Page 318 - Law and the Media

The Human Rights Act 1998
19.1 The HRA and the right to privacy

19.4.1 Section 12

The ‘right to privacy’ in Article 8 of the Convention gave rise to serious concerns on the part
of the press when enactment of the HRA was initially proposed. It led Lord Wakeham, the
Chairman of the Press Complaints Commission, to seek amendments to the Human Rights
Bill. These were eventually accepted by the Government and are now contained in Section
12 HRA, which provides that, when a court is considering the grant of relief that ‘might
affect the exercise of the Convention right of freedom of expression’:
The court must have particular regard to the importance of the Convention right to
freedom of expression.
(Section 12(4) HRA)
Where the proceedings relate to ‘journalistic material’ or conduct connected with it, the court
must take into account the extent to which it is in the public interest for the material to be
published and ‘any relevant privacy code’ (Section 12(4)(b) HRA).
The effect of the Section 12 HRA is not entirely clear, and on one view it adds nothing to
the pre-HRA approach of the English courts. However, it has been held that it:
. . . puts beyond question the direct applicability of at least one article of the
Convention as between one private party to litigation and another – in the jargon,
its horizontal effect.
(Douglas v Hello! (2001))
As Section 12(4) HRA directs attention to ‘any relevant privacy code’, it is likely that any
newspaper that breaches paragraph 3 of the Press Complaints Commission’s Code of
Practice (see Chapter 17) would have its claim to freedom of expression ‘trumped’ by
privacy considerations (Douglas v Hello! (2001)).

19.4.2 Tort of privacy?

The HRA has already begun to give a decisive impetus to the development of a tort of
privacy in English law. In Douglas v Hello! (2001) the Court of Appeal considered whether
Michael Douglas and Catherine Zeta-Jones were entitled to an interim injunction restraining
Hello! magazine from publishing pictures of their wedding, the exclusive rights to which had
been sold to OK! magazine. The matter was dealt with as a claim in breach of confidence.
However, the Court of Appeal said that the law had:
. . . reached a point at which it can be said with confidence that the law recognizes
and will appropriately protect a right of personal privacy.
It was said that ‘the law no longer needed to construct an artificial relationship of
confidentiality between intruder and victim’. Instead, the right to privacy could be substituted
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