Privacy-confidentiality in England: courts don't go West in high-profile cases; England proposes to avoid pitfalls of a privacy law through strengthening the law of confidentiality and a new human rights law protecting private information.

• Author: Lamont, Duncan

In October 2002, the law of privacy in England, if there ever was one, appeared to come to an abrupt halt in Campbell v. Mirror Group Newspapers plc. (1) Despite earlier successful claims for privacy in cases that settled before trial, the Court of Appeal in Campbell analysed and deconstructed legal arguments advanced for the existence of a tort of privacy and under the Data Protection Act 1998 and the House of Lords decision in Wainwright v. Home Office. (2) The Court of Appeal's judgment suggested that British privacy law was dead and buried, to the relief of newspaper editors.

But it was not to be as simple as that. Naomi Campbell won her appeal in the House of Lords. The law of confidentiality has been extended, and only time will tell if freedom of expression becomes the loser. Perhaps the media have overlooked the need to maintain journalistic standards in its initial relief. Private information is now protectable and financially may be worth protecting--just. There is confusion amongst media lawyers trying to protect publishers. How did this come to pass?

PRIVACY NOT NEW

Privacy is not new to the law in England. In 1351, a law against eavesdropping was introduced, and it remained on the statute books, long since forgotten, until it was repealed in 1967. In 1939, with storm clouds of war brewing across Europe, a committee of the great and the good met to see if they could draw up a bill on universal human rights, including privacy provisions. Members of the committee included authors H.G. Wells, George Orwell and A.A. Milne. Alas, World War II intervened.

Problems had previously arisen before modern newspapers emerged. In 1848, Prince Albert, the consort to Queen Victoria, started the ball rolling. The queen and her husband amused themselves by making private etchings and drawings--this in a pre-photographic age--which were kept secret at Windsor Castle and shown only to close friends. Prince Albert decided to send the etchings to printers to make copies, and a sneaky workman took copies. These found their way to the defendant, a Mr. Strange, who put them in a catalogue and sought to exhibit them. Prince Albert went to his wife's courts to stop publication. (3)

Another possible remedy was the law of copyright, which was already very advanced in England at that time, but the courts relied instead on a principle of protecting privacy and providing relief against "a sordid spying into the privacy of domestic life." The judge granted an injunction against both the catalogue and the exhibition. The court was impressed by the need to control one's possessions and enjoy them, a pleasure heightened because they are not seen or available to others.

Shortly afterwards, the philosopher John Stuart Mill declared in On Liberty (1859) that free speech underpinned freedom. But Mill also recognised that "the liberty of the individual must be thus far limited; he must not make a nuisance of himself to other people." But for the next century privacy was an issue debated by writers rather than lawyers.

ENTER: 20TH CENTURY

For a long time the media behaved themselves, at least in the eyes of Parliament, but technological advances began to affect the status quo. The arrival of mass market tabloid newspapers and magazines, as well as the paparazzi who took unwanted and sometimes intrusive pictures with telephoto lenses, began a collision course between the press and the judiciary.

In 1977, Lord Bernstein, a successful businessman and media magnate, was unsuccessful when he tried to claim an injunction to stop aerial photography of his house and grounds. An enterprising pilot had flown over the grounds of rich houseowners taking photographs he then sought to sell to them. Many were happy to buy the surprisingly high-quality photographs, but Lord Bernstein was outraged that someone had flown several hundred feet above this land and photographed it. He thought that this raised issues of privacy and his security, which could be imperiled (he claimed). But the court held that there was no general right to stop the taking of the photographs. (4)

It was 20th century American law that began to give ordinary people in the United States a right to protect themselves against unreasonable intrusion on their privacy. (5) But these new developments passed the United Kingdom by, and things came to a head only in 1991 when a particularly sleazy Sunday tabloid published what its editor described as a "good old-fashioned scoop." One of its reporters inveigled his way into a celebrity's hospital room as the actor was beginning to awaken after major surgery, in no position to complain or really do more than just ramble. The disorientated patient was photographed, and his disjointed comments presented as a world exclusive.

All three judges in the Court of Appeal complained about the unsatisfactory condition of English law, but they held that there was no direct remedy for this "monstrous invasion of privacy." (6) The judges pointed to the absence of a privacy law and the lack of libel protection, and they concluded that under the law against prior restraint, no injunction can be granted when a newspaper stands by its story.

By 2000, help was at hand, as the Human Rights Act of 1998 had been implemented. This brought the European Convention for the Protection of Human Rights and Fundamental Freedoms into English law. Article 8 of the convention, entitled "Right to Respect for Private and Family Life," provides:

Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. But along with Article 8 came Article 10, entitled "Freedom of Expression," which states:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority or impartiality of the judiciary.

The belated arrival of Article 8 appeared to have had an immediate effect. Photographs taken with a telephoto lens of a celebrity actress in a private garden were subject to an injunction, and the newspaper, rather than face trial, paid up 40,000 [pounds sterling], plus costs estimated at over 100,000[pounds sterling]. (7)

ENTER: NAOMI CAMPBELL

Early in 2002, the Queen of the Catwalk, Supermodel Naomi Campbell, took particular offence when she was...