Page 34 - Law and the Media

Introduction
legislation must, as far as possible, be given effect in a way which is compatible with the Convention.
Furthermore, a ‘public authority’ (although not a private individual) must not ‘act incompatibly’ with
any Convention right.

The Article 6 right to a fair and public trial will impact on court-ordered reporting restrictions, such
as the power to postpone the reporting of proceedings and the power to prevent the publication of the
names of parties. The Article 10 right to freedom of expression is now the starting point for all cases
involving restrictions on expression and will be of considerable importance in cases concerning
defamation, breach of confidence, reporting restrictions, contempt of court, prior restraint and ‘hate
speech’.
The effect of the HRA has already been felt in the 12 months since it came into force. In the case of
Venables v News Group Newspapers Ltd (2001), the two notorious child murderers of James Bulger
sought injunctions to prevent the publication of confidential information that might lead to their
identification. The court felt that there was a ‘strong and pressing social need’ to maintain the
confidentiality of the applicants and to protect their Convention rights. The court granted the
injunctions in order to ‘protect the applicants from serious and possibly irreparable harm’. The HRA
may also put an end of the age of ‘kiss and tell’ stories. In 2001, a High Court judge granted a
preliminary injunction against the Sunday People preventing publication of the accounts of two
woman who had conducted affairs with an unnamed, married successful footballer (A v B and C
(2001)). The judge, who had to balance the competing rights of freedom and expression and privacy,
ruled that the publication of the material would amount to a breach of a duty of confidence between
the footballer and the two women and granted the footballer’s application for an injunction. The case
is subject to appeal by the Sunday People and will have a significant bearing on whether this type of
material, as well as less salacious investigative reporting, can be published in the future.

Privacy

The question of an ‘express law of privacy’ has long been a matter of debate in England. Unlike the
law in other countries such as the USA, there is no ‘tort of privacy’ or statutory right to privacy. A
person who claims his right to privacy has been infringed must bring an action for breach of
confidence, trespass or defamation. Additional protection is provided by the criminal law and the laws
of copyright and confidence in respect of interference with letters and communications, the power of
the court to grant injunctions prohibiting or restricting publication of information in court cases, and
the Data Protection Act 1998 which purports to enhance a person’s right to privacy by safeguarding
personal data more effectively.

The debate over a ‘law of privacy’ always seems to revolve around the activities of the media. Despite
the lack of a written constitution in England and Wales, freedom of the press is regarded as the
cornerstone of freedom of speech. However, the media are often accused of harassment, inaccurate
reporting and intrusion into the lives of private individuals as well as ‘celebrities’ and the Royal
Family. Over the past 40 years, five separate bills have been presented to Parliament aimed at
introducing a statutory tort of privacy. All have been unsuccessful because of the difficulty of
establishing an adequate definition of privacy. During the same period, various Government
committees and Royal Commissions have considered the same question, the most recent being the
Government Committee on Privacy and Related Matters chaired by David Calcutt QC which reported
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