APPENDICES
out in public. In Campbell, Baroness Hale doubted that to photograph the claimant going out to buy milk would engage Article 8.181 Lord Hope in Campbell drew a distinction between someone who photographed a person by chance in the street, as against where a photo was taken in secret with a view to publication.182 The Court of Appeal in Murray addressed the potential conflict between the positions in Von Hannover and Campbell and concluded that no clear distinction could be drawn between family activities and routine acts, such as a visit to the shops, and that each case depended on its own circumstances.
¶3.66 In the recent case of Von Hannover (No.2) the ECtHR recognised that in the absence of
evidence of harassment or illegal activity on the occasion that a photo complained of was taken, the restriction on publication of a photo taken in a public place which is innocuous and inoffensive will generally not outweigh Article 10 considerations.183 The Von Hannover cases are considered further below.
¶3.67 Correspondence is specifically protected by Article 8. The ECtHR in Copland v UK held that personal emails are included within private life for the purpose of Article 8.184 3.68 The ECtHR has been prepared to treat telephone conversations as within the scope of
"correspondence" in Article 8 and has held that telephone-tapping of private conversations may breach Article 8.185
¶3.69 The courts have held on numerous occasions that private journals and diaries are confidential
documents.186 However, it does not invariably follow that all the information contained in private journals will be protected, in particular in circumstances where details disclose misconduct that falls outside the scope of a reasonable expectation of privacy, or where details contained in the diary do not relate to the applicant.187
¶Effect on applicant and other affected persons 3.70 In Campbell a number of their Lordships considered that the extent of harm to the claimant
was a significant factor in determining whether her rights had been infringed by the disclosures at issue. This follows from the fact that the tort of misuse of private information seeks to give effect to human dignity and autonomy and, as Lady Hale identified, damage to private life and to physical or moral integrity are key elements in determining whether a reasonable expectation of privacy existed.188
¶3.71 It is not just the effect on the applicant that must be considered but others that may be
1877affected by publication, including family members. This point was underlined in ETK v News Group Newspapers Ltd, where particular weight was placed on the interests of the children, the court observing that the purpose of the injunction is both to preserve the stability of the family and to save the children the ordeal of playground ridicule that would inevitably follow publicity.189
¶Appendix 4 | Legal Materials
¶Attributes of the claimant 3.72 A number of cases have tended to draw a distinction between a public and a private figure
and suggest that individuals who can properly be described as public figures may enjoy a lesser degree of protection than others, although the extent of this distinction has not been consistently applied in case law. The jurisprudence in this area is not always straightforward to follow and the courts, initially inclined to adopt the concept of involuntary role models, appear to have retreated from this approach.
¶3.73 In A v B plc a married professional footballer failed in his attempt to restrain a national
newspaper from publishing details of his sexual relationships with two women who wished to sell their stories. The Court of Appeal held that:190 "Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media. Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you have less ground to object the intrusion which follows. In many of these situations it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a Court when deciding on which side of the line a case falls."
¶3.74 This decision represents a high water mark from which the courts have since retreated. Recent
case law suggests that the courts have refrained from making findings that a person is a role model, however where a person's professional life or job description carries an expectation of high standards of behaviour the courts will take this into account.191 Thus, the concept of some public figures being involuntary role models having a lesser entitlement to privacy was questioned in Campbell v MGN Ltd.192 Lord Phillips MR noted that "the fact that an individual has achieved prominence on the public stage does not mean that his private life can be laid bare by the media", and similarly the mere fact that a person is a public figure who has a relationship with the media does not disentitle them from a right to privacy.193
¶3.75 These latter sentiments were echoed in Strasbourg authority which demonstrated some
1878reluctance to accept that prominent public figures are effectively stripped of their protection by virtue of their position. For example, in Craxi (No.2) v Italy the Court found that the rights of a former Italian Prime Minister had been violated by the playing in a domestic court of his covertly recorded private telephone conversations during the course of his prosecution for corruption, and held that public figures (even politicians of the highest order) are entitled to the enjoyment of the guarantees in Article 8 on the same basis as every other person.194 Similarly, in Tammer v Estonia, the Court held that the sexual life of senior politicians can be wholly protected from publicity, finding that the penalties imposed by the national authority