Privacy Law: Acquiring 'Real Taste, Real Body'

2002 has seen the Daily Mirror proclaimed Newspaper of the Year. The paper has also been in the vanguard of the development of privacy with it defending the notable cases of Flitcroft1, Campbell2 and Theakston3. Angus Deayton's name could also be added to the list. While privacy was in its infancy at the beginning of 2001 following Douglas -v- Hello!4 and Venables -v- News Group Newspapers Limited5, this year's crop of privacy cases and, in particular, Flitcroft, has seen the law surrounding privacy settling down: adopting the Theakston beer slogan, it's acquiring 'real taste, real body'.

The Lord Chief Justice in Flitcroft set out his guidelines for judges to follow (as summarised later). These helpfully pull together the strands that have emerged since Douglas. Editors and their advisers will be well advised to remind themselves of the guidelines when considering a story to which they apply or when threatened with an injunction.

A number of important points emerge from the guidelines, as well as there being one notable omission.

Confidence

Despite the vociferous calls for a free-standing law of privacy, it is now well established that, generally, any claim for privacy will need to be brought within the law of confidence. That puts to one side the scope for other claims, more of which below. Flitcroft follows the majority of the Court of Appeal in Douglas (Sedley LJ being the exception) and the President, in Venables. However, what the Court of Appeal has emphasised is that there is no requirement for there to be a relationship of confidentiality in order that a person's privacy be protected. Sedley LJ in Douglas described the need for such a relationship as "artificial". As long as a person knows, or should have known, that the other person has a reasonable expectation of privacy, the Courts will take the view that a duty of confidence arises. The Naomi Campbell case provides a good example in that her attendance at the Narcotics Anonymous sessions could, in the first instance, have only been known by others attending the courses or those working for NA. Such individuals knew, or should have known, that Campbell had a reasonable expectation of privacy when attending the sessions. Perhaps beginning with Douglas, but undoubtedly culminating in Flitcroft, the Court of Appeal has extended the boundaries of protection afforded under the law of confidence: out goes the need for information to be confidential in nature and in comes a reasonable expectation of privacy that private information will be protected. Also out goes the need for there to be an obligation of confidence and in comes the objective test of whether someone knew or should have known.

Private Information

Part of the rationale of issuing guidelines in Flitcroft was a recognition that each case would end up being decided on its own facts. What amounts to private information is a good example of why guidance is more appropriate than a rule. In most cases, whether there exists a private interest worthy of protection will be obvious. An act will not be deemed to be private simply because it is not done in public (see Theakston). The Lord Chief Justice adopted the reasoning of an Australian judge when he quoted:

"There is no bright line which can be drawn between what is private and what is not Ö The requirements that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private."6

Treatment for drug addiction (Campbell), medical history and condition (Deayton), private wedding photographs (Douglas) and topless photographs of an actress in a hotel garden (Holden)...