'Is it in the public interest?' is a question you need to ask before publishing personal information. The more private or intimate the information is, the greater the public interest justification needs to be.
This is a general and brief account of privacy law and some of the issues that may arise for journalists. It is not a comprehensive account of the law in this area, nor should it be relied upon to make any judgment. BBC journalists should always take specific advice from the BBC’s legal team.
Of course, what is in the public interest is not the same as what is of interest to the public.
In simple terms, the court will balance someone’s right to a private and family life against the media’s right to freedom of expression. This is an area of the law that has developed significantly following the incorporation of the European Convention on Human Rights into UK law in 1998.
Privacy law may be relevant, for example, when you are reporting stories about people’s personal or sexual lives, finances, information about their health, or filming them in their house without their permission. It can even sometimes include situations where the person is in a public place - for example, at a funeral.
Expectation of privacy
The first issue is whether the person had a reasonable expectation of privacy in relation to the information. One way of looking at this question is to ask yourself how you would feel if the information in the story you’re thinking of doing was published.
It does not include trivial information. Generally speaking, if the information is already in the public domain then it will not be private.
If a court decides that a person has a reasonable expectation of privacy in relation to a piece of information or a situation, it then looks at the issue of whether, nonetheless, the public interest in the story outweighs this.
In broad terms, this is about whether the issue is of public importance rather than tittle tattle.
Examples of what might be in the public interest include revealing crime, protecting public health or exposing misleading claims by institutions.
The more private or intimate the information is, the greater the public interest justification will need to be for publication.
Invasion of privacy
The law allows people to bring actions for invasion of their privacy, for which the court can award damages. The level of damages is relatively low when compared to damages in libel. The highest recent award was £60,000. However, the legal costs of a case will usually be significantly higher than the damages awarded and are paid by the losing party.
Privacy injunctions are regarded by many as a more important way of protecting their privacy because once private information is published it is difficult to make it private again. As a result, people are usually more concerned with preventing publication of the story than with getting damages subsequently.
Privacy injunctions are orders of the court that prevent publication of the private information. These are often obtained on an urgent basis shortly before a planned story is due to be broadcast, when there is not sufficient time for the court to properly consider all of the arguments.
As a result, the court will often grant an ‘interim injunction’ which is put in place until a full trial of the issues.
Interim and super injunctions
If a person applies for an interim injunction, the court will decide whether or not the person seeking the injunction is more likely than not to succeed at trial - so in essence the court will look on a preliminary basis at the issues discussed above.
Sometimes, in order to avoid undermining the purpose of an injunction, the court will also order that the media is not allowed to report who has obtained an injunction (which is when you will see letters used instead of a person’s name in reports). In rare cases, it will order that the media cannot publish the fact that an injunction has been published at all (often called a ‘super injunction’).
The College of Journalism offers face-to-face and online courses for BBC staff:
BBC training is available to non-BBC staff on a commercial basis.
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