APPENDICES
"it is in the public interest that newspapers should be able to report upon cases which raise a question as to what should or should not be a standard in public life. The law, and standards in public life, must develop to meet changing needs. The public interest cannot be confined to exposing matters which are improper only by existing standards and laws, and not by standards as they ought to be, or which people can reasonably contend that they ought to be."
¶However, the Court emphasised that:
"[As a] matter of principle, the right to respect for private life of persons holding responsible positions cannot be overridden in the interests of freedom of expression simply because a newspaper alleges that they might have a worry that might distract them from doing their jobs. It cannot be right that the press should be free to interfere with a person's private and family life by exposing confidential information, and then seek to justify that by speculating that the information might have distracted him from doing his job."
¶3.104 In Mosley v UK, the ECtHR recognised the distinction between reporting facts, even if
controversial, capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individual's private life.231 In respect of the former, the pre-eminent role of the press in a democracy and its duty to act as a "public watchdog" are important considerations in favour of a narrow construction of any limitations on freedom of expression. However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, and which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person's strictly private life. Such reporting does not attract the robust protection of Article 10 afforded to the press. Critically, the court confirmed the Article 10 right of members of the public to have access to a wide range of publications covering a variety of fields, but stressed that in assessing whether there is a public interest which justifies an interference with the right to respect for private life, the focus must be on whether the publication is in the interests of the public and not whether the public might be interested in reading it.
to intimate details of persons' private lives. In Campany Y Diex de Revenga v Spain, the Court was concerned with the publication of a sex scandal between an aristocrat and a banker and, in rejecting the complaint of breach of Article 10, held that even though the persons were known to the public the reports could not be regarded as having contributed to debate on a matter of general interest to society.232
¶3.106 In considering the public interest in any publication it is important for the court to focus on
the precise nature of the proposed publication and on the facts of an individual case, rather than reciting considerations of a generalised nature. In McKennitt, Eady J emphasised that:233
"[it is] necessary to scrutinise with care any claims to public interest – which are sometimes made by the media and their representatives on a rather formulaic basis".
¶3.107 This does not sit easily with the submission advanced by some media groups, for example
1885News International, that it is a common misconception that the media must justify any publication which involves private information of any kind by pointing to a specific public
¶Appendix 4 | Legal Materials
interest in the publication of the particular information in question.234 Although the point may be well made in instances where the alleged infringement of privacy is at too low a level as to engage Article 8 and whilst the Court in A v B plc stated that any inference with the press has to be justified irrespective of whether a particular publication is desirable in the public interest, the case law over the past decade has revealed that in any case where Article 8 is clearly engaged the courts will require the media to demonstrate the public interest in the particular publication and this will be highly material in the balancing exercise.235
¶3.108 The issue of who should be the arbiter of public interest has been the subject of analysis
in recent authority. The case law suggests that it is for the court to determine whether the proposed publication would be in the public interest, although this position is not without its difficulties. In Mosley v News Group Newspapers Limited, Eady J held that on the current state of the authorities it is for the court to decide whether a particular publication was or was not in the public interest, and that there was little if any scope for considering the defendant's state of mind "because it is only the court's decision which counts on the central issue of public interest".236
¶3.109 However, this position in respect of misuse of private information can be contrasted with
the provisions of the DPA in which the exemption available to the media in section 32 is dependent upon the data controller reasonably believing that publication would be in the public interest and therefore the enquiry pursued by the Court is into the state of mind of the data controller and whether their belief was a reasonable one.237 Similarly, Parliament has amended the data protection legislation to provide for a public interest defence to the criminal offence in section 55 (although this section has not been brought into force), and the terms of this defence focus on whether the media defendant acted in the reasonable belief that its processing of data was in the public interest, and not on whether it actually was in the public interest.
¶3.110 These provisions were considered by Tugendhat J in Terry v Persons Unknown, where it was
observed that there was uncertainty in the existing law as to the extent to which, if at all, the belief of a person threatening to make a publication in the media is relevant to the issue of public interest. After citing from the judgment of Eady J in Mosley v News Group Newspapers Limited and referring to the provisions of s32 of the Data Protection Act 1998, he observed that:238
"The Data Protection Act might well apply to a newspaper publication, and in particular to an online publication. If that Act did apply, it would be anomalous if the public interest defence under Section 32 required the Court to have regard to the reasonable belief of the journalist, but that the same defence under the general law did not. I cannot decide that any reasonable belief on the part of a journalist or editor would be irrelevant without hearing argument for that proposition, if it is to be advanced."
¶3.111 However, the position was set out in more robust terms in Goodwin v NGN Ltd where
1886Tugendhat J held that whilst newspaper editors have the final decision on what is of interest to the public: judges have the final decision what it is in the public interest to publish.239