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Jean-Yves Gilg

Editor, Solicitors Journal

Privacy arguments before the courts reach record high

Privacy arguments before the courts reach record high


Celebrities put breach of privacy claims back in the spotlight

Privacy arguments involving high-profile celebrities have reached a new high, with the number of court cases doubling in the last five years, figures show.

Research from Thomson Reuters' found that 2009/10 saw 28 privacy claims before the courts. This figure rose to 45 in 2011/12 before increasing yet again to 58 in 2014/15.

An increase in the numbers of celebrities and public figures trying to restrict the publication of negative stories or photographs, such as in the hotly debated PJS v News Group Newspapers case, and a rise in the amount of personal information handled by public sector organisations are thought to be behind the growth in claims.

With approximately one-fifth of privacy arguments in the last year involving celebrities and politicians, Jonathan Cooper OBE, a barrister at Doughty Street Chambers, said the debate over the use of such injunctions has been reignited after a number of years in which their usage had tailed off.

'The media has expressed concerns that it is too easy for public figures to use this tool to control what was being published about their private lives.

'Questions have been raised over how appropriate privacy injunctions are now that information on celebrity scandals can be so widely passed through social media tools and by looking at overseas media on the internet,' added Cooper.

'Injunctions only affect the publication of stories in England and Wales. Media organisations and individuals elsewhere can report on a story or post on social media without fear of censure as they are often beyond the reach of English and Welsh courts.'

In recent cases involving public figures, former footballer Paul Gascoigne, the husband of Cheryl Fernandez-Versini, and the infant son of singer Adele have all won damages following the publication of photographs and stories deemed to have breached their privacy.

Another key issue in many privacy cases is the extent to which individuals have a right to determine what happens to information after they have provided it to a company or a public sector body.

These cases may include information provided under a legal obligation, or information that has been voluntarily provided for a specific purpose.

Following the introduction of the Human Rights Act 1998 and the development of a broader right to privacy, over a third of privacy cases now relate to the government or other public sector organisations.

'The extent to which individuals should have absolute control over information provided by them is continually being tested and the use of privacy arguments is steadily rising,' observed Cooper.

The editor of European Human Rights Law Review, Cooper added that the information shared with the US intelligence agencies was the most high-profile example, while other instances relate to tagging of ex-offenders, disclosure of past criminal records, and questions public bodies are entitled to ask.

'The concept of privacy now extends far beyond media law,' he continued. 'As the ways in which we communicate and capture information become ever more complex, the bounds of privacy law will be developing.

'However, the onus is likely to continue to be on those who wish to access or exchange information to demonstrate clearly and specifically why they have a legal right to do so.'


Holding back the tide

Sarah Webb is a partner in the privacy and media law team at Payne Hicks Beach

Lord Leveson in his talk entitled 'Privacy and the internet' in December 2012, highlighted the difficulties that claimants in privacy actions faced. 

'There is a view that blogging or tweeting is publication without responsibility or accountability and that in this sense the internet is beyond the reach of the law… There is not only a danger of trial by Twitter, but also an unending punishment and no prospect of rehabilitation via Google,' he said.

Leveson predicted that with time, the proper application of the law would play a role for the internet and would shape behaviour and recent statistics showing the increase in cases supports this.

The recent Supreme Court case of PJS v News Group Newspapers Limited highlighted that even where information had leaked out into the public domain through the internet, maintaining injunctions had a significant value in protecting individuals’ private information and particularly where children are involved. The increase in cases also reflects the use of the Data Protection Act in conjunction with privacy actions. 

Significantly, only one-fifth of the cases involved celebrities or politicians, with more than a third of the claims involving information provided under a legal obligation or given for a specific purpose which was subsequently 'misused'.  

Individuals bring these actions because controlling their private information matters. The damages for such claims remain modest, even following the Court of Appeal case of Gulati v MGN Limited [2015] EWCA, damages for a single intrusion remain comparatively modest, with a starting point of £10,000 per annum for general hacking.

The increase in numbers of privacy claims reflects that the misuse of private information matters to everyone. It is not the preserve of those in the public eye, and despite the leakage of information via the internet, the courts recognise that injunctions have significant value in holding back the tide of media interest.