Last week, the Supreme Court refused to grant the Mirror Group permission to appeal against the damages it must pay to eight phone hacking victims. The judgment is important because it has implications far beyond phone hacking. It is a marker of the growing importance of privacy law for all publishers, both national and regional.
The implication of the refusal to grant permission to appeal is that Mr Justice Mann’s earlier judgment has been confirmed. As a result, we now know that the privacy damages should be seen as twofold: firstly, as compensation for the considerable distress caused by the phone hacking stories themselves, and secondly as an award for the misuse of private information. He rejected the Mirror’s argument that this was double counting.
The judge said that protection for the right to respect for private life had to be practical and effective. Therefore, to confine damages to distress only would be inconsistent. There should be a separate award for the misuse of private information, even if it did not result in distress.
Lawyers were already speculating that claimants may begin to favour privacy claims over libel. One reason for this is that since 2014, the threshold for bringing a defamation claim is much higher than it was. The aggrieved person must prove that a statement has caused, or is likely to cause, his reputation serious harm. Embarrassment and hurt feelings is not enough.
Privacy claims have no such threshold. Mr Justice Mann distinguished the two actions by describing the role of privacy law as “to protect such matters as personal dignity, autonomy and integrity”. Thus, privacy damages are compensation for the infringement of a right, whereas libel damages are compensation for the harm to the claimant’s reputation.
A second reason for taking privacy much more seriously is that it may become a more attractive cause of action for claimants because the damages are now comparable with the levels awarded in defamation cases.
The judge said that it was relatively early days in claims for breach of privacy but that the size of awards was increasing. He awarded substantial damages ranging from £72,000 to £260,250.
For journalists, making the day-to-day assessment of what is acceptable reporting on an individual’s private life and what is a reasonable expectation of privacy is a notoriously difficult judgment call.
Mr Justice Mann provided a helpful guide to serious intrusions, with private medical information at the top, followed by private financial matters. The internal details of a relationship are considered to be private. Information that disturbs a marriage, for example, would be treated as a serious infringement deserving substantial compensation. Further down the scale, taking photos of a private meeting will be considered less harmful, unless there is a degree of persecution involved.
Compensation will depend on the significance of the information and the effect on the victim; from short-term embarrassment to life-changing intrusion. The extent of the damage may also be person specific. For example a sensitive individual could be more upset and therefore deserve more compensation than someone who is thicker-skinned.
A second appeal case last week also provides other pointers. It involved the balancing of a celebrity’s right to respect for privacy and home life and the Sun on Sunday’s right to freedom of expression. The Court of Appeal reversed an earlier decision and granted an interim injunction banning the publication of the celebrity’s affair.
The decision reinforced the view that kiss and tell stories, which did no more than satisfy readers’ curiosity, do not serve the public interest.
The Judge agreed that the newspaper had the right to publish articles criticising people who put themselves in the public eye. However, if the story were published it would be devastating for the celebrity and his children and this could not be justified in the public interest.
The reasoning was that although the celebrity did have occasional sexual liaisons, he was not being hypocritical in his public portrayal of his marriage as a long-term commitment, because the sexual encounters did not detract from that commitment.
These cases are important reminders that privacy will become a more significant issue for editors and time goes on and case law builds up.