Do individuals in the UK have a right to privacy?

A review of the position of Catherine, The Princess of Wales 

With recent events and commentary surrounding the medical history and whereabouts of Catherine, The Princess of Wales (Kate), many people have been asking whether she has a right to keep such information private, and whether individuals in the UK have a general right to privacy.

Legal background 

In 2004, the House of Lords gave judgment in the seminal and well-known case of Campbell v MGN.  There it was confirmed for the first time that the Human Rights Act 1998 (HRA) required the UK Courts to comply with Article 8 of the European Convention for the Protection of Human Rights (ECHR) – namely, that individuals have a right to respect for their private life, family life, home, and correspondence. 

The current legal position  

Through the HRA and Campbell it is now recognised that individuals in the UK can bring a claim for “misuse of private information“. In assessing whether there has been a misuse of private information, a two-stage test has been established: 

Stage One:  

Did the claimant have a reasonable expectation of privacy in respect of the relevant information? 

In assessing whether there was a reasonable expectation of privacy, the question to be asked is whether disclosure of the information about the individual concerned, would give substantial offence to a reasonable and ordinary person placed in similar circumstances. 

It is necessary to consider all the circumstances and facts of the case. The factors a court will consider, include (but are not limited to): 

• The attributes of the claimant. 

• The nature of the activity in which the claimant was engaged. 

• The place at which it was happening. 

• The nature and purpose of the intrusion. 

• The absence of consent and whether it was known or could be inferred. 

• The effect on the claimant, and the circumstances in which and the purposes

for which the information came into the hands of the publisher.  

• If information relating or similar to the relevant information is already in the

public domain, it may impact whether there is a reasonable expectation of

privacy. 

Stage Two:  

If stage one is satisfied, then stage two must be considered. Stage two involves consideration of whether the individual’s right to privacy (Article 8 ECHR) is outweighed by the freedom of expression rights (Article 10 ECHR) of the other party.  

In challenging an individual’s right to privacy, the argument typically deployed is that disclosure of the relevant information was in the public interest. That then leaves the court in the position of considering and balancing the competing interests. The key balancing factors are: 

• Neither Article 8 nor 10 of the Convention has precedence over the other. 

• Where there is a conflict between the values under Article 8 and 10, an

“intense focus” is necessary upon the comparative importance of the specific

rights claimed. 

• The court has to take account of the justifications for interfering with or

restricting each right. 

• The proportionality test has to be applied to each. 

ANALYSIS 

Medical records 

Some commentators have argued that the public should be entitled to know the nature of the medical procedure Kate underwent and have speculated as to why her recovery is taking so long. In addition, there have been alleged (but unproved) attempts by staff at the hospital to access Kate’s medical records. If this is proved to be true, it would represent a significant breach of Kate’s data protection rights and the clinic could be liable to pay damages and/or a fine.  

In respect of any proposed public disclosure of Kate’s medical records and/or history, it is without question that she has a right to privacy, given the nature of the information and documentation concerned. That is despite the case that she, along with other members of The Royal Family, have chosen to place details of their medical history into the public domain previously. This includes, for example, Royal births, The King’s recent medical issues, and the fact that Kate was to undergo surgery.  

Medical records are arguably the most sensitive personal data and perhaps the most obvious example of personal information that engages Article 8 ECHR. Even if a member of The Royal Family chooses to place some information pertaining to a medical condition in the public domain, there’s unlikely to be a strong argument that the public are entitled to any further information whatsoever, although the individual(s) may of course choose to disclose some information voluntarily.  

Whereabouts 

Whilst The Royal Family frequently publishes information about their public duties and schedules, it is obviously not the case that the public at large are always entitled to know their whereabouts. It may only be where, for example, a newspaper establishes Kate’s whereabouts and seeks to publish that information, and where Kate then seeks to restrain publication, that the question could ever realistically fall to be considered by a court.  

Assuming this hypothetical situation arises for the purposes of this article, the question of whether the public are entitled to know Kate’s whereabouts is less clear-cut. Such information is undoubtedly within the scope of Article 8 ECHR rights given that it is personal information concerning a person’s private and home life. But in considering the stage one factors and circumstances of the case: Kate is a leading figure in The Royal Family who chooses to place herself in the public domain regularly and who engages in official public duties for which public funds are received. It is arguably therefore in the public interest to know the whereabouts of a member of The Royal Family and what they are doing in certain circumstances.  

Recent cases have considered the rights of public figures. In such circumstances, disclosure of private information may be justified either because their public role reduces the scope of their reasonable expectation of?privacy, or is at least capable of contributing to a debate of general interest. 

For example, in von Honnover v Germany (No2), a German magazine published a series of photographs showing, Princess Caroline of Monaco and her husband, on skiing holidays. One of the three photos gave information on the illness of the reigning Prince of Monaco and had picture accompanying it. It was held to be in public interest since it gave information to the public on The Royal Family. 

Individuals in the UK undoubtedly have a right to privacy in certain circumstances, but it requires careful analysis of the facts and circumstances and application of either one or both stages of the test.  

Joseph McCaughley is a Consultant Dispute Resolution Solicitor at Setfords with experience advising prominent individuals and global businesses on issues of privacy law amongst other things. 

This article is for guidance only and isn’t intended to constitute formal legal advice.