Freedom of expression and privacy

The balance between the context of the claims in privacy versus press freedom is a popular issue to discuss in English law. The values behind each right and the developing nature of the rights in both the UK and European courts will be discussed in here. The role of the public interest in deciding the judgments between balancing privacy and freedom of expression will be explained as well.

In an era of deep celebrity intrusion, confessional journalism and the invasive ‘telephoto lens’, the balance between press freedom and privacy is very significant. Lord Nicholls in Campbell V MGN Ltd said “The essence of the tort is better encapsulated now as a misuse of private information”, thus the law will “appropriately protect a right of personal privacy’. The development as to what constitutes ‘Public interest’ may be very core point to distinguish this two rights.

In relation to privacy in HRH Prince of Wales V associated Newspapers it was argued that, “If people are able to release (private) information, with impunity, it might have the effect of illegitimately constraining person’s choices as to his or her private behaviour, interfering in a major way with his or her autonomy”. He also includes that privacy is ‘essential to Human flourishing’ however individual evaluations of privacy are difficult to define and the courts must balance each case accordingly.

In English democracy freedom of expression is very vital and also fundamental for the press. “Freedom to engage in free expression and reception of ideas and opinions in various media is essential to human development” is one of the principle theories of different kind of media and is fundamental to democracy. However, journalism in the current media age is proving to be consistently intrusive and the free speech or public interest defence ever less plausible.

In this present situation some kind of balance between Article 8 and Article 10 must occur and upon close examination of specific cases. In the case of Venables & Thompson v News group Newspapers it was clear that unequal weight was given in favour of Article 10 in which the judge stated “I am satisfied that I can only restrict the freedom of the media to publish of the need for those restrictions can be shown to fall within the exceptions set out in Article 10(2)”. This statement highlights that the case was not looked at in a parallel context of equal rights.

The Human Rights Act 1998 incorporates the European Convention on Human Rights into UK law, which includes both rights to privacy and rights to freedom of expression, open justice and to protection of private life. The exceptions in Article 10.2 of the ECHR come under the following headings:

  • licensing of broadcasting, television or cinema enterprises
  • national security
  • territorial integrity
  • public safety
  • prevention of disorder or crime
  • protection of health or morals
  • protection of the reputation or rights of others
  • preventing the disclosure of information received in confidence
  • maintaining the authority and impartiality of the judiciary

An injunction was sought against a detailed publication of a relationship in a brothel in (Theakston v MGN Ltd). However, court stated that, “The relationship between a prostitute in a brothel and the customer was not confidential in nature and the fact that sexual activity had taken place did not, of itself, create a relationship of confidentiality”. Therefore, there was no breach of Article 8. The judgment was based on the public interest that the claimant was a ‘role model’, “given that the defendant was a presenter of television programmes aimed at younger viewers, there was an element of public interest in some of the material being published”.

In A v B plc and Theakston it was stated that he more transient a relationship the less emphasis the court should give to its protection.

The interpretation of public interest was given an extremely broad meaning in the cases of A v B and Theakston. Lord Woolf C.J stated that public figures have the right to privacy yet “The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest.” Lord Woolf’s notion of privacy is attracted by the press’ desire to publish stories which are of interest to the public; and with the public interest argument as a defense. the publication of her treatment was justified fairly in the public interest in accordance with Article 10.

The best example for balancing freedom of expression and privacy is the Campbell v MGN case which involved details of Naomi Campbell’s drug addiction accompanied with photographs of her coming out of a treatment centre. Campbell’s ruling extended greatly this privacy tort and provided a thorough balancing using a parallel analysis test, and a justified public interest argument. The judge highlighted in the case that reinforcing the notion that Theakston’s ruling may have been incorrcet. Judge stated that “We do not see why it should necessarily be in the public interest that an individual, who has been adopted as a role model, without seeking this distinction, should be demonstrated to have feet of clay.”

The correct balance is essential in order to retain human autonomy as well as press freedom. However, the balance might change, as the court might extend the criteria of public interest, and provide a new definition of ‘privacy’.

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