Newspapers: The New Privacy Trap

Privacy will replace libel as newspapers’ main legal problem this year. Last year’s defamation actions by Elton John, Paul McKenna and Tommy Sheridan pale into insignificance beside the impact of a Court of Appeal ruling just before Christmas.

A biography of Canadian singer, Loreena McKennitt, amounted to a breach of confidence because it was written by a friend who had been admitted to the singer’s confidence and should therefore have respected it. The ruling was the “death of kiss and tell”, declared the front page of the other day’s Press Gazette.

In Glasgow, a few days before, a Press Complaints Commission seminar for senior news editors and journalists was intended to remind them how its Code of Practice relates to privacy.

One of the reasons for the PCC’s existence was to avoid a privacy law. The press had been warned – by then Home Secretary, David Mellor – that it was “drinking in the last-chance saloon”.

The irony is that its code was intended to have no legal effect. Yet, failing to follow the Code of Practice has a legal impact. For where a person’s privacy is invaded, the courts will protect it unless the invasion can be justified by the public interest.

The Code of Practice says: “The public interest includes, but is not confined to (i) Detecting or exposing crime or serious impropriety, (ii) Protecting public health and safety, (iii) Preventing the public from being misled by an action or statement of an individual or organisation.” It adds that “there is a public interest in freedom of expression itself”.

Seven years after the first Code came the 1998 Data Protection Act. It included an exemption (under Section 32) for journalistic purposes, allowing the media to process data about individuals without having newsgathering, investigations and publication inhibited.

To enjoy this exemption, the data controller – the journalist, publisher or broadcaster – must have a reasonable belief that publication is in the public interest. which the Act does not define.

However, in deciding whether the belief was reasonable the courts can look at whether any designated code of practice has been complied with and the PCC’s is one of those codes. Hence the code’s legal impact.

The Section 32 exemption applies only if the data protection principles are adhered to, including gathering information fairly. It can be a defence that the information was obtained in the public interest, so again the PCC’s Code is relevant.

Nine of the code’s clauses allow exceptions in the public interest, including those covering privacy, harassment, clandestine devices and subterfuge.

The Human Rights Act, enacting the European Convention into UK law, protects “the right to respect for private and family life, home and correspondence”. However, the European Court of Human Rights four months ago ruled that the very lack of a civil wrong of invasion of privacy in UK law violated the Convention.

Now the Court of Appeal has developed the already existing law of confidence by creating a civil wrong of misusing private information. One of the few reasons a public authority, e.g. a court, may interfere with this right is to protect “the rights and freedoms of others”, such as freedom of expression, which includes the right to “receive and impart information and ideas”.

The McKennitt ruling redefines what information and ideas people are entitled to receive and raises the test of what is the public interest. What hasn’t changed is that failing to meet the basic standards of the PCC’s Code of Practice is likely to doom any defence you might have had.

Francis Shennan

Francis Shennan has lectured on Media Law at Napier, Strathclyde and Glasgow Caledonian Universities. He now runs courses for the industry, including Real Law for Journalists, Copyright & Commissioning, Media Law for PRs, Freelance Journalism, and customised courses for individual groups. More details from or