Legal briefing: balancing privacy and public interest

In May this year, by a majority of 3:2, the House of Lords handed down its decision in the long-running legal battle between weekly celebrity magazines OK! and Hello! concerning the Zeta-Jones/Douglas wedding photos. According to the leading judgment of Lord Hoffman, the fact that OK! paid £1m for the confidentiality of any wedding photos was an actionable right of confidentiality, which Hello! had breached.

As the delicate balancing act of public versus private interest is becoming increasingly more difficult, Ruth Hoy, intellectual property lawyer at DLA Piper, has warned that the definition of privacy is still a developing area of the law, and that reconciling the interests of freedom of expression and confidentiality will be a key conundrum for UK courts.

“The UK is moving towards tighter privacy protection more akin to the mature practices of the rest of the Europe,” she said. “However, the law itself lacks objective definition. Future challenges for the courts will be the protection of false information and the inter-relationship between privacy law and defamation.

“The type of information which is protected as ‘private’ is broadening and the justification for releasing information is coming under much closer scrutiny. The OK! versus Hello! ruling was a watershed moment for privacy protection in the UK, confirming the right not only of an individual to defend their own privacy, but also establishing that a third party can have an interest in someone else’s information.

“The law has bedded down in the past five years or so, and is becoming better understood, but the courts still have a difficult tightrope to tread in establishing the comparative importance of the rights of privacy and expression. “Striking this balance is a difficult task and one brought into sharp relief in the recent trial of BP chief Lord Browne. Confidentiality is by definition subjective and as such it is critical that the public interest test is applied on a case-by-case basis only.

“The basic question is one of proportionality – what may serve the public interest in one instance may be outweighed by the need of privacy in another. It is all too easy to see trends in what is deemed to be private or otherwise, but each case should be evaluated on its individual merits and circumstances and not dictated to by outside trends.”

Hoy was talking after a seminar discussing the recent developments in privacy law following the legal battle between Hello! and OK!. It was one of a series of seminars on current legal trends being staged by DLA Piper’s Technology, Media and Commercial practice.

Need to know: privacy law balancing act In privacy cases, the court has to carry out a delicate balancing exercise. Where both privacy protection and freedom of expression compete: l Neither article has precedence over the other. l Where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. l Justifications for interfering with or restricting each right must be taken into account. l The proportionality test must be applied, which is the “ultimate balancing test”.

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