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Eady listening
By Steven | January 28, 2008
So, the law of privacy is largely settled now, David Eady was telling me on Friday.
(Heads-up: this is a brazen name-drop, and you are supposed to be suitably impressed by it. David Eady is Justice Eady, the British High Court judge who hears most of the media law cases. He’s also co-author – with Victoria law school’s esteemed Dean, Tony Smith – of the leading text on contempt of Court.)
Justice Eady has been at the centre of several seismic shifts in media law over the past decade, including the rapid creation of an action for infringement of privacy (under the guise of breach of confidence), and the development of what’s effectively a public interest defence to defamation. The catalyst for change has largely been the passage of the Human Rights Act, which shifts the Eurpean Convention on Human Rights and Fundamental Freedoms into centre stage in British law. The Convention expressly protects privacy; our Bill of Rights Act doesn’t. But developments in British law, and especially the role of free speech, are still sure to be influential over here. So his take on the trends is fascinating. Here are some highlights:
- It’s unlikely that the British courts will follow the Princess Caroline case, where the European Court of Human Rights found the princess’s privacy rights were infringed when photographs were taken of her in public places, at least when the photos were not “contributing to a debate of general interest”. The issue is before the appeal courts in a similar case brought by J K Rowling.
- If the media in Britain hadn’t adopted its usual knee-jerk pose of rabid opposition to a statutory tort of invasion of privacy when it was proposed in the 1990s, they’d be in a better position now. For instance, the statutory tort proposed by the Calcutt committee (Eady was a member) would have excluded privacy rights in public places altogether, and wouldn’t have included reasonable expectations of privacy as to business matters.
- The parameters of privacy law in Britain are becoming fairly clear: you can have a reasonable expectation of privacy in relation to relatively trivial matters, such as the layout of your home if the information was obtained in an intrusive manner (a hidden camera, for example?).
- People can’t say, “Ah, but surely I can talk about my own experiences, about [insert details of lurid affair with sports star or personal relationship with pop singer]. Surely that’s my right to freedom of expression”. The courts won’t accept this line of reasoning if the story involves intruding on others’ reasonable expectations of privacy. So if you happen to have a one-night stand with a Shortland Street star, your right to talk to the media about your experiences might be limited by the star’s right to privacy.
- Situations where those in public places have a reasonable expectation of privacy are likely to be rare.
- Communications with spouses or partners are likely to be protected, even where they arise in the context of concerns an adulterous behaviour or other “immoral” conduct.
- Domestic confidences about business matters – such as having a moan about colleagues or employers – are likely to be protected.
- Genuine public interest, for example, in the exposure of wrongdoing, or illegality will always be a defence. This will include the revelation that the public has been misled (“I’ve never taken drugs”). However, the “role model” argument (ie that public figures who set a bad example to the nation’s youth deserve less protection of their privacy) is illogical, Eady thinks.
- Nor will it be enough to say that public figures have somehow waived their right to privacy by giving public interviews about something.
- Protection may be accorded to invasive statements even if they are false, for example, exploring or speculating on intimate subject-matter, regardless of accuracy. (The NZ case of P v D may provide a good example. The plaintiff got an injunction to prevent publication of material about treatment for a suicide attempt – but did not want to say one way or another whether it was true.)
- Plaintiffs are increasingly managing to get injunctions effectively binding the entire media by getting “John Doe” orders against “persons unknown” then serving them on everyone, or telling everyone of their existence. It’s then a contempt of Court to undermine them, even if they are not directly binding on you. This raises many problems – how do you give the media a chance to oppose the injunction’s grant? How does the plaintiff identify the information to be protected, but at the same time not spread it around? These are being worked through.
- The rule that injuctions won’t be given in defamation cases if the defendant (usually the media) declares that it will plead truth (or other defences) if sued is “increasingly looking like an endangered species”. It doesn’t fit with the balancing of rights that is increasingly part of the other media law jurisprudence. The courts may start looking at evidence (such as it is at such an early stage) to see whether the defence is in fact likely to prevail at trial.
Topics: Injunctions, Privacy tort | 1 Comment »
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