A guide to Privacy Law

Carruthers Law Privacy Solicitors provides a guide as to Privacy Law. The court must identify whether there is a reasonable expectation of of privacy such as to engage Article 8.

Article 8

“Right to respect for private and family life”

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This is considered from the view of the person who is affected by the publicity. This will take into account all the circumstances of the case, including:

  • your particular attributes, whether you are a person normally in the public eye, or whether you are a child or an adult,
  • the type of activity in which you were engaged in, the place at which it was happening,
  • the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred,
  • the effect on you of the publication,
  • the circumstances in which and the purposes for which the information came into the hands of the publisher.

The court will then look at the public interest, the right to freedom of expression in Article 10 may displace the right to privacy or tip the balance in favour of disclosure.

Article 10

Freedom of expression

  • 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  • 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

A tension exists between Article 8 and Article 10. 

Section 12 of the Human Rights Act deals with this :

  • that the applicant has taken all practicable steps to notify the respondent or that there are compelling reasons why the respondent should not be notified.
  • No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
  • The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material)
  • the extent to which the material has, or is about to, become available to the public; or it is, or would be, in the public interest for the material to be published; any relevant privacy code.

The main defence is that there is an overriding public interest in publication i.e. the media can broadcast/ publish confidential material or information providing the public interest in doing so outweighs the public interest in preserving the confidential information.

Each case will need to be carefully examined to see if the interests of freedom of expression outweigh your rights to private life.

Section 12 was intended to give comfort to media organisations. Neither Article 8 or 10 are supreme. The court will carry out a balancing exercise between the two and this has formed the basis of many cases before the courts.

If you require advice as to Privacy call Carruthers Law today or fill in one of enquiry forms.

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