The law of privacy and confidentiality continues to evolve. We have recently seen JK Rowling in the headlines seeking to establish the right of privacy of her children. On a less media worthy front Freedom of Information also continues to evolve the law in this area with a recent judgement on the question of what it means for information to be given "in confidence".
JK Rowling has recently featured in the press for two reasons both involving court cases. In New York she is in court trying to prevent the publication of a Harry Potter Lexicon which she claims will infringe her copyright. Separately in her private capacity and under her own name of Joanne Murray she and her husband have been successful on behalf of their son in establishing his right of privacy.
This action on behalf of their son, David, arose in respect of some photographs taken of the three of them on 8 November 2004. These photos were taken clandestinely whilst Mr and Mrs Murray were out walking with David in Edinburgh. At no point was consent sought to take the photos or for their publication. When the photos were published in early 2005 the Murrays' solicitors contacted the photographic agency – Big Pictures (UK) Limited (BPL) - seeking undertakings that there would be no further publication of the photographs. Whilst correspondence between the parties was ongoing another photograph taken on 8 November was published in a different newspaper on 3 April 2005. As a result of failure to come to a satisfactory outcome with BPL action was raised on behalf of David by his parents. This was stated as being done in the interests of "preventing the future taking and publication of photographs" of David.
At first instance the judge struck out the action on the basis that David had no arguable case that he had a reasonable expectation of privacy. The Murrays, on behalf of David, appealed and have been successful on appeal. The appeal court examined the earlier decision and came to the view that the first judge had placed too much importance on the fact that David is the son of a very famous mother. They were of the view that in this case "the issue of principle is whether the Claimant who is not a public figure in his own right but is the child of one, is entitled to protection from being photographed in a public place even where a photograph shows nothing embarrassing or untoward but in which he is shown depicted with his parents"
The court looked at the decisions in Campbell v MGN and also Von-Hannover v Germany although the focus was on the former, which was a decision of the House of Lords. Both decisions focussed on Article 8 of the European Convention of Human Rights – the right to respect for private and family life – and Article 10 – the right to freedom of expression. Looking at the principles set out in Campbell the court was of the view that the first question to be answered is whether there was a reasonable expectation of privacy in the circumstances being looked at. Then, once the right of privacy was established, the next question was how the balance should be struck between the right to privacy and the publisher's right to publish.
The court placed great emphasis on the fact that the Murrays had taken considerable steps to keep their children out of the public eye and had not allowed any pictures of David or his sisters to be published. The Court of Appeal held that it was at least arguable that David had a reasonable expectation of privacy and therefore a trial of the issues should now be held. Ultimately the Murrays will still have to take this a stage further and have the issues fully heard at trial (unless settlement is reached) but for now, at least, they have established that David and their other children can expect a degree of privacy despite who their mother is.
Separately the Freedom of Information Act (FOIA) has meant that the law of confidence has been under regular scrutiny. In a recent case the Home Office challenged the decision of the Information Tribunal in respect of a request by the British Union for the Abolition of Vivisection (BUAV) under the FOIA for access to certain information submitted by firms in terms of the Animals (Scientific Procedures) Act 1986 (ASPA) when seeking licenses to conduct animal research.
The Tribunal had taken the view that the reference in section 24 ASPA (the relevant section for these purposes as it makes it a criminal offence for anyone to disclose information given in confidence under ASPA) to information being "given in confidence" should be construed as meaning that in order for section 24 to override the right of access under FOIA it had to be demonstrated that there would be an actionable breach of confidence if the information were to be revealed.
On appeal the High Court took a different view. They were clear that the law of confidence was not confined to the principles set out in Coco v AN Clark (Engineers) Limited which the Tribunal had relied upon in its decision. This is also the set of principles which have regularly been referred to by both Information Commissioners in their decisions where the confidentiality exemptions have been engaged.
The court noted that Parliament had specifically decided to retain section 24 ASPA when bringing the FOIA into force and therefore they should be "very wary of interpreting [section 24] so as to water down its effect". The court focussed on the fact that in order to satisfy section 24 it was simply enough that the relevant official making the assessment within the Home Office believed that the information being sought was given in confidence for section 24 to be engaged and therefore for the exemption in section 44 FOIA (which exempts from disclosure information where disclosure of that information is prohibited by any other enactment) to apply. Whilst the court realised that it was unsatisfactory insofar as it means that any Home Office official dealing with an FOI request will have to decide whether they believe that the information has been given in confidence they felt that it would be a matter for the legislators in future to decide whether section 24 ASPA was compatible with FOIA purposes.
Whilst on one view this is simply another situation where the FOI legislation is overridden by other statutory provisions it does, on the face of it, mean that the approach of both Commissioners in applying the Coco v AN Clark principles where the law of confidence is relevant will not necessarily be as straightforward as has been the case.