Reasonable expectation of privacy un the UK:
English courts approaches to the interplay between right to privacy and freedom of information
(on example of Her Royal Highness Duchess of Sussex v Associated Newspapers Ltd [2021] EWCA Civ 1810)
2 December 2021, England and Wales Court of Appeal published the judgement on Her Royal Highness Duchess of Sussex v Associated Newspapers Ltd [2021] EWCA Civ 1810 (https://www.judiciary.uk/wp-content/uploads/2021/12/Sussex-v-Associated-News-judgment-021221.pdf).
In this case the English courts have successfully demonstrated the ability to resolve difficult legal question about the interplay between privacy and freedom of information.
The right to privacy seems to be crucial for preserving democracy in the age of digitalisation because this right allows individuals to protect their human integrity, dignity and autonomy. This right is intended to draw up clear red line between democracy and digital concentration camp.
But on the other hand the freedom of information is likewise important. In some contexts, it may seem even more important than right to privacy. Freedom of information is a powerful tool of social control over state and elite. Without freedom of information this control would be undermined, leading gradually to shrinking of all other rights and freedoms including right to privacy.
There are examples in the world of misuse of right to privacy, when it limits the freedom of information in order to prevent disclosure of corruption. In some countries even amendments to data protection legislation are enacted to prevent public from criticising particular oligarchs and intelligent servants wrongdoing.
Therefore, these two essential rights are of the same importance, and mutually correlate.
The problem of the interplay between two essential rights is not new, and legislators and courts worldwide have tried to solve it. This interplay has risen during the last thirty years alongside with dramatic increasing of the importance of privacy protection, boosted by the development of information technologies.
In contrast to other jurisdictions, in the UK privacy is protected not only by human rights and data protection legislation, but also the common law instruments, such as the specific tort of misuse of private information.
This tort shaped after the Human Rights Act 1998 (HRA 1998, https://www.legislation.gov.uk/ukpga/1998/42/contents) enactment and coming into force. Before this act, even quite recently, in Kaye v Robertson [1991] FSR 62 the Court of Appeal said that in English law there is no right to privacy. The Data Protection Act 1984 was narrowly applicable and did not cover the right to privacy itself. Personal confidential information was protected by an old tort of breach of confidence. It is based on equitable right related to the improper use of information disclosed by one person to another in the context of a relationship of confidence. The most famous example is Prince Albert v Strange (1869) 1 De G & Sm 652. This tort was also too narrowly applicable and focused on the existence of specific relationship of confidence rather than nature of information misused and harm inflicted to data subject.
But the situation changed in early 2000s. In Douglas v Hello! [2001] 2 WLR 992 Sedley LJ (Court of Appeal) pointed out: [W]e have reached a point where it can be said with confidence that the law recognises and will appropriately protect a right of personal privacy. &hellip, The law has to protect not only those whose trust has been abused but also those who find themselves subject to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.
Since the right to protection of private and family life (article 8 of the European Convention of Human Rights, ECHR) and right to freedom of expression and information (article 10 of the ECHR) have been implemented into English domestic law due to HRA 1998, the particular concern has raised about publications of information which is of personal nature, because relates to individual, but at the same time is potentially of public importance because the data subject is a public figure.
The tort misuse of private information has shaped from its original in dichotomy of right to privacy and freedom of expression.
In the leading case Campbell v Mirror Group Newspapers [2004] UKHL 22 the House of Lords has established an approach to solve the interplay between articles 8 and 10 ECHR.
The first essential element is to assess reasonable expectation of privacy. This test, established by Lord Nichols in Campbell, is basically a subjective one (based on the data subjects expectation), but has developed through such cases as Murray v Express Newspapers [2008] EWCA Civ 446, HRH Prince of Wales v Associated Newspapers [2006] EWCA Civ 1776, ZXC v. Bloomberg LP [2020] EWCA Civ 611 [2020] 3 WLR 838 and Sicri v. Associated Newspapers Ltd [2020] EWHC 3541 (QB) [2021] 4 WLR 3, and currently is rather objective one (whether a reasonable person, placed in the same position as the claimant and faced with the same publicity, would feel substantial offence).
The test of reasonable expectation of privacy actually is the test whether the information is in the scope of protectable information in accordance to article 8 ECHR.
This test includes consideration of seven factors, recognised by the Court of Appeal in Murray v Express Newspapers [2008] (so-called Murrays factors): (1) the attributes of the claimant, (2) the nature of the activity in which the claimant was engaged, (3) the place at which it was happening, (4) the nature and purpose of the intrusion, (5) the absence of consent and whether it was known or could be inferred, (6) the effect on the claimant and (7) the circumstances in which and the purposes for which the information came into the hands of the publisher.
Since according to the test of reasonable expectation of privacy, the considered information is found to be in the scope of protectable information in accordance to article 8 ECHR, the further question is priority of articles 8 or 10 ECHR.
The second test established in Campbell v Mirror Group Newspapers [2004] is balancing and includes two questions: (1) whether the interference with the claimants reasonable expectation of privacy involved in publishing the Articles was necessary and proportionate in pursuit of the legitimate aim of protecting the rights of others? and (2) whether the interference with freedom of expression that would be represented by a finding of liability was necessary and proportionate in pursuit of the legitimate aim of protecting the rights of the claimant?
Applying these tests in HRH Duchess of Sussex v Associated Newspapers Ltd [2021], courts clearly distincted cases where information related to public person should be disclosed in the public interest from cases where the privacy of such person should be protected.
In McKennitt v Ash [2006] EWCA Civ 1714 the Court of Appeal made clear that mere fact that the subject had a public profile does not mean that publication of information about his or her private life was in the public interest. The court pointed that it should be distinguished whats in the public interest from the gossip which the public may be interested in. For example, in HRH Prince of Wales v Associated Newspapers [2006] the Court protected Prince Charless right to privacy despite the fact that his disclosed personal diary was not of highly personal or private nature and included rather political opinions. However, the test reasonable expectation of privacy was satisfied in this case. But on the other hand, for example, in AAA v Associated Newspapers Ltd [2013] EWCA Civ 554 the Court of Appeal held that disclosure of the fact about Boris Johnsons (Londons Mayor in those times) extramarital fathership, was a public matter which the electorate was entitled to know when considering [his] fitness for public office.
Therefore, the test reasonable expectation of privacy is a powerful legal tool to resolve the interplay between the two most essential rights, fundamental for protection of democracy from modern challenges. They are right to privacy, including data protection, and freedom of information, including freedom of expression. This instrument allows to maintain necessary balance and open the opportunity for the two essential principles to support and strengthen each other. The recent case HRH Duchess of Sussex v Associated Newspapers Ltd [2021] clearly illustrates this point and demonstrates reasonable balance in flexible application of the essential legal principles. The tort of misuse of private information as well as its crucial element reasonable expectation of privacy is a developing area of law. This approach seems to be worth being laid in the basis of the upcoming data protection regime in the UK, and to be implemented by other jurisdictions.
