This article considers the civil law of privacy and its application to journalism. It also looks at the Independent Press Standards Organisation (IPSO) ruling in Doyle v Nation.Cymru to illustrate how the law can apply to practice, and that attention to legal compliance can benefit public interest journalism in Wales.
The law of privacy – otherwise known as ‘misuse of private information’ – in England and Wales is comparatively recent. It emerged through the common law (judicial case-law) being directly impacted by the Human Rights Act 1998 (HRA).
Freedom of expression vs right to privacy
The HRA gave domestic effect to the European Convention on Human Rights (ECHR). Specifically, article 8 of the ECHR states that: “Everyone has the right to respect for [their] private and family life, [their] home and [their] correspondence.”
And article 10 states that: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas.”
These are not absolute rights, and each can be restricted – for example, to protect the rights of others. Which right takes precedence will involve a balancing exercise. A journalist may want to publish a story about a public figure’s private life (article 10), but that person objects (article 8).
Under the law of privacy, if a person (C) has a reasonable expectation of privacy then normally intrusion into that privacy is not justified. If there is intrusion by someone (D), C can obtain damages (compensation) for harm arising and/or an injunction to stop or prevent the intrusion. There are defences available to D, such as that C was not entitled to a reasonable expectation of privacy, that C has consented, or that D’s intrusion is in the public interest.
The focus here is on the public interest defence. ‘Public interest’ is not defined in law but there are examples to draw on elsewhere. For a journalist, intrusion when a person has a reasonable expectation of privacy is only justified when it’s in the public interest. Examples of where this has not been justified include historic cases of intrusion through ‘phone hacking’, leading to the Leveson Inquiry and the closure of the News of the World.
Public interest and the IPSO code
A free press is necessary for a vibrant and healthy democracy. Investigative public interest journalism is core to a functioning free press. Current events within both the Labour and Tory parties in Wales are testament to this. So ensuring that journalists can successfully negotiate the legal landscape is essential.
Codes of practice have been framed to guide journalists: the IPSO and Impress codes for print journalists, and the Ofcom code for broadcast journalists. Each reflects the law. That is, that journalists must not intrude on a person’s reasonable expectation of privacy unless it’s in the public interest.
The IPSO code gives non-exhaustive examples of what ‘public interest’ means. This includes exposing crime or serious impropriety, or protecting the public from being misled. It requires editors to have a reasonable belief that intrusion would serve the public interest and be proportionate, and they must be able to explain how they reached their decision to intrude. Note that it isn’t sufficient only to establish a public interest justification. Intrusion must also be proportionate; that is, no more than necessary.
Doyle v Nation.Cymru
In Doyle v Nation.Cymru, then-S4C chief executive Siân Doyle complained that the newspaper had breached clause 2, the privacy clause, of the IPSO code. In October 2023 it reported that she’d been signed off work with stress. This was against a backdrop of well-publicised news reporting concerning problems at S4C.
Doyle argued that the reason she was signed off work was something about which she had a reasonable expectation of privacy. Nation.Cymru argued that, due to the nature of the story, it was in the public interest to report that information. And that, furthermore, it was proportionate action. It could not be argued that the private information published about Doyle was already publicly available.
The complaint was not upheld. In the ruling, it was accepted that Doyle otherwise had a reasonable expectation of privacy concerning the reason for being off work. But the newspaper was able to justify publication as being both in the public interest and proportionate. It was also able to evidence its decision-making process.
Doyle is not precluded from taking legal action against Nation.Cymru for breach of privacy, but the IPSO ruling would be considered by the court when deciding a future claim. Section 12 of the HRA allows this.
Human Rights Act impact
Section 12 applies to a situation where a court is deciding something that may affect the exercise of article 10, the right to freedom of expression. So the court is carrying out a balancing exercise between article 8 and article 10 rights to decide which should prevail.
When the proceedings relate to ‘journalistic material’, that court must have ‘particular regard’ to certain factors. These are the importance of freedom of expression; any ‘relevant privacy code’ (this includes the IPSO, Impress, and Ofcom codes); the extent to which the information has been, or is about to become, publicly available; and the extent to which it’s in the public interest to publish the information. In carrying out that balancing exercise, if it can be demonstrated that relevant factors apply, the court is more likely to uphold article 10.
Applying section 12 to Doyle v Nation.Cymru, any future proceedings would relate to journalistic material involving the balancing of the paper’s right to freedom of expression (article 10) and Doyle’s right to privacy (article 8).
The court would look at the IPSO code and whether it was in the public interest to publish that material. The IPSO code gives examples, to help decide if publication was in the public interest. And it provides a set of standards against which to judge journalistic practice. Compliance with the code improves the chances of article 10 being upheld and publication deemed as justified.
Evidencing compliance with the IPSO code is therefore important. It can demonstrate a reasonable belief that intrusion is in the public interest through “reliable evidence of the actual thought-processes of editorial decision-makers” (Sicri v Associated Newspapers Ltd [2020]).
In the public interest
The development of the law of privacy has restricted the legal ability of the press to report on matters where there’s a reasonable expectation of privacy. That’s not necessarily a bad thing, given the excesses of past behaviour at some newspapers.
But the law has also sharpened the tools of journalistic investigation into private life where there is public interest justification. That legal framework on privacy is reflected in the various codes for journalists.
The ruling in Doyle v Nation.Cymru is a good example of how a code of standards can provide the basis for defensible public interest journalism. In particular, the case shows the importance of evidencing the editorial decision-making process. Hopefully the decision, and the example it sets, can be a positive influence on public interest journalism in Wales.
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