Media Law Sample Essay

Lady Mona Windsor is a granddaughter of a cousin of Queen Elizabeth II and is ranked 29th in line of succession to her. Last year, she was seen on television by many millions of people when she was a guest at the marriage of Prince William and Catherine Middleton. She has also appeared in photographs attending public and private social events where the royal couple have been present, which have been published in newspapers, magazines and other media outlets

An acquaintance of Mona who works at the Daily World, a national tabloid newspaper based in London, called her an hour ago to tell her that the Daily World is intending to publish a full page article about her tomorrow. The article is entitled 'Lesbian Royal takes aim at Capitalism' The article describes in some detail Mona's beliefs regarding the need for radical political and social change in Britain and the fact that she is a supporter of the Occupy movement. Mona's acquaintance at the newspaper discloses that Mona's friend Jonnie Smyke-Jones provided much of the information contained in the article to the Daily World.

The article is illustrated by two photos of Mona, both of which were taken without her knowledge. In the first photo, she is pictured at the Occupy camp, which was set up outside Saint Paul's cathedral for much of last winter, in discussion with two Occupy protesters encamped there. In the second photo, she is standing in a street outside her flat in Chelsea holding hands with Daniella Ward. The article identifies Daniella as Mona's partner of two years, with whom she shares the flat. It goes on to discuss her parent's strong disapproval of her relationship with Daniella and speculates that the Queen must also disapprove of the relationship.

Advise Lady Mona Windsor, who wishes to gain an immediate and anonymous injunction to stop the publication.

Is article 8(1) engaged?

In order to advise Mona it must first be determined whether she has a cause of action for misuse of private information. On the authority of Campbell two questions must be asked to determine whether there is such a cause of action firstly the court must ask whether Article 8 of the European Convention of Human Rights is engaged and if so, should the Article 8 interest in privacy yield the defendant's Article 10 right to freedom of expression.

In Murray the court provided that to determine if article 8 is engaged one must ask the objective question of whether there was a reasonable expectation of privacy. This question includes circumstances such as the nature of the activity in which the claimant was engaged, the place at which is 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 defendant.

To determine whether Mona had a reasonable expectation of privacy guidance can be drawn from case law of European Court of Human Rights pursuant to s2(1)(a) of the Human Rights Act . In the case of Peck the ECHR held that private life is a broad term not susceptible to exhaustive definition and has been found to include sexual orientation. The court stated that Article 8 also protects a right to identity and personal development.

It follows from this judgment that Mona did have a reasonable expectation of privacy in regards to the publication revealing her sexual orientation and identifying Daniella her partner. Moreover, it appears that she also had a reasonable expectation of privacy in regards to the publication revealing her political beliefs as a person's political beliefs relate to their identity and personal development. Furthermore, as noted in Murray the circumstances in which the information came into the hands of the defendant is a relevant factor therefore, the fact that the much of the information contained in the article was provided by Mona's friend without her permission also points towards there being a reasonable expectation of privacy.

In regards to photographs taken in public places the law appears to be inconsistent as to whether article 8(1) is engaged. In Campbell Lord Nicholls provided that England does not recognise a right to one's own image and provided that for article 8(1) to be engaged the activity photographed must be private. This approach was followed in John v Assoicated Newspapers where the Queen's Bench held that a photograph taken of Elton John whilst walking from his car to the front gate of his home did not engage article 8(1). The court noted that the photo in question was akin to Sir Elton 'popping out for some milk' and therefore following Campbell it did not engage article 8. The court also noted that the case did not involve any of the recognised categories of private information such as health or sexual life and that the fact that he did not consent was only one of the relevant factors and not sufficient to engage article 8.

However, this UK position appears to conflict with the case law of the European Court of Justice. As in Von Hannover (No 2) the court provided that Article 8 does confer the right to protection of one's personal image and it presupposes the individual's right to control the use of that image, including the right to refuse publication. Therefore, on the application of this case both photographs engage article 8. However, as the UK law has not yet addressed this inconsistency Mona must be advised in accordance with current UK law.

Therefore, the test of whether article 8 is engaged in relation to the photographs is whether the activity photographed is private. The photograph of Mona at the Occupy camp does not concern a private activity as she chose to attend a public protest therefore article 8 is not engaged and following John the fact that Mona did not consent is not enough to change the decision.

However, the second photograph in which she is holding hands with Daniella Ward is more complex. The act of holding hands in itself is not private however, in the context of the article describing Daniella as her partner of two years the act could be regarded as private as it relates directly to Mona's sexual orientation. This affirmed by Campbell, as in this case it was not the photograph itself which presented a private activity but the way in which the picture had been presented in the article that engaged Article 8. Therefore, the second photograph does engage article 8 as it is presents Mona's sexual orientation.

Balancing Article 8 and 10 The next issue that arises is whether the infringement of the individual's article 8(1) rights is justified because of the combined effect of article 8(2) and article 10. Article 8(2) provides that there will not be interference with article 8(1) rights of the individual if the public authority was acting to protect the rights and freedoms of others. Article 10 protects freedom of expression and therefore this second question can be stated as whether the Article 8 interest in privacy yield the defendant's Article 10 right to freedom of expression.

Moreover, article 10(2) provides that the freedom of expression can be restricted in order to prevent the disclosure of information received in confidence. Therefore, Lady Mona's article 8(1) rights will be strengthened if she can demonstrate that the information the Daily World received was information Mona imparted to Jonnie in confidence. In order to establish breach of confidence it must be shown that the information was confidential in nature, it must have been communicated in circumstances importing an obligation of confidence and that there was unauthorised use of the information. On the facts these criteria are established as her sexual orientation is of confidential nature, the case of McKennit confirms that friendship does impose an obligation of confidence and Mona's outrage makes clear there was an unauthorised use of the information. Therefore, Mona's article 8(1) rights are strengthened by the fact that there was breach of confidence.

In Von Hannover No2 the ECHR provided that the following criteria is relevant to the balancing exercise between article 8 and 10; whether there was a contribution to a debate of general interest, how well known the person concerned is and what is the subject of the report, the prior conduct of the person concerned, content form and consequences of the publication and the circumstances in which the photograph was taken.

In determining whether the article contributed to a debate of general interest it is helpful to consider the comments of the court in Mosley that the focus must be on whether the publication is in the interest of the public and not whether the public might be interested in reading it. The court distinguished press reports concentrating on sensational new intended to satisfy the curiosity of a particular readership regarding aspects of a person's strictly private life and facts even if controversial which are capable of contributing to a debate of general public interest in a democratic society.

On the facts it seems that Lady Mona's political views are capable of contributing to a debate of general interest for democratic society as she is a successor to thrown, albeit distantly and therefore her political opinions would be of interest for democratic society especially as discussion of political views is the heart of democratic society. However, the disclosure of her sexual orientation seems to fall into the second category of merely serving to satisfy the curiosity of a particular readership as would the photograph with her and Danielle as it is presented to support such disclosure.

On the facts, Lady Mona appears to be well known as she often appears in photographs published in media outlets. The subject of the report is her sexuality and political views. In Hannover (No2) the court provided that in certain circumstances the public's right to be informed can extend to aspects of the private life of public figures but this will not be the case where the published photos and accompanying commentaries relate exclusively to details of the person's private life and have the sole aim of satisfying public curiosity. As stated above, it appears that the public may have a right to known Lady Mona's political views but that the photo and commentary revealing her sexual orientation is purely to satisfy public curiosity.

In regards to the prior conduct of the claimant the Strasbourg court noted that the mere fact of having cooperated with the press on previous occasions cannot serve as an argument for depriving the applicant of all protection against publication of the photo at issue. Therefore, the fact that Lady Mona has often appeared in press photos in private events which suggests she has cooperated with the press does not prevent her article 8 rights from being protected.

The form and content of the article appears to be lurid and sensational as evident in the headline 'Lesbian Royal takes aim at Capitalism' which weights in favour of protecting her article 8 rights over the protection of article 10. In regards to the circumstances in which the photograph was taken, the photos were not taking with Mona's consent the consequences of the photograph alongside the comments of the article would amount to a serious intrusion for Mona in revealing her sexual orientation.

On the weighting of these factors it appears that article 10 right of freedom of expression prevails in regards to revealing of Mona's political views but not in regards to the disclosure of her sexual orientation including the photograph because of the way in which it was presented. Therefore, Lady Mona does have a cause of action for misuse of private information.

Interim Injunction

The case of Cream Holdings provides that in order to get an anonymous and immediate injunction the applicant must show that he will more likely than not succeed in obtaining an injunction at trial. On the facts, it seems clear that Lady Mona will satisfy this is as discussed above her article 8(1) rights are made strengthened by the fact that the information in the article was provided in breach of confidence. Moreover, as the balancing exercise above indicates it is more likely than not that the infringement of her article 8(1) rights in revealing the of her sexual orientation will prevail over article 10. Therefore, Lady Mona can seek an anonymous and immediate injunction.