The changing face of protection for individual privacy against the press: Leveson, the Royal Charter and tort liability

Abstract

This article evaluates two significant methods of protecting private information in the UK – via actions under the tort of misuse of private information, and via press regulation. As the Leveson Report has recently found, parts of the press have systematically abused their power, in terms of acquiring and publishing personal information non-consensually. Thus, as the Report found, it appears that the system of press self-regulation has been shown to be ineffective. The article considers the Leveson proposals for an improved system of press regulation and the current proposal of a Royal Charter. It suggests that, ideally, press regulation could work alongside the tort, tending to encourage press restraint, obviate the need for court action, and providing a remedy for those not willing or able, due to lack of resources, to go to court to seek a remedy for privacy invasion. The history of press self-regulation indicates that those results may not be achieved, but it will be argued that the current response to the Leveson Report in the form of a Royal Charter suggests otherwise.

Keywords:

• privacy
• Leveson Report
• Article 8
• tortious liability

Notes

1. Eight out of 10 people in the UK had access to the internet in the first quarter of 2012. Average time online per month per internet user stood at 23.5 hours for 2011. Two thirds of internet users have accessed Facebook. Social networking sites are increasingly being used to navigate online; Facebook generates almost a quarter of all referred traffic to YouTube (23.7%) in contrast to Google's 32.3%. Tablet ownership has jumped from 2% to 11% in 12 months (figures from Ofcom Communication Market Report 2012, 18 July 2012 at p 6–7; see at http://stakeholders.ofcom.org.uk/binaries/research/cmr/cmr12/CMR_UK_2012.pdf [last accessed 15 March 2013]).

2. Judicial Office ‘Practice Guidance: The use of live text-based forms of communication (including Twitter) from court for the purposes of fair and accurate reporting’ Guidance from the Lord Chief Justice for England and Wales, 14 December 2011; see at http://www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/ltbc-guidance-dec-2011.pdf [last accessed 15 April 2013.]

3. The current version of Ofcom's Broadcasting Code covers all programmes broadcast on or after 21 March 2013. Broadcasts before that date are regulated under the previous version, section 8. The Code Guidance can be found here: http://stakeholders.ofcom.org.uk/broadcasting/guidance/programme-guidance/bguidance/ [last accessed 15.04.13.]

4. Communications Act 2003 s3(1)(a).

5. The Communications Green Paper 2012 has been dropped by the Culture Secretary, Jeremy Hunt, in favour of a series of policy seminars, with a view to publication of a White Paper later in 2013.

6. ‘The right to privacy’ (1890) IV(5) Harvard Law Review 193, p 196.

7. ‘A nation of voyeurs is not a pretty sight’ The Independent, 25 April 1996; see at http://www.independent.co.uk/voices/a-nation-of-voyeurs-is-not-a-pretty-sight-1306693.html [last accessed 14 April 2013]. In a conference speech, the editor of The Guardian, Alan Russbridger, listed a string of recent examples in which newspapers had published intimate details about the personal lives of celebrities, in some cases surreptitiously obtained, with either no or the flimsiest of ‘public interest’ justifications (‘Human Rights, Privacy and the Media’, organised by the Constitution Unit, and the Centre for Communication and Information Law, UCL, 8 January 1999).

8. See ‘Fourth Report of the National Heritage Select Committee on Privacy and Media Intrusion Minutes of Evidence,’ Appendix 24 HC 294-II (1993).

9. The Commission has currently been disbanded.

10. See dicta of Laws J in Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804, p 807; Francome v Mirror Group Newspapers [1984] 1 WLR 892, in which the Court of Appeal recognised (in effect) a right to privacy in telephone conversations; Stephens v Avery [1988] Ch 449; dicta of Lord Keith in AG v Guardian Newspapers (No 2) [1990] 1 AC 109, p 255, ‘The right to personal privacy is clearly one which the law [of confidence] should seek to protect’. In the decision in Dept of Health ex p Source Informatics Ltd [2001] 2 WLR 953; (2000) The Times, 21 January, Simon Brown LJ stated clearly that in cases involving personal information, ‘The concern of the law [of confidence] is to protect the confider's personal privacy’. In R v Khan [1997] AC 558, Lords Browne-Wilkinson, Slynn and Nicholls left open the question whether English law already recognised a right to privacy.

11. The Younger Committee (Report of the Committee on Privacy, Cmnd 5012, 1972, Calcutt Committee on Privacy and Related Matters, hereafter The Calcutt Report (Cmnd 1102, 1990), Review of Press Self Regulation (Cm 2135), Fourth Report of the National Heritage Select Committee in 1993, HC 294-II (1993), all proposed the introduction of statutory measures to protect privacy, as did the Lord Chancellor's Green Paper of the same year (CHAN J060915NJ.7/93).

12. Such fear was clearly evident during the passage of the HRA itself. In response to the press outcry over the possibility that the Act would create a right to privacy, the Government introduced a specific amendment in favour of press freedom (HRA, s 12, discussed below), and repeatedly and explicitly sought to reassure the press during the Bill's debate. As Lord Ackner put it, the Lord Chancellor devoted ‘a very large part of his [second reading] speech … to trying to pour oil on ruffled waters.’ (HL Deb Col 473, 18 November 1997). In fact, bearing in mind the effect of s 12(4)(b), discussed below, the government may have deceived the press as to the impact that s 12 was actually likely to have. For an example of blanket hostility from the press' representative body – the Newspaper Society – to the possible development of any privacy law in the UK, see S. Rasaiah. 1998. Current legislation, privacy and the media in the UK. Communications Law 3, no. 5:183.

13. [2004] 2 AC 457, paras 22,135.

14. At [94] and [95].

15. (App no 59320/00) (2005) 40 EHRR 1; [2004] E.M.L.R. 21.

16. At [53].

17. Baroness Hale referred (at [154]) in Campbell to Ms Campbell being photographed while popping out to buy the milk – as an example of an activity that would not be deemed ‘private’.

18. [2006] All ER (D) 335.

19. [2006] EWCA CIV 1714.

20. (2006, Oxford: Oxford University Press), at p 764.

21. Foster, S. 2007. Protecting privacy from press intrusion: redefining private life and the public right to know. Cov LJ 12, no. 1: 42–43.

22. [2008] EWCA Civ. 446.

23. At [18].

24. At [55].

25. At [55] to [59].

26. [2010] EWHC 119; [2010] EMLR 16.

27. This referenced the Murray case at [24], [36], [52].

28. At [55].

29. [2011] EWHC 2454.

30. [2012] All ER (D) 178 (Jan); [2011] EWHC 3454.

31. Campbell v Mirror Group Newspapers Ltd [2004] 2 All ER 995 considered; S (a child) (identification: restriction on publication), Re [2004] 4 All ER 683 considered; Murray v Big Pictures (UK) Ltd [2009] Ch 481 were considered.

32. [2005] EWCA Civ 595, [2006] QB 125.

33. At [105].

34. (App no 39954/08).

35. At [101].

36. At [64].

37. At [76].

38. At [117] per Lord Hope.

39. At [148]–[49].

40. At [117] per Lord Hope, at [29] per Lord Nicholls, at [149] per Lady Hale.

41. Douglas and others v Hello! Ltd and others (No. 3) [2005] EWCA Civ 595, [2006] QB 125.

42. [2008] EWHC 1777 .

43. [2001] 2 AC 127.

44. At [154].

45. Terry (previously ‘LNS’) v Persons Unknown [2010] EWHC 119; [2010] EMLR 16.

46. At [104].

47. (2012) (App nos. 40660/08 and 60641/08) Grand Chamber.

48. At [107].

49. At [109].

50. At [115].

51. At [116] and [126].

52. (2012) (App no 39954/08).

53. Para 99.

54. [2012] EWHC 355.

55. Paras 83-89.

56. Para 72.

57. [2012] EWHC 2103; [2013] E.M.L.R. 2; [2012] H.R.L.R. 31.

58. At paras 113-122.

59. [2005] 1 AC 253; see also H. Fenwick and G. Phillipson. 2006. Media freedom under the Human Rights Act, 153–157. Oxford: Oxford University Press.

60. See for example Max Mosley v. News Group Newspapers Limited [2008] EWHC 1777 at [230] and Mosley v United Kingdom (App no 48009/08) judgment of 10 May 2011.

61. [2011] EWHC 1326.

62. ‘Twitter could block super injunction Tweets’ Telegraph, 30 January 2012; see at http://www.telegraph.co.uk/technology/twitter/9050047/Twitter-could-block-super-injunction-tweets.html [last accessed 14 April 2013].

63. See further Eady, D. 2010. Injunctions and the protection of privacy. CJQ 29, no. 4: 411–427.

64. [2008] EWHC 1777.

65. But see now Mirror Group Newspapers Ltd v United Kingdom (39401/04) 18 January 2011 which may lead to changes in determinations as to costs.

66. [2012] EWHC 2103; [2013] E.M.L.R. 2; [2012] H.R.L.R. 31.

67. At paras 123–127.

68. At para.131.

69. [2012] EWHC 355.

70. The Court took account of Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 A.C. 457 and Mosley v United Kingdom (48009/08) [2012] E.M.L.R. 1 (paras 109-114)

71. Campbell v MGN [2003] 2 WLR 80 (para 166).

72. Para 169.

73. Press Council. 1987. The press and the people, 241. London: Press Council.

74. See further Levy, H. 1967. The press council: history procedure and cases. New York: Macmillan.

75. The Committee considered the need for legal curbs on the press; it recommended the introduction of a tort of disclosure of information unlawfully acquired and a tort and crime of unlawful surveillance by means of a technical device. See ‘Report of the Committee on Privacy’ (Younger Committee) Cmnd 5012, June 1972.

76. [1991] FSR 62.

77. ‘Report of the Committee on Privacy and Related Matters’, Cm 1102, 1990 (Calcutt Report); for comment see Munro, C. 1991. Press freedom – how the beast was tamed. MLR 54: 104.

78. See para 41 Leveson, executive summary.

79. The Secretary of State has power to designate the Code by order for the purposes of the sub-section, under s 32(3)(b).

80. For example, in 2005, the Commission received 228 complaints about privacy from those directly affected by an alleged breach of the Code, a small increase on the 2004 figure. Of these, the Commission found 119 possible breaches of the Code, of which it successfully resolved 97 to the express satisfaction of the complainant. It obtained proportionate offers to resolve the matter in 17 more, which were not immediately accepted by the complainant, and adjudicated on 18 (figures from PCC. 2005. Annual Report for 2005. London: PCC).

81. See PCC Report No 43. London: PCC, 1998, paras 3.0–3.2.

82. Complaint by a well-known entertainer, complaint dated 16 July 2000 referred to in PCC. 2000. Annual Report 2000. London: PCC.

83. Complaint of Mrs Renate John, adjudication, 2000.

84. PCC. 2006. Report 73. London: PCC. Adjudication on 28 April 2006, as regards Mark Kisby (below).

85. Adjudication issued 23 June 2006 as regards such a picture of a child.

86. PCC. 1999. Press Complaints Report. London: PCC. Complaint upheld: 17 July 1999.

87. ‘Report of the Committee on Privacy and Related Matters’, Cm 1102, 1990 (Calcutt Report); for comment see Munro, C. 1991. Press freedom – how the beast was tamed. MLR 54: 104.

88. ‘Privacy and Media Intrusion’, Fourth Report, HC 291-1 (1993).

89. Privacy and Media Intrusion, Cm 2918, 1995.

90. Leveson Committee ‘An inquiry into the culture, practices and ethics of the press’ (Executive summary and recommendations) HC 779, 29 November 2012. See at http://www.levesoninquiry.org.uk/ [last accessed 14 April 203]. The report has been published at: http://www.officialdocuments.gov.uk/document/hc1213/hc07/0780/0780.asp [last accessed 14 April 2013].

91. Leveson Enquiry Draft Criteria for a Regulatory Solution 1. (a) – (d) 12 June 2011; see at www.levesoninquiry.org.uk. [last accessed 14 April 2013].

92. See Executive Summary, para 6. (References to para numbers below and recommendations are to the summary.)

93. Para 7.

94. Paras 57, 58.

95. Para 71.

96. Para 42.

97. Recommendations 1-3.

98. Para 23.

99. Leveson summary, para 51.

100. Para 56.

101. Paras 68, 69.

102. Recommendation 7.

103. Para 62.

104. Para 36.

105. Para 43.

106. (1998) 25 EHRR CD 105.

107. Airey v Ireland (1979) 2 EHRR 305, p 314.

108. (2003) 36 EHRR 41.

109. Op cit, at [109].

110. Recommendation 19.

111. Para 44.

112. See Calcutt Report 77 above.

113. Draft of 18 March 2013; see at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/142808/18_March_2013_v6_Draft_Royal_Charter.pdf. [last accessed 15 April 2013].

114. The Leveson recommendations are set out as a set of rules which the resulting draft Charter basically follows, apart from certain important changes. See: LJ Leveson ‘An enquiry into the Culture, Practices and Ethics of the Press’ HC 780 (1) November, 2012; see full report at http://www.official-documents.gov.uk/document/hc1213/hc07/0780/0780_i.pdf; see executive summary at http://www.official-documents.gov.uk/document/hc1213/hc07/0779/0779.pdf. The paragraph numbers in brackets in the text refer to paras in the Leveson report.

115. Media Standards Trust ‘Royal Charter vs Leveson’ 21.03.13; see at http://mediastandardstrust.org/mst-news/royal-charter-vs-leveson/ [last accessed 14 April 2013].

116. Leveson Enquiry Full Report Vol IV Part J Ch 3 Para 5.12; see at http://www.official-documents.gov.uk/document/hc1213/hc07/0780/0780_iv.pdf took account of para 134 Joint Committee on Privacy and Injunctions 2010-12 Report HC 1443 HL 273.

117. Para 72.

118. Moved by Lord McNally. Hansard Vol 744 Pt 131 Col 847, 25 March 2012.

119. See para 134 Joint Committee on Privacy and Injunctions 2010-12 Report HC 1443 HL 273.

120. Scheduled for the May 2013 meeting of the PC.

121. Moosavian, R. 2012. Charting the journey from confidence to the new methodology. EIPR 34, no. 5: 324, at p 329.

122. H. Fenwick ‘An Appeasement Approach in the European Court of Human Rights?’ UK constitutional Law Blog, 5 April 2012; see at http://ukconstitutionallaw.org.

123. A comparison may be drawn with Canada; see: Craig, J.D.R. 1007. Invasion of privacy and charter values: the common-law tort awakens. McGill Law Journal 42: 355.

124. See further Anderson, D. The failure of American privacy law. In B. Markesenis (ed) Protecting privacy.

125. Emerson, C. 1979. The right of privacy and the freedom of the press. Harvard Civil Rights – Civil Liberties Law Review 14, no. 2: 329.

126. BGH 19 December 1995 BGHZ 131, 322–46.

127. Phillipson, G. 2003. Transforming breach of confidence? MLR 66, no. 5: 726, 756.

128. Para 11.

129. Para 20.