Right to private life is guaranteed under Article 8 of the ECHR. It expressly protects, individual’s right to private life, his home, correspondence and other private life matters. It is not a mere private and family right but a right which guarantees an individual’s privacy, for instance, it also prevents disclosure of confidential information, be it a public figure of a common citizen. It is a qualified right; therefore, it can be restrained in certain conditions. The restriction will only be valid if it is necessary in a democratic society, prescribed by law due to national security, for public safety, for the determent of crime, for the safeguard of health and morals or for the protection of the rights and freedom of others.
The above-mentioned right is one of the most basic rights of free societies, hence, in UK, it is given greater importance. Notwithstanding, ECHR being an international treaty does not have direct effect in the UK domestic law, hence, the courts in UK until 1998 only pay a mere heed to the Strasbourg Court decisions, but after ECHR being incorporated through the act of parliament , HRA 1998 , the provisions of ECHR become directly enforceable.
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The HRA 1998 enforces the Article 8 right, in the same way as in ECHR, hence, advancing its effectiveness with bringing it to home. Being concerned with an individual private matter, it often conflicts with the right to freedom of expression Article 10. In order to restrict either right, the courts shall make sure that the restriction is proportionate; the test of proportionality is one the important balancing factor amongst these competing rights. One of the occurrences where these two rights are engaged, is Press freedom to publish material concerning Celebrity’s right to private life. Notwithstanding the fact, that one’s right to express is another’s right to private life.
Article 8 and Article 10 are of the one right, which are intertwined into each other in some cases. The courts shall take several circumstances into account while balancing these competing rights and shall assess that the restriction on either right must be proportionate. The courts shall also consider that the restriction should not be greater than the aim seeking to be achieved through that restriction. The privacy laws in UK has been subject to intermittent change. Privacy has been an important issue at the common law and has been protected under the common law’s doctrine of breach of confidence. Acknowledgement of the fact that, common law has been a shield for privacy for a long time but there has been a stand-off between its mere protection in form and protection in substance.
Prior to HRA 1998, the courts in UK had construed the right to privacy in a narrow manner. For instance, in the case of Kaye v Robertson, the courts refused to enforce a restraining order for dissemination of the photos of a celebrity in hospital. Despite that, the courts held that under the breach of confidence doctrine, a claim in order to be successful, there must be a pre-existing relationship or agreement between the parties, that the information should be kept confidential. This was long considered, as unconscionable balance between the privacy right and others. However, due to the increasing trend of Strasbourg Court’s jurisprudence and the movement of incorporation of ECHR in UK domestic law, it has developed another approach along with common law principle in 1980s and 1990s.
Another concept of ‘Misuse of Private information’, within the breach of confidence doctrine, which imposes a duty of confidentiality even on by-stander, if he/she, accidently receive a confidential document, has a duty to keep it confidential. These ambiguities were until the enforcement of HRA 1998; from there, UK had observed a transition in privacy and expression cases. One of the leading cases between the transition period was Naomi Campbell’s v MGM case (“Campbell case”) in 2004, where House of Lords, declared the publication of article unlawful, related to the celebrity’s drug addiction details. (This case will be discussed in detail in chapter 9).
S4 of HRA 1998 plays a vital role in strengthening the judicial protection of human rights, but on the same hand in the substance, the decision to make the final call vests with the Parliament. They are the ones responsible for enacting that particular act. This process is often delayed due to which a sense of uncertainty is found in public authorities as to which way to act, post the ‘declaration of incompatibility’ by the courts.
The courts as public authorities are under an obligation to act compatibly with the ECHR. In order to act in such a way, the courts are required to balance the competing rights under ECHR, where engaged concurrently and in order to balance take several factors into consideration. Freedom of expression particularly relating to press, often, allegedly intrude privacy of celebrities. Celebrities, like every citizen, have a legitimate right to privacy, however, this right is not protected outright by any domestic law. Breach of confidence in common law, the Data Protection Act 1998, misuse of private information and another common law doctrine developed within the breach of confidence claims, are placed in order to protect privacy. The courts are required to act compatible with the ECHR provisions and shall develop the common law.
However, celebrity’s nature of work does not fall within any public body but constitute a valid public dealing. Due to which while deciding, the courts take the Public Interest factor into account in order to decide upon which right to prevail. Article 8, right to private life, covers broad areas of private life matters. This right also covers autonomy and reputation of others. This is the area where freedom of expression and right to private life collide with each other.
Public figures are the ones mostly targeted due to their reputation and fan followings. This attracts press attention and consequentially engaging their right to express under the ECHR and HRA 1998. Just like every other individual, celebrities are also eligible for an expectation of right to privacy. In order to protect such rights, the courts mainly deal with the public interest factor. The Public Interest includes, right to expose criminal conduct, revealing miscarriages of justice, protection of public safety and health, preventing public from being misled, contributing to public debate on alleged serious impropriety, unethical conduct, or incompetence which concerns the public. It should be noted that these are some of it, hence, the list is not exhaustive.
In 2001 in Reynold v Times Newspapers Ltd (“Reynold’s case”) case the courts established that when deciding upon the cases of press freedom of expression and public figure right to private life, the courts must balance the Public Interest factor in favor of either right. The courts after HRA, started to recognize Article 8 and 10 rights as a cause of action in breach of confidence cases.
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