When I took a look at the Human Rights Act 1998 (HRA) last November, I noted its far-reaching potential impact. Six months on, hundreds of cases have cited the HRA or the European Convention, with a variety of outcomes.
Statistics recently published by the Lord Chancellor's department tend to downplay the significance of the new legislation during the first months since it came into use, and emphasise that it has not created a deluge of new actions.
The trend seems to be that litigants will add HRA matters to a claim in addition to other causes of action, in support of a claim rather than as sole justification. There have, however, been three cases where existing UK legislation, including the likes of the long-established Consumer Credit Act 1974, has been found to be incompatible with the HRA.
In any event, the HRA has certainly been cited in some unusual circumstances: to prevent three retired greyhounds from being parted from their owners, to challenge a local authority's plans to change the management of its care homes, to prevent a legislative ban on foxhunting, to obtain compensation for a hospital's allegedly erroneous use of a “do not resuscitate” notice, and to allow Leeds football fans to travel to away matches in Derby.
Not surprisingly, article 6 of the European Convention on Human Rights (ECHR), which enshrines the “right to a fair trial” has been heavily utilised, in cases varying from the highly emotive to the more mundane, such as adjudication in construction disputes.
However, the HRA seems likely to have a significant impact in the arenas of defamation, breach of confidentiality and privacy.
It has always been acknowledged that there is potential conflict between articles 8 (the right to privacy) and 10 (the right to freedom of expression) of the ECHR, and this has been realised in a number of recent high-profile cases featuring some very well known names.
Media professionals such as newspaper and television journalists have long argued that they should be entitled to publish information in the public interest, and that they are entitled to qualified privilege for their reporting of such matters.
The restrictions on the use of this defence were exposed in last month's verdict on Loutchansky vs Times Newspapers. Here it was held that the newspaper's publication of statements relating to Russian businessman Dr Grigori Loutchansky failed the so-called Reynolds duty-interest test – that the publisher must be under a moral duty to publish the statement to persons having an interest in receiving it.
Mr Justice Grey concluded that the journalist responsible for the article had obtained inadequate evidence for some of the statements made, had not been sufficiently diligent in checking the material obtained from his sources, and should have made more effort to contact Loutchansky.
The conclusion to be drawn from this judgment is that the courts will impose limits on the right to freedom of expression (in accordance with part two of article 10), and do not regard article 10 as giving journalists carte blanche to publish without taking due care to ensure accuracy and justification.
A law of privacy is also gradually taking shape in the UK on the basis of article 8 of the Convention. The landmark case on this issue is the Douglas and others vs Hello. The Court of Appeal concluded that an injunction preventing publication of an issue of Hello magazine containing unauthorised photographs of the wedding of Michael Douglas and Catherine Zeta-Jones should be discharged.
However, in the course of a lengthy judgment, it was also noted that “the law recognises and will appropriately protect a right of personal privacy”, and that the HRA provides a mechanism for the development of a body of privacy law in the UK.
A right to privacy?
English law has, to date, recognised no right of privacy, and plaintiffs have had to rely on other causes of action such as breach of confidentiality in order to obtain legal redress.
In order to succeed in an action for breach of confidentiality, it has usually been necessary to establish that a confidential relationship existed with the party, or parties, claimed against, and that the latter has breached this confidence.
An action to enforce one's right to privacy may merely require proof of the “private” nature of the information in question. Should Douglas and Zeta-Jones continue to pursue their action for damages in the courts, the verdict will no doubt provide an indication of the future shape of any privacy law in the UK.
That the development of a law of privacy is in its early stages is illustrated by the refusal of the Press Complaints Commission to uphold Anna Ford's complaint against the Daily Mail for printing photos of her with her family on a Spanish beach.
Ford is attempting to obtain a judicial review of the adjudication, and success on this would provide further evidence that the tide may be turning. Supermodel Naomi Campbell has also intimated that she will call upon article 8 arguments in the action she is threatening against The Mirror, which published unauthorised photographs of her leaving a Narcotics Anonymous meeting.
Clearly, the sums demanded by such well known individuals in order to gain redress for any damage done to their image and reputation are likely to be substantial, and publishers and broadcasters will follow the progress of these and comparable cases with interest.
In this uncertain legal environment, while the future pattern of decisions remains unclear, those responsible may consider comprehensive insurance against media risks to be a sensible precaution.