Andrew Stephenson analyses the prospects of legislation to protect the right of privacy in Commercial Litigation Journal July/August issue

Article 8 of the European Convention on Human Rights provides that ‘everyone has the right to respect for his private and family life’. Article 10 provides that ‘everyone has the right to freedom of expression’. Article 13 requires that ‘everyone whose rights are violated shall have an effective remedy before a national authority’.

In its May 2003 report ‘Privacy and Media Intrusion’, in considering the question whether the development of privacy rights should be ‘under the care of the courts, on a case by case basis’ or ‘of the Government and Parliament subject to the extensive consultative processes’, the Culture, Media and Sport Select Committee, then chaired by Gerald Kaufman MP, firmly recommended that the government:

bring forward legislative proposals to clarify the protection that individuals can expect from unwarranted intrusion by anyone – not the press alone – into their private lives.

The report stated:

This is necessary fully to satisfy the obligations upon the UK under the European Convention of Human Rights.

In May 2011, at a time when the press complained that they (unlike MPs in the House of Commons) could not lawfully identify the famous footballer CTB who had obtained an injunction against the publishers of The Sun newspaper, former Prime Minister David Cameron in an ITV interview stated:

It is rather unsustainable, this situation, where newspapers can’t print something that clearly everybody else is talking about… But there’s a difficulty here because the law is the law and the judges must interpret what the law is. What I’ve said in the past is, the danger is that judgments are effectively writing a new law which is what Parliament is meant to do. So I think the government, Parliament, has got to take some time out, have a proper look at this, have a think about what we can do, but I’m not sure there is going to be a simple answer.

In April 2016, shortly before the Supreme Court was due to hear the appeal in PJS v News Group Newspapers [2016], The Telegraph reported that:

Ministers are ‘actively considering’ a change in the law which will stop wealthy individuals – including famous public figures – using Labour’s Human Rights Act to stop newspapers publishing material that is in the public interest.

The newspaper’s source ‘who declined to be named’ (thereby maintaining his or her own right of privacy) was reported to have said that:

The Government is looking at the balance between Article 8 and Article 10 as regards injunctions. The ministers are pro-free speech.

PJS v News Group Newspapers Ltd [2016] UKSC 26

Parliament chose not to take up the opportunity to review the law of privacy in the consultation processes which preceded the Defamation Act 2013, an area of law where there is also a need to strike a balance between Article 8 and Article 10 rights. Successive governments have declined to put forward legislative proposals, preferring to leave it to the courts to grasp the nettle and to face the ire of the press, outraged by decisions which, as the law enacted by Parliament requires, are consistent with the UK’s obligations and properly take into account judgments of the European Court of Human Rights.

The question which first arises is whether, following the judgment in PJS, the government and Parliament will now act following the furious reaction of some sections of the media to the Supreme Court’s judgment, which decided, in effect, that it was reasonable for the claimant to expect that his ‘three-way sexual encounter’ with consenting adults would remain private, and that publication of the story and the claimant’s identity would serve no legitimate public interest.

The second question is where Parliament thinks the line should be drawn, if different from that decided by the courts whose carefully considered judgments focus on the specific facts of the cases which have been before them. Is it their preference that intimate details of the sex lives of individuals who are considered to be ‘celebrities’ or other ‘public figures’ should be fair game for publication in the media? If private information is published in newspapers in other countries, should the UK media be free to publish it? How about if the information is circulated on Twitter, and, if so, among how many readers?

According to Stephen Barnett, professor of communications at the University of Westminster (see ‘Privacy and Injunctions: the Press does not speak for the People’, Inforrm’s Blog, 17 May 2016), recent public opinion surveys suggest that the large majority of the British public does not think that the private lives of public figures should be exposed.

However the European Court of Human Rights observed that:

the private lives of those in the public eye have become a highly lucrative commodity for certain sectors of the media.

The evidence in Max Mosley’s case was that the online version of the News of the World article on Mosley was visited over 400,000 times, and the video footage viewed over 1.4m times in the 48 hours from first publication. The newspaper reported that ‘our enormous growth has been driven by web exclusives like our Max Mosley video’ and that since releasing the video ‘traffic on the site has increased by 600%’. If Parliament is to review the law of privacy, it is unlikely, as Mr Cameron has acknowledged, that there will be a simple answer.