Page 154 - Law and the Media

The ‘New’ Right to Privacy
and that an injunction would have been granted in relation to the publication if it had first
been made in the United Kingdom:

. . . there is no room for discrimination between secrets of greater or lesser
importance, nor any room for close examination of the precise manner in which
revelation of any particular matter may prejudice the national interest.

More recently, in A-G v Punch Ltd (2001) the court considered confidentiality in relation to
David Shayler, a former MI5 officer who used information gathered in the course of his
employment to contribute to articles, material and a column in Punch magazine. The Court
of Appeal granted the appeal of Punch and its editor, James Steen, against their convictions
for contempt of court since, amongst other things, it could not be shown that the disclosure
by them of information provided by Shayler defeated, in whole or in part, the purpose of the
court in granting an injunction.

By contrast, in 2001 Dame Stella Rimington, who had been Director General of MI5 for four
years, published her memoirs Open Secret, which contained confidential government
material. Although the Home Office said that the Government ‘regretted’ Rimington’s
decision to publish the book, it said that it would not resist its publication largely, it seems,
because the memoirs were edited to appease both MI5 and the Government itself.

The difficulty faced by the court of balancing the absolute protection of privacy with other
public interests is likely to continue in the future following the incorporation into English law
of the conflicting rights to privacy in Article 8 and freedom of expression in Article 10. In
September 2000 celebrity couple David and Victoria Beckham sued Andrew Morton over his
‘unauthorized biography’, which revealed intimate details about their personal and
professional lives. Morton had gathered the information from a former bodyguard who had
signed a confidentiality clause on commencing employment with the Beckhams. The matter
settled out of court on the basis that 200 offending words were removed from the manuscript.
However, if the claim had proceeded to trial, the court would have had the difficult job of
weighing Morton’s right to express himself under Article 10 with Beckhams’ right to privacy
under Article 8.

8.2.3 Trespass

A particularly common area of complaint relates to individuals who are kept under constant
observation. Claimants have often sought remedies from the court for harassment, which is
now a statutory offence under the Protection from Harassment Act 1997.

However, other remedies can be found in trespass. Trespass to land or property may be
claimed in a variety of situations. Any person entering on to another’s land to observe him
or to plant a listening device will be guilty of trespass (Greig v Greig (1966)). However, in
recent years the ‘protection’ provided by an action in trespass in this respect has been
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