Infringement of privacy
In Hannon & Anor v News Group Newspapers Ltd & Anor [2014] EWHC 1580 (Ch) News Group Newspapers Ltd (NGN) made an application to the High Court to have claims brought against them by Sarah Hannon and Daniel Dufour, for infringement of privacy rights under Article 8 of the European Convention on Human Rights, struck out.
Both cases arose from the Operation Elveden Police investigation which related to allegations of payments made to public officials by journalists, as part of Operation Weeting, evolving out of the News of the World phone hacking investigation.
NGN argued that both claims should have been for defamation and the time limit in respect of each of one year had expired and should be struck out.
Ms Hannon and Mr Dufour had been told by Police that a police officer had given information regarding their arrests to journalists for NGN and he had accepted payment for the information given.
The Sun newspaper printed a sensationalist account of what should have been a quiet and unremarkable arrest and mistakenly suggested in their article that Mr Dufour, an airline pilot, had in his system, blood-alcohol levels exceeding the limits for those of a pilot.
Ms Hannon’s case also involved an article in the Sun Newspaper and matters associated with an aircraft and alcohol. She had been arrested after catching a flight from Bangalore with two others and she was the only one not charged.
Both cases made claims for damage to reputation, anxiety humiliation and distress and in the judgment given by Mr Justice Mann he found that the arguments put forward by NGN failed as they argued that the “nub” of the claims only related to reputation whereas Mr Justice Mann said he thought that argument given by NGN that damage to reputation cannot be a privacy claim had not been made by them. He commented as follows:
The judge did not consider that had been made out on the summary judgement application.
” I have come to the conclusion that .. [Counsel for NGN] has not established the accuracy of his central proposition (that reputation can only be protected in a defamation claim and not in the claims made in these actions) with sufficient clarity, and that such an important determination is not appropriate in an application of this sort at this stage of the action.”
The Judge did not consider that as a matter of principle
“necessary or appropriate, or even in some cases practically possible, to draw a hard line between the element of privacy or confidence claims which go into what might be called the realms of reputation,and other elements.”
He gave an example of public disclosure of medical records of an embarrassing old sexual medical condition affecting a prominent person, in which it would never have become known without a clear invasion of privacy,assuming no public interest justification or other justification to be available. The disclosure will cause embarrassment and there will be some damage to his/her reputation. He went on to say defamation may not give a remedy because of the availability of justification. He wondered why, as a matter of principle, damage to reputation of this kind cannot be a privacy claim.
NGN’s closing argument was that there were no reasonable grounds for privacy in both of the cases and they would fail , Mr Justice Mann stated it was not normal for the Police to identify people who have been arrested and he referred to the Association of Chief Police Officers and Chapter 3 of the Leveson Report saying as follows:
“Mr White invites me to decide that there can be no such claim because there is no privacy in the fact and circumstances of an arrest. If that is correct then one is tempted to wonder why a journalist would pay for the information (which is what I have to assume for the purposes of the application before me), but it is unnecessary to dwell on that. For present purposes, it is sufficient for me to observe that the key authority relied on by Mr White (AxelSpringer) does not support an absolute right of the press to have, and to publish, the fact of an arrest, and its circumstances. At most it supports a submission that, if the facts justify it, that right exists and the countervailing privacy rights do not. As with a large number of disputes under Convention rights, that is a question of fact and degree, and is highly fact sensitive.”
NGN will now have to proceed to defend the two cases with Mr Justice Mann’s judgment defeating the arguments they put forward to strike out both claims.