Page 166 - Law and the Media

The ‘New’ Right to Privacy
Although the right to privacy seems in the absence of legislation to be evolving via judicial
interpretations, as mentioned above, the courts have adopted a fairly piecemeal approach and
have been careful not to maintain the privacy of individuals in all circumstances. In the case
of Ford v The Press Complaints Commission (2001), the High Court rejected newsreader
Anna Ford’s application for a judicial review of the Press Complaints Commission’s decision
not to uphold a complaint or grant an injunction restraining the publication of photos taken
of herself and her companion, David Scott, on a beach. The court made it clear that its role
was not to make a factual evaluation of the circumstances and decide whether the privacy
rights of Ford and Scott had been transgressed. Rather, it was to determine whether Ford had
an arguable case to pursue her complaint by invoking the court’s limited supervisory
jurisdiction over the Press Complaints Committee.

It is open to debate whether the Ford case will actually have any bearing on the development
of a law of privacy. The court maintained that:

. . . the courts will be deferential to and not be keen to interfere with decisions of
the Commission . . . unless . . . clearly desirable to do so.

In reaching this decision, the court drew support from the case of R v Broadcasting Standards
Commission (2000), in which is was said that:

. . . it is very important that where you have a body such as the Press Complaints
Commission, if the court has any jurisdiction it is reserved for cases where it would
be clearly desirable for this court to intervene.

However, the court:

. . . could not conclude that a publicly accessible Majorcan beach was a place
where the Complainant could have had a reasonable expectation of privacy . . .
even if there was much less deference due by this court to the determination than
appears appropriate in the authorities to which I have referred, there still would not
be even an arguable case that there was any justification for this court to interfere
on this ground as there was adequate material to justify the decision of the
Commission that there had not been a breach of Clause 3 (ii) of the Code.

Moreover, previous case law may not be sufficient to develop a law of privacy. For example,
the definition of ‘private nuisance’ in English law may change in the light of Article 8 of the
Convention. In Hunter v Canary Wharf Ltd (1997), the House of Lords dismissed a claim for
nuisance arising out of interference with television reception by large buildings at the new
Canary Wharf development. It was held that an owner of land was entitled to build on his
land as he pleased, subject to planning control, and was not generally liable if a building
interfered with his neighbour’s enjoyment of his own land. Although the court observed that
‘the presumption is for freedom in the occupation and use of property’, the court concluded
that because the defendant had been granted planning permission, no action lay in private
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