Citation(2012) 24 SAcLJ 223
Published date01 December 2012
Date01 December 2012

Privacy and Confidentiality

This article examines the recent English litigation in the Max Mosley case before the domestic court and also before the European Court of Human Rights (“ECHR”). The article aims to highlight the problems in developing adequate remedial responses and includes discussion of the Neuberger Report on a possible duty to warn of an intended publication of private facts as well as recent English discussion of the appropriateness of super-injunctions given the principle of open justice. Whilst the article aims to set out an overview of recent English and ECHR developments, it concludes by trying to identify questions that Singapore law will meet in the area of privacy and personal facts. The Singapore government has already announced its intention to introduce data protection legislation in 2012. The legislation may well increase societal awareness of the importance of privacy in the Information Age. Whether it will or should trigger the development of new or expanded causes of action to protect private facts, out of the action to protect confidential information, remains to be seen.

I. Introduction

1 The opening decade of the new millennium has witnessed considerable developments in several jurisdictions over the ability and willingness of the law to protect private facts. Leaving aside important statutory interventions (such as data protection legislation), the Judiciary in several common law jurisdictions has demonstrated renewed vigour in deepening the protection afforded to private facts. In

the case of the UK, the impetus has been legislative: the Human Rights Act 19981 and the need for English law to comply with the European Convention for the Protection of Human Rights and Fundamental Freedoms.2 In other cases such as Australia, the impetus has come from within the common law case law system: the evolution of new actions to better meet an individual's need for privacy.3 How far the Australian courts are prepared to develop the action remains, however, to be seen. The problem with privacy is twofold. First, does the law recognise a substantive right of privacy or at least a right to respect for private (personal) facts? Second, if the law does confer a legal right to protect private facts, is the law able to provide an adequate but proportional remedial response in cases where interference is threatened or has already taken place? Recent English cases demonstrate the importance of interlocutory remedies in actions to protect privacy and the possible need to revisit the law on exemplary damages.
II. The backdrop: Max Mosley and the right to respect for privacy

2 The question as to when the law will impose a duty to provide information to a third party so that he/she can better protect his/her rights and interests has always been tricky. This is especially so where the

question is addressed in respect of the “would be” wrongdoer. If the would-be victim is informed and consents or in some way encourages the wrongdoer to go ahead, defences based on consent or estoppel may arise. Assuming that the law does recognise a substantive right to protect private/personal facts, should the law impose a duty on a would-be publisher to pre-notify the victim of his/her intended publication so that the victim can take preventive action by seeking an injunction on an interlocutory and quia timet basis? Is it necessary to impose a duty to pre-notify and if so is such a duty workable in practice? This was in essence the heart of the recent complaint brought by Max Mosley against the UK government to the European Court of Human Rights (“ECHR”) and which is discussed further below. Judges have from time to time noted that hard cases make bad law. By this what is usually meant is that a new liability or duty based rule, especially one of general application, may apply to situations far removed from the case at hand where the application will have undesirable consequences not relevant in the litigation generating the rule. There are many who argue from principle that in such cases it is for Parliament and not the courts to debate and craft new principles which have broad application. This is especially so where there is no clear societal consensus.

A. The Mosley Case: Eady J

3 The recent application by Max Mosley to the ECHR is one such case. The facts, unfortunately from Mosley's point of view, are well known. The claimant was (at the time) the President of the Federation Internationale de l'Automobile (“FIA”) that organises the hugely successful Formula One motor racing competition. The claimant had been involved in sado-masochistic activities. A participant had secretly filmed the activities. She also gave an interview to the tabloid newspaper, the News of the World. On 30 March 2008, an article under the heading “F1 Boss has Sick Nazi Orgy with 5 Hookers” was published by the tabloid.4

4 Unsurprisingly, an action was commenced for breach of confidence and/or unauthorised disclosure of personal facts. An edited version of the video was uploaded to the tabloid's website. Between, 30 and 31 March, the edited video was viewed over 1.4 million times. The online version of article was visited some 400,000 times. On top of

this, the print edition had a circulation of some three million plus copies. On 31 March, the newspaper removed the edited video footage voluntarily from its website. It undertook not to show the images again without giving 24 hours notice. On 6 April 2008, a second article was published. On 9 April 2008, Justice Eady declined an application for interim injunction to prevent repeat publication because the material was no longer private.5 At trial, the claim was founded at least in part on “old fashioned” breach of an equitable duty of confidence arising out of a pre-existing relationship. In finding for the claimant, Eady J stressed that whilst the “old fashioned” action for breach of confidence derived historically from equitable principles, it had been extended by the stimulus of the UK Human Rights Act 1998 to protect information in respect of which there was a reasonable expectation of privacy (as opposed to information possessing the necessary quality of confidence).6 Previous cases had already decided that once the claimant established a reasonable expectation of privacy that the court was required to carry out the next step of weighing the relevant competing Convention rights in the light of an intense focus upon the individual facts of each case.7 Eady J accepted that in the case of photography, the very fact of clandestine recording may be regarded as an intrusion and an unacceptable infringement of the Art 8 rights. Once the recording was made, the appropriateness of onward publication either on a limited basis or more generally to the world at large was a separate issue.

5 The defendant denied that Art 8 had been engaged on the facts. In any case, they asserted that the claimant's right under Art 8 was outweighed by a greater public interest in disclosure such that the defendant's right to freedom of expression under Art 10 should be allowed to prevail. The public interest as initially framed concerned the allegation that the sado-masochistic session in question involved Nazi or concentration camp role play. Later this broadened to include the assertion that the acts involved illegality: assault occasioning actual bodily harm and brothel keeping.8 This was said to be of public interest because of the claimant's role as President of FIA. On the evidence, Eady J found that the sado-masochistic session did not involve any Nazi theme: that there was nothing spoken by the claimant on the occasion which reflected Nazi terminology or attitudes. Any “squeals” of a woman recorded by the covert filming was nothing other than “a spontaneous squeal by Woman A in medias res”.9 Not surprisingly, Eady J accepted that the claimant's Art 8 rights had been engaged.10 The question that

remained was whether there was a public interest such as to justify the intrusion in the name of Art 10. So far as the allegation of criminality was concerned, Eady J found that there was no criminality in terms of commission of sexual offences as all the acts were covered by consent.11 So far as the allegation of public interest and the Nazi concentration camp theme was concerned, this also failed as the court found there was no such theme on the occasion in question.12

6 This left the defendant with the claim for Art 10 in the context of a “depravity” and “adultery” argument. Put bluntly, even if the claimant's acts could for the sake of argument be described as “depraved” and/or “adulterous” did it follow that these were therefore matters of public interest? On this, Eady J's view was that:13

[T]he modern approach to personal privacy and to sexual preferences and practices is different from that of past generations. First there is a greater willingness … to accord respect to an individual's right to conduct his or her personal life without state interference or condemnation. It has to be recognized that sexual conduct is a significant aspect of human life in respect of which people should be free to choose … It is important in this new rights-based jurisprudence to ensure that where breaches occur remedies are not refused because an individual journalist or judge finds the conduct distasteful or contrary to moral or religious teaching. [emphasis added]

7 In the UK rights-based environment of the Human Rights Act 1998 where Art 8 has been engaged, the only permitted exception is where there is a countervailing public interest which is strong enough in the circumstances to outweigh Art 8:14

[W]as it necessary and proportionate for the intrusion to take place, for example in order to expose illegal activity or to prevent the public from being significantly misled by public claims hitherto made

by the individual concerned … Or was it necessary because the information … would make a

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