Commentators have used Chancellor Schroder’s recent successes in the German courts (Press Gazette, 24 January) to highlight differences in German and UK privacy law. But are they so different?
Germany’s 1949 constitution includes rights to the protection of human dignity and free development of personality. These are regarded as including an individual’s right to control his/her personal data, and may be summarised as the “right to be left alone”.
Article 5 guarantees “everyone the right freely to express and to disseminate his opinion and freely to inform himself from generally accessible sources”, subject to the general law, protection of youth and the right to inviolability of personal honour. The two rights must be balanced. Article 5 is more likely to triumph in court if publication is thought to be in the public interest.
The UK equivalent is to be found in the Human Rights Act 1998, which obliges public authorities, including the courts, to apply Article 8, respect for private and family life, and Article 10, freedom of expression, of the European Convention on Human Rights, to which the German courts are also subject. Again those rights must be balanced.
To enforce the Article 8 right UK courts have so far relied largely on the protection given to information obtained in a confidential relationship, the defence to such an action being that publication is in the public interest, to expose wrong-doing.
But it has proved increasingly difficult to accommodate Article 8 where information may be private and not confidential, for example, photographs of Naomi Campbell emerging on to a public street from a session of Narcotics Anonymous.
And in bringing an action for breach of confidence the claimant is often required to risk all by admitting that the information he/she is seeking to protect is true, something which SchrÅ¡der is not required to do in his privacy cases over rumours that he has a mistress.
Forthcoming cases such as Michael Douglas and Catherine Zeta-Jones v Hello! may provide some clarification. But it is clear, as in Germany, that what is in the public interest will be the most important battleground.
So too with data protection law. The Data Protection Act 1998 provides that personal data must be obtained fairly and lawfully, failing which the data subject may seek damages. The new information commissioner has recently warned the media that he will clamp down hard on those who leak information to newspapers.
But again the special purposes exemption provides protection for the media if the editor reasonably believes that processing is in the public interest. There is a similar defence for obtaining or procuring the disclosure of personal data, although what is in the public interest is there judged on an objective basis.
It is true that UK courts are prepared to take a more pro-free expression stance, than those in Germany, in assessing what is in the public interest.
The more wise and gnarled among Press Gazette readers may recall a 1962 case in which Spiegel’s editor, a journalist and its publisher were arrested and the magazine’s presses impounded on the instructions of defence secretary Strauss for publication of an article on poor equipment in the German armed forces.
Other newspapers stepped in to provide Der Spiegel with the facilities to continue publishing, and the case never came to trial. Piers Morgan putting the paper to bed with Rebekah Wade, now there’s a thought.
Rupert Earle is a partner at Theodore Goddard
Rupert Earle and Elke Pankatz