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Huddersfield 15/16 JPP Law 5

Privacy law and access to information
by

Richard Jones

on 15 December 2015

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Transcript of Huddersfield 15/16 JPP Law 5

Privacy law and access to information
Contact me
Email: R.L.Jones@hud.ac.uk
Twitter: @rlwjones
Blog: richardjonesjournalist.com
Office: JM3/08
Office hours: Tuesday 1:15-2:15pm
Wednesday 12:15-1:15pm
Today's lecture
Privacy law
Avoiding intrusion
Freedom of Information
Privacy law
Breach of confidence
The developing privacy law
What we have the right to know about people is a question with both
ethical
and
legal
dimensions for journalists.
The ex-boss of world motorsport, Max Mosley, was exposed by the News of the World as having taken part in an orgy with five women. The paper published pictures and, online, video footage of the orgy taking place.
Do you think we have a right to know about this? Why?
The paper claimed there was a Nazi theme to the orgy. Mosley's father, Oswald Mosley, was the leading British fascist of the 1930s.
Does that change your view? Why?
Injunctions
Mosley sued. Not because he denied having the orgy, but because he said it was a consensual activity with no Nazi theme.
The Judge agreed. He said if there had been Nazi behaviour there would be a defence for exposing it, but he found no evidence of that. He ruled there was no public interest to justify the breach of privacy. Mosley was awarded £60,000.
The UK has only had a general privacy law since 2000, when the
Human Rights Act 1998
came into force.
Article 8
of the Human Rights Act guarantees the right to respect for privacy and family life. Courts must balance this with
Article 10
, which guarantees freedom of expression.
Someone complaining about intrusion must first show a court that they had
"reasonable expectation of privacy"
in relation to the information.
After the "reasonable expectation" test and the Article 8 v Article 10 balancing act, courts then come to a final decision.
But many journalists have criticised judges for not giving enough weight to freedom of expression, and ruling against media companies too often.
"The Human Rights Act is resulting in the creation of a privacy law by judges who seem to attach more weight to the right to privacy than to the right to freedom of expression."
Paul Dacre, Daily Mail editor-in-chief, 2011
Before the Human Rights Act, these cases were usually brought under the law of
breach of confidence.
This is based on the idea that if you receive information given in confidence, you shouldn't take unfair advantage of it.
In 2000, Michael Douglas, Catherine Zeta-Jones and OK! magazine sued Hello! magazine for breach of confidence.
The couple had struck an exclusive £1m deal with OK! to publish their official wedding photos.
But a freelance photographer sneaked in and sold some unofficial pictures to Hello! which published them as a 'spoiler'.
Douglas, Zeta-Jones and OK! eventually won after a long series of cases.
The key to the case was whether the wedding could be considered a 'private' event or not, especially when there were invited photographers from OK! there.
The High Court ruled that security measures taken by the couple to keep out intruders, and their insistence on approving the images that would appear in OK! made it a private event.
The court held that the information received by Hello! - ie, the pictures - DID count as confidential information.
The principles of
breach of confidence
still apply in the law. But in recent years, the privacy law created by the
Human Rights Act
has become much more widely used.
Avoiding intrusion
Freedom of Information
If a person or organisation finds out confidential information about them is going to be published, they can apply for a temporary
injunction
to stop it.
A temporary
injunction
will prevent a media company publishing the information until a full hearing can take place.
Why is this important?
Sometimes, media companies will decide it's not worth the risk and potential cost of going to a full hearing, so will reluctantly agree to back down.
Anyone breaking the terms of an injunction can be found in
Contempt of Court
.
In 2011, the High Court approved an injunction in the case of 'CTB' v News Group Newspapers and 'Another'.
The name of the footballer began circulating on Twitter almost immediately.
Despite this, the judge refused to lift the injunction.
Then, the Scottish Sunday Herald identified the footballer (in its print edition only). His lawyers had apparently forgotten to take out a similar injunction (known as an
interdict
) in the Scottish courts.
Eventually, an MP said the name 'Ryan Giggs' in Parliament, and because of parliamentary privilege, that left the media free to report it.
In 2001, the Sunday People published pictures of Sara Cox on honeymoon with her husband.
The paper agreed an out-of-court settlement, after accepting the couple had a
reasonable expectation of privacy
in that situation.
Whatever you think about the ethics of the story, in this case the court held there was no
legal
justification for it.
She was sunbathing naked at a secluded villa on a private island.
What's significant about that?
The whole notion of injunctions presents a problem for journalists doing their jobs.
By giving someone a right to reply to a story you're about to publish, you're also tipping them off which would potentially allow them to apply for an injunction.
Intrusion by the media was a dominant theme of the Leveson Inquiry into press standards.
You should always check a story with a person or organisation if it might be
defamatory
about them.
The key is to phrase your questions in such a way that you don't give away the fact you have confidential information about them. That's the thing that could allow them to get an injunction.
Journalists should avoid unnecessary intrustion into people's privacy. But it's important to know when it can be justified.
We've gone into some of what the law says about this, but it's also important to know the relevant sections of the IPSO Editor's Code and the Ofcom code.
There's no criminal law against, say, taking a picture of someone in a public street.
But, if someone feels their privacy is being infringed by, for example, a group of photographers hanging around outside their house, they may complain to IPSO in an attempt to get them to leave.
The Editors' Code Clause 3 (Privacy) states:
- Everyone is entitled to respect for his or her private and family life, health and correspondence, including digital communications
- Editors will be expected to justify intrusions into any individual's public life without consent
- It is unacceptable to photograph individuals in private places without their consent
But this can be justified in the public interest, for example to expose a hypocritical politician.
Or if there's a major breaking news event.
Editors' Code Clause 5 (Intrusion into grief or shock)
calls for journalists to behave with
"sympathy and discretion"
when dealing with, for example, bereaved relatives.
In particular, journalists should not break the news of someone's death to a relative, and should not publish photos of funerals without consent.
Under Editors' Code Clause 6 (Children)
, under 16s must not be interviewed or photographed on stories affecting their
welfare
, without permission of their parents.
If you're ever in doubt about this sort of thing: check the code and ask your editor. But, as a general rule, just follow your own common sense.
Freedom of information is one of the most important tools that journalists now have.
It gives the public, including journalists, a general right to access information held by public bodies, such as government departments, councils, universities and many more.
The
Freedom of Information Act 2000
came into force in January 2005. Since then, journalists have used it to get information for all kinds of stories.
Each public body covered by this law should have an FOI page on its website.
You send an email to the address given, outlining what it is you want to know. By law, you have to get a response within 20 working days.
There are lots of reasons ("exemptions") why you might get a response saying the information can't be released.
The most common ones are that it would take too long or cost too much to gather the information, or that the information is commercially sensitive.
If you want to submit an FOI request about anything, I'd recommend you be specific about what it is you want to know, and make sure that information isn't already available. The website
whatdotheyknow.com
will help.
If you want any advice doing this, I can help.
The government is keen to make it harder for us to do FOI requests. But those proposals are being strongly resisted by campaigners.
As if to underline Dacre's point, the Mail recently lost a privacy case after publishing pictures of Paul Weller's wife and children taken on a day out in LA.
The judge ruled it would have been ok to publish the pictures under US law. But because they also appeared in the UK, they breached the Human Rights Act.
That line more or less holds for traditional media. But, journalists are increasingly being criticised for contacting people on social media caught up in dramatic events.
Full transcript