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Privacy

Reviewed February 2021

This means that a numbers of aspects of their lives are not to be revealed unless it can be shown it is in the public interest to do so.

Matters which are often regarded by the courts as being private are:

  • Family life and children
  • Sexual relationships
  • Health
  • Religion
  • Commercially confidential relationships
  • Employee/employer relationships
  • Religious confessions

REPORTING CRIME AND INVESTIGATIONS

Two recent privacy cases mean that publisher need to consider very carefully whether they will name people under investigation or arrested by the police.

Sir Cliff Richard took a privacy action against the BBC after it filmed a police search of his home using a helicopter. The judge in the case said that someone under investigation by the police has a reasonable expectation of privacy and did not accept the BBCs defence that broadcasting the footage was in the public interest.

This judgement affects reporting of police searches, or people being interviewed voluntarily.

In 2020 Alaedeen Sicri sued Mail Online for breach of privacy after he was named following his arrest in the wake of the Manchester Arena bombing. He had later been released without charge.

The judge in the case said that people being investigated, or who have been arrested, have a right to privacy up until the point they are charged. That can be overridden in the public interest, but the courts will set a very high bar as to what the public interest is.

Such matters can be breached, if a publisher can show it is the public interest to do so. Public interest defences can be mounted if it can be shown the article was:

  • Exposing crime – NB, following Richard and Sicri cases this will only mean before any investigation or arrest is under way.
  • Revealing fraud
  • Exposing hypocrisy

PRIVACY CHECKLIST:

Generally, if the answers to the following questions is yes then that person has less right to privacy:

  • Is this person a public figure?
  • Have they put this aspect of their life in public before and to what extent?
  • Did the behaviour documented take place in a public place?
  • Could they reasonably expect privacy there?
  • Are you exposing hypocrisy, fraud or crime?
  • How far do you need to go to expose it?
  • Is a police investigation under way, or has anyone been arrested? If so, you cannot identify anyone unless they have been charged, unless you can show an overwhelming public interest reason for doing so.

PENALTIES

Injunctions can be obtained to prevent publication which breaches privacy. This can cause substantial interference with a publisher’s business. If the breach has already happened, then a claimant can seek damages for breach instead, which can be substantial.
Damages Awards
Damages in privacy cases can now be extremely high after a judgement concerning phone hacking of celebrities.
Instead of making one award of damages for the intrusive behaviour as a whole, the court in this case took an ‘atomised’ approach, calculating each and every intrusion and publication to arrive at a total sum. This resulted in one claimant receiving £260,000 in damages – higher than most libel claims.

Damages Awards

Damages in privacy cases can now be extremely high after a judgement concerning phone hacking of celebrities.

Instead of making one award of damages for the intrusive behaviour as a whole, the court in this case took an ‘atomised’ approach, calculating each and every intrusion and publication to arrive at a total sum. This resulted in one claimant receiving £260,000 in damages – higher than most libel claims.

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Written by David Banks, Media Law Consultant and Trainer. David runs the Law, Ethics and Copyright workshops for NUJ Training Wales. 

Written By...

David Banks

David Banks

David Banks is a journalist with 24 years’ experience and delivers NUJ Training Wales’ course on Media Law and Ethics. He is a media consultant delivering training to a range of national and regional media, NGOs, government, charities, PR companies, universities and the police. He is a trainer who has created and managed successful courses in journalism, media law and production journalism. He was co-author of 18th, 19th and 20th editions of McNae’s Essential Law for Journalists. He writes regularly on law and the media for The Guardian, The Mirror and The Independent. He is a frequent contributor BBC TV and radio news programmes.

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