In order to protect at least some privacy-related interests unprotected

by existing causes of action. He characterised such an ‘innovation’ as

‘precisely the kind of incremental change for which the [Human Rights]

Act is designed’. Such a process of case-by-case change would not, on

his analysis, undermine the ‘measure of certainty that is necessary to

all law’. Sedley LJ also discussed the relevance of s. 12 of the Human

Rights Act to invasion of privacy claims. This section (as already

noted) governs the issuing of remedies and requires courts to have

particular regard to freedom of expression. (See s. 12, ss (3) and (4).)

Section 12 was relevant to Douglas since the claimants were seeking

injunctive relief. Moreover, both s. 12 and s. 6 were identified by Sedley

LJ as supporting the conclusion that judges are now under a duty to

establish a new common law cause of action for invasion of privacy.

(This analysis supports the view that Convention Rights now have

(indirect) horizontal effect in private law. See Hare, 2001.)

In Thompson and Venables v. News Group Newspapers Ltd (2001), the

claimants (the notorious killers of James Bulger) sought an indefinite

continuation of injunctions restraining the press from disclosing their

(new) identities on release from custody. Since the circumstances of

the case were ‘exceptional’, Dame Butler-Sloss granted the injunction.

But she took a rather less expansive view than Sedley LJ (in Douglas)

of private law’s potential as a means by which to protect privacy.

While recognising that courts are under a duty to act compatibly with

Convention rights, she identified this duty as extending only to existing

causes of action. Moreover, she identified both Art. 10 of the ECHR

506 General Principles of Constitutional and Administrative Law

and s. 12 of the Human Rights Act as sharply circumscribing the range

of circumstances in which privacy-related interests can be protected.

With respect to Art. 10, she stated that it will only be necessary to

grant injunctive relief where it can be ‘convincingly demonstrated’

that the requirements of Art. 10 (2) can be satisfied. On Dame Butler-

Sloss’s account, s. 12 enhances the protection given to freedom of

expression and, hence, works to limit the range of circumstances in

which injunctive relief will be granted. This view of the law is open to

criticism on the ground that the injunction is the only effective remedy

where invasion of privacy is threatened.

In both Douglas and Thompson and Venables, we encounter judges

(Keene J in the former case and Dame Butler-Sloss in the latter) identi-

fying breach of confidence as the only private law means by which to

afford protection against invasions of privacy. There is, however, good

reason to regard this view as unduly restrictive. The action for breach

of confidence affords a means by which to address the threats posed by

disclosure of information. But it does not afford a means by which

to address the problems that can arise when publicity is given to

information that is in the public domain. If problems of the latter sort

are properly regarded as falling within the purview of Art. 8, it will

be necessary to fashion a new cause of action. Support for this can be

found in the writing of Wacks (1995, p. 56). He argues that breach of

confidence does not deal adequately with ‘the archetypal ‘‘privacy’’

claim because the action is largely concerned with: (a) disclosure or

use rather than publicity, (b) the source rather than the nature of the

information, and (c) the preservation of confidence rather than the

possible harm to the plaintiff caused by the breach’.

While the action for breach of confidence is too narrow to address

invasions of privacy arising from publicity, there is reason to suppose

that it could produce uncertainty thus inhibiting the press. Some sup-

port for this suggestion can be found in the recent case of A v. B plc

and another (2001). In this case, which conceived the liaisons of a

premier league footballer, Jack J held that sexual partners owe a duty

of confidentiality to one another that can be overridden only if the

disclosure can be shown to be in the public interest. The difficulty here

is to determine when the public interest is sufficient to displace the

confidence. In A. v. B. the Court of Appeal, overruling Jack J, per-

mitted the press to disclose the identity of the footballer. One way of

addressing this problem would be for the judiciary to provide clearer

guidance on the range of circumstances in which the public inter-

est defence can be pleaded. In this connection, at least some of the

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considerations listed in Reynolds (2001) by Lord Nicholls (vis-a-vis

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the applicability of the qualified privilege defence in defamation)

would be relevant. But even if this step were taken, uncertainty would

remain a problem for the reasons given earlier.

Guidance as to how at least some of the chilling effects on free

expression contemplated above might be reduced, if not eliminated,

can be found in US Supreme Court’s decision in Time Inc. v. Hill

(1967). In this case, the defendant published a description of a new

play adapted from a novel that fictionalised the experiences of the

plaintiff and his family while being held hostage in their home by a

group of escaped prisoners. The plaintiffs successfully sued in the state

of New York for false light invasion of privacy. In a subsequent action

before the US Supreme Court, the First Amendment guarantee of

freedom of expression was identified as placing a constraint on the

scope of the tort of invasion of privacy. The Court stated that, in order

to advance their claim successfully, the plaintiffs would have to prove

actual malice. The Court’s aim in taking this step was to protect

expression that served the public interest by throwing light on an

actual incident. In placing this constraint on the law relating to inva-

sion of privacy, the Court applied, in a new context, the approach it

adopted to defamation law in New York Times v. Sullivan (1964).

In Time Inc. v. Hill, we see public law (in the form of a fundamental

right) being mobilised in order to place a constraint on the private law

of tort. Assuming that tort law is used to elaborate the right estab-

lished by Art. 8 of the ECHR, we can expect to see Art. 10 being used

in much the same way as the First Amendment in Hill. If it is used

in this way, the upshot can, for reasons given below, be expected to be

tension in the law.

20.5 Tension in the Law

Defamation law prioritises reputational interests, while accommodat-

ing freedom of expression. Article 10, by contrast, prioritises freedom

of expression, while accommodating, inter alia, reputational interests.

It is this clash of priorities that gives rise to tension in this area of

the law. This tension arises because a single system of law cannot

simultaneously prioritise the protection of reputation and the protec-

tion of reputation. These priorities are uncombinable. Consequently,

primacy has to be accorded either to reputation or to free expression.

With the incorporation of Art. 10 into domestic law, priority will, it

seems reasonable to suppose, be given to free expression rather than

to reputation. Support for this view can be found in Reynolds v. Times

508 General Principles of Constitutional and Administrative Law

Newspapers Ltd (2001), where Lord Nicholls identifies freedom of

expression as an appropriate ‘starting point’ for deliberation in de-

famation cases (p. 200). (See also pp. 207–8, per Lord Steyn.)

While Art. 10 provides a ground for prioritising expression over

reputational interests, it should not be supposed that tension will be

banished from the law. We attach high value both to free expression

and to the maintenance of an untarnished reputation. Further, it is

not obvious how we might rank bodies of law that prioritise either

reputation or freedom of expression. This being so, we may be faced

with options that are incommensurable. And, if this is the case, dis-

putes between the proponents of free expression and reputation can be

expected to rumble on interminably. Further, while the law does not

provide a clear route out of the impasse here contemplated, it does,

at least, provide a device that serves to mute the tension described

above: namely, the proportionality principle.

20.6 Proportionality: a Mediating Principle

Proportionality affords a mediating principle. Such principles yield

guidance on the question as to how competing interests can be accom-

modated in ways that afford some measure of protection to each

(Mullender, 2001, pp. 181–5). Proportionality does this by specifying

conditions (above, Chapter 18) that require adjudicators to take

seriously and offer reasoned arguments concerning their efforts to

accommodate competing interests. These reasons will, of course, pro-

vide a basis upon which to justify the decision reached both to litigants

and to the broad aggregates of people whose interests are indirectly

touched by legal disputes. This being so, proportionality can be

regarded as affording a means by which to pursue the ideal of distribu-

tive justice: i.e., a fair allocation of benefits and burdens across society

(Blackburn, 1994, p. 203). But even where competing interests are

accommodated in the way here contemplated, judges will still be mak-

ing controversial choices as to the circumstances in which expression-

related interests should yield to reputational ones. Relevant to this

point is the writing of the political philosopher, John Rawls. In his

Political Liberalism, Rawls discusses what he terms ‘burdens of judge-

ment’ (Rawls, 1993, pp. 54–8). On his account, such burdens are

encountered in circumstances where a range of views can reasonably

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be taken vis-a-vis the significance to be attached to ‘cherished values’

that compete with one another. Such burdens will be encountered by

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Freedom of Expression and Competing Private Interests

judges in circumstances where they use the proportionality principle

in the way contemplated above. They will have to judge whether

the protection of reputational interests is generally beneficial. Like-

wise, they will have to judge whether limitations placed on the right to

free expression are strictly necessary in order to protect reputational

interests.

Burdens of judgement will also be a feature of judicial attempts

to accommodate, on the one hand, expression-related interests and,

on the other, confidentiality- and privacy-related interests. On some

occasions these burdens are likely to be regarded as even greater than

those that will arise when reputational and expression-related interests

compete. This may be the case when judges find themselves having to

mediate interests that are protected by fundamental rights. This would

be the case where, for example, expression-related interests (protected

by Art. 10 (1)) and privacy-related interests (protected by a body of

civil law grounded on Art. 8 (1)) clash with one another. There are at

least two ways of dealing with such difficulties, to which we now turn.