Chapter 15 Outline answers to essay questions

Privacy

‘Freedom of expression is under serious threat from the growing number of attempts to restrain publication for reasons of invasion of privacy.’

Discuss.

The question requires consideration of the present state of the law on invasion of privacy, and whether it does, in fact, constitute a ‘growing threat’ to freedom of expression.

Kaye v Robertson is a good starting point, illustrating the absence of a specific tort protecting privacy. The background requires an historical description of the development of breach of confidence, beginning with cases such as Prince Albert v Strange and Argyll v Argyll, its application in cases with commercial aspects such as Douglas v Hello!, then proceeding to the key cases of Campbell v MGN and McKennitt v Ash, which set out the current position regarding misuse of private information. The facts of each case (whether the information is of a confidential type and whether there is any public interest in its revelation) will be important in the balancing of art 8 and art 10 rights (see Mosley v NGN). Section  12(3) HRA specifically requires that freedom of expression be considered in awarding remedies such as injunctions. Peck v UK and Wainwright v UK indicate that art 8 ECHR may provide some protection breach of privacy in the form of physical intrusion. Different European legal and press cultures are illustrated by Von Hannover v Germany (No 1).

You may conclude that courts are currently avoiding the taking of a clear position on whether the HRA has facilitated the introduction of a new tort of misuse of private information or not. You should take a strong (and supported) decision on whether you feel that freedom of expression is under threat by these legal developments.