In the News

When Should The Right To Privacy (Not) Be Protected?

Andy McHugh

17th February 2019

This week, the Tate Modern won a landmark case on the issue of privacy. The case was brought by residents of a nearby tower block, who complained that visitors to the Tate Modern used the viewing platform to look into their apartments. This was exacerbated by the fact that the apartments had floor-to-ceiling glass windows.

Judge Mann argued in his summing up that the residents of the building who brought the case could in fact take simple and perfectly reasonable steps to avoid the need to shut the viewing platform of the museum, including installing net curtains, lowering existing blinds or putting privacy film on the glass windows. Additionally, the fact that the residents knew that the interior of their homes were viewable made it difficult to find in their favour. This has clear overlaps with the tort of private nuisance, where a pre-existing nuisance was known before owners or residents moved in.

You can read more about the case in this article here.

Of course, if the residents wanted true privacy, they could always do what Facebook founder Mark Zuckerberg did when he bought his property and make sure to buy the adjacent properties too so that nobody could spy on them!

During the Tate Modern case, similarities were drawn with the case that Sir Cliff Richard won against the BBC regarding invasion of privacy. Here, the BBC were judged to have gone beyond what was reasonably acceptable in their investigation and particularly their coverage of claims he had committed child sexual abuse. In the subsequent police investigation, there was insufficient evidence to bring a case against the singer, who had always maintained his innocence. Despite this, the BBC had sent a helicopter to film a raid on his house and to broadcast this to millions of viewers. Apart from potentially prejudicing an investigation, or putting thoughts into the mind of a future jury, the BBC had breached the singer’s right to privacy under ECHR Article 8.

Judge Mann said of the BBC’s breach of privacy in the Richard case “It did so in a serious way and also in a somewhat sensationalist way,” he said. “I have rejected the BBC’s case that it was justified in reporting as it did under its rights to freedom of expression and freedom of the press.” In response, however, many legal commentators and media outlets have argued that this decision sets a dangerous precedent. In future, arrests might not be made public and criminals would more easily act unhindered.

You can read more about the Richard case here.

Exam Tip:

When exploring a scenario question containing privacy issues and freedom of the press, it is vital that you spend time considering the potential benefits and negative consequences of protecting each one. This can (and should) be done in advance of the exam. A good way to do this is to draw up a list of advantages and disadvantages of each, with a handful of cases, like the ones above, to illustrate the points you intend to make.

Andy McHugh

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