Page 95 - Courting the Media Contemporary Perspectives on Media and Law

86 David Rolph

of the Human Rights Act 1998 (UK), which introduced the European
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Convention on Human Rights into domestic law in that jurisdiction. Like
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other human rights instruments which also protect privacy, the European
Convention on Human Rights is premised upon the innate dignity of the
individual. In the context of privacy, this has had the profound impact of
shifting the locus of privacy from the property possessed by an individual to
the individual himself or herself.
However, the Human Rights Act 1998 (UK) did not directly introduce an
enforceable right to privacy. Rather, under the European Convention on
Human Rights there is a right to ‗private life‘, protected under Art. 8, as well
as the right to freedom of expression, protected under Art. 10, and courts in the
United Kingdom need to ensure that these rights are adequately protected by
domestic law and are appropriately balanced against each other. The way in
which courts in the United Kingdom responded was to adapt the existing
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equitable cause of action for breach of confidence.
Prior to the introduction of the Human Rights Act 1998 (UK), the
equitable cause of action for breach of confidence had been used for several
decades to provide protection against the disclosure of personal secrets. This
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dates back to the decision of Ungoed-Thomas J in Argyll v Argyll, in which
his Lordship restrained the Duke of Argyll from disclosing to the tabloid
newspaper Sunday People information about the Duchess of Argyll‘s sexual
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exploits. The Duke‘s interview was given in the course of acrimonious
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divorce proceedings and in retaliation to an earlier interview given by the
Duchess to the Sunday Mirror, concerning the Duke‘s health and financial
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affairs. During the mid-1990s, prefiguring subsequent developments in legal
thinking, breach of confidence was extended to protect against the disclosure

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McKennitt v Ash [2008] QB 73 at 80 per Buxton LJ; Mosley v News Group Newspapers Ltd
[2008] EMLR 20 at 686 per Eady J.
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International Covenant on Civil and Political Rights Art. 17; Universal Declaration of Human
Rights Art. 12.
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A v B plc [2003] QB 195 at 202 per Lord Woolf CJ; Campbell v M.G.N. Ltd [2004] 2 AC 457
at 465 per Lord Nicholls of Birkenhead; H.R.H. Prince of Wales v Associated Newspapers
Ltd [2008] Ch 57 at 114 per curiam; Mosley v News Group Newspapers Ltd [2008] EMLR
20 at 686 per Eady J.
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[1967] Ch 302.
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Argyll v Argyll [1967] Ch 302 at 315 per Ungoed-Thomas J.
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Argyll v Argyll [1967] Ch 302 at 316-17 per Ungoed-Thomas J.
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Argyll v Argyll [1967] Ch 302 at 330 per Ungoed-Thomas J.