A More Principled Approach to the Conflict between Privacy and Freedom of Expression in the Law of Misuse of Private Information

Jelena Gligorijevic Trinity College, Cambridge

"[T]he ends of men are many, and not all of them are…compatible with each other…, the possibility of conflict…can never be wholly eliminated from human life." (Isiah Berlin, Liberty (OUP 2002) 214.)

Privacy and freedom of expression are rights enshrined in the European Convention on Human Rights. The duty of English courts to protect these rights is complicated by the fact that in many cases the two rights come into conflict with each other. The tort of misuse of private information forces the courts to confront this problem, when one person tries to prevent another from revealing private information. The courts’ current approach to the second stage of this tort lacks sufficient consistency, transparency and principle. This risks undermining the credibility and reliability of English law in dealing with rights, necessitating a thorough examination of the relationship between these two rights as it appears in the tort, and how judicial reasoning in relation to it can be improved.

The rights to privacy and freedom of expression are locked in a genuine rights-conflict in the tort’s second stage, where one right must give way to the other. Private information either may or may not legally be disclosed; either privacy or freedom of expression can be upheld – but not both, and not neither. This unavoidable loss of rightholding entitlement is a serious implication that means the court’s choice between these two rights must be based upon clear and principled justification. Yet current doctrine in the tort’s second stage is critically wanting. Poor justificatory reasoning is rooted in a judicial preoccupation with ‘public interest’, which minimises the rights-conflict and its implications, and marginalises the two rights and their normative ends. A utilitarian economy of rights underlies the doctrinal scaffolding of ‘rights-balancing’, and fails to give full force to the rights’ normative underpinnings and to provide principled, rights-focused justification when one right must be suspended as a result of the conflict.

In order to re-orientate the common law to the very rights which it purports to protect in the tort of misuse of private information, English courts should adopt a tailored proportionality-optimality method in that tort’s second stage. While ensuring the courts remain within the boundaries set by precedent, this new method of reasoning forces the courts to recognise and confront the rights-conflict and its implications, and to justify their resolution of that conflict in terms of the rights themselves and their normative import, and not the ‘public interest’. This method incorporates the two context-based theories of resolving rights-conflicts that are best suited to the normatively complex rights of privacy and freedom of expression: proportionality and optimality. Tailored to the specific conflict between these two rights, these theories are merged to ensure the tort’s inevitable suspension of one right is justified on the basis that it entails, on the facts, the least possible frustration of rights, combined with the greatest possible furtherance of rights. The court must uphold that right whose normative underpinnings are overall furthered (by the right being upheld) to a greater extent than the normative underpinnings of the other right are overall frustrated (by the right being suspended). The overall degree of furtherance of the upheld right must always be greater than the overall degree of frustration of the suspended right.