APPENDICES
upon the press reporting of an affair between the Prime Minister and a former political aide were not a violation of Article 10.195
¶3.76 Having made the point that A v B might represent one high water mark, Craxi and Tammer
might be thought of as the high water mark for protecting public figures. The seminal case of Von Hannover v Germany196 adopts a less protective approach, namely that the public right's right to know about the lives of public figures can in certain circumstances extend to the private life of public figures, particularly where politicians are concerned, but this will depend on the particular facts and circumstances of the individual's role and duties. In this case Princess Caroline of Monaco complained about pictures of her engaging in ordinary activities in public places. The ECtHR held that, in balancing the Article 8 and 10 rights, "a fundamental distinction" had to be made between reporting facts capable of contributing to a debate in a democratic society relating to, for example, politicians in the exercise of their functions, and reporting details of the private life of an individual who, as in Princess Caroline's case, does not exercise official functions. The court held that:197 "…the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest. It is clear in the instant case that they made no such contribution since the Applicant exercises no official function and the photos and articles related exclusively to details of her private life."
¶3.77 Significantly, and no doubt correctly, in McKennitt v Ash it was suggested that A v B was inconsistent with the decision of the European Court of Human Rights in Von Hannover.198 3.78 More recently in Von Hannover (No.2)199 the Court was concerned again with a complaint
of Princess Caroline of Monaco that photographs taken during a family holiday had been published with articles commenting on the Price's poor health. The Court upheld the finding of the domestic court that the health of the reigning Prince of Monaco was a matter of general interest and press were entitled to report on how the Prince's children reconciled their family obligations with legitimate needs of their private life, including holidaying. The Court accepted that the photos, considered in the light of the accompanying articles, did contribute to a debate of general interest.200
¶3.79 In Murray v Express Newspapers it was held that the law should protect children from
intrusive media attention, at any rate to the extent of holding that a child has a reasonable expectation that he or she will not be targeted in order to obtain photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child.201
¶Circumstances in which information comes into the hands of the publisher 3.80 Whilst breach of confidence is a distinct cause of action and misuse of private information
1879may arise without there being any confidential relationship, the existence of a confidential relationship can be an important consideration as to whether there is a reasonable expectation of privacy. Where the proposed publication is set against a backdrop of a pre- existing relationship of confidence between the parties, the need for protection is greater.
¶Appendix 4 | Legal Materials
¶3.81 The test for breach of a confidence was set out by the House of Lords in Douglas v Hello!
Ltd as follows. First, the information itself must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.202
¶3.82 In the case of Lord Browne of Madingley v Associated Newspapers Ltd the Court of Appeal
accepted the principle that a pre-existing relationship between the relevant persons or parties is of enormous importance in answering in the affirmative Lord Nicholls' question (as set out in Campbell) about whether the subject of the disclosure has a reasonable expectation of privacy in the information to be published.203 However it is important to recognise that the existence of a prior relationship of confidence is not determinative.204
¶Information in the public domain 3.83 The expectation of privacy in some circumstances may be limited by the extent to which
information has already entered the public domain. The law will not restrain publication where this would serve no useful purpose, in other words where the re-publication of information would not have a significant effect. Consideration of this issue is relevant both to the Stage 1 question of reasonable expectation of privacy and to conducting the balancing exercise at Stage 2.205
¶3.84 The "public domain" is not always easy to define. In this regard there is potentially an important
distinction between information which is made available to a person's circle of friends or work colleagues and information which is widely published in a newspaper.206 Whether information is known to the public at large is a matter of fact and degree for determination in each case depending on its specific circumstances.
¶3.85 The position can be summarised in a nutshell by reference to the remarks in Douglas v Hello!,
1880that once intimate personal information about a celebrity's private life has been widely published, it may serve no useful purpose to prohibit further publication.207 However, the Courts have been slow to conclude that no useful purpose would be served by injunctive relief unless the information has been widely publicised. For example, in CTB v News Group Newspapers Ltd, Tugendhat J continued an injunction in favour of protecting the identity of a professional footballer in spite of wide publicity revealing his identity on the grounds that continuing publicity would constitute unwarranted harassment.208