What has just happened?
News Group Newspapers Ltd., and its executive editor Dan Wootton, have drawn unwanted scrutiny surrounding the nature and ethics of the current entertainment industry. In a hearing dated 13th May 2020, the claimant, Mr. John Christopher Depp, brought an action for libel over articles published by The Sun, branding Mr. Depp a “wife beater”[1] and making false allegations of verbal and physical abuse, contrary to the Domestic Violence, Crime and Victims Act 2004. According to Depp’s barrister David Sherbourne, the article made “defamatory allegations of the utmost seriousness”,[2] as per section 1 of the Defamation Act 2013. At the crux of this dispute lays the conflict of interest between the European Convention on Human Rights articles 8 and 10.
What does this mean?
Expounded by Oliphant, the case presents the court with the quintessential balancing practice, between “the right of the individual to keep personal information private, and the right of the press to publish matters of public interest”.[3]
As per the drafting of each Convention right, neither article has precedence over the other. Each presenting their own variety of benefits, it is not possible for the court to universally elect one article over the other. Whilst the sustenance of privacy is crucial in an ever- intrusive world, the importance of free journalistic expression should not be understated. Performing as a vehicle for intellectual, educational and artistic speech,[4] such expression crucially fosters “individual originality and creativity”,[5] and allows the creation of critical, independent thought. It is not therefore possible to universally prioritise one article over the other. Yet the axiom that the articles are equal is no more straightforward. In understanding the appropriate balance, one must recognise that Article 10 is the aggravator of Article 8, insofar as the individual right to privacy is implied until an Article 10 interest raises a challenge. Ergo, the burden falls upon the defendant to prove that freedom of expression is so required as to necessitate the sacrifice of privacy.
In identifying this appropriate balance, it is crucial to distinguish the underlying dichotomy[6] of journalistic expression ‘in the public interest’, versus that ‘of interest to the public’. In discerning the difference, various public- interest-based justifications have been put forth, inter alia, the contribution to democratic debate; the detection and exposure of crime; and the prevention of misinformation.
Unlike other torts which require pecuniary loss, the loss of privacy is considered distinct in that the courts are willing to recognise intangible repercussions, stemming from the loss of control and dignity. Encapsulating the severity of privacy breaches, it must be borne in mind that, as in many torts, these harms are not rectified easily. Even after injunctions or damages, the injuries suffered are often irreparable. As suffered by Mr. Depp, the allegations painted that he is “not fit to work in the film industry”[7] destroyed his reputation both as an actor and as an individual.
How does it impact the legal sector?
Despite occasionally yielding to the demands of free expression erroneously, the courts have primarily imparted fair rulings, ensuring that as far as possible, the fundamental respect for privacy is deservedly protected and upheld. Today more than ever, the protection of the individual’s right to privacy is critical. In an age where paparazzi are willing to debase human dignity for a photograph and journalists will invade the ‘home’ sphere in the name of entertainment and profit, it is imperative that courts continue to affect this strict and rigorous balancing process.
Strengthening judicial opinion that such reportage should have “qualitative value”[8] and serve a “legitimate social purpose”,[9] not merely to incite gossip,[10] one must hold hope that this case will reinforce the courts’ tendency to uphold the Article 8 respect for privacy, preventing violations where they are not absolutely necessary for the public interest. Presenting a need that goes beyond the simple enjoyment of privacy, this case further provides the necessity of privacy for the fulfillment of a fair trial, entrenched under Article 6 of the Convention. Circumventing the risks of a show trial, Article 6(1) provides that the press and public may be excluded from “all or part of the trial… to the extent strictly necessary in the opinion of the court, in special circumstances where publicity would prejudice the interests of justice”.[11] In this manner, where a negative correlation exists between publicity and one’s right to a fair trial, the right to privacy must take precedence.
Written by Holly Crowder
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References:
[1] Depp v News Group Newspapers Ltd [2020] EWHC 505 (QB) [at 4].
[2] ‘Johnny Depp: Claims in the Sun he beat ex-wife ‘complete lies’, court told’ BBC News (7th July 2020)
[3] Oliphant, K. Tort Law: Text and Materials (Oxford University Press, 6th edn., 2017)
[4] Campbell v MGN Ltd [2004] UKHL 22, per Lady Hale [at 148].
[5] Ibid
[6] Moosavian, R. ‘Deconstructing ‘Public Interest’ in the Article 8 vs Article 10 Balancing Exercise’ (2015) 6 Journal of Media Law 234, 243.
[7] Depp [at 4].
[8] Moosavian, 252.
[9] CTB v News Group Newspapers [2011] EWHC 1232, hereafter ‘Giggs’.
[10] Moseley v News Group Newspapers [2008] EWHC 1777
[11] Article 6(1) ECHR 1950.
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