5C Privacy, Confidence & Data Protection : Legal Protection of Privacy
Until relatively recently, UK law did not recognise a legal right to privacy. However, since the introduction of the Human Rights Act 1998 and the Scotland Act, which incorporated the European Convention on Human Rights into UK law and which, by Article 8, guarantees a right to privacy, individuals can now seek to enforce that right through the courts i.e. individuals and organisations can seek an injunction to prevent broadcasters from unjustifiably infringing their privacy or, after broadcast, may sue for damages. This has been achieved by the UK courts adapting the existing law relating to confidential information to cover privacy claims.
Right to Privacy -v- Right to Freedom of Expression
When deciding whether or not there has been or is likely to be an infringement of privacy and, if so, whether or not it is justified, the Court, taking into consideration all the facts and circumstances of a particular case, will seek to balance the individual's right to privacy, under Article 8, with the programme makers' and broadcaster's right to freedom of expression under Article 10 of the Convention.
Public Interest & Compliance with the Code
The law states that wherever a court is considering granting an injunction preventing broadcast of a television programme, the Court must, amongst other things, have particular regard to the extent to which it is or would be in the public interest for the material to be published and also the extent to which the broadcaster has complied with 'any relevant privacy code' i.e. the Ofcom Broadcasting Code. Thus, whether or not publication is justified will generally turn on whether or not there is an overriding public interest, which is consistent with the privacy provisions of the Code. See Chapter 4D, Privacy .
A detailed discussion of the law of privacy and emerging case law is outside the scope of this Handbook but producers should read Chapter 4D of this Handbook, which contains a summary of the regulatory provisions relating to privacy and a detailed discussion of how to ensure that programmes do not unjustly infringe the privacy rights of others. Compliance with the privacy rules and practices contained within the Code is likely to ensure that a programme complies with the law.
Protection from Harassment Act 1997
Whilst this piece of legislation was principally intended to deal with stalking, it can have implications for journalists and their activities. The Act creates both civil and criminal liabilities for journalists.
It is a criminal offence to engage in a course of conduct which one knows or should know amounts to harassment of the subject. There is no specific defence for journalists. The only relevant defences are the prevention or detection of crime which are unlikely to apply to journalists; or that in the circumstances the conduct was reasonable.
In addition, through a civil action, the subject of the harassment can:
- Seek damages from the harasser for any anxiety caused and for any resulting financial loss;
- Apply for an injunction after only one act of harassment if they can show that future harassment is likely; and
- Apply to the Court for an arrest warrant to be issued if the harasser breaches any court order.
The types of activity which could be problematic are:
- long lens photography;
- doorstepping;
- interviewing/speaking to friends, business associates and family about the subject, without the consent of the subject;
- contacting a subject after he/she has refused to comment;
- continuing to film a subject after they have asked for filming to stop.
Clearly, compliance with the provisions of the Code on fairness and privacy would assist in any defence. See Fairness Chapter at 4C and Privacy Chapters at 4D respectively.