The Right to Privacy

There is no right of privacy enshrined in statute in the UK, so how do sports personalities and celebrities protect their privacy? As it stands, individuals are obliged to seek to rely on their common law rights and, increasingly, by reference to the European Convention on Human Rights (the “ECHR”), Article 8 of which confers a “Right to Respect for Private and Family Life.”

In deciding whether this right has been infringed, the courts will ask whether the individual has a reasonable expectation of privacy in the circumstances, the nature of the private information being made public and the relationship between the individual and the party releasing the information. 

Where, for example, the parties had a pre-existing sexual or intimate relationship, it is likely to be accepted that there will be a reasonable expectation of privacy.

Article 10 of the ECHR often comes into conflict with Article 8, as it provides for “Freedom of Expression,” an argument regularly used by the media. This freedom does carry with it certain responsibilities and ultimately the issue is one of public interest.

Does the public interest justify the private intrusion?

Public interest may justify the intrusion where the individual involved holds a public position or is guilty of hypocrisy or engaging in activity that the public should be made aware of.  Where the individuals involved are sports stars or celebrities and the acts are of an intimate nature, the law is more likely to step in to protect the right to privacy.  So-called “kiss-and-tell” stories are likely to be considered private, as a confidential relationship has existed, giving rise to the confidential and private information.

The recent case involving Max Mosley is a case in point and demonstrated that the courts will treat the sexual relationships and activities of public figures and celebrities as confidential and uphold their right of privacy. In this case, Mr Mosley’s sexual activities, whilst of significant entertainment value, were considered private under Article 8 of the ECHR and very good public policy reasons would have been needed to justify otherwise.

Of course, it is in the public interest to respect the privacy of individuals as well and this extends to intrusive photographs. Whilst no “image right” exists in UK law, photographs can be considered private and the causes of action are those that exist within this developing law relating to privacy. Even though celebrities may hold themselves out as public figures, photographs taken when the individual had a reasonable expectation of privacy or those taken using long lens photography are likely to be intrusive. Again, it is often a question of applying the public interest test.

It is clear that the law in respect of privacy remains a complex area and cases are decided on their facts, but it is also true that more cases are being brought before the courts and the law in this area is fast evolving.

If you would like further information on issues relating to privacy, image rights, defamation or intellectual property in general, please do not hesitate to contact us on 020 7749 2700.