Robin Callender Smith’s research while affiliated with Queen Mary University of London and other places

Developing case law in relation to Norwich Pharmacal discovery litigation – coupled with the Supreme Court’s Phillips v Mulcaire decision about compelled interviews - shows a clear and distinctive trend towards protecting a broad range of intellectual property rights that may be damaged or infringed by unauthorised downloading or hacking. Statutory provisions in the Digital Economy Act 2010 reinforce the protection being given to copyright owners.However issues in relation to an individual’s personal data, clearly protected as an expressed stand-alone right the Article 8 of the EU’s Charter of Fundamental Rights, are only rarely being identified, articulated, weighed and given a separate identity in the proportionality balance conducted in the overt judicial reasoning that emerges from such litigation.When the Charter Article 8 personal data protection issues are actually identified in these intellectual property discovery situations then they are being analysed only by reference to EHCR Article 8 privacy principles which, it will be argued, ignores and detracts from a proper analysis and development of the essence of personal data enshrined in the EU’s Charter.

A general 'news' tag around which to hang the publication of celebrity ‘out-and-about’ pictures can trump ECHR Article 8 privacy rights with the Article 10 right to impart information. The fact that such pictures were not taken surreptitiously can also be an important factor in the proportionality balancing act between the two rights.

A criminal libel trial in 1911 set the monarch against one of his subjects. Edward Mylius repeated a rumour that accused King George V of marrying Queen Mary when – secretly – the King had previously married someone else and had three children. The criminal charge, the process used to bring the issue to court, the advice to the King of the relevant ministers (including Winston Churchill as Home Secretary) and the trial itself stretched the boundaries of fairness. The legacy of the trial created a lingering problem. Can the monarch ever be required to face the direct scrutiny of examination by being required to appear as a witness in his or her own court to support a personal complaint?

Joined Cases C-509/09 and C-161/10 eDate Advertising GmbH v X and Olivier Martinez v MGN Limited, Court of Justice of the European Union (Grand Chamber), 25 October 2011.

The development of the concept of privacy in English law has been heavily influenced by the existence of two mature and specialist areas of law. Libel law has traditionally focused on reputational privacy. Equitable remedies, such as breach of confidence, have broadened to protect seclusional privacy. These two areas of law – now developing through case law reflecting Articles 8 and 10 of the European Convention on Human Rights – are coalescing. This may lead to greater use of ‘responsible journalism’ techniques that address issues arising where prior notification of breaches of reputational or seclusional privacy becomes the norm.