article 8 interests of the parties (as opposed to those of the child) so require. However, one can envisage a situation where a ground for exclusion, at least for part of the proceedings, might be required to protect the Article 8 interests of the parties which could properly justify exclusion of the media under ground (b) to prevent the press from hearing and/or reporting allegations of an outrageous or intimate nature before the Court's decision as to whether or not they were established. This might well constitute a serious and irredeemable invasion of the privacy and/or family life of an adult party if the press were not excluded.” Privacy and data protection The Data Protection Act 1998 (“the DPA”) replaces the Data Protection Act 1984. It was passed to give effect to Council Directive 95/46/EC (“the Directive”) and largely follows the format of the Directive. Foremost among the aims of the Directive is the protection of individuals as a consequence of the processing of their personal data, 35 According to article F paragraph 2 of the Treaty on European Union the Union shall respect fundamental rights as guaranteed by the ECHR and the constitutional traditions common to the Member States. The Community legislator has acknowledged the particular case of the media and the need to strike a balance between protection of privacy and protection of freedom of expression. Art. 19 of the original Commission proposal provided that Member States might grant derogations from the provisions of the directive in favour of the press and the audiovisual media. The explanatory report made it clear that the key feature of this article is the obligation to balance the interests involved and that this balance may take into account the availability of other remedies or of a right of reply, the existence of a code of professional ethics, the limits laid down by the ECHR and the general principles of law. Article 9 of the Commission’s modified proposal made the granting of derogations for the media mandatory. The text was also modified as to include journalists and in order to limit the derogations to journalistic activities. The article was further modified to its current drafting so that derogations may not apply indiscriminately to all the data protection provisions. Under the current text the derogations are indeed mandatory but ‘only if they are necessary’ meaning that the derogations to each specific principle of the directive must be granted only in so far (French “dans la seule mesure où” German “nur insofern vor, als sich dies als notwendig erweist”) as it is necessary to strike a balance between privacy and freedom of expression… 3. CONCLUSIONS … • Derogations and exemptions under Article 9 must follow the principle of proportionality. Derogations and exceptions must be granted only in relation to the provisions likely to jeopardise freedom of expression and only in so far as necessary for the effective exercise of that right while maintaining a balance with the right to privacy of the data subject. … • Article 9 of the directive respects the right of individuals to freedom of expression. Derogations and exemptions under article 9 cannot be granted to the media or to journalists as such, but only to anybody processing data for journalistic purposes. … • The directive requires a balance to be struck between two fundamental freedoms. In order to evaluate whether limitations of the rights and obligations flowing from the directive are proportionate to the aim of protecting freedom of expression particular attention should be paid to the specific guarantees enjoyed by the individuals in relation to the Media. Limits to the right of access and rectification prior to publication could be proportionate only in so far as individuals enjoy the right to reply or obtain rectification of false information after publication. • Individuals are in any case entitled to adequate forms of redress in case of violation of their rights. In evaluating whether exemptions or derogations are proportionate, attention must be paid to the existing ethic[s] and professional obligations of journalists as well as to the self- regulatory forms of supervision provided by the profession.” 36 Moreover, in accordance with section 3 of the Human Rights Act 1998, section 32 of the DPA has to be construed so far as it is possible to do so in a way which is compatible with relevant Convention rights, for example the claimant’s Article 8 rights, the defendant’s Article 10 rights, and both parties’ Article 6 rights. In accordance with section 6 of the Human Rights Act 1998, it is unlawful for the Court to act incompatibly with any of those Convention rights. It is arguable that “journalism” for the purposes of section 32 should be construed, in accordance with Article 9 of the Directive and the Strasbourg jurisprudence which shaped the genesis of that provision3 as ‘informative public interest journalism’.4 In Mosley v News Group Newspapers Ltd [2008] EMLR 679, Eady J raised the question of whether the reasonable belief of the journalist may be relevant to a defence of public interest. He answered that question in the negative on the existing state of the law, but went on to consider the facts on the alternative basis that the reasonable belief of the journalist was relevant, in case the issue was raised on appeal [135ff]. In John Terry (previously referred to as “LNS”) v Persons Unknown [2010] EWHC 119 (QB), Tugendhat J alluded to this point, without deciding it, saying that further provisions which may be relevant in this context are the PCC Code (Public Interest, §3) and, where the DPA might apply, s32(1)(b) and 55(2)(d) of the DPA [72]. 4-5, Gray’s Inn Square, Gray’s Inn. 2 March 2010 3 See Sunday Times v United Kingdom (1979) 2 EHRR 245, 280-281 at §§65-66; Goodwin v United Kingdom (1996) 22 EHRR 123, 143 at §39, both of which are cited by the European Commission Working Party on the Protection of Individuals with regard to the Processing of Personal Data in relation to its analysis of ‘Freedom of expression and the protection of privacy’ in §2.1 of Recommendation 1/97. Now also see the observations of the European Court of Human Rights in Von Hannover at §§63-66: “The Court considers that a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society…and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of “watchdog” in a democracy by contributing to “impart[ing] information and ideas on matters of public interest” it does not do so in the latter case…As in other similar cases it has examined, the Court considers that the publication of the photos and articles in question, of which the sole purpose was to satisfy the curiosity of a particular readership regarding the details of the applicant’s private life, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public. In these conditions freedom of expression calls for a narrower interpretation.” 4 The court is well used to distinguishing between what is in the public interest and what the public or some section of it may be interested in: see e.g. Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892, 898A-B per Sir John Donaldson MR; Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359, at §49 per Lord Hoffmann.