APPENDICES
¶3.58 In Trimingham v Associated Newspapers Limited the Court took a robust approach to the
expectation of privacy of the claimant's sexuality.169 The Court was asked to consider whether the claimant, a bisexual woman living in a civil partnership who had conducted an affair with a married politician, had a reasonable expectation of privacy in respect of her appearance and her sexuality. Tugendhat J held that in light of the fact that the claimant had i) entered into a civil partnership recently and was actually living with her civil partner, ii) had engaged in a sexual relationship with a man who was a prominent politician, and who had conducted the election campaign the previous month in circumstances where revelation of the affair to the public at large was inevitable and, iii) that even before the revelation of her affair with the politician she had had relationships with other men, and those who knew her knew of her sexuality, it was unarguable that she had a reasonable expectation of privacy as to her sexuality. The court concluded that the claimant was not the purely private figure she claimed to be and that her reasonable expectation of privacy had become limited, mainly by reason of her involvement with a prominent politician, both professionally as his press agent, and personally by way of the sexual relationship, in circumstances where he campaigned with a leaflet to the electorate about how much he valued his family, but also by reason of what she herself had disclosed in the past. Therefore, despite the fact that the Defendant referred to the claimant's sexuality in 65 articles over about 15 months, it only did so (a) when writing about matters of public interest, mainly developments in the politician's personal life which were relevant to his public life, and (b) when the claimant and her conduct (and other information about her) were within the range of what an editor could in good faith regard as relevant to the story.170
¶3.59 The Courts have recognised that home is one of the matters expressly included in Article
8(1) of the Convention as deserving respect. In McKennitt v Ash, the judge at first instance protected the description of a person's home as private and confidential information, noting that to convey such details without permission to the general public is almost as objectionable as spying into the home with a long distance lens and publishing the resulting photographs.171 Another example of this approach can be observed in Beckham v MGN Ltd in which an injunction was obtained restraining the publisher of a tabloid magazine from publishing unauthorised photographs of the interior of a new home on the basis that this would invade the family's privacy and compromise their security.172
¶3.60 It is generally recognised that material obtained under compulsory powers for the purposes
1875of criminal proceedings cannot be used for purposes other than those for which the powers were conferred and the same principle applies where the information has not been obtained through the use of compulsory powers but the threat of them.173 Convictions and acquittals are generally not private, although the High Court has jurisdiction to grant an injunction to prohibit publication of the identities of individuals accused and convicted of criminal offences.174 There may be circumstances in which information about criminal convictions is
¶Appendix 4 | Legal Materials
capable of being protected as private, for example in the case of Venables where court orders have the effect of preventing publication of the present identities of the two claimants who had been provided with new identities having been convicted, as 10 year old children, of murder.
¶3.61 It has been held that a person has a reasonable expectation of privacy in relation to his
or her financial affairs.175 Information relating to business affairs may also be protected by relationships of confidence. However, once financial affairs have been raised in open court, the information will not always retain its character as private. It is also important to recognise that information relating to the salaries of public figures may not be regarded as part of their private lives.176
¶Form of information 3.62 In addition to the content of the information, the source or form of the information is likely
to have a significant bearing on whether there is a reasonable expectation of privacy.177 For example, personal diaries, private written communications and private conversations are generally more likely to fall within the sphere of private information than conversations in public places or photographs taken in a private place.
¶3.63 The law relating to the restriction of information about appearance, primarily through the
publication of photographs, has developed rapidly and not always consistently. The Courts have recognised that the publication of photographs have the potential to be particularly intrusive. In Douglas v Hello! Ltd the Court of Appeal recognised that:178
"… special considerations attach to photographs in the field of privacy. They are not merely a method of conveying information that is an alternative to verbal description. They enable a person viewing the photograph to act as spectator, in some circumstances voyeur would be a more appropriate noun, of whatever it is that the photograph depicts. As a means of invading privacy, a photograph is particularly intrusive".
¶3.64 The mere taking of a photograph may not involve an interference with privacy but clandestine
recording may be regarded in itself as an unacceptable infringement of Article 8 rights.179 http://www.guardian.co.uk/news/datablog/2010/may/04/general-election-newspaper-support pp31-32, lines 25-10, David Perry QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript- of-Morning-Hearing-4-April-2012.pdf www.newstatesman.com/politics/uk-politics/2012/05/review pp11-12, lines 23-8, Jon Witherow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-17-January-2012.pdf p30, lines 13-19, Michael Sullivan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Morning-Hearing-15-March-2012.pdf p87, lines 10-21, ibid p60, lines 14-17, Andy Coulson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-10-May-2012.pdf pp2-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ30-to-Witness-Statement-of- Tessa-Jowell.pdf p76, lines 2-4, Nick Clegg, ibid p11, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-Annex-2-to-Chris-Atkins-Supp.pdf p6, para 4. ibid K Campbell [2004] 2 AC 457 at para 73; Mosley [2008] EMLR 20, [2008] EWHC 1777 (QB) at paras 17-18 Well known examples where the publication of a photograph has been held to amount to misuse of personal information include publication of a model leaving a Narcotics Anonymous meeting (Campbell), and the video of the Head of Formula 1 participating in sadomasochistic sexual activities (Mosley). Other examples include injunctions granted to protect the publication of unauthorised photographs of an actress in a private hotel and photographs of a television presenter in a brothel.
¶3.65 In Von Hannover the ECtHR made clear that photographs of ordinary events in a person's life
1876in public may nevertheless engage Article 8.180 However, the domestic courts remain cautious in granting protection to routine activities which are part and parcel of daily life and played