The Right to Tell One’s Own Story? Balancing Privacy and Expression Claims

Michael G. Doherty

Principal Lecturer in Law
University of Central Lancashire

[email protected]

Copyright © 2007 Michael G Doherty
First published in Web Journal of Current Legal Issues

Summary

This article addresses recent developments in the courts’ approach to the difficult balance between privacy claims and expression claims under Articles 8 and 10 European Convention of Human Rights. It argues that, despite clear guidance from the House of Lords, the lower courts have adopted a methodology that does not promote a fair and effective balancing of the rights. It argues further that the personal interest of an individual in communicating their own story has not been consistently recognised and incorporated into the balancing process. As personal speech claims are based on the same values of informational autonomy and self-development as privacy claims, this results in a conceptual as well as a practical imbalance.

Contents

Bibliography

1. Introduction

This article argues that in cases involving the balance between privacy claims and expression claims the interest of the defendant in 'telling their own story' should be recognised as adding weight to the expression claim.

The balance between privacy and press freedom has been the subject of much judicial, academic, political and journalistic comment in recent years. The courts, to fulfil the requirement to interpret and develop the common law in accordance with the European Convention of Human Rights (ECHR), have extended the protections provided by the tort of breach of confidence. The nature of the tort has changed to the extent that Lord Nicholls in Campbell v MGN Ltd. [2004] UKHL 22, [2004] 2 AC 457, para 21, said "The essence of the tort is better encapsulated now as misuse of private information". A recurring difficulty is how to balance the claimant’s interest in protection of private information under Article 8 ECHR, which allows for restrictions to protect the rights of others (including their freedom of expression rights), and the defendant’s interest in freedom of expression under Article 10 ECHR which allows for restrictions to protect confidential information and the rights of others (including their privacy rights). The competing interests are subject to a proportionality test that requires all relevant elements of the specific claims to be assessed and balanced.

This article explains first that the methodology adopted in recent cases is unsuited for carrying out this balancing process effectively. It argues that the issue of an individual wanting to ‘tell their story’, (an expression claim based on personal interests), even if that involves disclosing the personal information of others, has not been consistently identified or given weight. It identifies the barriers to development of this concept and assesses whether the ‘right’ ought to be more explicitly incorporated into the proportionality test.

The distinction

There is a distinction between two types of cases. First, where the alleged infringement of privacy is by someone, normally a journalist or a paparazzo, specifically acting with the intent of gathering that information. In this category are the leading cases that have established the modern approach to privacy and press freedom; Douglas v Hello [2001] QB 967, Campbell, von Hannover v Germany [2004] ECHR 59320/00, (2005) 40 EHRR 1. Alternatively, there are cases where someone has ‘lived their life’, which is intertwined with the private lives of other people, and the person wants to communicate their story, including information which may amount to private information concerning others, to a wider audience, as in cases such as A v B plc [2002] EWCA Civ 337, [2003] QB 195, McKennitt v Ash [2006] EWCA Civ 1714, [2007] 3 WLR 194, and Browne v Associated Newspapers Ltd. [2007] EWCA Civ 295, [2007] 3 WLR 289.

Toulson explains the distinction as between cases where the discloser has a personal interest which may justify disclosure independently of a wider public interest, and cases where the information has nothing to do with the person disclosing it (or the person to whom it is disclosed) which rely on a public interest to justify the disclosure (Toulson, 2007, p. 150).

A distinction along similar lines has been recognised by the courts. The Court of Appeal has pointed out that in Campbell, Douglas and von Hannover the basis for claiming privacy was somewhat problematic. It depended on the nature of the information and "the recipient’s perception of its confidential nature that imposes the obligation on him" (McKennitt, para. 15). In cases like McKennitt and Browne, though, which are largely based on the circumstances in which the information was imparted, there is a "more elemental enquiry into breach of confidence in the traditional understanding of that expression" (McKennitt, para. 15). Many cases of ‘telling one’s own story’ will involve personal experiences from the sorts of relationships that impose obligations of confidence, and this impacts significantly on those cases, but the categories are not coterminous. In CC v AB, [2006] EWHC 3083, [2006] All ER (D) 39 (Dec), for example, a cuckolded husband attempting to communicate the cause of his marital breakdown had no duty of confidence arising from his wife’s adulterous relationship. In HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776, [2007] 2 All ER 139, the personal secretary was under a traditional duty of confidence but was not trying to communicate anything about her own life.

Caveat

A first caveat about this categorisation is that, it may not always be possible to make a ‘bright line’ distinction. A newspaper story or TV programme may contain both categories of information, i.e. a compilation of information obtained by participants in the ordinary course of a relationship and further information gathered by a journalist or photographer. In a different context, in Campbell, the newspaper investigation was most probably initiated by a breach of confidence either by someone from her staff or from her Narcotics Anonymous group, even though they made no explicit contribution to the newspaper story.

Second, making the case for a distinction does not suggest that categorising the person making the speech claim (determined information gatherer/participant in a shared experience) should decide whether information can be published or not. But as the proportionality test makes clear, the weight to be given to both the speech claim and the privacy claim need to be subject to ‘intense focus’ before they are subject to a final balancing, so delineating the factors to be taken into account is important.

2. Methodology for Balancing Privacy and Expression Claims

There is still no general tort of invasion of privacy and what the courts have developed through the vehicle of the tort of breach of confidence is a remedy to protect personal information, (McKennitt, per Buxton LJ, para. 8), though the term ‘privacy claim’ is in general usage. Before any balancing process is required the rights in the Articles must be engaged. For Article 10 this will be straightforward; in relation to Article 8 the question has been much more difficult.

What is private information?

Murray v Express Newspapers [2007] EWHC 1908, [2007] All ER (D) 39 (Aug), illustrates the logic of commencing the enquiry with the question of whether there is a valid privacy claim. The case concerned photographs of the author JK Rowling’s son, taken when the family were out walking in the street. Despite strong similarities to the ultimately successful action in von Hannover, the court found that the photographs could not be categorised as private information. The case failed on that point and there was no investigation into the, presumably very slight, strength of the expression claim. Any attempt to restrict expression will engage Article 10, so it is only if that expression contains private information that there is a need to balance the rights.

The duty not to misuse information will be imposed whenever "a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential" (Campbell, per Lord Nicholls, para. 14). The notion of ‘private information’ has been given a broad interpretation. Article 8 has extended the areas in which breach of confidence can protect privacy and, "It requires a generous approach" (A v B plc, per Lord Woolf, para. 6). Even relatively trivial matters in relation to the home, such as its décor and layout can be protected from disclosure without permission (McKennitt, para. 21; also cited with approval in Browne, para. 28). As Article 8 and 10 are the "very content" of the tort, (A v B plc, para. 4), then we need to consider the jurisprudence of the European Court of Human Rights, as mandated by s.2 of the HRA. The leading case is von Hannover v Germany, where Princess Caroline of Monaco successfully claimed that German law did not protect her Article 8 rights. Photographs of her carrying out everyday activities were classed as personal information and she had been wrongly categorised as a public figure par excellence. As the freedom of expression claim lacked strength, her privacy claim succeeded.

Von Hannover has extended the reach of Article 8 beyond what was previously understood in relation to everyday activities (McKennitt, para. 37). There was some discussion that the judgment in von Hannover was heavily influenced by the campaign of media harassment that Princess Caroline had suffered for more than a decade, but in Sciacca v Italy [2006] 43 EHRR 20, the Court confirmed that its judgment was not limited to cases of harassment.

Approaching the balance

Phillipson and Fenwick surveying the case law before the entry into force of the Human Rights Act 1998 complained of a "striking asymmetry"; that free speech claims were assumed to be valid and privacy claims were treated as narrow exceptions to the general rule (Phillipson and Fenwick, 2000, p.686). Considering the early cases decided under the Human Rights Act 1998, Phillipson argued that the courts were merely declaring that there is no presumptive priority between the Articles, whilst in practice they were emphasising the fundamental role of expression and omitting "any mention of the commensurate status of Article 8" (Phillipson, 2003, p.747). He reiterated the argument for a ‘parallel analysis’, i.e. that the specific strength of each claim, and the justification for restricting it, should be assessed in turn, before they are weighed against each other. The dangers that this approach seeks to avoid are, first, giving an abstract ‘context-less’ value to claims that vary widely in their strength and, second, only assessing one claim in the context of the exceptions provided in the other, with the strong interpretive reflex to assess exceptions narrowly that this involves (Phillipson, 2003, p.755). The values in the competing claims including, it is argued here, the value in personal speech, can only be effectively balanced if the methodological approach is sound.

The leading case on the balance between privacy and press freedom is Campbell, which involved a newspaper story about the drug addiction and treatment for that addiction of the fashion model Naomi Campbell. The facts are a little unusual, partly because the story concerned information about medical treatment, but mainly because of the public interest in reversing Campbell’s previous false statements about her drug use. This meant that the outcome of the case turned on the relationship between the categories of information that were accepted as being publishable (the fact of addiction and treatment) and those where publication was contested (the details of the treatment and the photographs) and the latitude to be given to the press in reporting background detail and using illustrative photographs.

The House of Lords gave five full speeches on a 3:2 majority verdict, so it was likely to be difficult to clearly outline the ratio. Even some time later, the High Court was not inclined to ‘unpick the speeches’ to determine whether passages did or did not form part of the ratio (Murray, para. 61). In cases where there are five full and complex speeches in a House of Lords majority judgment, the implications are normally only drawn out through a series of subsequent cases. Here though, there was a brief summary of the ratio provided very shortly afterwards by the House of Lords itself.

Lord Steyn, with the other Law Lords in agreement, in Re. S (A Child) [2004] UKHL 47, [2005] AC 593, provided a summary of the test for balancing privacy and expression claims derived from Campbell. The case concerned an application for an injunction, based on the court’s inherent jurisdiction, to prevent naming the child’s mother in reports of her trial for murder of her other child. Identification of the child, it was argued, would harm its health and well-being. The House of Lords rejected the application; on weighing the privacy claim it found that any distress to the child would be indirect and that whilst Parliament had created a range of privacy protections for children involved in court proceedings it had not chosen to extend statutory protection to children in S’s position. Additionally, the expression claim was derived from the rule of law and bolstered the interests of open justice and informed debate on criminal justice.

The judgment stated that four legal propositions had clearly emerged from Campbell. These were that a) There was no ab initio precedence to be given to privacy claims or freedom of expression claims; b) the court had to weigh with ‘an intense focus’ the comparative strength of the specific privacy claim and the specific expression claim; c) the court must take into account the weight of the justification for interfering with each claim; d) the court must take an ultimate balancing decision on the comparative weight of the claims (Re. S, para 17). Lord Steyn felt able to draw up this summary because whatever the different approaches to the facts of the case, which he described as ‘not material’, the Law Lords in Campbell professed that they all agreed on the law (Re. S, para. 17). He goes on to describe these four propositions as forming a ‘new methodology’ (para. 23).

The key element is that the specific privacy claim and the specific expression claim will be weighed independently. It acknowledges that the claims will have a specific rather than generic value. Once the strength of each claim is established the court will be in a position to assess the justification to interfere with each claim. Again this should be separate; a) to what extent does the interest in this privacy claim justify restricting the other party’s expression claim, and b) to what extent does this specific expression claim justify allowing publication of this private information?

This may seem unwieldy but this methodology gives effect to the opening proposition: that neither article has precedence. The final proposition, the ultimate balancing test, would also be superfluous if the previous analysis had not treated the Articles in a reasonably independent way. Adoption of the ‘new methodology’ would therefore help avoid the dangers that Phillipson and Fenwick (2000, p.685) identified in more basic approaches to balancing the rights.

Adoption of the new methodology?

So in Re. S, a unanimous House of Lords attempted to identify the key legal propositions, present them as a step-by-step approach and call this a "new methodology". We would expect to see that methodology adopted by the lower courts and applied in subsequent cases. This has not happened.

McKennitt v Ash concerned an action by a folk singer to restrain publication of a book written by a former friend. She successfully claimed that numerous sections of the book constituted misuse of information in which she had a reasonable expectation of privacy.   Lord Steyn’s propositions are mentioned in the case, but they do not structure the judgment of the court (para. 46). The ‘new methodology’ is not used as a formal multi-stage test, rather, the court says there are two questions; a) is the information private? i.e. is it protected by Article 8; and b) must the owner of the private information yield to the freedom of expression claim under Article 10? (para. 11). Although there is reference to elements within the "new methodology" such as the absence of a precedence between the two Articles, this ‘two question’ method is the one that structures the judgment.

In Browne there is just a brief mention of the propositions from Re. S, which are listed without much commentary and confined to a section explaining that neither Article has precedence. Clarke MR adopts the methodology outlined by Buxton LJ in McKennitt (para. 21). Similarly, Prince of Wales only makes a passing reference to the "new methodology" (para. 52), and prefers to adopt the two-fold test from McKennitt (para. 25). Since the court and the parties agreed that Campbell was the starting point for any enquiry of this kind, it is difficult to see why they did not accept Lord Steyn’s summary of the main legal propositions deriving from that case. In Murray, it is only mentioned in the context of non-priority (para. 24) and the propositions of the new methodology are not outlined.

The original defect in the balancing process, outlined by Phillipson and Fenwick (2000, p.685), resulted in an asymmetry in favour of expression claims. The "new methodology" from Re. S would have reduced the danger of this defect, but despite its pedigree as a clear unanimous House of Lords judgment, it has not been adopted by the lower courts. The methodology from McKennitt, with its focus on first establishing the strength of the privacy claim and then assessing whether it is overborne by the expression claim, risks producing a mirror image of that original asymmetry (see CC v AB, below, for a striking example of this).

3. Values

Phillipson and Fenwick argue that to produce "consistent, principled and reasonably foreseeable outcomes" the values underpinning the claims need to be articulated (Phillipson and Fenwick, 2000, p.681). This section explores the principal values that justify, and are protected by, privacy and expression claims and argues that personal values in expression claims have been under-represented.

Article 8

The dominant view now is that the informational autonomy concept, an individual’s interest in controlling the flow of information about themselves, is the strongest justification for protecting privacy (see Campbell, per Lord Hoffmann, para. 50). Privacy also promotes personal dignity and has a broader societal role in maintaining spheres of social interaction and intimacy (Phillipson and Fenwick, 2000, p.662; Chadwick, 2006, p.496).

Von Hannover explained the rationale underpinning the protection of private life as including

This rationale for protecting privacy; that there is a personal space which should be free from intrusion and that disclosure of private information without consent is an affront to the personality (R v. Broadcasting Standards Commission, ex parte BBC [2001] QB 885, per Lord Mustill, para. 48), means that any intrusion will automatically and regardless of context have weight precisely because it is an affront. The courts will look at the specifics of the privacy claim, but once information is categorised as private, then the starting point is that it weighs heavily in the balancing process.

Article 10

Both the English courts and the European Court of Human Rights have repeatedly emphasised the fundamental nature of freedom of expression and freedom of the press (e.g. von Hannover, para. 58; Derbyshire County Council v Times Newspapers [1993] AC 534). In the context of the balance between private life and freedom of expression though, the rationale for protecting expression is narrower. The ‘decisive factor’ is the contribution that the story makes to a debate of general interest (von Hannover, para. 76). Political speech and the dissemination of ideas are accorded a particularly high value, and artistic and educational expression are also recognised as capable of contributing to debates of general interest. The media’s role, or at least its role worthy of protection under Article 10, is limited to that of a watchdog for a democratic society, whose duty is to impart information and ideas on matters of public interest in a responsible way (para. 58). Judge Cabral Barreto, in his concurring judgment in von Hannover, argued that the general interest does not have to be limited to political debate.

It has been argued that intrusive journalism has no "inherent truth value" (Phillipson and Fenwick, 2000, p.682). We could counter though that the duty to show the world ‘the way it is’ is not limited to the high drama of political affairs. In Woodward v Hutchins [1977] 1 W.L.R. 760 it was said that there is a public interest in giving publicity to the truth, and regardless of the other defects in that judgment and the counter-balancing interests in privacy, it seems hard to deny this additional public interest justification.

Are there any private interests involved in expression claims?

Whilst von Hannover did not involve a personal speech claim, it is striking that even in the statements of general principle there is no indication that private interests are relevant to expression claims under Article 10. Lady Hale in Campbell, whilst doubting that the story in that case promoted the values underlying freedom of expression, formulated the role of expression more broadly, as concerning the "political and social life of the community and the intellectual, artistic or personal development of individuals” (emphasis added) (para. 149).

There are both democratic and liberal rationales for freedom of expression. The democratic view focuses on the role of expression in broadening

In the other approach, liberal theories of freedom of expression emphasise

The strength of the democratic view is that it explains why expression claims are capable of taking priority over privacy claims (Fiss, 1996, p.4). Toulson stresses though that it is not an ‘either/or’ issue. Democratic speech will normally trump privacy, but libertarian speech and privacy are based on the same underlying values of autonomy and personal development and therefore the balance needs to be made on a case-by-case basis (Toulson, 2007, p.148).

It is therefore an oversimplification to regard it as a conflict between private rights and public interest (c.f. von Hannover, "regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole", para. 57). If expression claims are "based solely on democratic values, public interest would be the only justification for disclosure. But there may be justifications for disclosure aside from the general public interest" (Toulson, 2007, p.150). That is, freedom of expression involves more than the right to express opinions and Toulson explicitly acknowledges "the right of a person to impart information about their life to others around them" (Toulson, 2007, p.150).

Do the same values underpin both privacy claims and personal speech claims?

It is argued in both Phillipson and Fenwick (2000) and Phillipson (2003) that whilst personal expression may give weight to expression claims, it is not relevant to the assessment of privacy. This point is not returned to when the authors are discussing the values underpinning Article 10. This is unfortunate as their analysis is based on the paradigm of a clash between public and private interests derived from the democratic view of expression.

They claim that expression as an element of autonomy has minimal application and that privacy-invading speech assaults informational autonomy. This is true in relation to the ‘determined information seeker’ but not in relation to participants, whose attempt to tell their own story is itself an exercise of informational autonomy. They argue further that self-development as it relates to the expression of ideas has some support, but it must include the need for privacy as self-development. This is valid, except that self-development through expression is not simply about communication of ideas and opinions any more than privacy is limited to those categories. They point out that self governance or arguments from democracy have widespread support as a rationale for freedom of expression but have little relevance to archetypal privacy cases.

The European Court of Human Rights in von Hannover seems to be subscribing to an almost wholly democratic view of speech. This misses the point that non-political speech, such as personal speech, based as it is on decisions about what information about oneself to disclose and withhold, is also underpinned by values of autonomy and self-development. Therefore whilst the expression of ideas and contribution to debate in a democratic society will often trump privacy rights, subject to proportionality, this does not mean that non-political or even non-artistic speech is valueless.

4. The Right to Communicate One’s Own Story

As indicated above, the leading cases establishing the modern approach to privacy and expression claims involved a defendant who had determinedly targeted information about the claimant (or intended to, or used information from others who had so targeted the claimant). A number of subsequent cases are not like this. They have involved the aftermath of relationships and the questions facing the courts are more similar to pre-Campbell cases such as A v B plc, and even pre-HRA cases such as Woodward v Hutchins.

Identifying personal speech as a separate value

This category needs to be carefully delineated. It excludes journalists and photographers claiming that they are telling their own story by expressing what they saw or heard as part of their jobs. It is reserved for people who have ‘lived their life’, in goodness or turpitude, and subsequently wish to communicate that story. There may be a small number of cases where the participant in some shared experience entered it as a determined information seeker, but even in most so-called ‘kiss and tell’ stories the desire to ‘tell’ comes after the ‘kiss’.

To illustrate further; in Browne there was a range of information that potentially formed part of the story. The first example involves stories that JC, the claimants partner, heard exchanged between different people whilst sat round a dinner table. Whilst there may be a speech claim involving the public interest in politicians or in revealing misdemeanours, JC cannot claim a personal speech interest in revealing this: the information is not about him or activities from his life. The second example involves the claimant coming home and unburdening himself to his partner after a hard day at the office. Since information about this is not centrally about JC’s own activities there would be a weak personal speech claim and a strong privacy claim grounded in the confidentiality of the intimate relationship. The third example involves information about JC’s activities including his university course and the company he ran. Even if this involves the disclosure of person information relating to the claimant, JC has a strong personal interest in communicating these aspects of his own life. This interest is grounded in informational autonomy and self-development.

Do the cases identify any relevance in the defendant making a personal speech claim?

This issue is discussed most fully in A v B (of the pre-Campbell cases) and McKennitt of the more recent cases. In McKennitt the concept of ‘shared experience’ was discussed in relation to the privacy claim and found to have no effect on the confidential status of the information. The reasonable expectation of privacy can be generated by the nature of the information, by the circumstances in which the information was imparted, or commonly by "an interdependent amalgam of circumstances" (Prince of Wales, para. 36). The desire of one party to a relationship, or one participant in a series of events, to subsequently communicate their story is not relevant to the privacy claim. A number of writers have pointed out that it is relevant to the strength of the expression claim (see Aplin 2007; Phillipson and Fenwick, 2000; Phillipson, 2003).

In McKennitt, the defendant argued that the matters

The argument relied heavily on the Court of Appeal’s previous decision in A v B plc. That case concerned a footballer who had been in adulterous relationships with C and D. He attempted to prevent newspaper stories based on information supplied by C and D. Lord Woolf said,

And,

Buxton LJ distinguishes A v B plc on the facts; that a casual sexual relationship is not comparable to a longstanding intimate friendship. This would only affect the strength of the privacy claim though and the approach to the personal speech claim is markedly different. It was said that there was no shared confidence, only that McKennitt had admitted Ash into her confidence and that much of the information in the book did not concern matters in which she was involved, but in which she was a mere spectator (para. 31). Ash’s descriptions of her own actions were ‘parasitic’ on McKennitt’s fame and Ash "had no story to tell that was her own as opposed to being Ms McKennitt’s" (para. 51). Ultimately, "the matters related in the book were specifically experiences of and the property of Ms McKennitt" (para. 32).

Presumably, if the same information was contained in a book by McKennitt, including her interactions with Ash, then that would be permitted. As the book would be about herself, and not Ash, then as the ‘owner’ of those experiences, she could exercise her informational autonomy to decide to put them in the public arena and present them from her perspective. If she did then Ash would be entitled to respond, as the information would be in the public domain, but Ash is debarred from making the first move.

There is an uneasy imbalance here. It implies that famous people own their experiences, whilst ‘ordinary people’ only own their experiences to the extent that they do not overlap with the famous. It is difficult to see how characterising someone recounting incidents from her life as having no story to tell contributes to human dignity. The strength of the relationship of confidence, reinforced by the claimant’s well recorded and consistent desire to keep most aspects of her life private could have led to the same outcome, but with a more appropriate recognition of the principles and interests involved. The use of the language of property in McKennitt is not consistent with the finding in Douglas v Hello [2005] EWCA Civ 595 (see Brazell, 2005, p.408) that confidential information is not property. It is also unclear, since most aspects of personal information can only be generated by interaction with others, why one person’s experience of that interaction should be any more valid than another’s.

As an unreported case, Coe v MGN (Unreported, May 29, 2004) (QBD) Fulford J., was not cited in McKennitt, but it illustrates a different approach. The case concerned a story about a longstanding extra-marital affair between Lord Coe and Ms Lander. She wanted to disclose the affair; he did not. Some parts of the story were in the public domain, but the principal reason for refusing to protect information about the affair was that the woman’s ‘right to disclose her story’ and the right of a free press to publish outweighed Coe’s privacy claim. This was despite the fact that he was no longer in elective office and had not exploited his private life, though he was a politician during most of the time of the affair, and still held an important public role (as head of the 2012 Olympic bid) at the time of the action.

Browne clearly involved an issue of the claimant’s former partner, JC, wishing to tell his own story, but there is no mention of this as a relevant issue in the judgment. The dispute is stated in terms of the privacy rights of Browne versus the expression rights of the newspaper (para. 48). Taking the expression rights of JC out of the question, or (though this is not stated) subsuming them within the newspaper’s rights is wrong, because it simply fails to recognise a valid interest that reinforces the expression claim.

Perhaps the clearest judicial rejection of the notion of personal speech, and the clearest illustration of why its recognition is needed, is found in the case of CC v AB, which involved an attempt by a high profile figure to prevent publication of an affair he had had with a married woman. The defendant was the woman’s husband who had discovered the affair and whose marriage had broken down as a result. After establishing that the defendant was not in any relationship of confidence to information about the affair, Eady J found that the information was nevertheless personal information to the claimant on the basis of its intimate sexual nature. Though this departs to some extent from A v B plc, it is in line with the recent authorities.

Having established that there was a valid privacy claim the judge refused to sanction enquiry about the relative weight to be attached to it. This was on the basis of the need for judges to avoid moral judgements on modern relationships; they cannot appear sanctimonious (para. 28). The only assessment of the strength of the claim was to take a consequential look at the potential effect of publication on the claimant and others. This studied neutrality on the merits of the privacy claim misses the obvious point that adultery is not a lifestyle choice, it almost always involves, as it did here, dishonesty and betrayal.

The expression claim, on the other hand was subject to detailed assessment. It was found that the defendant’s motive of revenge was relevant to the strength of his speech claim. This was founded on the distinction between political speech and ‘vapid tittle tattle’ (from Campbell) but sorely confuses the content of a publication and the motivation behind it. The judgment also gave particular prominence to qualitative views about the location of publication (‘the tabloids’). Eady J went on to deny that the defendant had any "special status" or personal interest in communicating what had happened (para. 44). This left the defendant with nothing to stack against the claimant’s personal interest in avoiding public humiliation and trying to rebuild his family life. Phillipson in 2003 had made the legitimate complaint that expression claims were being given a monolithic, context-less value whilst competing privacy claims were subject to fine gradation of strength. This case represents a perhaps extreme example of the pendulum swinging too far the other way, but more precisely it illustrates the difficulties of allowing informational autonomy to be used for one purpose (privacy) and not for another (self-expression).

5. Limitations on Personal Speech Claims

It should be stressed here that the limitations imposed by duties of confidence in no way undermine personal speech as a concept. Finding that there is pre-existing relationship of confidence will help establish and give weight to the privacy claim. In practice, as argued above, it may strengthen a privacy claim to the extent that it overbears an expression claim. Nevertheless, where there is a claim of personal speech, even in relation to matters arising within a relationship of confidence it is still incumbent on the courts to identify that claim and recognise it as reinforcing the expression claim as a whole.

The question of broadcasting personal information is more problematic. The notion that there must be a public interest in the expression claim before personal information can be broadcast to a wide audience is beguiling. It is argued here though that the interest in personal speech about one’s own life cannot be fulfilled by communication to friends and family only.

To what extent do the circumstances in which the information was received counterbalance the personal speech claim?

Not all personal speech claims will involve information arising from a pre-existing relationship of confidence (see CC v AB, para. 3), though most will. There is no need in the reformulated tort of misuse of personal information, to establish a pre-existing relationship of confidence as there was in the traditional test for breach of confidence (see Campbell). The personal speech cases, though, show that such a relationship will be highly material to assessing the strength of the privacy claim; "the nature of any relationship between the relevant persons or parties is of considerable importance" (Browne, para. 26).

Personal speech claims will often involve events that took place within a relationship of confidence, arising out of contract, a relationship of employment or on a personal basis. It seems that these relationships can provide a powerful rationale for protecting what would be otherwise trivial information (Browne, para. 45; Lady Archer v Williams [2003] All ER (D) 55 (Jul)). The existence of a relationship of a confidence, though, will not necessarily result in a valid privacy claim. In Browne it was said, "the mere fact that the information was imparted in the course of a relationship of confidence" was not sufficient. There must be something personal about the information as well. In McKennitt information about a shopping trip to Italy was regarded as "trivial and of no consequence, and unlike relatively trivial but otherwise intrusive descriptions of a person’s home, there was no need for the law to step in and offer protection" (para. 58).

In Prince of Wales v Associated Newspapers, travel diaries that the Prince made for his own historical record and for circulation to a small group of friends had been leaked to the press by someone from his private office. The Court of Appeal criticised the High Court’s emphasis on the nature of the information (was this truly a ‘private journal’?) at the expense of a traditional focus on the relationship of confidence, as provided by the master and servant relationship and the express contractual undertaking of the person working in the Prince’s private office. The High Court had erred by placing "no express weight" on this relationship (para. 30). This refocusing on the importance of confidential relationships, as well as private information, in the balancing process was accompanied by an assessment of the values involved, pointing out that there is an important public interest in the observance of the duties of confidence and the question is "not simply whether the information is a matter of public interest but whether, in all the circumstances, it is in the public interest that the duty of confidence should be breached" (para. 68).

So, of itself, it seems that any weight that could be applied to the personal speech claim would be unlikely to overbear the public interest in observing duties of confidence. I would though reiterate the point, missed in the statement of principle above, that communication of information can involve private interests as well as public ones and that whilst personal speech may be only one element in the balancing process it nevertheless needs to be included. Further, as claims cannot be treated as carrying generic weight, the types of information protected and the strength of the duty imposed by the relationship will vary widely. In A v B plc and Theakston, it was said that intimate relationships ran on a continuum and the more transient a relationship the less emphasis the court should give to its protection. That is, the decision on whether a relationship of confidence exists is not an ‘all or nothing’ question. The idea that confidence has variable strength is supported by the finding in Prince of Wales that a duty of confidence that had been expressly assumed under contract carried more weight than one that was not buttressed by express agreement (para. 69).

Whilst it did not involve a personal speech claim, the case of Beckham v Gibson (Unreported, 29 April, 2005) QBD, Langley J, demonstrates that even in relationships of confidence the privacy and expression claims can be finely balanced. The case involved a nanny who had signed a confidentiality agreement and later sold a story about the Beckham’s domestic affairs. It was held that the public interest in disclosure overrode the duty of confidence. The decision is perhaps curious, but it could be based on the argument that ‘Brand Beckham’ was founded on a false image of a happy couple, whilst the Beckhams were almost unique in the lengths to which they had placed their private lives into the public view, for private gain (see Phillipson (2003, p.742) for a related argument on the commodification of private life). The argument here is that in cases where the other values do not clearly indicate what claim to uphold, then personal speech ought to be able to influence the outcome of the case.

To what extent does the fact of wanting to broadcast the information through the media affect the speech claim?

The starting point is Peck v UK [2003] 36 EHRR 41, where Peck had been captured on CCTV footage in a distressed state on Brentwood High Street following a suicide attempt. The footage was passed to the media and broadcast. The European Court of Human Rights found that whilst the behaviour occurred in a public place and was viewable by any passer-by, Peck had a reasonable expectation that exposure of his behaviour would be limited to this circle. Phillipson explains this as an example of autonomy, that the Court was focused not on control of the original observers but on the use made by them of personal information about Peck, without his consent (Phillipson, 2003, p.734). A consistent view was taken in Campbell; that the fact that we cannot avoid being photographed does not mean that anyone who takes or obtains such photographs "can publish them to the world at large" (per Lord Hoffmann, para. 73).

The approach of classifying the broadcasting of personal information as requiring special justification has been carried through into the personal speech cases. In McKennitt, it was pointed out that as Ash knew some details of her activities with the claimant were private she "must have known that she was not at liberty to broadcast them to the world" (para. 19). In Browne the court held that information made available to friends or work colleagues and information published widely in a newspaper were very different things (para 61). Toulson who is sympathetic to the notion of personal values being recognised in expression claims imposes a strict limit on that recognition in arguing that "for disclosure to the public at large, there has to be a public interest to justify it" (Toulson, 2007, p.151).

No doubt in many cases of personal speech, the court’s presumption against the broadcasting of personal information will restrict the speech claim, but again the argument here is that the claims must not be given a generic weight. Difficulties flow from the narrow conception of the role and duty of the media, outlined in von Hannover, as concerned only with opinions and ideas of public interest. Yet, the press arguably have a legitimate role in the promotion of private rights, including the right to communicate information about one’s own life. If it is accepted that there is a personal interest in communicating one’s own story, then it has a hollow meaning if an individual cannot, as a matter of principle, use the media as a vehicle for that communication. Even strong advocates for privacy rights have accepted that they have no real place in regulating communications between friends and family members (Phillipson and Fenwick, 2000, p.677; see also CC v AB, para. 19). For individuals who feel the need to ventilate their feelings about things that have happened in their life, prohibiting them from communicating with the press severely undermines their autonomy.

The handling of expression claims in these cases has been, to some extent, the victim of the defect in methodology outlined above. The expression claim is discussed only to assess the extent to which is justifies restricting the privacy claim and fails to give independent value to expression. A v B plc is unusual of recent cases in that it stresses the value of freedom of expression and of the press as an end in itself, "irrespective of whether a particular publication is desirable in the public interest", and cites Lord Hoffmann in R v Central Independent Television plc [1994] 3 All ER 537, that "A freedom which is restricted to what judges think to be responsible or in the public interest is no freedom" (para. 11).

6. Conclusion

With the difficulties ranged against it, it might be asked whether attempting to develop a notion of personal speech, as an element of freedom of expression to be weighed against privacy claims, is viable and worthwhile?

It is certainly viable. Assessing the balance between the competing claims ‘is not an easy task’ (A v B plc, para. 6) but it can be achieved if the courts identify all the relevant factors and give them an appropriate weighting. It has been argued here that there is scope for further nuancing of speech claims. The English courts have, though not consistently, recognised some liberal value in personal expression, though it has often been given a low weighting. Further, the finding that someone was telling their own story will rarely be determinative. It is hedged in by limitations, arising particularly out of the need to respect confidences within intimate relationships and concerns about broadcasting personal information through the media. It is nevertheless a relevant factor in some cases and where other values are finely balanced, it could affect the outcome of the case.

As a concept it is worthwhile developing further because, as argued above, a) the values underpinning expression claims have been drawn far too narrowly and b) in the absence of the counterweight that personal expression can provide, privacy is in danger of receiving a generic value or produce distorted positions such as that in McKennitt on who 'owns' shared experiences between famous and 'ordinary' people and notions of equal treatment under law, and CC v AB with moralising about the motives for expression and studied neutrality in relation to the privacy claim. Finally, privacy and personal expression are derived largely from the same values of informational autonomy and self-development and it is difficult to see how these values can be effectively promoted without recognising their parallel need to accommodate each other.

Bibliography

Aplin, T (2007), ‘The development of the action for breach of confidence in a post-HRA era’ 1 Intellectual Property Quarterly 19

Brazell, L (2005) ‘Confidence, Privacy and Human Rights: English law in the Twenty-First Century’ 27 European Intellectual Property Review 405

Chadwick, P (2006) ‘The value of privacy’ 8 European Human Rights Law Review 495

Fiss, O (1996) The Irony of Free Speech (Cambridge: Harvard University Press)

McInnes, R (2004) ‘Celebrities Anonymous: Whatever Next?’ 5 Human Rights and UK Practice 3

Moreham, N (2005) ‘Privacy in the Common Law: A Doctrinal and Theoretical Analysis’ 121 Law Quarterly Review 628

Phillipson, G and Fenwick, H (2000) ‘Breach of Confidence as a Privacy Remedy in the Human Rights Act Era’ 63 Modern Law Review 660

Phillipson, G (2003) ‘Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act’ 66 Modern Law Review 726

Sanderson, M (2004) ‘Is von Hannover v Germany a Step Backward for the Substantive Analysis of Speech and Privacy Interests’ 6 European Human Rights Law Review 631

Toulson, R (2007) ‘Freedom of Expression and Privacy’ 41 Law Teacher 139