Page 161 - Law and the Media

Law and the Media
wider than has previously been the case for judicial review cases, in which the phrase
‘public functions’ is equated with governmental functions. However, for immediate
purposes any decision having ‘public effect’ is likely to bring the relevant body within the
scope of Section 6.

Private parties
Although the HRA creates clear privacy rights against public authorities, it does not, in
general, entitle the court to create new causes of action between private parties in litigation.
Nevertheless, the HRA seems to have bolstered the development of the common law based
on existing causes of action, particularly breach of confidence, and may spawn a more
tangible common law right of privacy for individuals between themselves. In view of recent
judicial interpretations it is reasonable to speculate that the widely anticipated development
of an express protection of the right to privacy will spread to the private sector. Some of the
decisions are explicitly premised upon the HRA, whereas others are premised upon an
amalgamation of common law doctrines such as the law of confidence. Regardless, the
courts seem to be interpreting privacy as a right that is readily available to those who seek
redress, and from which derogation is only permitted in exceptional circumstances.

8.4.2 Recent decisions

In R v A Local Authority in the Midlands ex parte LM (2000), the Court of Appeal, applying
the HRA, held that the police or local authorities could disclose to a third party allegations
of sexual abuse of children if they genuinely and reasonably believed that it was desirable
to do so in the interests of protecting children and preventing crime. However, the so-called
‘pressing need’ for such disclosure would have to outweigh the need to safeguard an
individual’s right to privacy.

On the facts of the case, the court held that mere allegations of sexual abuse were
insufficiently ‘pressing’ to justify the local authority’s education department, acting on
information disclosed by the social services department and the police in response to its
inquiries, terminating the applicant’s contract to provide school bus services. The applicant
had no criminal record and had never been cautioned or bound over. He therefore had the
right to be presumed innocent. The allegations, made 10 years earlier, were not proved either
to the criminal or civil standard of proof, and had not been the subject of criminal or civil
proceedings. The court found a breach of Article 8, and quashed the decision of the police
and the local authority to disclose the allegations.

The Court of Appeal appears to have extended an individual’s right to privacy in the much
publicized case of Douglas v Hello! (2001). The actors Catherine Zeta-Jones and Michael
Douglas signed a £1.2m contract with OK! magazine for exclusive coverage of their
wedding. The agreement provided for the couple’s right of veto over publication of OK!’s
photographs. However, although Zeta-Jones and Douglas operated a tight security system at
the wedding it was infiltrated by rival magazine Hello!, which published photographs of the
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