The judgment of Judge Jack in A v B plc and Another[1] on September 10, 2001 has caused a media storm. Judge Jack granted an injunction to a famous footballer to prevent details of his extra-marital affairs being published in a national newspaper on the grounds that sexual relationships are confidential in law. Many newspapers decried the prospect of the end to freedom of expression, while some commentators suggested that the media would go underground to ensure private details were published before the subject had the opportunity to obtain an injunction.
The case was decided in accordance with the provisions of the Human Rights Act 1998 (“HRA) which came into force in October 2000 and contains at Article 8 a right to respect for private life. The HRA has made its impact on privacy law through expanding the scope of the common law duty of confidence.
Although to some in the media, Judge Jack’s decision to consider extra-marital affairs private is a nail in the coffin of freedom of expression, in reality, publishers may now claim the right to publish private information under Article 10 of the HRA which gives a right to freedom of expression.
The courts must now perform a delicate balancing act in weighing the competing rights of privacy and freedom of expression. The HRA states at Article 12 that public interest must be one of the factors taken into account when considering freedom of expression and, despite the media outcry, it seems that freedom of expression will triumph when the public interest in disclosure outweighs the right to privacy. If, for example, the footballer in Judge Jack’s case had been a strong role model, or a politician who had espoused family values, it is likely that the court would have considered that it was in the public interest to disclose the information.
Nevertheless, it does seems that a new and actionable right to privacy is developing which may allow an individual to prevent the publication of private information where there is no public interest in its disclosure. Last year Catherine Zeta Jones and Michael Douglas were able to obtain damages after Hello! magazine published photographs taken surreptitiously at their wedding[2]. In light of the HRA, the Court of Appeal considered the unauthorized publication of the photographs a breach of confidence and suggested that it may also constitute a breach of a right to privacy.
Judge Jack’s decision is unwelcome to the media simply because it puts certain extra marital affairs – those that reach the front pages through their gossip value alone - in the realm of private information. The media may continue to dramatize the exercise of rights of privacy as flagging the end to freedom of expression. However, if, as threatened, newspapers and magazines do manage to publish private details before the subject has the opportunity to obtain an injunction, the publisher could face a damages claim for breaching a right to privacy.
[1] The Times 10.09.01
[2] Douglas and Others v Hello! Ltd [2000] All ER (D) 2435
